COMMITTEE ON FISHERIES
SUB-COMMITTEE ON FISH TRADE
Bremen, Germany, 22-25 March 2000
The text of these guidelines was drafted by Prof. P. Nicolaides, European Institute for Public Administration. It is to be considered a first step in the preparation of technical guidelines since, at this stage, it is limited to an explanation of the provisions and does not present detailed proposals as to concrete action for the implementation of Articles 11.2 and 11.3 of the Code of Conduct for Responsible Fisheries. The draft text will be circulated both within FAO and many experts world-wide for comments.
The comments of the members of the Sub-Committee on Fish Trade will be very valuable and may be expressed verbally at the Seventh Session in Bremen, Germany, 22-25 March 2000 or addressed in writing to:
It is stressed that these guidelines will have no formal legal status and are intended to provide general advice in support of implementation of Article 11.2 Responsible International Trade and Article 11.3 Laws and Regulations Relating to Fish Trade of the Code of Conduct for Responsible Fisheries. They will be designed as a starting point for the preparation of more specific texts for specific types of fisheries of regions and to assist in further dissemination, understanding and implementation of the Code world-wide.
Article 11.2 RESPONSIBLE INTERNATIONAL TRADE
11.2.1 The provisions of this Code should be interpreted and applied in accordance with the principles, rights and obligations established in the World Trade Organization (WTO) Agreement.
1. Fish and fishery products are now covered by the international trading rules of the World Trade Organization (WTO). The elements of this Code relating to fisheries trade should be interpreted in conformity with the principles and practices of international trade agreements.
2. WTO is the primary international organization dealing with the rules of trade between nations. Its main function is to ensure that trade flows as smoothly, predictably and freely as possible. The result is stability in the conduct of international transactions.
3. Consumers and producers know that they can enjoy secure supplies and greater choice of the finished products, components, raw materials and services that they use. Producers and exporters know that foreign markets will remain open to them and any emergency trade measures will not be arbitrary and without recourse to judicial review.
4. The rule of law in international transactions also contributes to increase prosperity among trading nations. Decisions in the WTO are typically taken by consensus among all member countries and they are subject to a dispute settlement process where the focus is on interpreting agreements and commitments and ensuring that countries' actual trade policies conform with their obligations. That way, the risk of disputes spilling over into political or military conflict is reduced. By lowering trade barriers, the WTO system also breaks down other barriers between peoples and nations.
5. At the heart of the system - known as the multilateral trading system - are the WTO agreements, negotiated and signed by a large majority of the world's trading nations, and ratified by their parliaments. These agreements are the legal ground rules for international commerce. Essentially, they are contracts, guaranteeing member countries certain important trade rights. They also bind governments to keep their trade policies within agreed limits to everybody's benefit.
6. The agreements were negotiated and signed by governments. But their purpose is to help producers of goods and services, exporters, and importers to conduct their business with limited government interference.
7. WTO is based on three fundamental principles: most-favoured-nation treatment, national treatment and price-compatible trade instruments. Most-Favoured-Nation (MFN) treatment requires that countries do not discriminate among the various sources of imports of similar products. National treatment requires that once a product enters the customs territory of a country it is treated no less favourably than similar national products. Use of price-compatible trade instruments, such as a tariff rather than a quota, allows the more efficient foreign producers to reach consumers.
11.2.2 International trade in fish and fishery products should not compromise the sustainable development of fisheries and responsible utilization of living aquatic resources.
8. Sustainable development of fisheries and responsible utilization of living aquatic resources means the implementation of technical management and control measures in a way that leads to rational and responsible exploitation of them. The goal is to maintain a balance between available fishing capacity and available resources in order to conserve them for future generations.
9. The need of managing fishing capacity has been raised recently in reference to a growing concern about the rising fishing potential and the use of even more effective harvesting technology. The existence of excessive fishing capacity is responsible for the degradation of fishery resources, for the dissipation of food production potential and for significant economic waste. This manifests itself especially in the form of excessive fishing inputs and the over-fishing of most valued fish stocks.
10. Sustainable development of fisheries is a priority for many countries and several international organizations which have established legal or social management frameworks for fisheries. These management frameworks aim to reduce the risk of environmental impact that may have effects which are potentially irreversible in the future.
