WORKING GROUP A: RESOLVING ALLOCATION ISSUES DISCUSSION GUIDE
Background
In reviewing the history of the management of shared fish stocks, it becomes clear that there are very few such resources that do not require effective cooperative management among the states/ entities exploiting them, if the resources are to be harvested on a sustainable basis. Achieving effective cooperative management regimes is, however, difficult. Cooperative management regimes, once established, can readily disintegrate, if based upon weak foundations.
If a stable and robust cooperative fisheries management is to be established, the first issue, which must be addressed successfully, is that of allocation. It is obvious that, for the cooperative management regime to be stable, the criteria established for allocation, and the application of those criteria, must be seen by all participants in the cooperative regime to be fair and equitable. At a minimum, each and every participant must be assured of being at least as well off under the cooperative regime as it would be in the absence of cooperation.
History also tells us that that the allocation system must be flexible over time, in order to accommodate unexpected shocks to the cooperative regime. If this flexibility is absent, then, what may have appeared to have been a fair and equitable system of allocation at the beginning of the cooperative management regime, may, over time, come to be viewed, by one or more participants, as grossly inequitable.
Before considering what is required to ensure ongoing fairness and equity, it is necessary to decide what in fact is to be allocated. The answer would seem to be obvious, namely shares of the TAC, or the equivalent thereof, to the fleets of the participating states/entities. Yet, it can be argued that what in fact is being allocated, or what should be allocated, is shares, over time, of the net economic (social) returns from the fishery (however one may attempt to measure these returns).,. To quote the 1992 FAO document, Managing Fisheries and the Law of the Sea: A Decade of Change (FAO Fisheries Circular No. 853), “---the model is that of an international regime that achieves stability by sharing the benefits deriving from the use of the resource----“. The author of the FAO document cites the case of the Convention for the Preservation and Protection of Fur Seals in the Northeast Pacific. Four countries participated in what proved, over its 73 year history, to be a cooperative management regime that was very successful, in both economic and conservationist terms. In order to maximize the net economic returns from the resource, it was agreed that harvest allocations to the fleets of two of the four countries should be set equal to zero. These two countries were then compensated by their partners in the Convention, to ensure that both shared equitably in the economic returns from the fishery.
If the view is accepted that what is to be allocated is shares of the net economic (social) returns from the fishery, then the allocation of harvest shares to the participants’ fleets is to be seen as but one of many ways of achieving that goal. If it is decided that this should be the only way that the goal is to be achieved, then bargaining constraints, perhaps severe constraints, will be imposed upon the participants over time.
Determining fair and equitable allocation criteria that are seen to be applied in a fair and consistent manner should be relatively straightforward in the management of transboundary stocks. Attached is a set of proposed allocation criteria prepared by ICCAT. Although concerned, by definition, with highly migratory stocks, which are not under discussion at this Expert Consultation, the ICCAT criteria should, nonetheless, prove to be relevant to the discussion (although item 27 in the ICCAT document is contrary to the previous discussion on the sharing of the net economic benefits from the fishery).
The formulation of allocation criteria and principles is likely to be a considerably more difficult undertaking in the case of straddling stocks. One is now concerned with establishing cooperative management arrangements, involving both coastal states and distant water fishing nations (DWFNs). It is one thing, if both coastal states and DWFNs are developed. It is quite another, if the DWFNs are developed, while the coastal states are developing, as is found to be the case in several parts of the world. Then it becomes necessary to consider the special needs of the developing coastal states.
