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THE CODE OF CONDUCT FOR RESPONSIBLE FISHERIES: THE REQUIREMENT FOR STRUCTURAL CHANGE AND ADJUSTMENT IN THE FISHERIES SECTOR

by
David J. Doulman
Senior Fishery Liaison Officer
International Institutions and Liaison Service (FIPL)
Rome, Italy

November 1998



SUMMARY

Following background information concerning events that led to decision by the FAO Committee on Fisheries to develop the Code of Conduct for Reponsible Fisheries, the paper discusses the process in which the Code was elaborated. Its purpose and objectives are then considered. The structure of the Code is outlined. In terms of implementation, FAO's global initiatives are reviewed along with regional considerations, the need for closer collaboration among fishery bodies, national responsibilities for implementation, and outcomes. The next section concerns the Code in the Western and Central Pacific Ocean context, including the possible need to regionally adapt some aspects of it to take account of regional specificities. The conclusion emphasises the need to focus more intensively on fisheries management, and to address past shortcomings, if fisheries are to be sustainably exploited in future and the contribution of fisheries to food security maintained.


I. BACKGROUND

The Food and Agriculture Organization of the United Nations (FAO), in accordance with its mandate in fisheries within the United Nations (UN) system, plays a pivotal role in monitoring and reporting on global developments in fisheries. In 1993, as part of its so-called ‘watch dog’ reporting, the Organization brought to the attention of the international community the poor, and in some cases, declining state of a number of the world’s more important and valuable fisheries. At the same time, in its reporting, FAO highlighted the fundamental role played by fisheries and aquaculture in food security, and documented improvements that have taken place in fisheries management, including reporting on national and regional initiatives that have been adopted to promote sustainable resource-use practice.1

In 1993 FAO published its revised special chapter of The State of Food and Agriculture 1992.2 Some commentators have noted that this publication represented a milestone in FAO fisheries analysis. Significantly, the publication was prepared ten years after the conclusion of negotiations for the 1982 United Nations Convention on the Law of the Sea (1982 Convention). In the analysis presented it was possible to reflect on global changes in the fisheries sector in the decade following the general international acceptance of the concept of extended jurisdiction, and the impact that such jurisdiction had had on the way in which national fisheries were being managed.

At the conclusion of the negotiations for the 1982 Convention it had been assumed, implicitly at least, that the formalisation of the concept of extended jurisdiction in international law would lead to a substantial improvement in the way in which the world’s fisheries resources were managed and utilised.3 However, the FAO analysis, drawing together data and related fisheries information in a novel way, showed that the anticipated improvement in fisheries management had not been generally realised as a consequence of the "new-world order" in fisheries. Moreover, the FAO analysis provided, for the first time, global estimates of fish stocks that were considered to be fully exploited, over-exploited or in a state of recovery.4 This analysis, widely quoted in the international fisheries press and literature, has become something akin to benchmark data. Since the publication of FAO’s analysis, the organization has incrementally refined, extended and modified the results as new information has become available.5

This 1991-92 FAO analysis concerning the state of world fisheries was undertaken against a background of preparations for the 1992 United Nations Conference on Environment and Development (UNCED). The lead-up to this Conference, and the very intensive programme of pre-Conference negotiations, served to promote broad international awareness and concern about the manner in which many of the world’s natural resources were being used.

In May 1992, one month prior to UNCED, the International Conference on Responsible Fisheries was convened in Cancún, Mexico. The Conference was hosted by the Government of Mexico in collaboration with FAO. The Conference had its roots in the 1991 Nineteenth Session of the FAO Committee on Fisheries (COFI) which recommended, inter alia, that the concept of responsible fishing be developed and that an instrument to this effect be elaborated.6 The Mexican Conference adopted the Cancún Declaration, which provided input to the UNCED process and gave impetus, within FAO, to the elaboration of the Code of Conduct for Responsible Fisheries.

In combination, the 1991 Session of COFI, the Cancún Conference7 and UNCED led to the launching of three international and mutually consistent fisheries initiatives. Although somewhat different in focus and scope, each of the initiatives had similar overall goals: the long-term, sustainable use of fisheries. These initiatives involved the:

Whereas the UN Fish Stocks Agreement and the Compliance Agreement focused on high seas fisheries, the Code of Conduct addressed all fisheries, including aquaculture.

Reinforcing and underscoring the importance of these international initiatives was the Rome Consensus on World Fisheries,9 adopted by the FAO Ministerial Conference on Fisheries in March 1995. Inter alia, the Consensus noted the need to take urgent action to address issues such as overfishing, the development of sustainable aquaculture, and the rehabilitation of fish habitats. In addition, the Consensus urged governments and international organizations to take prompt action to effectively implement the relevant rules of international law on fisheries and related matters which were reflected in the 1982 Convention; to bring to a successful conclusion the UN Fish Stocks Agreement; to complete the process for the elaboration of the Code of Conduct; and to ratify the Compliance Agreement.

