Creating legal space for community-based fisheries and customary
marine tenure in the Pacific: issues and opportunities

FAO/FishCode Review No. 7

Creating legal space for community-based fisheries and customary marine tenure in the Pacific: issues and opportunities


FOOD AND AGRICULTURE ORGANIZATION OF THE UNITED NATIONS

Rome, 2004

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ISSN 1728-4392

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© FAO 2004

Foreword

This document reviews legal aspects of community-based fisheries management (CBFM) and the role of legislation in enhancing CBFM and customary marine tenure in the Pacific. It was prepared on the basis of a literature and legislative review and site visits to the Cook Islands, Fiji, Palau, Papua New Guinea, Solomon Islands and Vanuatu in 2003, undertaken by Blaise Kuemlangan (FAO Development Law Service). The visits were made immediately before and following the Secretariat of the Pacific Community Regional Policy Meeting on Coastal Fisheries Management, which was held 17-21 March 2003 in Nadi, Fiji. Legal technical assistance in support of the meeting and preparation of this study was provided through the FAO FishCode Programme under component project GCP/INT/823/JPN, Responsible Fisheries for Small Island Developing States.

The FishCode Review series publishes results of studies, missions, consultations, workshops, meetings and other project activities undertaken through the Programme, in furtherance of its objective of facilitating implementation of the 1995 FAO Code of Conduct for Responsible Fisheries and related international fisheries instruments and plans of action. Individual numbers in this series are distributed to appropriate governments, regional bodies, meeting participants and Programme partners. Further information on Programme background, publications and activities is available at www.fao.org/fi/fishcode.


Kuemlangan, B.
Creating legal space for community-based fisheries and customary marine tenure in the Pacific: issues and opportunities.
FishCode Review. No. 7(En). Rome, FAO. 2004. 65p.

ABSTRACT

The legal environment within which community-based fisheries management (CBFM) will function should be examined to determine whether it supports or will need necessary enhancement to support the implementation of CBFM. The question as to whether CBFM is legally sustainable must be asked with regard to the whole legal framework of the State from fundamental laws, such as the constitution, to subsidiary legislation. Amendments to existing legislation or new legislation may be necessary to implement CBFM. There is no blueprint for a CBFM legal framework what number of rights with respect to fish resources should be accorded and what should be the level of participation by the local community. It is important, however, to ensure that the constitutionality of all these aspects is ascertained, and to ensure that enabling legislation for CBFM consider the following issues: security, exclusivity and permanence of rights vested; flexibility of its provisions so as to allow states to exercise choices that reflect their unique needs, conditions and aspirations for CBFM; and the way CBFM harmonizes with the overall fisheries management legal framework. Attaining the right balance in the CBFM legal framework, however, is difficult and depends largely on local circumstances. There is much interest in using customary marine tenure (CMT) as a basis for CBFM in the Pacific Island Countries (PICs). The laws of PICs lend general support to the use of CMT or tradition in fisheries management. Still, only modest efforts in the use of CMT-based community fisheries management in the PICs are observed. Further legislative action can enhance CMT use in community fisheries management. Broad lessons can be drawn from the experiences of some PICs in legislating on CMT or certain of its aspects to enhance CMT use. Government commitment to CBFM generally, and for the role of CMT in the CBFM context with support from interested entities and stakeholders including communities, will complement efforts for promoting sustainable utilization of fisheries resources and improved livelihoods in the PICs.

Keywords: community-based fisheries management, customary marine tenure, fisheries legislation, legal frameworks, Pacific Island Countries.


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