The ICCAT criteria are particularly useful in this regard. They recognize the interests of artisanal, subsistence and small-scale coastal fisheries, the needs of coastal fishing communities and of coastal states’ regions whose economies are overwhelmingly dependent on fisheries, and the contribution of the fisheries to the national food security/needs, domestic consumption, export income and employment. The ICCAT negotiations of these criteria were influenced by, on one hand, the interest of long-distance fishing nations to maintain their fishing possibilities with reference to historical and present exploitation of the stocks in question, and, on the other hand, by the interest of developing countries to allow the future development of their fisheries. The latter group of countries argued their case with reference to Article 24 of the UN Fish Stocks Agreement that calls on states to
“... give full recognition to the special requirements of developing States in relation to conservation and management of straddling fish stocks and highly migratory fish stocks and development of fisheries for such stocks. ...., in particular: (a) the vulnerability of developing States which are dependent on the exploitation of living marine resources, including for meeting the nutritional requirements of their populations or parts thereof; (b)
the need to avoid adverse impacts on, and ensure access to fisheries by, subsistence, small-scale and artisanal fishers and women fishworkers, as well as indigenous people in developing States, particularly small island developing States; and (c) the need to ensure that such measures do not result in transferring, directly or indirectly, a disproportionate burden of conservation action onto developing States.”
Perhaps the most difficult allocation issue to be confronted in the management of straddling stocks is that of allocations to prospective New Members, and to those countries, which at the time of the establishment of a RFMO, express a “real” interest in the fishery, while not being engaged in the fishery. The problem is to develop allocation criteria for these two groups, which, at one and the same time, do not contravene the UN Fish Stocks Agreement (see Articles 8 and 11, in particular), and do not undermine the efforts of those engaged in establishing the RFMO. The ICCAT criteria provide some suggestions, but the suggestions are, in this instance, limited in scope and value. This important problem remains largely unresolved. One of the most useful contributions, which the working group could make, is to point towards solutions to this problem.
Expected Outcomes
The Concept Paper for the Expert Consultation lists, as one of the key issues for the Consultation to discuss, “the use of decision-making procedures criteria for the allocation of shared resources based upon transparent and equitable criteria”. It is expected that the deliberations of the Working Group will bring forth a discussion of the appropriate decision making procedures for bringing forth a set of equitable and transparent criteria for the allocation of the economic and social benefits arising from fisheries based upon:
(a) transboundary fish stocks
(b) straddling fish stocks
It is also expected that the Working Group will identify key allocation criteria pertaining to each of the two classes of fish stocks.
The Working Group should elaborate specifically on the following points:
Means of ensuring that the procedures and mechanisms for making allocations are flexible through time
Determining allocation criteria for New Members to RFMOs that are seen to be equitable, but which also ensure the long term stability of the RFMO
Allocation criteria that will meet the special needs and requirements of developing coastal states.
At its discretion, and with time permitting, the Working Group may discuss, and report upon, additional points, which it deems to be important.
ANNEX[101]
ICCAT CRITERIA FOR THE ALLOCATION OF FISHING POSSIBILITIES
I. Qualifying Criteria
Participants will qualify to receive possible quota allocations within the framework of ICCAT in accordance with the following criteria:
1 Be a Contracting or Cooperating Non-Contracting Party, Entity or Fishing Entity.
2 Have the ability to apply the conservation and management measures of ICCAT, to collect and to provide accurate data for the relevant resources and, taking into account their respective capacities, to conduct scientific research on those resources.
II. Stocks to Which the Criteria would be Applied
3 These criteria should apply to all stocks when allocated by ICCAT.
III. Allocation Criteria
A Criteria Relating to Past/Present Fishing Activity of Qualifying Participants
4 Historical catches of qualifying participants.
5 The interests, fishing patterns and fishing practices of qualifying participants.
B Criteria Relating the Status of the Stock(s) to be Allocated and the Fisheries
6 Status of the stock(s) to be allocated in relation to maximum sustainable yield, or in the absence of maximum sustainable yield an agreed biological reference point, and the existing level of fishing effort in the fishery taking into account the contributions to conservation made by qualifying participants necessary to conserve, manage, restore or rebuild fish stocks in accordance with the objective of the Convention.
7 The distribution and biological characteristics of the stock(s), including the occurrence of the stock(s) in areas under national jurisdiction and on the high seas.
C Criteria Relating to the Status of the Qualifying Participants
8 The interests of artisanal, subsistence and small-scale coastal fishers.
9 The needs of the coastal fishing communities which are dependent mainly on fishing for the stocks.
10 The needs of the coastal States of the region whose economies are overwhelmingly dependent on the exploitation of living marine resources, including those regulated by ICCAT.