11. Such management frameworks include quantitative and adaptive procedures or rules concerning such things as gross tonnage limits, closed areas and other technical measures, aiming essentially at regulating the catch rather than the harvesting itself.
12. Therefore, international organizations, such as FAO and ICCAT interested and responsible inter alia for the conservation of fishery resources have adopted more effective measures concerning the sustainable exploitation of fish stocks under their purview. According to the treaties establishing these organizations, decisions are taken by their Contracting Parties and these are generally reached by consensus.
13. All management constraints must absolutely be respected and cannot be attenuated for trade purposes as, for example, in the case of deficit of fishery products.
11.2.3 States should ensure that measures affecting international trade in fish and fishery products are transparent, based, when applicable, on scientific evidence, and are in accordance with international agreed rules.
14. In order to improve transparency, government measures:
15. Trade measures must take account of scientific evidence resulting from research programmes in fish technology and quality assurance. Whereas the number of fish species with market interest is large and processing methods for these fishes are extensive, it is important for every State to encourage and support research programmes on both the effects of current methods of harvesting and possible means of conservation.
16. Having regard to the fact that the fishing industry is of special importance to the economy of some coastal regions and that the industry provides a major proportion of the income of fishermen in such regions, market stability should be encouraged by appropriate means, implemented in compliance with international commitments.
17. Measures affecting international trade must take into account the provision of the WTO on internal production support mechanisms and tariff agreements.
11.2.4 Fish trade measures adopted by States to protect human or animal life or health, the interests of consumers or the environment, should not be discriminatory and should be in accordance with internationally agreed trade rules, in particular the principles, rights and obligations established in the Agreement on the Application of Sanitary and Phytosanitary Measures and the Agreement on Technical Barriers to Trade of the WTO.
18. This article provides for the protection of the interests and health of the population as well as the protection of animal life and consumers' interests via the existence of an effective food safety and quality assurance system involving the various interested parties.
19. Such a quality assurance system could be more effective by including partially authorities responsible for consumers' rights and fisheries organizations promoting producers' interests.
20. Attention must also be paid to the quality and protection of the environment. Thus, the quality assurance system mentioned above may also include the authorities responsible for environmental management. Indeed, that means the need to achieve rational and sustainable use of resources and thus, to safeguard the equilibrium of resources and marine ecosystems.
21. The intention of the present article is to ensure that the implementation of a quality system is not discriminatory and should be in accordance with internationally agreed trade rules. Measures are not discriminatory when technical requirements concerning domestically and imported fish and fishery products are applied equally. Differential treatment must be based on objective differentiation or objectives reasons.
22. All measures concerning trade protection should take account of internationally agreed trade rules, in particular the principles, rights, obligations and procedures established in the WTO Agreement on the Application of Sanitary and Phytosanitary Measures and the Agreement on Technical Barriers to Trade. The Agreement on the application of sanitary and phytosanitary measures establishes a common understanding on the meaning, content and application of such measures. The agreement specifies members' rights and obligations in the application of sanitary and phytosanitary measures and provides a useful set of guidelines for the relevant national and regional authorities within each member. The Agreement on technical barriers to trade ensures that trade is as fair as possible and as little obstructed as practicable.
23. WTO members have an obligation to operate non-discriminatory trading measures. Each country expects that its exports will be treated fairly and consistently in other countries' markets. Each promises to do the same for imports into its own market. The WTO rules give developing countries some added flexibility and leeway in implementing their commitments.
11.2.5 States should further liberalize trade in fish and fishery products and eliminate barriers and distortions to trade such as duties, quotas and non-tariff barriers in accordance with the principles, rights and obligations of the WTO Agreement.
24. Bearing in mind the existence of national restrictions concerning the management of fish resources, trade in fish and fishery products is often characterized by a structural deficit which is increasing steadily from year to year. This means that it is necessary to supply the market in order to meet the needs of consumers and the processing industry while at the same time taking into consideration the interests of producers. Nonetheless, the market should be gradually liberalized and producer interests may be addressed through non-trade-restrictive measures.