II. ELABORATION

Concept and mandate

The concept of responsible fisheries and the possibility of elaborating guidelines or a code of practice for responsible fisheries which would take into account all the technical, socio-economic and environmental factors involved, as noted above, was first mooted by the 1991 Session of COFI within the context of its deliberations on matters relating to large-scale pelagic driftnet fishing.10 In this connection, COFI recognized that FAO had an important role to play in promoting international understanding about the responsible conduct of fishing operations and it was in this way that the concept of, and the need for, a Code of Conduct was conceived.11

At the 1993 Twentieth Session of COFI, the Committee noted that the FAO Council had endorsed the request made in the 1992 Declaration of Cancún for FAO to elaborate, in consultation with relevant international organizations, a Code of Conduct for Responsible Fisheries. COFI agreed that such a Code would be important for achieving sustainable fisheries development. On related issues, COFI expressed satisfaction that FAO would contribute in a technical and scientific capacity to the Fish Stocks Conference, and the Committee agreed that the negotiation of the Compliance Agreement should be kept on a ‘fast track’, while reiterating that flagging issues would be among the issues to be covered by the Code.12

The scope and the process of elaboration of the Code was a major item for discussion at the 1995 Twenty-first Session of COFI.13 COFI stressed the importance of the Code as an instrument which could support the implementation of the 1982 Convention and the fisheries outcomes of UNCED. The Committee also recorded its appreciation for the good progress that had been made in the various working groups that had been established to elaborate the Code. COFI also noted that technical guidelines would be developed by FAO to support and facilitate the Code’s implementation.14

With respect to implementation of the Code, it was recognized from the outset that industry and international non-governmental organizations (NGOs) would play an important role in its implementation.15 Indeed, it was further recognized that while in developed countries industry groups would mobilise behind the responsible fisheries banner (e.g. Australia, Germany,16 Japan and USA), in developing countries NGOs were likely to have a fundamental role given their ‘grass-roots contacts’. It was for this reason that industry and NGOs representatives were encouraged to participate in the elaboration of the Code. Moreover, since 1995 when the Code was adopted FAO has continued to maintain contacts with these organizations and to work with them in disseminating information about the Code and in supporting its implementation.

Negotiation process

The process of negotiation of the Code was largely achieved through the use of open-ended technical working groups. A total of five such groups were held during the elaboration process, all of which met at FAO Headquarters in Rome.17

Open-ended groups were convened so as to encourage as wider participation as possible in the negotiation process. Recognising the financial difficulty that many developing countries had in participating in the work of these groups, FAO supported the participation of some countries at meetings with a view to maintaining regional representation and balance.18 Moreover, in the elaboration process close relations between FAO and a number of NGOs were encouraged. Many of these NGOs made sustained and important technical contributions to the elaboration process. This participation and transparency was highly appreciated both by FAO Members and the international NGO community.

Following the negotiation of the Code, the FAO Conference unanimously adopted it in October 1995.19 In so doing the Conference made a broad international call to all those involved in the fisheries sector, including both FAO and non-FAO Members, intergovernmental organizations and NGOs, industry and fishermen to collaborate in the fulfilment and implementation of the Code’s objectives and principles.

At the 1997 Twenty-second Session of COFI, the Code was addressed as a substantive item. In considering this item the Committee focused, to a significant extent, on securing funding to support the implementation of the Code in developing countries and on monitoring and reporting on its implementation. With regard to these matters COFI agreed that progress reports should be presented to the Committee every session. These reports would address achievements and progress with implementation. Governments were requested to provide information to FAO on progress with national implementation through the use of a questionnaire to be developed by the Secretariat.20 This information would then be incorporated into a consolidated report to the Committee.

III. PURPOSE AND OBJECTIVES

The Code takes cognisance of the state of world fisheries and aquaculture, and proposes actions towards implementing fundamental changes within the fisheries sector to encourage the rational and sustainable utilisation of fisheries and aquaculture. The rationale underlying the Code is the notion that structural adjustment within the fisheries sector is required if long-term goals of sustainability are to be achieved. Moreover, the Code recognizes that while policy decisions concerning the changes aimed at achieving sustainability rest firmly with governments, the effective implementation of the Code requires wide stakeholder participation and cooperation (i.e. from fishermen, processors, NGOs to consumers).

Article 2 of the Code summarises its objectives. These are to:

These objectives underpin, and indeed provide the general framework for, the Code’s General Principles in Article 6 and the other substantive articles (Articles 7 to 12).