11 The socio-economic contribution+ of the fisheries for stocks regulated by ICCAT to the developing States, especially small island developing States and developing territories[102] from the region.
12 The respective dependence on the stock(s) of the coastal States, and of the other States that fish species regulated by ICCAT.
13 The economic and/or social importance of the fishery for qualifying participants whose fishing vessels have habitually participated in the fishery in the Convention Area.
14 The contribution of the fisheries for the stocks regulated by ICCAT to the national food security/needs, domestic consumption, income resulting from exports, and employment of qualifying participants.
15 The right of qualified participants to engage in fishing on the high seas for the stocks to be allocated.
D Criteria Relating to Compliance/Data Submission/Scientific Research by Qualifying Participants
16 The record of compliance or cooperation by qualifying participants with ICCAT’s conservation and management measures, including for large-scale tuna fishing vessels, except for those cases where the compliance sanctions established by relevant ICCAT recommendations have already been applied.
17 The exercise of responsibilities concerning the vessels under the jurisdiction of qualifying participants.
18 The contribution of qualifying participants to conservation and management of the stocks, to the collection and provision of accurate data required by ICCAT and, taking into account their respective capacities, to the conduct of scientific research on the stocks.
IV. Conditions for Applying Allocation Criteria
19 The allocation criteria should be applied in a fair and equitable manner with the goal of ensuring opportunities for all qualifying participants.
20 The allocation criteria should be applied by the relevant Panels on a stock-by-stock basis.
21 The allocation criteria should be applied to all stocks in a gradual manner, over a period of time to be determined by the relevant Panels, in order to address the economic needs of all parties concerned, including the need to minimize economic dislocation.
22 The application of the allocation criteria should take into account the contributions to conservation made by qualifying participants necessary to conserve, manage, restore or rebuild fish stocks in accordance with the objective of the Convention.
23 The allocation criteria should be applied consistent with international instruments and in a manner that encourages efforts to prevent and eliminate over-fishing and excess fishing capacity and ensures that levels of fishing effort are commensurate with the ICCAT objective of achieving and maintaining MSY.
24 The allocation criteria should be applied so as not to legitimize illegal, unregulated and unreported catches and shall promote the prevention, deterrence and elimination of illegal, unregulated and unreported fishing, particularly fishing by flag of convenience vessels.
25 The allocation criteria should be applied in a manner that encourages cooperating Non-Contracting parties, Entities and Fishing Entities to become Contracting Parties, where they are eligible to do so.
26 The allocation criteria should be applied to encourage cooperation between the developing States of the region and other fishing States for the sustainable use of the stocks managed by ICCAT and in accordance with the relevant international instruments.
27 No qualifying participant shall trade or sell its quota allocation or a part thereof.
WORKING GROUP B: ACHIEVING COORDINATION OF MANAGEMENT PLANS AND OBJECTIVES, AND OF RESEARCH PROGRAMMES
This discussion guide seeks to highlight some of the issues that need to be considered in order to achieve coordination of management plans and objectives and research programmes. It merely attempts to stimulate the discussion through some ideas but does not purport to be exhaustive in terms of either its scope or depth.
It appears useful to look at those issues first that have proven to be particular impediments in achieving coordination in the management of shared stocks. A tentative list of such impediments based upon the reading of the case studies is as follows:
Asymmetries in the expectations of the various parties and stakeholders (the analysis would have to take into account various time scales: if some parties cannot survive in the immediate future, or know that in the medium term they will not participate any more in a fishery, long term merits of efficient management may be of little importance to them);
In-adequacy of the scientific framework and bases (including the non-availability of the appropriate data, the absence of a recognized - neutral enough - scientific structure, as well as unrealistic - at least in a specific context - of some scientific models);
Major changes in the geographic distribution and/or migration patterns;
Fisheries on stocks of species with very long life spans (accumulated biomass problems, risks of irreversible damages, etc.);
Difficulty to identify who must be considered as the negotiation partner for some fleets;
Inadequate legal frameworks;
Lack of equipment, human means and expertise.
The Group may elaborate on this list and analyze the consequences of these impediments on the management of shared stocks and discuss the pros and cons of the various ways and means that have been tried in different situations to overcome them.