25. Also the interests of consumers and producers can be to some extent reconciled by diversification of harvested species. The experience of major fishing and consumer nations is instructive in this respect. The results of resource management constraints are apparent in the evolution of the volume and the composition of landings. Landings of roundfish species such as cod and haddock have followed the evolution of TACs and quotas, i.e. moved in a downward direction, where TACs and quotas have represented real maximum production limits. The total availability of cod within major fishery zones (as determined by the TACs) has been reduced in the 1990s up to 50 percent of its 1980s level. On the other hand landings of some demersal species, particularly flatfish, have increased where greater utilization of quota and non-quota species was possible. The TACs for the two major flatfish species, sole and plaice, have remained relatively stable for the period since the early 1980s, with total availability tending to increase towards the latter part of the period. Pelagic landings and landings of some shellfish species have also shown a tendency to increase in most cases.
26. At the same time, demersal fish as a group and many individual demersal species have become considerably more valuable in monetary and real terms. This observation is also applicable to many of the shellfish species but not to the pelagic group where in most cases monetary and real values have at best remained static or have even declined. These price developments have been important in determining the gross earnings of fishing enterprises relying on the various species.
27. While the price increases in real terms for demersal species have cushioned the impact of reduced landings on the economic viability of parts of the fleet, these increases also represent additional real raw material costs to the whitefish processing sector. These economic difficulties have been compounded by discontinuities in supply caused by the application of management control measures to the primary sector.
28. These developments imply that, first, the downstream effects have to be taken into account in a cohesive policy and, second, there is need for coordination of the measures taken in support of various sub-sectors. In other cases, in order to ensure more competitive and stable supplies to the processing industry, a unilateral total or partial suspension of duty could be undertaken for defined periods of time. Such suspension may be conditionally granted subject perhaps to compliance with a reference price for the products concerned.
29. The reference prices, whether fixed under the suspension arrangements mentioned above or in other special cases like the quotas bound in the WTO, may no longer be converted into safeguard measures, in view of the commitments entered into under the WTO agreement on the safeguards. Any safeguard measures should take account of the above WTO agreement on common rules for imports.
11.2.6 States should not directly or indirectly create unnecessary or hidden barriers to trade which limit the consumer's freedom of choice of supplier or that restrict market access.
30. Each State is interested to create an integrated system concerning the common organization of the markets in fish and fishery products. The main role of this system should be the uninterrupted functioning of the market.
31. The present article of the Code of Conduct for Responsible Fisheries provides some principles which should be at the base of any market organization, in order to ensure that trade flows as smoothly and freely as possible.
32. In order to ensure consumer's freedom of choice of supplier, WTO requires non-discrimination and national treatment. Measures that give effect to these two principles should be as clear as possible and allow effective choice of supplier. For example, each rule concerning control analysis of a series of processed products should be applied equally for both domestically and for imported products, so that the cost for control will not affect the final price of the product.
33. Effective freedom of market access is based, among other things, on non-discriminatory treatment, existence of simple, non-cumbersome administrative procedures, equality of access to judicial procedures and avoidance of measures that even though they are applied in an apparent non-discriminatory manner they de facto have a more pronounced effect on foreign products. For example, mutual recognition of foreign certificates would avoid that problem.
11.2.7 States should not condition access to markets to access to resources. 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.
34. This article requires de-coupling of measures concerning market operations from those concerning fisheries production and landings. This de-coupling is compatible with obligations at international level, particularly with respect to the management of marine resources and trade which are two distinct issues.
35. Better management of marine resources must take into account that fishery resources can sustain no longer an uncontrolled increase of exploitation. Better management can be more effectively achieved through international cooperation on exploitation and processing of fishery products and on agreements to introduce new technologies.
36. Therefore the organization of the markets in fish and fishery products should aim towards an optimum functioning of the markets but at the same time taking into account the following:
11.2.8 States should not link access to markets to the purchase of specific technology or sale of other products.
37. If access to markets of fish and fishery products is to be de-linked from technology and other unrelated issues, it should ideally be based on the following principles:
11.2.9 States should cooperate in complying with relevant international agreements regulating trade in endangered species.
38. The fundamental requirement for assessing the state of a fish stock is an estimate of the fish mortality rate to which the stock is subject. If a stock is characterized as endangered, yield can be maintained or increased by the implementation of measures that aim at a reduction in the fish mortality rate. These measures should include closed seasons for fishing gear for the exploitation of the endangered stocks, closed areas, augmentation of mesh size of fishing nets and definition of minimum sizes for the protection of young fish, or definition of TACs and quotas.