IV. STRUCTURE

The Code is a voluntary instrument.21 This means that it does not have to be formally accepted by governments in the same way as the UN Fish Stocks Agreement and the Compliance Agreement. It has been noted that the voluntary nature of the Code "... has enabled it to cover much more than could possibly be covered in a document intended to be a binding international agreement ... In fact, this aspect of the Code is one of its hidden strengths ...".22

The Code’s scope is broad and comprehensive. It prescribes principles and standards for the conservation and management of all fisheries, and addresses the capture, processing and trade in fish and fishery products, fishing operations, aquaculture, fisheries research and the integration of fisheries into coastal area management.

In total, the Code has 12 articles and two annexes. Articles 1 to 5 cover, respectively, the nature and scope of the Code, objectives, relationship with other international instruments, implementation, monitoring and updating, and the special requirements of developing countries. Significantly, in Article 4, COFI is designated as the body to monitor the application and implementation of the Code. Moreover, through its appropriate bodies, and taking account of reports to COFI concerning the Code’s implementation, provision exists for FAO, through COFI, to revise the Code. This possibility ensures that the Code remains a ‘living document’, capable of being adapted and modified to meet new fisheries developments and situations.

The substantive article of the Code are found Articles 6 to 12. These articles are:

The Code’s two annexes, respectively, provide background to the origin and elaboration of the Code, and the text of FAO Conference resolution 4/95 concerning the adoption of the Code.

Resolution 4/95 of the FAO Conference, recalling Article 5 of the Code, urged that the special requirements of developing countries be taken into account in implementing its provisions. The resolution also requested FAO to elaborate an inter-regional programme for external assistance for these countries.24 The purpose of this programme would target the upgrading of developing countries’ capabilities so that they would be better placed to meet their obligations under the Code.

The Compliance Agreement is an integral component of the Code.25 However, the Agreement, when it comes into force, will have a different legal status to that of the Code in that the Agreement will be a legally binding international instrument. Currently, ten States (Argentina, Canada, Georgia, Madagascar, Myanmar, Namibia, Norway, Saint Kitts and Nevis, Sweden, and the United States of America) and the European Community have accepted the Compliance Agreement. It will enter into force on the date of receipt by the Director-General of FAO of the twenty-fifth instrument of acceptance.

The purpose of the Compliance Agreement is to provide an instrument for countries to take effective action, consistent with international law, to deter the reflagging of vessels by their nationals as a means of avoiding compliance with applicable conservation and management rules for fishing activities on the high seas. In its Preamble, the Agreement notes that the practice of flagging and reflagging fishing vessels as a means of avoiding compliance with international conservation and management measures for living marine resources, and the failure of flag States to fulfil their responsibilities with respect to fishing vessels entitled to fly their flag, are among the factors that seriously undermine the effectiveness of such measures.26

In practice, the Compliance Agreement seeks to ensure that there is effective flag State control over fishing vessels operating on the high seas. This would require, inter alia, that Parties to the Agreement maintain a register of vessels to fish on the high seas and that all vessels engaged in such fishing operations are authorised to do so. Moreover, the Agreement requires that certain records concerning the physical characteristics of the vessels and their ownership and operational details, be maintained by the Parties are part of their flag State responsibilities. Furthermore, Parties are obligated to exchange information maintained on their respective registers through FAO and other appropriate global, regional and sub-regional fisheries organizations.

Even though the Compliance Agreement has not yet entered into force, some of its elements are already being adopted by countries as their respective fisheries legislation is revised and other policy changes implemented concerning national authorisations for vessels to fish on the high seas. FAO is continuing to promote the acceptance of the Agreement so that it might be brought into force with minimal delay.27

In support of the Compliance Agreement, a High Seas Vessel Registration Database System (HSREG), was created in 1995 to facilitate monitoring of vessels licensed to fish on the high seas. The development of the System was funded by the Government of Canada. The database currently contains information on a total of 621 licensed vessels from two signatories to the Compliance Agreement, Canada and the USA. The database has been demonstrated at FAO Headquarters and in other countries. It is anticipated that the volume of licensed vessels in the database will increase dramatically in the future. At the present time all data input to, and maintenance of, the HSREG database is undertaken by FAO, but plans to permit user input through a secure Internet site have been considered.

V. IMPLEMENTATION

FAO has a responsibility to facilitate the implementation of the Code and, where possible and appropriate, to technically support national and regional initiatives towards this end. However, primary responsibility for the Code’s implementation rests with governments since it involves difficult, and sometimes sensitive, national policy decisions.

