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DISCUSSION PAPER 6
ESTABLISHING ACCESS REGULATION AND RIGHTS

by

Joseph Catanzano 58

Summary

The assessments and expert reviews carried out at the request of some West African governments show the existence, even now, of national-scale weaknesses in fisheries management policy (FAO 2000, CNROP 1998, IMROP 2002, SIAP 2002). Because of these weaknesses the countries run the risk of seeing their natural resources depleted as a result of excessive use by some, non-rational use by others and/or failure by most of them to capitalise on those resources.

Open access to fishery resources is the main cause of overexploitation of those resources (structural aspect). This is due to there being too many fishermen and a lack of control over the rise in their numbers, and to excess fishing capacity and fishing effort (short-term aspect).

The challenge for the countries is to put their public and private fishing economies in order, if possible simultaneously, by mobilising the funds needed for essential structural reforms, prior to introducing mechanisms for allocating rights of access to resources. These mechanisms will be to remove negative externalities and gradually lead to an equitable and efficient way of dealing with the problem of rights allocation.

Fishery development strategies in the southern countries are hampered by conceptual and institutional limitations brought about by: (i) the perception of the management problem, (ii) the perception of the role of government measures, (iii) the need to refocus the role of public institutions, (iv) the introduction of long-term co-operation arrangements.

This paper deals with these four aspects by laying the groundwork for the implementation of access control policies. The aim is to ease the way for and guide the reform of management systems in West African countries. This implies, first, a willingness to break with current situations, followed by the introduction of arrangements for granting access rights, prior to developing management plans.

This paper takes account of the conventions and FAO 1005 Code of Conduct for Responsible Fisheries (Code of Conduct) under which the countries have already taken measures and focuses, in particular, on the question of access to fishery resources. It draws on the situations in the three “pilot” countries engaged in defining such processes and implementing management mechanisms: Guinea, Mauritania and Senegal. It should encourage new management initiatives, especially access control, and should help those involved to organise work timetables prior to mapping out a series of useful institutional reforms. It should also help in the identification of support measures and risks associated with each stage of the process. In addition to drawing attention to the theory of management and its links with development, this paper also deals with the opinions of the players involved, be they administrative officers, fishermen or researchers and, for that, draws on a consultation carried out in summer 2003 in each of the three countries concerned.

1. INTRODUCTION

The aim of fisheries management as defined by FAO (Article 7 of the Code of Conduct) is the long-term sustainable use of fishery resources. Therefore, measures have been devised to maintain or restore stocks to levels where they will be capable of maintaining a constant maximum yield, bearing in mind pertinent environmental and economic factors, including the special requirements of developing countries.

The assessments and expert reviews carried out at the request of some West African governments show the existence, even now, of national-scale weaknesses in fisheries management policy (FAO 2000, CNROP 1998, IMROP 2002, SIAP 2002). Because of these weaknesses the countries run the risk of seeing their natural resources depleted as a result of excessive use by some, non-rational use by others and/or failure by most of them to capitalise on those resources.

These weaknesses lead to conflicts between fishermen and make it more difficult to reach decisions on the allocation of fishing rights (between small-scale and industrial fishermen, between members of a single fishing family and between nationals and foreigners).

These weaknesses result in:

2. THE CONCEPTUAL AND INSTITUTIONAL LIMITATIONS OF PUBLIC FISHERY POLICIES

Fishery management has for a long time focussed on the overfishing problem to the detriment of the overcapacity problem (Cunningham, 2002). The limitations of management aimed solely at preserving the productive and reproductive capacity of stocks by means of technical measures (catch selectivity and/or limits on total catch) (Troadec et Boncœur, 2002) became clear when all the chances of redeploying excess capacities disappeared in a given place and at a given time.

In a situation of uncontrolled access, overcapacity increases the risks for the resources, often leading to an unsustainable cycle of exploitation, as illustrated by the “tragedy of the commons” (Hardin, 1968).59

In uncontrolled fisheries, there are economic incentives which lead to over-fishing. These incentives are all the more effective given that fisheries management fails to use or makes insufficient use of economic control mechanisms. The market cannot alone produce regulations capable of blocking the effects of externalities.

Traditionally, two ways have been developed to try to deal with this problem: incentive blocking or incentive adjusting (Gréboval and Munro, 1999).

In the absence of a policy to deal with the question of access to fishery resources, conflicts of interest between fishery operators are on the increase (Christy, 1982). This has been quickly followed by conflicts within particular communities (territorial, social, occupational, and institutional), sometimes affecting several of these at the same time.

Public measures, especially in the countries under review in this paper (cf. Appendix), are often directed to resolving these conflicts. This often leads to confusion about the place and role of the institutions and to a waste of funds which could otherwise have been applied to the resolution of genuine management issues.

Some conflicts can affect an entire society (this is particularly true where international agreements are concerned). This occurs when the resources are no longer spoken of in terms of their economic classification (common), but in terms of their legal status (res nullius) (Boncœur, 2003). This is what happened during negotiations on fishing agreements with the European Union (EU) and in connection with transboundary conflicts which ended with physical interventions on national fishing vessels.

2.1 Government measures: an obligation to undertake reforms

A raft of government measures are needed to offset the effects of open access. However, this does not mean that the private sector cannot participate in the decision-making and implementation of the proposed regulatory system. There is a whole range of co-management options available, based on general policy approaches (such as decentralisation, regionalisation, community participation and delegation of authority), and the social practices in the country concerned.

The public authorities have to play a part in fishery management for strategic and legal reasons. These reasons are virtually universal and are not dependent on a country's level of development. But there are also operational reasons, justified by the level of decline of the sectors and resources, and by the countries'general weaknesses caused by their lack of development (in building infrastructure in general, under-equipped public services and the general lack of funds in the sector).

The situation in the developing countries is usually the opposite of that in the developed world, Europe in particular. In the former, the factors conducive to management reform stem from the relative weakness of the institutions (in the sense that networks are still being developed and, therefore, likely to undergo radical change), whereas constraints are due mainly to a shortage of the resources needed to introduce and support the reforms, especially funding.

However, one cannot but note that putting management reforms into place in Europe can take a considerable length of time60 and can consume large amounts of public funding despite the level of development of the economies involved.