39. These measures are the result of scientific research and are usually agreed upon at international level as a consensus on the need to introduce or strengthen the precautionary approach to fishery management.
40. International organizations such as FAO or ICCAT, based on scientific results and statistical information, formulate at least once a year, during their plenary Conference recommendations relating to concrete measures that should be respected by all member States.
41. Usually recommendations concern stocks heavily exploited, thus in danger, like some species of highly migratory fish stocks and include trade measures. These measures should be respected by all Member States by introducing them into their national legislation.
11.2.10 States should develop international agreements for trade in live specimens where there is a risk of environmental damage in importing or exporting States.
42. Fishing affects marine ecosystems in various ways, and intense exploitation of fish stocks is only the most visible aspect. Other effects are caused by by-catches, for instance of marine mammals and seabirds caught in fixed or drift nets, or capture of groups of individuals or species by bottom trawl gear, which can also profoundly affect the seabed.
43. Over the past decade all problems have become more acute because of the increased power of fishing vessels, their capacity to fish at depths hitherto not accessible to trawlers and the development of new methods and gears.
44. Fishery resources form a link in the food chain and the introduction into aquatic environment, for commercial purposes, of non-endogenous live species could cause serious environmental damage such as the extinction of other species already living in the ecosystem. Thus, States should take measures aiming at the implementation of strict controls of importing or exporting live species in the aquatic environment.
11.2.11 States should cooperate or promote adherence to, and effective implementation of relevant international standards for trade in fish and fishery products and living aquatic resource conservation.
45. Standards concerning trade may include rules and procedures on things such as minimum commercial sizes of caught species and marketing standards. The implementation of these standards is designed to guarantee transparency, predictability, and fair conditions of trade, strengthen the solidarity of producers in their effort to enhance the value of production, guarantee the free circulation of products and regulate international competition as a function of the marketing restraints imposed at the internal level.
46. Standards concerning the conservation of living aquatic resources refer to issues such as implementation of technical measures which seek to ensure stock conservation while taking account of economic, social and regional consideration and supervision of fishing activities aiming to ensure the correct implementation of rules on resources conservation and without discrimination.
11.2.12 States should not undermine conservation measures for living aquatic resources in order to gain trade or investment benefits.
47. In recent years, world fisheries have become a rapidly growing sector of the food industry. Public demand is increasing from year to year and the development of more sophisticated equipment like sonar and radar, which are able to pinpoint shoals of fish with great accuracy, have all increased pressure on aquatic resources. In addition, environmental pollution has a negative impact on stock levels.
48. However, it has become clear that many fishery resources cannot sustain an uncontrolled increase of exploitation. Thus, as the rate of fishing activity is the major element which can be under human control, conservation policy has been internationally designed to provide the maximum protection for stocks.
49. Conservation policy includes limitations of the exploitation rates, according to the peculiarities of each fishery and is intended for the protection of young fish. All these measures maintain the possibility of managing fishing activity by limiting the catches and fishing effort.
50. Reducing catches of young fish, especially of those which have not yet reached sexual maturity, is of paramount importance. This guarantees that fish are caught when they are large and commercially more valuable. It also ensures they are given a reasonable chance to contribute to spawning. This protection is essentially achieved through a variety of technical measures. These cover the mesh size of fishing nets and the minimum size or weight of landings. They include also limits on different fishing seasons, areas where certain types of fishing are banned and restrictions on fishing gear and vessels.
51. Limitation of exploitation rates includes limitations of catches, limitation of fishing effort and implementation of technical measures. The result of these limitations could be a market deficit for some species. However, this article requires conservation measures to be a priority for States and should not be awakened for commercial interests.
11.2.13 States should cooperate to develop internationally acceptable rules or standards for trade in fish and fishery products in accordance with the principles, rights and obligations established in the WTO Agreement.
52. Considering that WTO is the international organization dealing with the global rules of trade between nations, this article requires that any trade rules or standards in fish and fishery products, included in the national legislation of a country, should be in line with the negotiated or agreed recommendations.