Measures to reduce asymmetries in the expectations of the various parties may include consultation with the fishing industry and fishworkers to establish agreed objectives at the national level and then communicate those objectives in a transparent manner to the other parties. These would then form the basis from where to start the negotiation/bargaining process. Another or complementary approach could be to ensure that the stakeholders are adequately represented in the negotiations between the parties.
Cooperation in the management of shared stocks starts often with the exchange of scientific data on the biological characteristics of the stocks in question and perhaps joint stock assessment exercises. This is what some commentators have denoted as the first or primary level of cooperation. While good information on the fish stocks is indispensable for effective management, the fact that the initial cooperation is often confined to fisheries scientists may lead to, on one hand, narrowly focusing on issues relating to the fishery resources rather than the entire fishery (e.g. fishing capacity, economic performance, employment, etc.) and on the other hand, to establish management objectives in biological terms only. As a consequence, unrealistic targets may be set for the fishery in terms of the economic and social consequences that are implied by these targets for the parties concerned. The early transition to a higher level of cooperation, even in the absence of good data on stock abundance and current harvest levels, appears to be highly desirable in most instances.
A consequence of an otherwise desirable, early transition to a secondary stage of cooperation could be that scientific research may lose its benign character early on in the cooperative venture and become a “tool of combat".
The importance of independent scientific advice has been highlighted in many of the case studies. The setting up of a permanent body for this task (e.g. ICES) may in many instances, especially in developing countries, be a question of cost and cost-sharing, and alternative arrangements such as procurement of ad-hoc external expertise, may be more cost-effective.
Irrespective of whether a permanent body or reliance on ad-hoc external expertise are the preferred ways, these do not necessarily remove all hurdles in achieving unbiased resource assessments as long as the analyses have to rely primarily or exclusively on nationally collected primary data of catches and other biological characteristics. Some measures may be able to reduce “second-order” problems of generating unbiased scientific advice. These could include, for example, the regular exchange of statisticians and scientists between the relevant research and fishery statistics institutions of the parties, the conduct of joint fishery research surveys, the reciprocal placement of observers on board of vessels, etc.
The disastrous consequences of too little and too late cooperation in the management of shared stocks is well known and documented. The decline of several of such fisheries came about in spite of the availability of an abundance of scientific information to inform management decisions. What happened here was that no bargain could be struck early enough to prevent the worst to occur placing all parties in a worse condition than almost any “unfavorable” co-operation agreement could have achieved. Are there institutional arrangements that would facilitate reaching agreement on preliminary stop-gap measures that gain time and allow negotiations to proceed (which often are protracted and involve difficult trade-offs for each party)? One possible arrangement could be to establish an independent arbitration body (ad-hoc or permanent at regional or sub-regional levels) whose judgment would be binding on the parties concerned until a negotiated settlement has been reached, or the immediate threat to a disastrous stock decline is averted.
As has been pointed out elsewhere, a significant constraint in reaching a cooperation agreement is where benefit sharing from a shared stock is confined to the allocation of harvesting entitlements to each party. In this connection, the importance of side payments has been stressed in widening the bargaining space and finding a mutually acceptable agreement. A side payment, in its simplest form, is a type of transfer, which may be either monetary or non-monetary in nature.
An important feature of allowing for side payments, in addition to facilitating co-operation when management objectives of the parties differ, is that it can help too to deal with risks and uncertainties. Side payments can be used to make ex-post adjustments to unpredicted changes in say the distribution of a fish stock between the EEZs of the concerned parties, changes in catchability, or else other events that alter the stream of net benefits to the parties in an unexpected way.
At the institutional side, the pros and cons of the establishment of a management organization with its own staff (i.e. a bilateral, sub-regional or regional fisheries management organization) or just a system whereby the decision-makers of each party meet regularly (at least once a year), need to be careful weighted in each specific context. Considerations such as the scale and value of the shared fishery, the number of parties, the availability of trained staff, research facilities and equipment, financial resources, etc. would all have a bearing on whether or not a permanent structure is advantageous. Similar considerations would likely also guide the decision on which management tasks should be fulfilled by the bilateral or multilateral management organization and which tasks should remain with national institutions.