This should prompt States to pay greater attention to the obstacles likely to arise throughout the reform process. It should also encourage them to take advantage of their institutional weaknesses and make a clean break with past positions and policies.

2.1.1 A suitable strategic position for action

From a strategic viewpoint, the public authorities are in a better position to provide a fully comprehensive picture of the management problem. They are able to stand back and take an overall view of the problems affecting: (i) the future of the resources, (ii) the economic sectors whose income depends on the exploitation of those resources and, (iii) the social conditions that can reasonably be expected given a country's level of development or the level of development that country wishes to achieve.

However, this does not mean that the public authorities can or should undertake this task alone. On the contrary, this should be a joint effort, for experience shows that the quality of the systems provided depends to a large extent on the players lending their support to the decisions made and on account being taken of public and private interests. Indeed, it is often at this stage that the groundwork is laid for the establishment of consultation bodies or future public/private mixed institutions (agencies, committees or commissions). This is also the time when the first training plans begin to emerge and training requirements are identified. Requirements in terms of information (observatory, etc.) also begin to be considered, with attention paid to management content, objectives and constraints.

Thus, with a clearly defined objective (improve one's situation and ensure one's future), small-scale and industrial fishermen will, by this stage, have a good idea of the issues to be negotiated and the constraints facing the public authorities and the other players. These are the points they will discuss. They will then move gradually from a clearly defined objective to a common objective (e.g. to achieve equitable and transparent access to resources).

2.1.2 Keeping operational requirements within limits

From an operational viewpoint, especially in the context of the developing world, public authorities have an even greater obligation to rationalise their choices and limit their financial commitments in the private sector, provided that neither international law, social peace, security nor any of their other crucial responsibilities will be affected by any such decisions.

However, in the current context of fishing, where sharply declining conditions and the results of fishery resource exploitation are well-known, one cannot but note that the introduction of effective government regulations is subordinate to public sector investment in the private sector.

Government measures could involve incentives to encourage fishermen to leave the sector (capacity reduction plan) and the creation of income-generating activities outside the fishery sector which would channel inputs to other production sectors.

Incentives could also be directed toward institutional support, especially for those institutions capable of promoting the new control mechanisms or those able to help remedy the lack of knowledge, bring the players up to the necessary levels (training and consultation) and improve the dissemination of information prior to the reforms being adopted and the players support obtained.

Investing in the reform of the regulatory systems with donor support also prompts questions as to which type of institutional framework is most suited to monitoring that commitment. Now, there is often a danger of confusing the institutional plans designed to ensure that the sector's regulatory systems remain effective in the long term with institutional plans for monitoring support programmes whose main aim is to rehabilitate the fishing sector.

In the case of the former, ways must be found to delegate and transfer authority to the private sector whereas, for the latter, there is a natural tendency to aim at the top of the public institutional pyramid when assigning responsibility, even if the involvement of private players is increasingly appreciated by all the donors (World Bank, ADB, BADEA, bilateral co-operation, etc.).

Confusion between these programmes and management system reforms tends to cause friction between the institutions on these matters and on the responsibilities assigned to them. They also experience some difficulty in adjusting to the new management conditions.

In order to cope with management reform and responsibility for access control, the configuration of the institutions must be clearly seen to be capable of generating new sectoral institutional plans, otherwise the result is likely to be fragmentation of responsibilities and a loss of funds, already considerably lacking in most situations.

2.2 Refocusing management objectives

Management objectives in the countries of the region, as in most of the countries of the world, are often confused with sectoral objectives which are, in fact, development objectives. Sometimes, they are even confused with public policy objectives which do not come under the regulatory powers of national public institutions with responsibility for fisheries. This is particularly true of current regulatory mechanisms which remain essentially regulatory.

Traditionally, public policy objectives coincide with specific interpretations of the concepts of resource conservation, production system rationalisation, the pursuit of well-being and social peace, often through the protection of the social structures in place. (A.T. Charles, 1992).

This does not prevent sectoral policy statements from including a random collection of objectives, including production growth, resource protection, increased added value, sustained employment, contribution to the trade and currency balance, and meeting food requirements. This is true of all the countries of the region.

Past management failures (given the state of fishery resources and economies) show that dissipation of resources is often attributable to the fact that objectives have often been contradictory and the public institutions have been incapable of prioritising them.

2.3 The need to break with the past

The contradictions are a sign of the difficulty experienced by sectoral public institutions in taking up a position which is in line with general policy aims. They also suggest the absence of a clear vision of the issues involved in public control and are the reason why it has not been possible to refocus and prioritise public measures. This is particularly true of the institutions dealing specifically with fisheries.

When we speak about raising living standards, improving the quality of life and social protection, we consider that the funding needed to achieve these objectives has to come from outside. However, just reducing the loss of value of the resources -not to mention stopping the dissipation of fishery income61 - would suffice to satisfy all or some of these expectations. Therefore, the managers are responsible for providing figures to show how loss of earnings could be offset by an access control policy. If they can show this, they will then be in a position to point to the real issue which should be at the heart of the public debate, i.e., how to share the benefits of management.

This question concerns:

By tackling the public debate in two parts, the public authorities will help to clarify the fishery question. These two parts may be described as follows.

2.4 Consulting and obtaining the support of the players

Management reform must not be systematically confused with the idea of institutional reform. On the contrary, it is desirable that existing institutions, albeit those which do not hinder the reforms due to their function, structure or role, should be maintained and adapted so as to ensure a certain institutional stability. This implies that a debate should be undertaken on the new functions of regulation and on the existing institutions'new duties, following some adjustments (in terms of status, resources, operation and inter-institutional links).

Existing processes, including traditional, sound consultation processes and spontaneous local regulations associated with traditional fisheries (small-scale communities) must be used to lend support when extending the new regulations nation wide. This will be possible provided that the regulations are shown to be effective and to have met social requirements, even though they might not necessarily be incorporated in the fishery legislation in force. In following a bottom-up approach, going from local practices to national legislation, enhances the chances of the regulations being supported by the players. The opposite, i.e. the top-down approach, whereby regulations and draft legislation are passed down from the national level, in most cases has effects contrary to expectations (more lawless behaviour, a hardening of fishermen's demands, a freeze in inter-institutional relations). This requires a survey of existing regulatory methods and institutions to be carried out and an objective status report on the regulations to be drawn up. An evaluation of the compatibility of the existing systems with the new rules of access must be made through joint discussions between the sector's administrators and the fishermen.