53. Fish and fishery products are included in industrial goods and for this reason the various negotiating rounds have led to reductions of tariff rates and increased market access. But there is still scope for substantial additional improvements of market access. An issue that may be addressed in this respect is the problem of tariff escalation. The need for special and differential treatment for developing countries should be taken into account. In the Uruguay Round, peak tariffs were defined as rates above 15 per cent. Peak tariffs have been significantly reduced as a result of the Uruguay Round but there are still variations in tariff levels.
54. Through previous rounds of negotiations, many tariff rates have been reduced to very low levels without being eliminated. A tariff of round 2 percent, or lower, is generally considered as a nuisance tariff. Nuisance tariffs may result in higher compliance and collection costs than actual revenues, and they could therefore be eliminated.
55. Although non-tariff barriers have been addressed in past negotiations they still exist. They can be partly eliminated through reciprocal and mutually negotiated removal or harmonization, without undermining legitimate domestic regulations regarding inter alia environmental health and consumer protection. Special attention can be given to clarification and interpretation of existing WTO agreements. The aim would be to eliminate non-tariff measures which unduly prevent effective market access. A wide range of barriers related to border control has been identified. Such procedural barriers have increased in number and have led to increased cost of international trade transactions. More attention needs to be given to such procedural barriers.
11.2.14 States should cooperate with each other and actively participate in relevant regional and multilateral fora, such as the WTO, in order to ensure equitable, non-discriminatory trade in fish and fishery products as well as wide adherence to multilaterally agreed conservation measures.
56. Fish and fishery products have special characteristics different from other industrial goods and the fishery sector performs unique social and environmental functions. It provides an important base for maintaining the social fabric of poor coastal areas.
57. Given the exhaustible nature of fish resources, over-fishing needs to be properly controlled and aquaculture ought to be encouraged. The government may have a significant role to play in promoting sustainable resource management in the fishery sector. In this regard, a distinction should be made between subsidies that lead to excessive fishing capacity and those that contribute to the conservation of fishery resources.
58. As the fishery sector provides an invaluable source of income to rural communities in islands and coastal areas, maintaining the relevant activities is essential for the viability of the communities which are directly or indirectly related to national cohesion.
59. Fishery products also constitute a significant part of a diet as a major source of animal protein in some countries and regions, particularly in developing countries. Ensuring a stable supply and maintaining an appropriate level of local production are key in this case. Therefore certain types of government functions for rural viability and stable supply of food are needed in the fishery sector. That means that countries need to take trade measures for this sector in accordance with sustainable exploitation of fishery resources, based also on data and survey by relevant international organizations such as FAO and ICCAT.
60. States negotiating in international fora, such as the WTO, need to find a balance of interests between exporting and importing countries, taking into consideration, on the one hand, the opportunities from expanded trade, and, on the other, the requirement for conservation and environmental protection and the unique function the sector performs. Also trade liberalization in the fishery sector should proceed in a way to accommodate each country's different circumstances. Too ambitions liberalization may bring disturbing consequences to self-reliant poor fishermen and undesirable social difficulties.
11.2.15 States, aid agencies, multilateral developments banks and other relevant international organizations should ensure that their policies and practices related to the promotion of international fish trade and export production do 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 and for whom other compatible sources of food are not readily available or affordable.
61. This article requires all States and international agencies to apply or recommend measures for fish and fishery products which promote the protection of fish resources, considering the unique nature of the fishery sector and its importance for the income of some communities as well as for the health of people with special problems, so as to strike a balance of interests between importing and exporting countries.
62. It may be necessary that particular rules are adopted for different species, depending on how endangered they are and on their economic significance. The measures adopted by ICCAT, within its role for conservation of tuna and tuna-like resources in the Atlantic, are instructive. Its measures which bind its 25 Contracting Parties include (1) frequent communication with parties fishing in a manner which undermines the effectiveness of the regulatory measures; (2) the establishment of the Bluefin Tuna Statistical Document Programme (BSD); (3) adoption of an Action Plan to ensure the effectiveness of the conservation programme for the Atlantic bluefin tuna and (4) the implementation of trade measures further to the Action Plan.