FAO’s global initiatives

FAO’s global role in promoting the implementation of the Code centres on a number of different, but related, activities. These initiatives accord with instructions from the FAO Governing Bodies and COFI concerning activities to support the dissemination and implementation of the Code. These initiatives, many of which are inter-related, include:

Regional facilitation and adaptation of the Code

At the regional level, fishery bodies have an important role to play in facilitating the implementation of the Code, and for this reason the draft FAO strategy to support implementation underscores the importance of regional action.30 The strategy recognizes that because of its global, and in some cases generalised nature, the Code would be better implemented if some of its provisions were adapted to meet different fishery (e.g. inshore and offshore fisheries, small-scale and industrial fisheries, marine and inland fisheries, and aquaculture) and regional circumstances (e.g. tropical and temperate fisheries) as far they are consistent with its basic purposes and principles. Moreover, it is further recognized that in regions where there are shared fisheries, or common management problems in non-shared fisheries, regional cooperation as expressed through the co-ordination of management policies and other forms of cooperation (e.g. sharing of training and research institutes and other forms of technical cooperation), can be best achieved through the programmes of regional fishery bodies.

The mounting of regional workshops to assist in the adaptation of the Code so that it might more appropriately meet the needs of particular fisheries and different regional situations is being fostered by FAO and some of its projects.

The first such regional workshop was conducted in June 1989 in Benin, West Africa for all 20 maritime countries (from Morocco to Namibia) of the region. The workshop, known as the Regional Workshop for the Adaptation of the Code of Conduct for Responsible Fisheries in West Africa, was organised by the FAO Regional Programme for Integrated Development of Artisanal Fisheries in West Africa, with technically support from FAO’s Fisheries Department.31 In its substantive sessions the workshop addressed the origin and role of the Code; the strategy to implement the Code which has been elaborated by FAO; and the rationale for adapting the Code in the West African context. An important feature of the workshop were working groups that considered how the Code’s articles might be most appropriately adapted for the region.

Following on the success of the West African workshop, it is planned to mount, following requests from countries and territories in the Western and Central Pacific and the Indian Oceans, similar workshops for these regions. There is also the possibility of a workshop in the Caribbean. It is anticipated that these workshops will be similar in scope and content to the West African initiative.

A further FAO regional activity for the adaptation of the Code of Conduct concerns a project for the application of the Code of Conduct for Responsible Fisheries (Aquaculture Development) in the Mediterranean Region. This project, which will focus on the implementation of Article 9 of the Code, will be implemented through the General Fishery Commission for the Mediterranean (GFCM), with funding from the Government of Italy.32 The project will involve a consultation in late 1998, will seek to:

Further action will be required by GFCM Members, at a later stage, in order to implement the action plan.

A number of non-FAO regional fishery bodies have taken important steps to substantively implement the Code of Conduct among their members and within their respective areas of competence. Some of the regional bodies that have taken steps in this direction include the International Baltic Sea Fishery Commission (with respect to the application of the precautionary approach to fishery management); the North Atlantic Fishery organization (NAFO) (with respect to transparency and the application of the precautionary approach);33 the Latin American organization for Development of Fisheries (OLDEPESCA), in cooperation with the Inter-American Development Bank, had commenced a regional programme for the implementation of international fishery instruments, including the Code of Conduct and the UN Fish Stocks Agreement;34 while the Permanent South Pacific Commission (CPPS) is actively promoting the Code and is encouraging members to include the Code’s provisions in national legislation.35

A further important initiative in South-East Asia with respect to the implementation and adaptation of the Code of Conduct is being pursued by the Thailand-based Southeast Asian Fisheries Development Center (SEAFDEC). This organization has commenced a project for the regionalisation of the Code. Phase 1 of the project focuses on responsible fishing operations. The project, to be implemented over the period from 1998 to 2000 and to be funded by the Government of Japan under trust fund arrangements, will consider the appropriateness of the fishing operations aspects for SEAFDEC members and to identify any gaps; to produce regional technical; guidelines for responsible operations; and to disseminate and promote the regional technical guidelines for responsible fishing.36

Closer cooperation among regional fishery bodies

Hayashi has noted that one of FAO’s priorities is to facilitate closer cooperation among FAO and non-FAO fishery bodies to consider common issues emanating from the implementation of the Code of Conduct and the UN Fish Stocks Agreement as well as options for strengthening cooperation and co-ordination among them, possible through a permanent co-operative mechanism.37 A recommendation was also made by 1998 High-level Panel of External Fisheries Experts in Fisheries in that "FAO should convene a Special Meeting of Managers and Secretaries of FAO and non-FAO Bodies, and in the first instance the tuna bodies, to identify and address common problems and constraints, identify and develop strategies and mechanisms to address constraints, share experiences and lessons learned, and improve the effectiveness of the bodies;".38

To give effect to this recommendation FAO has taken the initiative to organise such a meeting of regional fishery bodies in February 1999, immediately prior to the Twenty-third Session of COFI. The purpose of the meeting is to exchange view and experiences with respect to common issues relating to fishery bodies and to discuss strategies for the promotion of the Code of Conduct and other recently adopted international agreements. It is also envisaged that possible institutional linkages between COFI and these bodies, particularly non-FAO bodies, could be addressed. FAO is convinced that the better co-ordination among regional fishery bodies and a closer linkage between them and COFI would greatly improve global fisheries governance.