These surveys of institutions and regulations must as far as possible be conducted within the framework of a consultation process which might highlight the need for training and information.

One way of obtaining the players'support would be to introduce consultation procedures capable of doubling up as training, discussion and motivation sessions. This would require the involvement of all the fishermen and their families, and all the sector's players (administrators, researchers, etc.). Coherent messages would also have to be sent out concerning management aims and methods with regard to resource access as opposed to an analysis of the current state of the sector. If the players are to support the new regulations, they must be told what to expect, i.e. the constraints as well as the short-term compensation and the medium and long-term gains. This means that experts, guaranteed to be objective, must be mobilised to deal with these matters. These could be community authorities, comprising local players and experts, or outside experts brought in to work alongside the sector's own technical experts.

Consultation mechanisms must be brought in at the evaluation stages and continue until the new regulations are proposed. They must be seen as part of management's day-to-day activities. This means that it must be made clear that consultation is an integral part of the institutional reforms and that as soon

as the consultation committee has been put in place it must be given the means to operate adequately, otherwise it will soon become merely a protest group.

3. Establishing an access control policy for fishery resources

Before the operational side of the question of concession mechanisms can be dealt with, a transitional phase or plan will have to be put in place to assist the changeover from the systems in force to the systems based on access control. This culture change is too important not to be backed up by training.

It is equally important to recognise that these reforms must take place over a long enough period so that imbalances can be dealt with. The reforms must also be supported by a participatory process aimed at assisting institutional adjustment and must be backed by funding to offset short-term negative impacts. Other questions to be dealt with are the economic and social impact of overcapacity and over manning, the transfer of responsibilities, management costs, and the establishment of institutions to manage the mechanisms designed to control and monitor the transfer of rights and the updating of the legislation. It would be wise to assess the cost of all this and include it in the transition plan to rule out any idea of having long-term support measures.

This is a long drawn-out process and not a “quick-fix” legislative reform to make up for the current lack of access rights.

The adoption of access control mechanisms implies general consensus on the evaluation of the sector and its resources and close cooperation throughout the planning and implementation of the rights.

The adoption of access control mechanisms shows that the need for fisheries control in economic terms has been recognised. However, this does not mean that technical measures geared to the specific characteristics of the resources fished (protection for juveniles, breeding grounds and ecosystems in general) and certain macro-economic choices including non-use (protection for certain species and fishing grounds) are being challenged.

Controlling access to fisheries cannot be dealt with until other use values (tourism-related activities) and non-use values (existing values justifying the protection of certain marine species or certain complete ecosystems) are taken into consideration. This means ensuring that the rent-maximising objectives are consistent with the macroeconomic assessment of public regulations (Wilson, J. and J. Boncœur, 2000).

3.1 Useful definitions

The concept of access rights concessions relates to the general treatment of the question of contracts between the State (or its representative), in its capacity as the virtual owner of fishery resources, and the beneficiaries of the right of access to these resources.

The term right of access will be preferred when referring to the form of right acquired and the technical criteria applicable (e.g. territorial rights, quotas etc.).This distinction suggests that this matter goes beyond the technical definition of access rights. It also covers:

By describing access rights concession mechanisms in these terms, we avoid any possible confusion with the management plan concept.63 A management plan provides options for all fisheries or specific options for some particular resources or fisheries. These objectives may require different forms of access rights provided that the idea of rights concessions is confirmed in national legislation.

It must be recalled that concession mechanisms are defined in terms of general principles, set out in the Act laying down the fisheries code. Management plans are a tool for implementing different types of access rights depending on the case. All access rights, however, must comply with the principles laid down in the Act.

Once these principles have been defined, there is then freedom of choice as regards support for the access rights (i.e. their definition criteria, such as quotas and areas), and the method used to implement them.

What is more, in each case, the true role of the licensing mechanisms is ambiguous, added to which there are obstacles blocking any policy change with regard to access control.

3.1.1 Specifications

The specifications are a major aspect of the technical task of defining access rights and a fundamental component of the concession principle: they set out the reciprocal contractual commitments between the State and the beneficiaries. The specifications must:

The technical work involved in planning the implementation of these access rights must aim to:

3.1.2 General concession principles

By general concession principles are meant those principles that will be laid down in the Act prescribing the marine fishing code, including the various types of access rights and the specific practical methods of allocation and transfer between the various fishery players.

These principles will have to:

These elements are vital to ensure that the concession project has the best chance of being accepted. Consequently, it must not automatically replace the right allocation tools currently in place even if these have been shown to be of limited value. Consideration must be given to adjusting current licensing schemes and social regulations in some fishing or territorial communities.

In terms of these general principles, the following suggestions may be useful.

3.1.3 Introducing access-control mechanisms

Before control mechanisms can be introduced, there must first be a policy decision to grant access rights, in compliance with international law and national legislation.

This decision implies adequate political strength and a clear policy statement rejecting open access for all uses of fishery resources, bearing in mind that all national and foreign players are potential candidates for access rights. Such a statement must:

The proposed process must ensure the coherence and inter-relationship of the major elements of the reform of the existing regulatory system, which are:

The first two elements mark the stages toward effective access control and will no longer be needed once the conceptual framework has changed (from open to controlled access) and once the concession conditions and principles have been defined, thereby allowing for many types of rights based on management plans. This three-pronged approach changes the conceptual framework whilst the choice of time and pace will depend on the context. The management policy then becomes a consultation process comprising continuous actions, strengthened by a monitoring protocol and an ability to adapt through management plans and in line with sustainable development policies.

3.2 The players'perception (Cf. Appendix)

Player perception is a major factor to be considered and dealt with, if possible, before any general policy is put forward. This will strengthen the political position and ensure that the players participate in the preparation of the reform process

A common and mature perception by all players of the question of access control and the need to take appropriate action will be the basis for a general policy and start the desired process.

Players'support for the idea of reform is often strengthened by the authorities'failure to come to grips with fraud and enforce existing regulations. This leads to a breakdown in relations between the fishermen and the administration and to policy decisions being taken without consultation (discretionary power). When this happens, the next step should be an attempt at reconciliation based on a general review of all existing systems.