63. In addition, studies have been carried out on the fishing activities of various non-contracting parties, entities or fishing entities every year. Detection of over-fishing is followed with the issuing of warnings. The ICCAT experience has shown the importance of continuous and close monitoring of the situation. Ultimately, however, compliance by sovereign countries depends on voluntary conformity with adopted measures. Voluntary conformity can be encouraged either by multilateral actions that highlight the non-complying countries or national action that provides incentives to the fishing industry to conform. Multilateral action can also include collective punishment of non-complying countries. For example, in order ensure the effectiveness of the ICCAT bluefin tuna conservation programme, it has been recommended to the Contracting Parties to apply trade restrictions, consistent with their international obligation, on bluefin tuna products from those non-contracting parties or fishing entities whose vessels have been fishing for Atlantic bluefin tuna in a manner which diminishes the effectiveness of the relevant ICCAT conservation recommendations.
Article 11.3. LAWS AND REGULATIONS RELATING TO FISH TRADE
11.3.1 Laws, regulations and administrative procedures applicable to international trade in fish and fishery products should be transparent, as simple as possible, comprehensible and, when appropriate, based on scientific evidence.
64. This article essentially requires that trade in fishery products should be conducted within the rule of law. Arbitrary interventions or measures must be avoided.
65. Transparency has two sides. First, traders know before hand what measures and procedures they will be subjected to. It is important to have published and easily accessible information with explanatory notes on all the legal and administrative requirements concerning trade. Second, the actual application of the laws and procedures must be visible and any decisions by the authorities must be well explained. Transparency depends on predictable application of the rules.
66. Simplicity means that no unnecessary requirements are imposed on traders and regulatory duplication is avoided. Comprehension is aided by explanations of all rules and procedures in plain language and with the use of illustrative examples.
67. National measures should take into account international standards, guidelines and recommendations which are based on relevant scientific evidence. Often, standards, guidelines and recommendations have been developed by relevant international organizations, including the Codex Alimentarius Commission (CAC), in order to ensure that consumers rights are protected. Usually, international standards, guidelines or recommendations, where they exist, are based on scientific principles and are not maintained without sufficient scientific evidence. Any additional national standards should also be based on scientific evidence which should ideally be periodically reviewed and the relevant standards adjusted according to new evidence.
11.3.2 States, in accordance with their national laws, should facilitate appropriate consultation with and participation of industry as well as environmental and consumer groups in the development and implementation of laws and regulations related to trade in fish and fishery products.
68. According to this article, at the base of any national laws or regulations related to trade in fish and fishery products should be the consultation of those directly affected, namely the fishing industry and environmental and consumer groups. The objectives of consultation are:
69. Thus, giving increased responsibility to fishermen and their organizations for the management of available resources helps ensure that market requirements are met and that the balance of stocks is preserved.
70. On the other hand, the consultation of environmental groups has the purpose of building a constructive relationship between trade and environmental concerns. Trade and environment are both important areas of policy making and they should be mutually supportive in order to promote sustainable development. The multilateral trading system has the capacity to further integrate environmental considerations and to enhance its contribution to the promotion of sustainable development without undermining its open, equitable and non-discriminatory character.
11.3.3 States should simplify their laws, regulations and administrative procedures applicable to trade in fish and fishery products without jeopardizing their effectiveness.
71. Simplification should aim to reduce the number of rules, procedures or requirements that apply to fish and fishery products. In particular, regulatory duplication should be avoided.
72. The legal and administrative provisions concerning trade in fish and fishery products should be implemented and respected by all those engaged in it: fishermen, natural or legal persons who process fish in various ways, as well persons who market fish, consumers and relevant authorities.
73. National provisions should take account of the diversity of those engaged in fishing operations. In this respect, adjustments may have to be made to preserve their effective application. For example, small-scale and artisanal fishermen may have difficulty to understand the context and requirements of legal instruments. Therefore, fishermen, who are those who exploit fish resources, may have to be trained and even persuaded to respect management rules. The application of the relevant rules may have to be pursued in such a way that the older existing participants would not be disadvantaged.
74. On the other hand the economic dimension of fisheries should not be ignored, as fishery resources can be viewed as a capital stock that, if managed responsibly, can generate considerable and sustained social and economic benefits.