The February 1999 meeting of fishery bodies will address the following broad areas:

A further area where FAO is encouraging work is in the establishment of regional fishery bodies where such bodies do not currently exist (e.g., in the Western and Central Pacific Ocean, the South-East Atlantic Ocean, the North Pacific Ocean and the Caspian Sea).39 FAO is providing technical input to the current initiatives in the Western and Central Pacific and the South-East Atlantic which are being pursued within the framework of the UN Fish Stocks Agreement. With respect to the Caspian Sea, negotiations among littoral countries have been in train since 1993 after two countries began initial negotiations at FAO.

National responsibilities

With respect to national implementation of the Code, governments are encouraged to work with all stakeholders to facilitate structural adjustment and change in the fisheries sector. In large-scale fisheries, industry will have a prominent role in implementing the Code; this role will essentially involve ensuring that industry compiles voluntarily with measures adopted by governments to facilitate the long-term, sustainable use of fisheries. Such compliance will reduce government enforcement costs in achieving national goals. In contrast, in artisanal and small-scale fisheries, the fishing communities themselves (through community-based management) and possibly NGOs (given their grass-roots fisheries connections in many developing countries), will be expected to be closely involved in facilitating and supporting the implementation of the Code.

Outcomes

FAO, and indeed the Code itself, acknowledge that the implementation of the Code requires concerted and coherent action and cooperation by all stakeholders. However, rapid adjustment and change in the fisheries sector, as a consequence of steps taken to implement the Code, are unlikely to result, nor indeed are they to be expected. Rather, progress towards implementation and the benefits generated from policies and measures adopted by governments to facilitate sustainability are more likely to yield phased and incremental results.

A fundamental concept underlying the implementation of the Code is the assumption that governments want better managed and sustainable fisheries, and that they are prepared to take politically unpopular and difficult decisions, in the short-term, as a means of attaining longer-term sustainability gains.40 However, this notion is perhaps somewhat naive, since most governments have short planning and policy horizons. Under these circumstances, governments seek to minimise social and economic disruption through their policy interventions, even when it is recognised that such intervention is necessary to achieve sustainable practice in the fisheries sector. For this reason, technical advice concerning fisheries management and the policy decisions taken by governments concerning management (e.g. the imposition of certain input and output controls), often fail to intermesh. It is also why the implementation of management measures, or the modification of existing management approaches, tend to only yield incremental results unless a fishery is very seriously depleted or collapses.

Having regard for the difficulties associated with the sustainable management of the fisheries sector, it is none-the-less important to note the major contribution made by the sector to global food security. Indeed, in some communities and regions, and among some groups of countries (e.g. communities around large inland lakes and in small island developing States), fish constitutes, by a wide margin, the most significant source of animal protein for human consumption. In this connection, one of the major challenges in fisheries management facing all countries is how to implement measures that will permit overexploited stocks to be rebuilt in a reasonable period of time and to concurrently ensure that optimally, underexploited or unexploited stocks do not become overfished. A fine balancing of policies and management measures is required to achieve such an objective. However, if globally successful these policies should enable the aggregate contribution of fish to food security to be maintained, if not increased.41 The goals and principles of the Code are intrinsically linked to this food security challenge.42

VI. APPLICATION OF THE CODE IN THE WESTERN AND CENTRAL PACIFIC REGION

The Code of Conduct has particular relevance for countries and territories in the Western and Central Pacific Ocean. The island States and territories of the region, on the one hand, are highly dependent on their fisheries resources for national food security and for the promotion of social and economic development (including recreational fishing and tourism), while on the other hand, many of the inshore fisheries resources are heavily, if not over-exploited. The capacity of inshore resources, especially around urban centres, are increasingly coming under pressure and are not able to support the food and other needs of communities in the same way that they did in the past. Furthermore, population and other pressures have eroded the effectiveness of traditional fishery management practice, thereby exacerbating the need for well defined, popular and resilient fisheries management arrangements.

The Code seeks to ensure that all fisheries, irrespective of their location and irrespective of whom is exploiting them, are managed in a rational and responsible manner since they "...provide a vital source of food, employment, recreation, trade and economic well-being for people throughout the world, both for present and future generations...".43 The inter-temporal consideration concerning resource sustainability and inter-generational equity in relation to resource use access is a central aspect of the Code of Conduct. These considerations underscore the need for effective fisheries management arrangements.