Table 1 summarises fishermen's organisations'opinion of their country's fishery system. It shows the differences in their perception of some access control concepts and of fisheries management in general. It also shows the subtle differences between the three countries studied (cf. Appendix).

3.3 Break with the past

It is important to point out that the State has acknowledged the need to break with past measures and, under its authority but in close consultation with all the players, must promote a change in players'attitudes and relationships.

The break with the past must be characterised by the following:

  1. a policy statement at a high institutional level;

  2. the promotion of a series of measures aimed at mobilising the players;

  3. the preparation and speedy implementation of a transition plan.

3.3.1 The policy statement

Generally speaking, even though the content of this statement depends largely on the degree of force the State wishes to give to this break and the pace at which it feels it can bring about the changes in the sector, it must be in line with the State's general objectives and take account of its international commitments.

It must set out the objectives targeted in terms of improving fishery management generally and fishery's contribution to national development. It is essential to prioritise the objectives, most of which are still incompatible: added value, trade balance, employment, exports and food security.

The statement should also cover subjects such as: increased fairness, improved transparency, the steps needed to increase the sustainability of fishing operations, the promotion of efforts to ensure good governance, applying the principle of prudence, etc., with a view to gaining the support of all the players for the reforms. All these questions relate, to some degree, to current public policy shortcomings with regard to fisheries.

The statement should also include the decision to introduce access rights concession mechanisms, thus clearly marking the break with open access. It should also express a willingness to promote this new policy through close, continuous consultation with all the players with an interest in the future of fishery operations (usage or non-usage). Finally, it should specify the procedure for designating the authorities responsible for the implementation of the policy (ministry, inter-ministerial group, administrative department, committee, commission and agency).

3.3.2 Mobilising the support of the players

This will involve several stages, including raising the awareness of government departments and explaining the decision to break with the past to these departments as well as to private players and institutions with an interest in the future of fishery resources.

Specific measures must be promoted in order to speed up this process:

3.3.3 Transition plan

The transition plan must include emergency measures to deal with the sector's deterioration, including:

The transition plan must assess and seek ways of implementing and providing compensation for the measures provided for under the plan (freeze, followed by reduction of fishing capacity, freeze, followed by reduction of fishing effort). It must be supported by the institutions responsible for identifying ways of discouraging new entrants and encouraging existing fishermen to leave the sector, as well as methods of compensation or aid for the redeployment of fishermen and the conversion of fishing vessels. The transition plan may require a provisional institution to be specially set up to manage it from its establishment to its implementation and evaluation. Where appropriate, this institution could then be wound up and the subsequent phases of preparation and introduction of management plans undertaken by long-established institutions with experience in these areas. The transition plan must have a fixed time-frame and be compatible with the various fishery sector components. It must tie in with the preparatory phases of work on the access control measures and with work on the management plans.

3.4 Defining access control

Lack of adequate across-the-board control of access to fishery resources results in individual appropriation of access. The rights which formalise access control and, thus, the end of the concept of open access are intended to put an end to inefficient management - inefficiency reflected in the continuous challenging of the types of individual appropriation which benefit private players bent on continuing the race-to-fish. The main aim of access control is to make fisheries control effective which, in theory, is a first step towards responsible fishing.

Access control involves the following phases:

  1. discussion and selection of the criteria for defining access rights, once the institution in charge of leading the work on the concessions has been activated;

  2. definition of the types of applicable rights based on their aptitude to allow current conditions and practices to evolve;

  3. drawing up of the specifications to accompany the access rights.

Institutional requirements, the form of the institutions and the links between them could also be defined at the same time as work is being done on the various types of rights and the specifications.

If the approach to the institutions is pragmatic and non-coercive, the legal supports and the expression of obligations which accompanies them would allow institutional planning to take place in a spirit of continuity and social stability. The aim should be to retain and adapt existing institutions rather than create new ones.

3.4.1 Choosing the criteria for defining access rights

Access rights may be described as regulatory tools relating to fishing area, fishery resources or fishing effort and capacity. These tools most often take the form of quotas or territorial and/or time limits, with certain fishing practices prohibited or restricted for given periods.

Once the institution in charge of preparing rights concession mechanisms (usually a working group, a committee or an ad hoc commission) is activated, the criteria will be defined following a series of discussions with all the stakeholders (fishermen, other nature users or protectors, administrators and scientists).

These discussions will provide information and knowledge about what can be achieved through access control mechanisms (in theoretical and practical terms). They will focus on current commercial fishing practices and on the aims and practices involved in resource protection and use, as well as on other recreational or commercial activities (tourism, sport fishing and nature protection).

The main aim of these discussions will be to take account of players'proposals, provided that they meet the control objectives, and to encourage the players to support those objectives by making them aware of their responsibilities in the context of the reforms and the change of direction.

The group will have to be prepared to listen to the proposals of as many players as possible and to examine their advantages and disadvantages. Translators will have to be available to translate the languages of the players present. This would be essential for their participation in the discussions. The translations of the players'proposals must be accurate and show how these are related to the theoretical concepts of rent, effort, access, capacity, quotas, access rights, control and technical measures. On-site meetings are also an effective way of increasing the chances of gaining the players'support and directly providing them with information on the aims of the planned reforms. Such meetings must be planned and managed with due respect for the national and local fishermen's representatives and the people's representatives operating at territorial or community level.

Discussions should be based on criteria relating to the various types of access rights. These criteria will take into account players'views on fishing areas, resources, fishing gear and capacity and effort. The discussions will encourage everyone involved in fisheries to express their opinions: players, administrators, scientists, civil society players and those representing other commercial uses.

The persons in charge of leading the discussions will have to try to explain the policies that may be adopted for each of the criteria to ensure that the access right system chosen coincides with what was discussed and that each and everyone understands the scope and limitations of each individual criterion.

It is important that all the proposals put forward by the players during the discussions are taken into account. In fact, these often involve adapting existing practices rather than radically reforming the regulations. This is why these proposals should be discussed with the players to ensure that they understand their limitations, i.e. the external constraints on the group concerned (the perception of the scale of the problem) or the difficulties in terms of implementation.

