Erhard Ruckes[97]
ABSTRACT
Following a brief review of the history of the Code of Conduct and its relationship with international trade in fish and fishery products and other pertinent international arrangements related to fish trade, the paper presents the criteria embedded in the General Principles 6.7 and 6.14 of the Code. These provisions provide the basis for the requirements formulated in Article 11 which consists of three sections: 11.1 - Responsible fish utilization; 11.2 - Responsible international trade, and 11.3 - Laws and regulations relating to international fish trade.
The right of consumers to safe, wholesome and unadulterated fish and fishery products and the need to establish and maintain effective safety and quality assurance systems for consumer protection are most important considerations for responsible fish utilization. The economic implications of the production of value-added products and the identification of the origin of fish and fishery product traded are of great relevance for producing and exporting developing countries such as the island States of the Pacific. Another high profile provision is 11.2.15 which calls on States and all relevant international cooperation and support agencies to make sure that promotion of international fish trade does not result in environmental degradation or adversely impact the nutritional rights and needs of people for whom fish is critical to their health and well-being. Of specific interest to exporting developing countries is the reference to fishing agreements and concerns related to linking access to markets to access to resources or to other criteria.
The gist of provision 11.3 is that rules and regulations relating to fish trade should be transparent, as simple as possible, comprehensible, and based on scientific evidence, when appropriate. The need for cooperation and consultation between States and pertinent international organizations is emphasized specifically in the article.
Attention is drawn to linkages between trade issues and other articles of the Code, e.g. articles 8, 9 and 12 and reference is made to the Technical Guidelines in support of article 11. The reports by Pacific Islands countries on the implementation of article 11 of the Code (2002) are mentioned briefly.
The concluding outlook chapter highlights the core themes of fish as food and food security and trade and environment. The challenge that these subjects will constitute for the future is stressed.
INTRODUCTION
The intensive debates in the FAO Committee on Fisheries (COFI) related to the large scale driftnets, the issues of shrimp and turtle, tuna and dolphin and the related trade aspects took place in the late '80s and early '90s. Following the debate on the latter at the 1990 Session of the COFI Sub-Committee on Fish Trade, the COFI membership realized that a cooperative approach would be preferable to the confrontations that had been characteristic for the earlier discussions. Although the trade issues may be considered as the trigger for the development of the Code of Conduct for Responsible Fisheries, COFI decided at the outset that the Code should cover all relevant aspects of fisheries and aquaculture as they were seen in the early '90s and as they are reflected in the sequence of the Articles 7 to 12 of the Code.
Article 11 dealing with post-harvest practices and trade contain provisions which refer specifically to clauses outside of FAO's direct area of responsibility and mandate, namely those of the World Trade Organization (WTO), an agency in the formative stage at the time of the formulation of the Code. Another international arrangement mentioned is the FAO/WHO Codex Alimentarius Commission (Article 11.1.3) which has gained a lot more importance since the Code was approved by the FAO membership in 1995; mainly as the reference body for the application of the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) and the Agreement on Technical Barriers to Trade (TBT). However, there is one international agreement not specifically mentioned in Articles 11.2 and 11.3 and which has assumed a prominent role in aspects of international fish trade and that is the Convention on International Trade of Endangered Species of Wild Fauna and Flora (CITES), sometimes referred to as the Washington Convention.
It is pertinent to mention these connections because they link the Code, which is voluntary in nature to binding international undertakings.
GENERAL PRINCIPLES
There are two provisions in Article 6 of the Code dealing with general principles and which are related to the post-harvest field, namely Articles 6.7 and 6.14. These general principles say in a nutshell how fish should be handled and processed and which principles should be applied to international fish trade. The criteria highlighted in Article 6.7 are
General principle 6.14 stipulates that:
trade should be conducted in accordance with WTO rules (and those of other relevant international agreements)
states should ensure that trade related policies, programmes and practices do not result in:
- trade obstacles
- environmental degradation or
- negative social, including nutritional, impacts.
These general principles are the basis for the more detailed provisions of article 11.
