What are the legal and institutional aspects of EAF?

LEGAL

The international instruments which should be considered when implementing EAF need to be reflected in national legislation and all associated fisheries regulations and practices.

At the international level, EAF is reflected mainly in voluntary instruments such as the Rio Declaration¹, Agenda 21², the FAO Code of Conduct for Responsible Fisheries, the Reykjavik Declaration³ and the 2002 Plan of Implementation of the World Summit on Sustainable Development. As a result of the voluntary nature of the instruments, few regional fisheries organizations and arrangements make explicit recognition of EAF in their instruments as yet. Furthermore, EAF is frequently not an integral part of national fisheries policy and legislation. This leads to many deficiencies in current fishery management regimes, such as weak cross sectoral consultation and cooperation and the failure to consider - or a legal inability to act on - external influences such as pollution and habitat deterioration.

In the case of national policies and laws, EAF may require that existing legal instruments and the practices of other sectors that interact with or impact on fisheries need to be considered, and that adjustments be made where necessary. EAF is, therefore, likely to require more complex sets of rules or regulations that recognize the impacts of fisheries on other sectors and the impact of those sectors on fisheries.

It may be desirable to regulate the intersectoral interactions through primary legislation. This could apply, for example, to laws controlling coastline development and coastal habitat protection, the establishment of permanent MPAs, and the creation of cross sectoral institutions.

INSTITUTIONAL

As with conventional management, EAF requires institutions to ensure coordination, consultation, cooperation and joint decision-making - between fisheries operating in the same geographical area and between the fisheries and other sectors that interact with it.

The development and implementation of EAF policy and legislation will most likely be undertaken by the national fisheries department or designated management agencies (at national level) and the regional fisheries management organizations at regional level.

A key challenge in the development of EAF may arise from disparities between the ecosystem and existing jurisdictional boundaries. Any such disparities will need to be addressed. Examples include the following.

• In coastal areas, the sea-use and land-use planning administrations need to cooperate in developing integrated systems of information and governance capable of allocating resources and enforcing use rights.
• In the open ocean, the jurisdictional boundaries of the fishery organizations may not properly match the ecosystem boundaries e.g. the large marine ecosystem (LME) boundaries.
• In the context of conventional management, conflicts frequently arise between different interest groups, which tend to hinder the effective management of fisheries. Conflict will inevitably increase under EAF as the number of stakeholders and objectives increase. It may often be impossible to obtain voluntary compromise between competing stakeholders and higher-level decisions may be required. Institutional arrangements need to be established to reduce potential conflicts and to facilitate their resolution when they do occur.

EAF will require adherence to the same principles of transparent and participatory management as conventional management, and as such, relevant authorities will have to:

• ensure the decentralization of decision-making and management responsibility to organizations or groups (e.g. to make use of traditional management practices);
• build capacity at these new management levels;
• ensure appropriate participation of stakeholders in decision-making;
• improve transparency and dissemination of information;
• establish appropriate systems of user-rights.

An ecosystem approach to management requires coordination, consultation, cooperation and joint decision-making not only between different fisheries operating in the same ecosystem or geographical area, but also between the fisheries management agency and the other sectors that have an impact on fisheries or are effected by fisheries.

If responsibility and authority is devolved to coastal community level, management decisions and actions will need to be highly coordinated. The access rights system will frequently need to encompass other uses, in addition to the use of the target resources. This may complicate the selection and implementation of an effective system of user rights. Examples of additional contenders for access rights under EAF include:

• explicit recognition of predator-prey relationships under EAF, requiring the allocation of some of the potential yield of the prey species to the predator, through leaving a higher biomass of prey in the sea, rather than allocating that portion of the yield to the fishery or fisheries targeting the prey species; and
• different user groups, including multiple fisheries, tourism, conservation and recreational fisheries will require appropriate allocation of resources and access to resources.

Such allocation issues are not new, but have generally been neglected in the past. Under EAF, issues of access and allocation of resources will need to be formally recognized.

EDUCATING AND INFORMING STAKEHOLDERS

In some cases, under conventional management, stakeholder involvement has led to increasing awareness of, and the capacity to, participate in fisheries management, but in many cases little progress has been made. For the implementation of EAF to be successful, stakeholders will need to understand and accept the need for this more inclusive approach to fisheries management. This will require a proactive effort by management agencies. Scientists and management authorities will need to:

• recognize the value of the knowledge of fishers, their representatives and communities (particularly regarding the ecosystem);
• recognize that with the ever broadening range of stakeholders under EAF, the potential differences in capacity to participate in management will also increase which, if uncorrected, will lead to unbalanced and poor decisions;
• facilitate capacity building and empower all stakeholders to ensure equitable participation;
• ensure effective and appropriate training for all staff having to deal with the changes required for EAF.

¹ The Rio Declaration on Environment and Development, Rio de Janeiro, Brazil, June 1992.

² Protection of the Oceans, All Kinds of Seas, Including Enclosed and Semi-Enclosed Seas, and Coastal Areas and the Protection, Rational Use and Development of Their Living Resources, United Nations Conference on Environment and Development, Rio de Janeiro, Brazil, June 1992.

³ The Reykjavik Declaration on Responsible Fisheries in the Marine Ecosystem, Reykjavik, Iceland, October 2001.