Typical examples in this regard concern criteria aimed at reducing fishing pressure by having fishermen leave the sector. The most undesirable people in fisheries are traditional, non-fishing investors (administrators who have invested in pirogues), and fishermen who use prohibited gear. When dealing with situations such as these, the players rarely go so far as to suggest that these fishermen should leave the sector or that fishing vessels should be decommissioned. They simply recommend a change of vessel (capital) or a change of fishing gear. It is important to show that this resolves neither the fishermen's problem nor the overfishing problem which, at best, remains unchanged. At worst (and this is usually what happens) this solution only serves to increase the pressure on segments of the fishing sector already under great stress.

The situation is similar in the case of proposals for dealing with migration. Migratory movements which are part and parcel of their traditional way of life are not condemned by the fishermen; on the contrary, they seem to think that regulatory measures should not apply to these migrants, whereas recent international migration, even if legal in terms of international agreements signed by the governments, are condemned out of hand.

All these contradictions and constraints concerning access control must be taken into consideration when choosing a system of shared access rights. Basically, rather than taking a purely technical approach to access control (selecting the most effective tool) what is needed is an approach which tackles the question of access control from both the technical and political angles and is based on a fair distribution of rights.

3.5 The question of area

The territorial criterion already exists under international law (demarcation of exclusive economic zones) and national regulations aimed at protecting areas reserved exclusively for small-scale fishing or set aside for nature reserves (protected marine parks and areas).

Zoning may also be used as part of measures aimed at protecting endangered species or the species'biological phases (breeding grounds and nurseries).

Apart from EEZs, other spatial demarcations do not involve a transfer of responsibilities with regard to surveillance, monitoring, resource evaluation and access control.

Some management responsibilities can be transferred to local fishing and/or territorial communities, provided that this is not in contradiction with local social or professional practices.

However, at the present time this is the exception rather than the rule. Responsibility for some regulations has been taken over by territorial authorities in some cases, making it possible for these authorities to point the finger at the shortcomings of government departments, not least with regard to the settlement of conflicts, the implementation of certain regulations, the monitoring of certain resources, the provision of empirical knowledge and market regulation.

The legislation prescribing the territorial divisions requires the State, inter alia, to take on the duties of surveillance which are known to be difficult at the present time due to excessive pressure being exerted on the resources and on surveillance facilities (pirate vessels in the EEZ, industrial vessels in areas reserved for small-scale fishing and the migration of small-scale fishermen).

This clearly shows that, given the insufficient means available to them, State services are rarely able to ensure compliance with the apportionment of the seas.

National zoning brings with it international obligations. The most advanced country in terms of regulations imposes rules and regulations on neighbouring countries based on the need to protect its fishermen and the principle of fairness with regard to compliance with the regulations. So, Senegalese fishermen must pay to fish outside of their national waters, whereas access to their country's EEZ remains free of charge.

In the case of fragmented fisheries involving a large number of mobile fishermen, there is often a willingness to place a maritime area under the supervision of a terrestrial area, based on that terrestrial area's capacity to self-monitor activities on the sea area. This has already been done in Senegal and, during a period of conflict, Mauritania's professional small-scale fishery organisations expressed the wish to privatise surveillance facilities.

But a land area cannot systematically be placed under the supervision of a territorial community (commune, department or region) for, sometimes, the communes are too close to each other and fishermen's mobility makes it impossible to decide which land area should take charge of supervision of any given sea area. In this scenario, the land area could comprise a group of communes or territorial communities or a landing point (when the coastline is relatively undeveloped and sparsely populated, as is the case on the Mauritanian coast and for isolated landing points in other countries).

However, in this region, area cannot be the only criterion for defining rights. This should be considered in conjunction with other criteria which take into account resources, fishing gear and maritime populations.

3.6 Taking fishery resources into account

The diversity of exploitable and exploited resources in West African fisheries, as in most, but not all tropical fisheries, is the reason why scientists and managers show a clear preference for fishing effort control measures.

In view of this, measures designed to directly control catches of target species are totally ignored and often considered unenforceable in this context (without serious evaluation being made). This is the situation even though we know that fishermen focus their fishing effort (fishing capacity, geographical location, choice of fishing techniques) on certain target species (octopus, shrimp, hake and some other coastal demersal species) despite the diversity of potentially exploitable resources.

The choice of species also determines the many technical measures pertaining to the types of gear and fishing vessels. In addition, regulatory measures are adopted by the fishing communities (self-regulatory measures covering fishing time, the number of fishing trips and catch quotas for endangered or temporarily undervalued species). Often, the number of these species targeted by small-scale fisheries is fewer than five and industrial fisheries target fewer still.

The monitoring and control of landings have often seemed to be necessary measures to meet the need to control market supply in times of accidents or crises, e.g. when prices for catches have appeared to be too low.

Despite the fact that fishing vessels are widely dispersed (this is particularly true in small-scale fisheries), bottlenecks occur in the marketing channels (especially where exports are concerned) and these could be good points at which to carry out quota checks. These channels could be used to introduce catch control mechanisms for resources for which scientists have recommended limits (between x and y tonnes for species such as octopus, or a small batch of coastal demersal species or shrimp). Quota mechanisms could be based on relative and not absolute values in the case of species subject to wide variations or in danger of depletion.

These mechanisms could subsequently be taken over by local authorities which have already shown themselves capable of regulating catches (past reactions to short-term market decline at small-scale fishery landing sites or through professional industrial fishing organisations).

The current refusal to use catch quota mechanisms cannot be justified given the failure of direct and indirect measures to control fishing effort.

It is well worth taking account of the resources in the following cases: a resource isolated from the others, a group of species which form a “pertinent” group, part of a shared stock (in the EEZ or internationally), part of a biological population (an exploitable population in terms of area and gear).

These resources must also be considered in terms of their current level of exploitation: over-exploited, threatened with over-exploitation, etc.

3.7 Taking fishing gear, fishing capacity and fishing effort into account

In situations where overcapacity is the problem, as in the countries under review here, commercial fishermen usually stress the importance of reporting incidents involving the use of illegal fishing gear. In their opinion, this could be a good reason for withdrawing fishing rights and might even win immediate support for a capacity reduction plan.