CONTENTS OF ARTICLE 11
11.1
Article 11.1 deals with responsible fish utilization comprising fish handling, preservation processing and the use of fish and fishery products for human consumption. Therefore, the opening clauses highlight the right of consumers to safe, wholesome and unadulterated fish and fishery products and the need to establish and maintain effective safety and quality assurance systems to protect consumer health and prevent commercial fraud. Suitable standards should be set and effectively applied throughout the industry.
The use of fish for human consumption should be encouraged and whenever possible consumption be promoted; research in fish technology and projects to improve post-harvest operations should be supported. Specific emphasis is placed on the reduction of post-harvest losses and waste, including the use of bycatch, and careful use of inputs such as water and energy.
Two provisions, 11.1.10 and 11.1.11 appear to have specific importance for the Pacific Islands developing countries because they require countries to cooperate in order to facilitate the production of value-added products by developing countries and to improve the identification of the origin fish and fishery products traded. Both have significant economic implications for producing and exporting countries which should aim at capitalizing on exports of value added products and products which can be traced to their origin from well managed resources and which have gone through post-harvest activities with minimal environmental impact.
11.2
Responsible international trade is the theme of Article 11.2 and it is no surprise that emphasis is put on the principles, rights and obligations established in the World Trade Organization Agreement. The main reason for this insistence is the intention to avoid the development of a parallel and possibly conflicting set of rules and provisions related to international trade. A similar line of thinking was behind the decision to adopt the output of the FAO/WHO Codex Alimentarius Commission (which has a Committee to deal with fish and fishery products) as the reference body for technical aspects of food trade in WTO (specifically the SPS and TBT agreements). Apart from the trade rules as developed under WTO and the call for further trade liberalization and elimination of trade barriers and distortions, there are a number of provisions which deal with the connection between trade and environment (11.2.2; 11.2.4; 11.2.9; 11.2.10; 11.2.11; 11.2.12).
Environment is also one element of Article 11.2.15 which may be considered to be perhaps the most important one in this chapter. It calls not only on states but all relevant international cooperation and support agencies and organizations to make sure that promotion of international fish trade and export production does not result in environmental degradation or adversely impact the nutritional rights and needs of people for whom fish is critical to their health and well-being. This clause may also be seen as the link between the dimension of fish as food for humans in Article 11.1 and its economic importance as a trade item for the benefit of consumers.
Whereas most of the provisions of Articles 11.2 and 11.3 are directed towards fish importing countries, there are three provisions which are of specific relevance to countries which export or engage in fishing agreements regulating fishing operations of foreign fleets in their waters. The Code establishes as a general principle that access to markets should not be conditioned on access to resources in Article 11.2.7. However, the article says that this principle does not preclude the possibility of fishing agreements between States which include provisions referring to access to resources, trade and access to markets, transfer of technology, scientific research, training and other relevant elements.
This is also recognition of an exception to Article 11.2.8 which stipulates that access to markets should not be linked to the purchase of specific technology or sale of other products. In short, the Code establishes as principles that conditioning access to markets on access to resources and to an obligation to purchase or sell other products: however, it recognizes the freedom of States to agree on arrangements which may allow such connections. In 11.2.12 the Code expresses a possible concern by warning that States should not undermine conservation measures for living aquatic resources in order to gain trade or investment benefits. This is a reflection of the continuing responsibility of states for the sustainable exploitation of the fish resources in their waters irrespective of them being fished by outsiders.
11.3
Already in Articles 11.1 and 11.2 the importance of rules became apparent for fish as food and as an item in food trade, and in recognition of this importance a separate chapter on laws and regulations relating to fish trade was included in the Code as 11.3. Since rules and regulations can be used to hamper and distort trade, provision 11.3.1 defines their nature that they should be:
Although these terms are clear and seem to make sense, they may not always be adhered to and are probably difficult to describe and define so that they could be used in an international dispute. However, they call the attention of those making the rules that there may be subjects which would find them unclear, complicated, incomprehensible and without a scientific base, where one would be needed. The latter would seem to be the terms to be used in cases of complaints.
On a similar line of thinking, the Article suggests the need for consultations at national and international level, the requirement of simplification and periodic adjustment of the rules and to check whether the conditions which gave rise to the introduction of specific rules continue to exist. Article 11.3 puts heavy emphasis on a cooperative spirit in the development of rules and the need for effective communication among those concerned, particularly between countries and pertinent international organizations (11.3.8). Cooperative spirit and effective communication, at national and international levels, are the key terms of Articles 11.3.