75. An imperative factor for the effective implementation of a system is the correct and systematic awareness of all interested parties, in order to make clear and more comprehensive their duties and legal opportunities. This could be carried out by the adoption of training programmes and other information campaigns.
11.3.4 When a State introduces changes to its legal requirements affecting trade in fish and fishery products with other States, sufficient information and time should be given to allow the States and producers affected to introduce, as appropriate, the changes needed in their processes and procedures. In this connection, consultation with affected States on the time frame for implementation of the changes would be desirable. Due consideration should be given to requests from developing countries for temporary derogations from obligations.
76. National legislation is subject to changes over time in order to be brought up to date and in line with international rules concerning trade in fish and fishery products as well as with measures for fisheries management. Such changes will affect national systems but the attitudes of people concerned, and hence viability of the system, will be influenced by the state of social conditions.
77. Fisheries is a field where social and economic variables interact closely, and any management decision is likely to have an impact on, for example, the distribution of income and wealth, the level and form of employment, the allocation of user rights, the composition and the cohesion of interested groups. More generally, management decisions and possible changes in them will influence the attitude of interested people, positive and negative, towards management regimes. Fisheries management actions may further affect the contribution of the fishery to critical policy issues such as food security, net foreign exchange earnings, subsidies and other benefits and costs.
78. Before any changes are introduced to national legislation, government authorities should first identify all interested parties and inform them, at the time of planning, so as to explain the possible impact of the proposed change, identify the potential costs and benefits deriving from them and exchange opinions for better implementation. Information must be as clear and detailed as possible and must take account of education level, motivation and age of people interested, local beliefs and customs. Further, fisheries are primarily economic activities and the economic dimension encompasses revenues and costs, which vary with the level of exploitation and relate to dynamic market forces.
79. Another parameter that should be considered is the time framework. Sufficient time for adjustment should be allowed before the entry into force or the implementation of the new regime.
11.3.5 States should periodically review laws and regulations applicable to international trade in fish and fishery products in order to determine whether the conditions which gave rise to their introduction continue to exist.
80. The main parameters which must be taken account in the conception of laws and regulations concerning trade in fish and fishery products are: biological and environmental concepts and constraints, social and cultural constraints of interested parties and economic context and constraints.
81. All these parameters must be considered during the formulation of laws and the drafting of regulations. Thus, giving the differences existing between the aforementioned parameters, it is virtually impossible to provide a single prescription of optimal management in the case of fisheries. However, it is expected that, in conjunction with international recommendations, national legislation, based on the above parameters, must be appropriate to the particular circumstances to which they refer or they are applied.
82. Biological and environmental concepts and constraints are linked to potential productivity of stocks, exploitation rate of stocks and suitable environmental conditions for successfully passing through the different stages in the life history of stocks. International organizations such as FAO, agencies such as ICCAT and jurisdictions such as the EU collect statistics for different fisheries, conduct stock assessment and, on a scientific basis, adopt appropriate management measures for various stocks. The recommendations of these organizations, agencies and jurisdictions could be included in national legislation. Thus, biological and environmental concepts should be incorporated in laws and regulations by harmonizing them with relevant international developments and concepts.
83. Social conditions are subject to constant changes over time and space. Changes can operate on several levels: long-term cycles of historical change, short-term cycles of seasonal change and the immediate month-to-month or day-to-day changes which might be related to weather, employment, demand and supply and other conditions. These changes should be taken into account for the good implementation of laws and regulations.
84. The economic performance of fisheries is strongly influenced by the broader economic context. Fisheries are affected, for example by the evolution of exchange rate, trade regulations and changes in fiscal policies. Conflicts between different users for the use of the same aquatic resources are common as, for example, between tourism and aquaculture in coastal areas or between fishing and agriculture in the use of inland waters. An important task of the relevant authorities is to evaluate current and potential conflicts with a view to minimising them and obtaining optimal social returns from natural resources.
11.3.6 States should harmonize as far as possible the standards applicable to international trade in fish and fishery products in accordance with relevant internationally recognized provisions.