As we have already seen, the priority attached to this aspect reflects their preference (conscious or unconscious) for regulations which remain within the framework of the existing system and for simply applying the rules in force (national flag rights, illegal gear and practices). This would rule out any need to recommend system reform despite the fact that it is impossible to operate within the old system, but it also rules out the need to take direct responsibility for implementing emergency measures to reduce fishing capacity and effort. Given this attitude, the responsibility to ensure that the measures are complied with should lie with the State and its departments.

This is a common situation in all three countries. It reflects the players'reluctance to take steps to control effort and capacity. Also, in their view, social measures are needed if fishers are going to have to give up fishing.

Whilst the fishermen have no objection to non-traditional fishermen and non-resident fishermen (i.e. new migrants) being excluded, they refuse to accept that illegal fishing by traditional fishermen should result in their being forced out.

This is why the participatory process is so important in that it allows the players to be gradually involved in dealing with overcapacity and/or the reduction of fishing effort. It is also important to note that fishing effort and fishing capacity are still very abstract concepts for the fishermen to absorb. Also, being difficult to quantify, they pose many problems. Explaining and describing the concepts in a language that is familiar to fishermen and managers alike should help to achieve a consensus as to the action to be taken and the responsibilities to be shared.

By setting out spatial considerations in parallel with considerations about resources, fishing gear, and fishing capacity and effort, it should be possible to make it easier to adopt one form of regulation or another and, in time, shape the institutions which go hand in hand with these types of rights concessions.

3.8 Defining the types of access rights

The types of access rights selected will be based on closely related to the results of discussions on the criteria mentioned previously and on the evaluations carried out during the preparation of the transition plans, including those on existing regulatory mechanisms, on the financial and technical situation of the fishing enterprises and on the status of the resources.

In theory, the available regulatory options are common to all fisheries and apply to:

The trend is toward right-based options, i.e. away from administrative regulations (most of the current situations in the region) to economic regulations, in other words:

Other incentive-based (positive or negative) economic control mechanisms may also be applied to effort and catches. These would take the form of taxes or subsidies on inputs and/or production. The range of these incentives is potentially very wide and may allow precise targeting in terms of management objective (size, species, market, exports, techniques, gear, periods, catch areas, fishing vessel and player status). This range of incentives could strengthen the technical measures.

Discussions on these various available options should remove any preconceptions which might prevent changes being made to the existing system, often in spite of the failures encountered. Discussions should also allow separate treatment of matters relating to the choice of quota type, i.e. effort or catch, before considering the method of control of that variable, with priority given to economic regulation. The discussions should be based on theoretical demonstrations of the pros and cons of the various systems. Reference to situations elsewhere, where systems of the type recommended already exist, could be a useful way of educating the players.

The advantages of the rights chosen must be pointed out and systematically highlighted during the discussions between players (transparency, fairness, sustainability, care, flexibility and adaptability), so that they can appreciate the feasibility of introducing the types of rights recommended.

Several types of rights can exist side by side so long as the fisheries are sufficiently segmented and independent of each other. This must also be borne in mind so as not to block a reform process which can take place gradually, based on species or type of fishery, and controlled by individual quotas. The players cannot envisage this solution for the time being due to the current structure of the sector and the current level of knowledge.

3.9 Drawing up the specifications

The technical work on the specifications64 will be closely related to the types of rights chosen and the existing overall institutional framework extending from the State to the potential beneficiary of the access right. The same type of right could be held by different holders.

For example, we could consider allocating individual quotas for industrial fishing, whilst small-scale fisheries for the same species could, in the initial stages, retain their group or community rights (professional, ethnic or territorial group). Local or community regulations could ensure that these vessels do not indulge in fish chasing.

The specifications closely relate to the types of rights and the institutions involved in their allocation, monitoring and transfer. Questions to be dealt with in terms of specifications are:

There should be a minimum of two types of specifications.

Whatever the type of institution directly in contact with the State (State here means an institution or department representing it), i.e. an A, B or C type linkage, the part of the specifications applying to the State will include standard obligations which are the responsibility of government, such as:

-   compliance with international agreements;

-   compliance with the State's crucial responsibilities which are non-transferable and cannot be delegated;

-   compliance with specific objectives relating to the future of the natural resources (such as protection and sustainable exploitation).

Type A, B and C linkages can each apply separately (A or B or C) to the fishery resources authorised for exploitation.

However, a type C institution may have to be established first (an institution set up specifically to manage the concessions, e.g. an advisory bureau or agency), prior to setting up option A or B, or A and B, i.e. one or more professional or territorial institutions.

Preference may be given to other solutions. For example, the State may transfer limited authority to a territorial institution to grant the rights to professional institutions. This could occur in small-scale fisheries and could be done through a decentralisation or devolution mechanism whereby powers held by the State can be delegated.

An example of this could be the appointment of a Council for natural resources with a say in the granting of concessions to professional or territorial institutions or other types of hybrid institutions (e.g. local council or maritime chamber).

Other solutions may also exist alongside those mentioned here. This would not make any significant difference to the specifications. A simple transfer of responsibilities to a State-recognised institution is all that would be needed.

In the event of the appointment of a Council (a hybrid institution) or other “lead” institution (in a pyramidal organisation), the specifications will have to list the State obligations transferred to that institution.

For the players downstream of this institutional link who are affected by the concessions (i.e. small-scale or industrial fishermen and other players such as wholesale fish traders and vessel-owners), the specifications will not make reference to the authority to which they should refer in order to obtain, transfer, or renew their access right.

These players will be concession holders through their occupational status (skipper, vessel owner, fisherman or share-holder), civil status (member of a nature protection association or resident of a given commune) or civil and occupational status. This will depend on the choice having been made beforehand between A, B or C.

In the case of a hybrid institution (type C), either the representatives of the territorial rights will work in the hybrid institution alongside the representatives of the commercial fishermen, or type A and/or C links will exist simultaneously. It is the aim or nature of the concession (area protection, physical management of a fishing area, area closed to fishing, area reserved for a given small-scale or industrial segment) that will determine the linkages.

4. CONCLUSION

Some countries take direct action under management plans as soon as any mono-specific fisheries are in need of urgent action. This is a good basis for developing a public initiative in conjunction with operators who are clearly and willingly involved in the reform process. This is the case in Mauritania and Morocco for octopus fisheries and in Madagascar for shrimp fisheries. It must be noted that the management process requires that questions relating to transition and access control be dealt with during the management plan preparation stage. The risk involved in direct action based on management plans is that access control under a plan may not deal radically and exhaustively enough with all the segments likely to be involved in a management plan at any given time.