LINKS TO OTHER ARTICLES OF THE CODE
Article 11 is not an isolated part of the Code but its provisions have links and implications for other chapters albeit in a complementary fashion. For illustration purposes some examples of Articles 8, 9 and 12 are provided.
ARTICLE 8 (FISHING OPERATIONS)
In clause 8.4.4 the adoption of appropriate technology for the best use and care of the retained catch is stipulated. This is essential for the maintenance of a level of product quality which through the subsequent marketing stages will allow the consumer to acquire products of the quality he/she desires. In 8.4.5 the reduction of discards is addressed which is a link to 11.1.8 which requires the reduction of post-harvest losses and the use of bycatch. Article 8.8 deals with the protection of the atmosphere and the need to reduce ozone depleting substances which may be used in refrigeration systems and therefore, it is important for the processing industry and providers of ice and cold storage in the distribution system.
ARTICLE 9 (AQUACULTURE DEVELOPMENT)
In Article 9.4.7 food safety of aquaculture products and the promotion of efforts which maintain product quality and to improve the value of aquaculture output are specifically mentioned thus establishing the link to Article 11. However, it is necessary to mention that many provisions of Article 11 need to be taken into account in the promotion of aquaculture development and that the concerns of both articles need to be addressed when preparing relevant plans. There are examples that not all concerned are aware of this link and it may be mainly producers which concentrate on production issues.
ARTICLE 12 (FISHERIES RESEARCH)
There are three provisions in Article 12 addressing fisheries research which are pertinent to fish as food and, therefore, constitute a link to Article 11. Under 12.7 research is encouraged to ensure optimum utilization of fishery resources as well as research to support national policies related to fish as food. Research into and monitoring of human food supplies from aquatic sources and the environment from which they are taken is required according to Article 12.8 in order to ensure that there is no adverse health impact on consumers. In a more generic way Article 12.9 provides that the economic, social, marketing and institutional aspects of fisheries are adequately researched (and that comparable data are generated for ongoing monitoring, analysis and policy formulation).
TECHNICAL GUIDELINES
Volume 7 of the FAO Technical Guidelines for Responsible Fisheries relate to responsible fish utilization, i. e. to Article 11.1. This publication provides annotation to and guidance on the provisions of this article and is aiming at assisting those charged with the implementation of the Code to identify possible courses of action necessary to ensure that the industry is conducted in a sustainable manner. They are directed particularly towards the post-harvest sector of the fish producing industry. Three major areas of responsibility are identified which the industry is expected to honour:
Responsibility to the consumer of the food, to ensure that it is safe to eat, is of expected quality and nutritional value,
Responsibility to the resource, to ensure that it is not wasted and
Responsibility to the environment, to ensure that negative impacts are minimized.
In addition the industry has the self-evident responsibility to itself to ensure the continued ability of many millions of people throughout the world to earn a gainful living from working within the industry.
The preparation of Technical Guidelines related to Articles 11.2 and 11.3 has not been accomplished yet. Concerns by parts of the FAO membership which feared that such guidelines would paraphrase the existing text of the Code and possibly introduce biased interpretations, or else undermine the validity of the WTO texts for which the FAO has no mandate initially caused a delay in addressing the task. Subsequent drafts were brought to the attention of the COFI Sub-Committee on Fish Trade in 1998 and a final draft was produced in 2000. However, the text followed very closely the formulation of the Code itself and in a number cases there were no specific explanations of the provisions of the Code, because the original text was considered self-explanatory; perhaps because the drafters were experts in legal texts and formulations and did not see an additional benefit by describing the context of the individual provisions.
REPORTS BY SOUTH WEST PACIFIC COUNTRIES ON THE CCRF IMPLEMENTATION
The Progress Report on the Implementation of the Code of Conduct for Responsible Fisheries and Related Plans of Action presented to the FAO Committee on Fisheries at its 25th Session in February 2003 included replies from 10 countries in the Southwest Pacific (Australia, Cook Islands, Fiji, Marshall Islands, Nauru, New Zealand, Papua New Guinea, Samoa, Solomon Islands, Tonga, Vanuatu). A summary of the results for the region as a whole is presented below.