Whatever the allocation of functions between national institutions and the bi-or multilateral organization, there is obviously a need to ensure that management plans and research programmes are developed in an integrated fashion.
The issues raised above are by no means an exhaustive list and, at its discretion, the Working Group may discuss, and report upon, additional points, which it deems to be important.
WORKING GROUP C: ENSURING IMPLEMENTATION AND ENFORCEMENT OF FISHERIES MANAGEMENT ARRANGEMENTS FOR SHARED STOCKS
This discussion guide seeks to highlight some of the issues surrounding the implementation and enforcement of fisheries management measures which the Group may, or may not, wish to consider in the course of its discussions. The guide does not purport to be exhaustive in terms of either its scope or depth. Rather, it serves to promote ideas for discussion that the Group may address.
Introduction
Parties to an arrangement agree on the type of measures to be adopted and implemented for the management of shared stocks. The measures are designed to achieve pre-determined management objectives which may vary from fishery to fishery depending on particular stock needs and circumstances. However, the underlying principle of fisheries management is that measures should seek to ensure that stocks are harvested in a long-term sustainable and responsible manner, taking account of broader ecosystem, social and economic considerations.
Fishers’ authorizations (licences) and the number of authorizations issued to harvest shared stocks should:
reflect the objectives and intent of management, and
be consistent with the agreed management measures.
If this is not the case management objectives are unlikely to be realized.
Undermining efforts to management shared fish stocks
Activities by unauthorized fishers and fishers that do not abide by the terms and conditions of their authorizations undermine efforts to manage fish stocks. This is likely to lead to the overexploitation of stocks and impairment to efforts to rebuild when stocks are already overexploited.
Illegal, unreported and unregulated (IUU) fishing is an issue high on the international fisheries agenda. Some commentators maintain that it is the major issue confronting fisheries management. This is because the incidence of IUU fishing:
is widespread in all fisheries and in all oceans;
is not confined to a small group of vessels, and
severely handicaps the work of regional fishery management organizations or arrangements (RFMOs) to manage stocks.
IUU fishing is perpetrated by both unauthorized and authorized fishers. Its root cause is a lack of effective flag State control. States operating open registries, and which issue so-called flags of convenience (FOCs), are frequently blamed for IUU fishing. However, such fishing is not confined only to open registry States or unauthorized fishers. The problem is wider. Some RFMOs have demonstrated that IUU fishing is perpetuated by authorized fishers from among their membership.
An International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUU) has been concluded by the FAO membership. This IPOA seeks to address IUU fishing in a holistic, broad and somewhat novel manner by focussing on the:
responsibilities of all States;
flag State responsibilities;
coastal State measures;
port State measures, and
internationally agreed market-related measures.
In addition, the IPOA-IUU gives RFMOs, which are usually in front-line positions with respect to the impact of IUU fishing, a particular role to play in combating IUU fishing.
States and RFMOs should address IUU fishing if their efforts to manage stocks are not to be undermined. Issues that the Group may wish to address could include:
what steps can be taken to deter IUU fishing by unauthorized fishers? RFMOs and their members can instigate a number of activities. These activities may include contacting flag States with information relating to vessels that are undermining management efforts and request that the vessels desist; make information available publicly on websites etc about the names and flags of vessels involved in IUU fishing, etc. Such initiatives will require the cooperation and goodwill of the flag States whose vessels are fishing and undermining management arrangements.
what steps can be taken to ensure that authorized fishers adhere to the terms and conditions of their licences to fish? How can sanctions against such fishers and their vessels act more effectively as deterrents against IUU fishing? Sanctions must be severe so that fishers incur a real and substantial economic loss when they have been found engaging in IUU fishing. Penalties such as the loss of the authorization to fish and the forfeiture of the vessel could be considered as options.
An important aspect of deterring IUU fishing is the need to have States implement fully all international binding and voluntary instruments that promote sound and responsible fisheries management. The instruments include the 1982 Convention, the 1993 FAO Compliance Agreement, the 1995 UN Fish Stocks Agreement and the IPOA-IUU.