In taking these considerations into account, all Western and Central Pacific Ocean countries and territories are urged to initiate and strengthen national measures to implement the spirit and intent of the Code of Conduct, to accept the Compliance Agreement, and to sign and ratify the UN Fish Stocks Agreement, as soon as possible. Moreover, where common fisheries issues need to be addressed, countries and territories are urged to participate in regional activities for this purpose.

Fishery management bodies such as the Western Pacific Regional Fishery Management Council (WPRFMC) assume a role of critical importance under the Code of Conduct in facilitating regional action and activities aimed at implementing the Code, and related fishery instruments as a means of strengthening fisheries management and utilisation. Indeed, the long-term and sustainable management of fisheries in the Western and Central Pacific Ocean will depend, to a very large extent, on the effectiveness of the implementation of these instruments.

VII. CONCLUSION

The poor state of many of the world’s major fisheries, ineffective and inconsistent national and regional management practices, and the need to facilitate long-term, sustainable fisheries led to the adoption of the Code in 1995. Briefly stated, its purpose is to facilitate structural adjustment and change in the fisheries sector to:

However, analysis undertaken by FAO, and other studies, have shown that many of the world’s fisheries are not subject to effective management. This situation, while not only having implications for the erosion of the resource base in these fisheries in the longer term, also negatively impacts the current and future contribution of fisheries to food security.

In the post-UNCED period there has been heightened international attention concerning the need to implement sustainable practice in the fisheries sector. In an unprecedented way countries, both individually and in regional groupings, have been called upon to focus more intensively on the implementation on rational management measures in the sector. Certain shortcomings have been highlighted, including the lack of flag State responsibility in some cases, vessel reflagging to avoid legitimate fisheries conservation and management measures, and weak monitoring, control and surveillance of fleets. Countries through a range of national and international initiatives have been called upon to address these and other past shortcomings in fisheries management in a substantive manner. To this end countries have been encouraged, inter alia, to:

Reaching agreement on the text of the Code of Conduct during the negotiation process was not always an easy task; the accommodation of different positions in a negotiation process requires good faith on the parties involved and their willingness to compromise to reach a workable outcome. However, in the post-negotiation period, the real challenge for countries is to devise appropriate policies and to implement measures in fisheries that will give effect to the Code. In essence, this task requires taking the general principles and provisions of the substantive articles of the Code and translating them into actions that will facilitate the changes required in the fisheries sector to yield long-term, sustainable results.