PRIORITIES
The objective of the Code "Promote the contribution of fisheries to food security and food quality giving priority to the nutritional needs of local communities" was rated by six countries as extremely relevant; one reply denoted it as relevant and another three between relevant and extremely relevant. Similarly distributed were the replies received for the objective "Promote trade in fish and fishery products in conformity with relevant international rules".
The prioritization of the various themes of the Code resulted in top priority by 6 countries for post-harvest practices, three indicated priority and one reply said low priority. In this case the picture for trade differed and four countries deemed it top priority and six a priority.
PROBLEMS
The questionnaire on which the survey was based carried two questions related to the post-harvest and trade area but not all Southwest Pacific countries replied. Of the nine FAO members questioned whether they were with or without an effective food safety and quality assurance system for fish and fishery products, five replied positive and four no.
The question whether the origin of fish and fishery products can be identified in the country, six said processors could and one that they could not. Regarding consumers it was reported that they could identify the origin in three countries, but five said they could not.
This situation would indicate needs for action in the area of food safety and consumer protection as well as the traceability of the origin of products or raw materials.
RECOMMENDATIONS OF THE SPC HEADS OF FISHERIES MEETING (AUGUST 2003) PERTINENT TO ARTICLE 11
- Introduced species
- Live reef fisheries
- Improving quality and value of fisheries exports
OUTLOOK
Fish as Food and Food Security
The emphasis which the code gives to fish as food in Article 11 will continue to stay important and may even become more prominent with economic growth and rising awareness of the benefits of fish consumption for human health increasing over time. Access to fish supplies could become a bottleneck for lower income groups, if no means are developed to make relatively cheap products available to these groups of consumers. At any rate, the use of fish as human food will maintain a priority position and may expand its prominence in the further development of international discussions related to the human right to food.
At this stage, I would like to add a few remarks to a work in progress in relation to international trade in fishery products and how it can be managed so as to limit harm done to food security and contribute to strengthening food security, especially for the poor. So far, the work concentrates on the principles that should guide the management of fish trade in relation to concern for food security. The core principle proposed is food sovereignty as part of national sovereignty. This responsibility of national governments implies the obligation to respect and avoid any action which would harm food security. A further obligation is to protect, i.e. action should be taken to prevent others from harming food security (e.g. preventing trade that would endanger customary supplies of fish, especially for the poor). The obligation to fulfil means action to facilitate people in achieving food security by creating the conditions that people can provide for themselves.
In the view of the author[98], it is important to formulate explicit norms for performance of States, business enterprises and international agencies and to make international arrangements to ensure the implementation of these norms. It is too early to say whether this work will lead to a codification of some sort and which institutional arrangements will be pursued in this regard.
Trade and Environment Mutually Supportive
Environmental concerns are increasingly raised in international discussions related to fisheries and aquaculture. Apart from the frequent mentions in the present text of the Code, the International Plans of Action for Sharks and Seabirds are further evidence of this tendency. Another, in a sense parallel trend is the application of trade measures for environmental reasons and in this context the importance which CITES has gained over the past ten years for fish species is a significant example. It will be remembered that the Rio Conference on the Environment and Development requested FAO to formulate a Code of Conduct for Responsible Fisheries; so it had an environmental angle right from the start.
Agenda 21 of the Rio Declaration stipulates that trade and environment should be mutually supportive and it will be one of the major challenges of the future to establish this link in an operationally effective way.
It is apparent that issues of international fish trade are being discussed in a multitude of international fora and there are indications that this process will intensify further. Since fish resources contribute such an important share to the economic wealth of the South Pacific countries, it is essential that their governments make sure that their voices are heard and their interests taken care of in these discussions. It must be remembered that the international rules are negotiated and only an informed participation in these negotiations can ensure appropriate reflection of the countries of the South Pacific, their peoples' and specifically their fishers', processors', traders' and consumers' needs and rights.
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[97] Consultant, Fish
Utilization and Marketing Service, Fishery Industries Division, FAO
Rome. [98] Professor Georges Kent, University of Hawaii. |