Routine and ongoing monitoring, control and surveillance of fishing activities
A checking or verification process, through monitoring, control and surveillance (MCS), is required to ensure that fishers abide by their authorizations to fish. This process is an integral component of management. MCS seeks to facilitate compliance by fishers. MCS is not intended to penalize or constrain fishers who operate within the terms of their authorizations.
The checking process involves routine and ongoing MCS. It may include a range of activities such as:
the use of VMS to monitor vessel positions, fishing activities and reported catches;
the use of vessel registers;
at sea checks of vessels, logs, and catches by patrol craft;
at sea inspection of vessels by aircraft (alone or in concert with patrol craft);
the use of independent and trained observers to assess catches, species composition etc and to generally report on whether fishers are operating according to their authorizations;
port inspections of vessels, catch onboard vessels and catch offloaded, and
cooperative or regional MCS arrangements, as used by some RFMOs, including joint and reciprocal enforcement arrangements.
The implementation of MCS programmes is a major challenge. In shared stocks fisheries effective and sustained international cooperation is essential.
The size and sophistication of a MCS programme for the management of shared stocks will depend on a number of issues including the:
administrative structure in place for management;
resources (funds and hardware) available to support the programme;
number of parties involved in the fishery;
number of fishers;
number of species and volumes of fish being taken;
geographic distribution of the stocks being managed;
geographic distribution of landing points and markets, and
cost of the programme and who pays for it (possibly through cost-sharing arrangements with industry).
Fisheries administrations should underscore its positive role of MCS in management; it is not intended that MCS should denigrate into a “them” and “us” situation where fishers are placed in an adversarial role with managers.
Responsible fishers generally understand and accept the need for effective fisheries management and part of this understanding entails on appreciation of non-discriminatory and swift enforcement action when it is needed.
Penalties for infringements should have a high degree of equity among parties in a management arrangement and be of such a magnitude as to encourage compliance by fishers. Equity is an important consideration: fishers will be less inclined to comply with their authorizations if fishers from other parties do not face equivalent sanctions.
A further aspect is the need to share information about infringements and penalties imposed as a means of building confidence among parties to an arrangement. This will build confidence among fishers if they know they penalties among parties are roughly equivalent.
Positive thinking: partnerships with industry in fisheries management
Increasingly, fishers and other stakeholder are being called to play a more active role in fisheries management. It is now recognized that in order to promote a higher degree of responsibility and compliance by fishers, they should have a role in decision making.
An underlying tenet of the concept of responsible fisheries is the principle of responsible behaviour by fishers and other stakeholders. Efforts to engender the need to act responsibly and to comply with management measures should be promoted. Fishers should be urged to feel proud in having acted responsibly while fishing and not smart at having beaten the law when they have acted irresponsibly.
Underpinning the philosophy of broader fisher participation in management is the notion that fishers should contribute financially to the costs of management because they are the principal beneficiaries. Contributions should be made to meet some of the management-related research costs (when fishers participate in the determination of research priorities) and fisheries MCS. For situations where fisheries do contribute financially, a higher degree of interest and involvement by industry can be anticipated.
Promoting an inclusive approach to management requires some fundamental changes in the thinking of fishery administrators. Such management serves to discourage confrontation in the management process and has the real possibility of lowering the costs of management. However, it has not found wide acceptance in all countries and has recently been described by a fisheries manager as “... putting the rabbits in charge of the carrot patch ... “.
Some of initiatives that might be taken to facilitate greater participation by fishers in management could include:
seeking input from industry on the priorities for research - with input from fishers it can be anticipated that research priorities will have a sharp applied focus;
consultation with scientists, managers and MCS staff concerning research findings, the framing of management measures and options for the most effective approach to the implementation of MCS programmes;
using fishers’ organizations to disseminate information about research, management measures and in particular the rationale underlying such measures, and MCS, and
seeking contributions from industry to support research and MCS programmes.
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[101] Source: Annex 8 of
ICCAT 2001 Annual Report [102] For the purposes of this document, the term “territories” refers only to the territories of those States that are Contracting Parties to the Convention in respect of those territories alone. |