The logical procedure presented here is not compulsory. Management plans have been prepared without going through stages proposed here. However, it is important to note that all or part of these stages will have to be dealt with (in part) in the management plans and this partial treatment may result in failure, as operators currently not involved in the plan and feeling that they are not explicitly concerned in the access reform process may, in the future, be encouraged to claim a special right of access to the resources covered by the plans.

Once the types of access right potentially usable in the context of fisheries management have been defined, the technical work may be organised in the following stages:

At this stage, the work involves coordinating access control and technical measures and drawing up the management plans under which the regulations will gradually be introduced and the supervisory institutions will carry out their duties. The plans will set out the priorities and how they will be achieved. A management plan, like access right concessions, must be based on some key principles, including:65 forward planning, prudence, comprehensiveness, pertinence, good governance, sustainability, continuity, adaptability, environmental protection.

APPENDIX

Access control is not seen in the same way in all three countries. Mauritania and Senegal have similar views. For them it is a means of controlling industrial and small-scale fishing vessel numbers and sharing what is perceived as a limited resource. Guinea-Conakry is more concerned with giving its nationals access to the resources rather than with controlling access.

Almost all the players in all three countries stress the importance of good governance and awareness raising as essential elements for the success of any access control policy. The meaning of these concepts varies depending on the players and the country concerned. Some players stress the need to be transparent, to clearly identify the responsibilities of each body, to have a coherent policy and a participatory approach. Generally speaking, all the countries recognise that the bodies involved must be well-established. The fundamental difference between players and countries on this point is the degree of doubt cast by the players about the maturity of their own institution.

Another important factor is the differing views of players in a single country. The differences are greater in some countries than in others, but in all three there are differing views between institutions, between members of a given institution or between representatives of associations and their members. If we are to have a shared view of problems in order to be able to share the solutions, as stressed by several players in Senegal and Mauritania, communication and awareness raising requirements have to be identified.

Table 1: Summary of interviews with fishery players carried out in summer 2003

TopicsMauritaniaSenegalRepublic of Guinea
Key conceptsSustainable balance between resources and exploitation Equitable resource redistribution Future generations Reduction of fishing effortBalance between resources and enterprise viability
Resource to be shared when exploitation can no longer be stepped up
Provision of funding in order to access fishery resources
Sharing of fishing grounds among different fisheries
Technical mattersImproved control
Fishing ban
Licences with numerus clausus
Quotas by vessel and by fishing ground
Dissuasive taxation
(indirect methods)
Registration of pirogues
Minimum safety conditions/pirogues (indirect methods)
Improved monitoring

Freeze on issue of licences

Fishing rights concession
(territory, catch, capacity)

Registration of pirogues
Improved monitoring and application of penalties

Provision of credits for the purchase of inputs

Development of port infrastructure
Other key considerationsCommon understanding of problems
Best time for implementation Small-scale fishing = social sector
Common understanding of problems Best time for implementation Good governance: transparency, fairness, participation, responsibility, coherence, awareness raising/communicationNeed for better governance: problem of responsibility, participation, transparency, coherence, and competition for power
Small-scalefishing = social sector and provides a living for local population

Part 1 Table 1: Points of view of professional fishermen's organisations in the countries visited

TopicsMauritaniaSenegalRepublic of Guinea
Key conceptsLong-term future of the resources
 Future generations
Preserving the ecosystem
Reducing fishing effort by controlling access to small-scale and industrial fisheries
Responsible fishing
Balancing open access and selective privatisation
Economic and social issues
Technical mattersRegistration of pirogues Zoning
(industrial fishing/small-scale fishing/intra-zone small-scale fishing)
Land-based monitoring
Registration of pirogues
Minimum safety
conditions/pirogues (indirect methods)
Satellite surveillance under way (industrial fishing)
Strengthening of monitoring facilities at sea
Licences (industrial fisheries) Quotas / on-board observer Zoning (industrial fishing/ small-scale fishing) Satellite surveillance (in the pipeline)
Other key considerationsImproved inter-institutional relations
Importance of good collaboration
Transboundary small-scale activity Bilateral and subregional cooperation Common understanding of problems
Awareness of short and long-term economic issues
Good governance: Agencies involved must be well-established, responsibility
Small-scale fishing = social sector
Operational difficulties with regard to zoning control

Part 2 Table 1: Points of view of the authorities responsible for surveillance and control

TopicsMauritaniaSenegalRepublic of Guinea
Key conceptsProvide pertinent data for decision-making
Improve readability and programming in step with the requirements of the administrators and professionals
Provide technical data for decision-making
Communication/ Awareness-raising
Alarm
Interface between Profession and Administration
Rational and sustainable fisheries management Provide advice based on reliable recent data Broker between authorities and professionals? Sounding alarm/resource
Other key considerationsGood governance: inter-institutional relations and rigour within each institutionCommon view of problems and of the state of the situation Good governance:
participatory approach, bodies involved long-established, responsible organisation of professionals
Small-scale fisheries = social sector
Good governance: Bodies
involved long-established, subsidiarity, reform, interaction between institutions/organisation, responsibility and coherence