1 While FAO has continued to provide national technical assistance in fisheries to facilitate such improvements in management, an important part of the Organisation’s activities to this end in recent years has been directed at Members through the work of FAO’s regional fishery bodies, event though most of these bodies do not have fisheries management functions themselves.
2 FAO. 1993. "Marine Fisheries and Law of the Sea: A Decade of Change". FAO Fisheries Circular No. 853. FAO. Rome. 66p. This publication is normally updated every second year to coincide with the sessions of the Committee on Fisheries.
3 About 90 percent of commercial fisheries fall under national jurisdiction.
4 This analysis was based on data for the late 1980s. However, given the changes that are believed to have taken place in some fisheries as a consequence of management initiatives, it would be prudent to undertake new analysis using a similar methodology of more recent fisheries data, using the previous results as a benchmark, to determine the changes that have in fact occurred.
5 See for example, FAO. 1995. The State of World Fisheries and Aquaculture;, and FAO. Rome. 57p. and FAO. 1997. The State of World Fisheries and Aquaculture. FAO. Rome. 125p.
6 COFI stated in its Session’s report: "... The Committee recognized that FAO had an important role to play in promoting international understanding about the responsible conduct of fishing operations. It therefore recommended that FAO should strengthen its work on gear selectivity and behaviour of marine animals in relation to fishing gear particularly but not exclusively those types of fishing gear which are employed in high seas fisheries. Such a technical work could result in the elaboration of guidelines or of a code of practice for responsible fishing which would take into account all the technical, socio-economic and environmental factors involved. ...". (Paragraph 82 of the 1991 COFI report).
7 It should be noted that while the 1991 Session of COFI focused only on fishing operations, because of the current concern with the use of large-scale pelagic driftnets, the Cancun Conference broadened the concept to responsible fisheries, of which responsible fishing was a part.
8 The significance of the Agreement was that it consolidated certain fisheries provisions of the 1982 Convention. In particular, the Agreement elaborated, within the context of the 1982 Convention, aspects concerning the more effective conservation and management of straddling fish stocks and highly migratory fish stocks. Moreover, the Agreement was significant in that it provided, for the first time, concrete and innovative provisions for the co-ordinated management of stocks occurring in zones of national jurisdiction and on the high seas, and which are the target resources for many of the world’s most important and valuable commercial fisheries. However, to implement fully the Agreement there would have to be a high degree of international cooperation between coastal States and high seas fishing nations on a range of fundamental technical issues.
9 FAO. 1995. Rome Consensus on World Fisheries. FAO. Rome. 4p.
10 FAO. 1991. FAO Fisheries Report No. 459. ‘Report of the Nineteenth Session of the Committee on Fisheries’. FAO. Rome. 59p.
11 Moreover, within the Committee there was wide support for FAO to convene an ad hoc technical consultation on high seas fishing prior to the 1993 Session of COFI, while noting that FAO was co-operating with the United Nations Office for Ocean Affairs and Law of the Sea (UNOALOS) on an expert meeting to be held in New York in July 1991 concerning the Implementation of the Legal Regime for High Seas Fisheries under the 1982 United Nations Convention on the Law of the Sea. The FAO consultation on high seas fishing was subsequently held in Rome in September 1992.
12 FAO. 1993. FAO Fisheries Report No. 488. ‘Report of the Twentieth Session of the Committee on Fisheries’. FAO. Rome. 77p.
13 For a review of FAO’s role with respect to the development of the Code of Conduct and the Compliance Agreement see Hayashi, M. 1998. "Implementing the Law of the Sea Convention: FAO’s Contribution". Paper presented at the Thirty-first Annual Law of the Sea Institute Conference. University of Miami. Miami. 30-31 March 1998. (Mimeo). 19p.
14 FAO. 1995. FAO Fisheries Report No. 524. ‘Report of the Twenty-first Session of the Committee on Fisheries’. FAO. Rome. 61p.
15 See in particular, operative paragraph 2 of the resolution adopting the Code of Conduct (Resolution 4/95 of 31 October 1995).
16 Industry undertook the initiative to translate the Code into German.
17 While all the working groups were held at FAO Headquarters in Rome, FAO did avail itself of the opportunity to convene briefing sessions for countries and non-governmental organisations in New York at the UN Headquarters when Session of the Fish Stocks Conference were in progress.
18 During the negotiation process, specific local, national, sub-regional and global issues were diluted, or perhaps even avoided in the negotiation process, with a view to finding acceptable global compromises, and ultimately consensus, on a wide range of difficult and controversial issues. Therefore, when considering the implementation of the Code, which must be geared to meet particular national circumstances and requirements, adaptation is likely to be needed in many instances. However, it must be stressed that such adaptations should not violate the letter or spirit of the Code.
19 The Conference resolution adopting the Code also referred to a number of other important international fisheries agreements and initiatives, including the 1982 Convention, the 1992 Declaration of Cancún, the 1992 Rio Declaration and Agenda 21, the 1993 Compliance Agreement, the 1995 UN Fish Stocks Agreement, and the 1995 Rome Consensus on World Fisheries. Article 3 of the Code requires that it be interpreted and applied in a manner consistent with these instruments, all of which seek to achieve rational and sustainable fisheries.
20 FAO. 1997. FAO Fisheries Report No. 562. ‘Report of the Twenty-second Session of the Committee on Fisheries’. FAO. Rome. 32p. The questionnaire has been pre-tested at Session of FAO’s regional fishery bodies prior to it being distributed to Members for completion. The information provided to FAO by countries will form the basis for reporting to COFI.