85. International organizations aiming to improve international trading relationships for fish and fishery products, provide useful sets of rules and recommendations for the relevant national authorities within each Member. For example, FAO has recently reviewed its work in support of the management of fishing capacity. The need for managing fishing capacity has been raised quite recently in reference to growing concern about the spreading phenomenon of excessive fishing inputs and over-capitalisation in world fisheries. The existence of excessive fishing capacity is largely responsible for the degradation of fishery resources, for the dissipation of potential of food products and for significant economic waste.
86. The present Code of Conduct recognizes that excessive fishing capacity threatens the world's fishery resources and their ability to provide sustainable catches and benefits to producers and consumers. In Article 6.3 there are recommendations to prevent over-fishing and excess fishing capacity by the implementation of management measures.
87. The International Plan of Action for the Management of Fishing Capacity (IPOA) has been elaborated within the framework of the Code of Conduct for Responsible Fisheries, as an element of fishery conservation and sustainable management. It was adopted in February 1999 and its aim is to achieve preferably by 2003 but no later than 2005, an efficient, equitable and transparent management of fishing capacity. The IPOA further specifies that, inter alia, States and regional fishery organizations, when confronted with an over-capacity problem which undermines the achievement of long-term sustainability outcomes, should endeavour to limit initially at existing levels and progressively reduce the fishing capacity applied to affected fisheries. On the other hand, where long-term sustainability outcomes are being achieved, it nevertheless urges States and regional fishery organizations to exercise caution. The IPOA specifies a number of actions to be taken urgently: assessment and monitoring of fishing capacity, preparation and implementation of national plans, international consideration and immediate action for major international fisheries requiring urgent attention.
88. A case in point is the European Union with the reform of its Common Fishery Policy in 1992 and the adoption of Council Regulation 3760/92, has provided a new framework aiming to bring about significant changes in the management of fisheries. These changes intend to shift away from general measures and move, instead, towards measures related to individual vessels with the objective of controlling the fishing effort at this level and of improving the Union's capacity of controlling the compliance with the management measures adopted. The regulation gives Member States freedom to implement national licence-based management systems for regulating fishing activities. The regulation also introduces the possibility of setting multi-year and multi-species quotas. The regulation contains many provisions which can be of use to other countries or can guide other countries in the design of their national systems.
11.3.7 States should collect, disseminate and exchange timely, accurate and pertinent statistical information on international trade in fish and fishery products through relevant institutions and international organizations.
89. The interest of all international organizations is the supervision of measures to ensure that the Members apply the rules on resource conservation correctly and without discrimination, especially the rules on quota compliance, technical measures and specific arrangements. One good and efficient method for supervision is the collection and dissemination of statistical data concerning various categories of information such as the following: results of monitoring fishing vessels including number and category of vessel, fishing gears, crew etc. , production of fish species, size composition of the catch and, in some cases, sex and sexual maturity characteristics, social and economic information.
11.3.8 States should promptly notify interested States, WTO and other appropriate international organizations on the development of and changes to laws, regulations and administrative procedures applicable to international trade in fish and fishery products.
90. The purpose of notification and mutual exchange of information by States is to facilitate the functioning of the trade system and to encourage compliance by States.
91. Usually laws constitute primary legislation which lays down principles and policies. They set out the substantive provisions. Primary legislation requires, as far as possible, not to be subject to frequent changes. It should include the framework for establishing a fishery policy and some indications of the modalities of any future modifications. The primary legislation should in addition define the institutional structure for fishery trade and should identify the corresponding authority responsible for implementation and enforcement of the law. Hence, in order to implement successfully fishery trade decisions, legal clarity is essential as to who is entitled to administer and control the use of the fishery resources and how that control is carried out.
92. Regulations and administrative procedures constitute subordinate legislation. It concerns routine management control and procedural measures for stocks and markets, e.g. technical management measures for different categories of vessels and fish stocks, geographical limitations, size limits, operation measures for fish markets, rules for the supply of the market etc. This type of legislation should be fairly easily changed to reflect changes in fishery trade needs.
93. All relevant international legal instruments concerning trade in fish and fishery products, and in particular WTO agreements and international management rules, such as the 1982 UN Convention on the Law of the Sea and the 1995 Convention on Straddling Fish Stocks and Highly Migratory Fish Stocks, should be taken into consideration when preparing or amending fishery trade legal regimes.
94. The adoption of such legal measures and any amendments should be disseminated to international organizations, including WTO, and other interested parties.