Part 3 Table 1: Points of view of players involved in public research

TopicsMauritaniaSenegalRepublic of Guinea 
Key conceptsResponsible fishing
Prudent approach
International commitments
Balancing resources and profit (jobs, currencies, tax receipts)
Balancing resources and fishing effort
Adjust effort to the resource
Need for access control (industrial and small-scale)
International agreements Reconciling public and private interests Reducing conflicts
MinistryFisheries Department
Control the development of small-scale fishing
Make the most of profits from fishing/ Development
Fishing sustainability
Rational use
Extraction of added value
Fleet development Conflict reduction in industrial/small-scale sectors
Technical mattersManagement plan
Surveillance/control Access rights (small-scale and industrial fishing)
Registration
Licence (+licence /small-scale fishing zone)
Zoning (industrial/small-scale and intra-zone small-scale fishing)
Port infrastructure / land-based control
Surveillance/ control Management plan
Licences Access right concession Zoning of small-scale zone
Surveillance / Control Access control
Standardising of access conditions (industrial fishing)
Registration pirogues/ licences (in the pipeline)
Zoning of small-scale zone (in the pipeline)
Zoning Fishing agreements
Reorganisation of national fisheries exploitation
Industrial licence
Other key considerationsConsensus on general state
Awareness-raising / Communication / Training
Awareness of short/long-term economic issues
Best time for implementation
Good governance: transparency, separation of duties, participation, responsibility, coherence, well-established bodies
Internal organisation: communication, coherence
Small-scale fishing = social sector
Common understanding of problems
Consensus on the need to take action
Awareness-raising / Communication/ Training Institutional reform
Good governance: consultation, making people aware of their responsibilities, interaction mechanisms, transparency, fairness, decentralisation, coherence (reconversion)
Small-scale fishing = social sector
Communication / Awareness-raising / Training
Good governance: Involvement of well-established bodies
Small-scale fishing= social sector
Zoning control/supervision
Illegal fishing
Lack of infrastructure
Making fishing more professional/organising the profession
Good governance: participatory approach

Part 4 Table 1:Points of view of officials in the fishery departments and ministries

REFERENCES

Christy, F.T. 1986. Special Characteristics and Problems of Small-scale Fisheries Management in Developing Countries. Natural Resource Economic and Policy Applications: Essays in Honor of James Crutchfield. In Miles E., Pealy R. and Stokes R. eds. Natural Resources Economics and Policy Applications: Essays in Honor of James A. Crutchfield, pp. 119–151.University of Washington Press, United States.

Cunningham, S.; N'Guer, A. & Thiam, I. 1994. Monopolistic Fisheries Management: The Case of Mauritania. Presented at the Seventieth IIFET Conference, Taïwan.

Garrett Hardin. 1968. The Tragedy of the Commons, in Science Vol. 162. December: pp. 1243–1248.

OECD. 1997. Towards sustainable fisheries. Economic aspects of the management of living marine resources. Paris.

Rettig, R.B. 1986. Fishery Access Control Programs Worldwide: Proceedings of the Workshop on Management Options for the North Pacific Longline Fisheries. (Nina Mollett [ed.]), 32p. Orcas Island, Washington, April 21–25.

Troadec, J-P. 2002. In press. La régulation de l'accès aux pêcheries ouest-africaines. Contribution au séminaire sur l'aménagement des pêches, Ministère des pêches et de l'économie maritime, Nouadhibou, Mauritanie, 16–19 February.

Wilson, J. & Boncœur, J. 2000. Micro-Economic Efficiencies and Macro-Economic Inefficiencies: Theoretical Reflections on Renewable Resource Policies in very Poor Countries. Proceedings of the 10th Biannual Conference of the IIFET, Oregon State University (CD-ROM).

58 The views expressed in the paper are solely those of the author, J. Catanzano, IDDRA in France: 195 Rue Saint Jacques 75005 Paris. IDDRA in United .Kingdom, Portsmouth technopole, Kingston Crescent, Portsmouth PO2 8F1135. Rue Nivose, Les Terrasses de Marianne, 34000 Montpellier, Tel: 00 33 4 67 99 67 66, [email protected].

59 Before Hardin, H. Scott Gordon had described the same dynamics in his article: The Economic Theory of a Common-Property Research: The Fishery, Journal of Political Economics 62:124–42.

60 It is worth noting here as an example that current EU discussions on the introduction of mechanisms relating to access rights are proving difficult and it has not been possible to introduce any definitive reform despite the fact that overfishing has been a problem worldwide since the eighties, when a good number of fisheries were found to have close to 40 percent overcapacity. This should also encourage the countries to create a common exploitation area (in the countries of the sub-region) prior to ensuring that each country develops a culture whereby fisheries regulations are accepted and put into practice.

61 For economists, the fishery sector should be organised so as to maximise rent from the resource, i.e. the resource's rent value or the amount that the State, as the virtual owner, could legitimately expect to receive from the allocation of access rights to exploit the resources. Preliminary estimates, as opposed to the more reliable ones obtained by means of bioeconomic models, can be done in most of the sub-region's fisheries, but one cannot but note that only rarely do these estimates mobilise the public authorities into action. That may be taken as a first indicator of the need to explain the real benefits of use rights mechanisms. The logic behind aid schemes and support programmes often reinforce the view that external funding is required to meet the financial requirements for improving the living conditions of the people involved in fishing.

62 These factors help us to understand that the most advanced situations in terms of the introduction of access rights and the adoption of economic regulations are to be found either in special national contexts where fishing plays a major economic role (e.g. Iceland), or where the fisheries, given their social, biological and territorial structure, are more likely than other sectors to promote more effective access control methods (e.g. Canadian crab fisheries and New Zealand's red tuna fisheries). This should encourage a certain pragmatism when launching management plans since the principles for the granting of these rights are laid down in law.

63 A management plan is generally understood as a series of scheduled measures, aimed at achieving certain objectives in certain areas of interest or concern (economic, social, biological, political and commercial) relating to a series of factors and a group of designated players. Several plans can co-exist as they may concern different resources even though they relate to some extent to the same players. The management plan is also a way of implementing public measures which may involve private sector players through consultation and co-management mechanisms. A plan should, by its very nature, evolve to be able to include protection and forecasting activities. In the case of public measures, it should fulfil certain requirements (coherence, legitimacy, precaution and good governance) and meet certain objectives (fairness, sustainability and transparency).

64 There will be several specifications - for the institutions to which the rights have been allocated, the institutions managing the rights and the potential beneficiaries of the rights. The specifications shall cover the specific obligations and rights of each of these parties and include community fishing draft agreements, signed by each of the countries. These lay down the obligations of the access right holders and also define the acquired right, its duration, the penalties that may be applied in the event of illegal conduct by the beneficiaries and the appeal procedures that may be taken in the case of legal proceedings being brought. This is what is understood by specifications here. The example of draft fishing agreements with the EU also show that the right may be given through supervision institutions acting as intermediaries between the signatory African State and the vessel-owner or the European vessel, holder of the access right (Commission and Member States).

65 These principles are set out in the paper concerning the octopus fisheries management plan for Mauritania (Cunningham, May 2002).


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