21 At a Workshop on the Adaptation of the Code of Conduct for Responsible Fisheries for the West African Region, Cotonou, Benin, 1-5 June 1998, many participants expressed the view that the Code should be a binding instrument rather than a voluntary one. However, when the Code was being negotiated, the FAO Fisheries Department had considered the option of a binding instrument, but this was not acceptable to Members. A binding instrument would have taken much longer to negotiate and would have been less comprehensive. Similarly, the Fisheries Department proposed that the technical guidelines to be developed under the Code not be subject to negotiation since they were intended to be readily amendable as changing conditions and circumstances warranted. This was despite the suggestions by some Members that the guidelines should be negotiated, but had this been the case it is likely that the technical content would have been reduced and they would have taken much longer to conclude. It is possible that they would have also lost some of their flexibility with respect to amendment.
22 Edeson, W. R. "Current Legal Development: The Code of Conduct for Responsible Fisheries: An Introduction". The International Journal of Marine and Coastal Law. Vol. 11 (2). pp. 233-38.
23 For a discussion of the need and rationale of this article see Barg, W., P. Martosubroto and R. Willman. "Towards sustainable coastal management: selected issues in fisheries and aquaculture". Schwerpunkt: Kustenzonenmanagement. 2/98. pp.3-7.
24 This request was met through FAO elaborating the Interregional Programme of Assistance to Developing Concerns for the Implementation of the Code of Conduct for Responsible Fisheries.
25 See Preamble to the Agreement and FAO Conference Resolution 15/93.
26 The articles of the Agreement cover definitions, application, flag State responsibility, records of fishing vessels, international cooperation, exchange of information, cooperation with developing countries, non-parties, settlement of disputes, acceptance, entry into force, reservations, amendments, withdrawal, duties of the depository and authentic texts.
27 As part of the follow-up to the Compliance Agreement, FAO has continued to monitor reflagging. The number of vessels reflagged in the period 1994/1997 has increased to nearly 3 per cent of the fleet per year (vessels over 100 GRT), however the vast majority of these have been normal transactions involving a change of ownership. Only about 15 per cent of the reflagging involve a change to a "flag of convenience". Nevertheless, the number of vessels flagged under open registers or "flags of convenience" has remained at around 5 per cent of the total fleet. The number of fishing vessels registered in Panama (412) and Honduras (430) have decreased. However, vessels registered in St Vincent (139), Vanuatu (35), Cyprus (32) and Belize (158) have continued to increase. Only three of the new built vessels were built to an open register (although three were listed as unknown) and two of these were Norwegian owned, flagged under the Panamanian register.
28 In addition, some governments and NGOs have facilitated the publication of the Code in non-FAO languages. These languages include Farsi, German, Icelandic, Italian, Japanese, Polish, Russian, Sinhalese, Tamil and Tigrina.
29 The inter-regional programme was elaborated in 1995-96 . It consists of the following substantive components: (i) assistance for the implementation of the Compliance Agreement, (ii) assistance for the upgrading of capabilities for reporting on fishery statistics, (iii) assistance for upgrading of capabilities in monitoring, control and surveillance, (iv) assistance in the promotion of responsible fishing operations, (v) assistance for upgrading marine resource survey capabilities, (vi) assistance for improving the provision of scientific advice for fisheries management, (vii) assistance in fisheries policy, planning and management, (viii) assistance in developing and implementing fleet restructuring policies, and (ix) assistance for the implementation of post-harvest practices and trade.
30 The initiation of regional activities with respect to the adaptation and implementation of the Code accords with FAO’s policy of seeking to strengthen regional fisheries bodies. The strengthening of these bodies, including those that fall under the FAO umbrella, is an FAO global mandate, and has particular significance for enhancing the management of shared stocks.
31 This Programme is funded by the Government of Denmark.
32 GFCM is an Article XIV-type body established under the FAO Constitution.
33 In a communication to FAO dated 21 May 1998, NAFO pointed out that the precautionary approach was a very complex scientific and managerial issue, and that a careful process was required to develop and implement the tool for stock management.
34 Communication to FAO from OLDEPESCA dated 25 May 1998.
35 Communication to date dated 26 May 1998.
36 FAO has had little input in the planning of SEAFDEC’s project, although the Center’s project adviser was previously responsible in FAO for policy aspects of the Code’s implementation. SEAFDEC has kept the Fisheries Department briefed on its activities in support of the regional adaptation of the Code.
37 Hayashi. op. cit. p.19.
38 FAO. 1998. Report of the High-level Panel of External Experts in Fisheries". FAO. Rome. p.5.
39 Hayashi, loc. cit.
40 It should be recognized that decisions concerning fisheries management are inherently political and socio-economically difficult. The bottom line in fisheries management is that the exclusion principle must be applied (i.e., not all those persons who desire to fish can be accommodated in a fishery because of physical resource constraints) and in any activity where exclusion is necessary, the activity associated with it assumes a high political profile. This problem, however, must be addressed if fisheries governance, generally, is to be improved.
41 Linked to the objective of maintaining/increasing the contribution of fish to food security is the need to consider access to fish by the poorest segments of the population. A related is the issue concerns the proportion of fish fit for human consumption actually going directly to human consumption as opposed to other purposes (e.g. the production of fishmeal to support the production of farmed products for the upper end of the market). While the production of high value products maybe important economically, such products may not make a substantial contribution to food security for those who are most in need and vulnerable to food insecurity.
42 The Kyoto Declaration and Plan of Action, adopted by the International Conference on the Sustainable Contribution of Fisheries to Food Security (Kyoto, Japan, 4-9 December 1995) refers to the need to effectively apply the Code in the interests of maintaining the contribution of fisheries to food security. Moreover, the Rome Declaration on World Food Security and the World Food Summit Plan of Action, adopted at the World Food Summit (Rome, Italy, 13-17 November 1996) calls for the early implementation of the Code to address responsible and sustainable utilisation and conservation of fisheries resources in order to optimise the long-term sustainable contribution of fisheries to food security.
43 See Code of Conduct p.1.