Service du droit pour le développement

Development Law Magazine - #1 of 2018

14/05/2018

In this issue:

  • Making practical sense of the I, the U and the U of “IUU fishing” in the context of emerging global challenges.

  • Linking wildlife conservation with food security: A Human Rights Based Approach to Sustainable Wildlife Management.

  • Researching development law: a brief guide to online resources.

  • Legislating for Antimicrobial Use (AMU) and Antimicrobial Resistance (AMR).

  • Fostering enabling regulatory frameworks for Contract farming.

  • Latin America and Caribbean region at the forefront: the PARLATINO adopted the world’s first Model Law on Small-Scale Fisheries.

 

Making practical sense of the I, the U and the U of “IUU fishing” in the context of emerging global challenges

The collective term “illegal, unreported and unregulated fishing” (IUU fishing) has entered the global fisheries nomenclature to refer generally to the contravention or disregard of national, regional and international fisheries legal frameworks by fishers, as well to describe a situation where there is a lack of regulation or control over actors involved in fishing. Too often however, the term IUU fishing is used erroneously, or conveniently, to refer only to illegality i.e. the contravention of applicable fisheries laws.

The terms “illegal fishing”, “unreported fishing” and, “unregulated fishing”, as described in the 2001 FAO International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing  (Paragraph 3.1, 3.2 and 3.3 of the IPOA-IUU), are intended to refer to three separate sets of activities or situations that are undesirable1  and need addressing to curtail or eliminate their further occurrences. The attributes of these terms may seem straightforward on a first read but a closer look unravels their broad, vague and complex nature.  

For example, the reference to “fishing” in all of the terms implies that the sets of activities referred to in the IPOA-IUU are all fishing activities. However, “unreported fishing” is not, sensu stricto, a fishing activity as it refers to the act of non-reporting or misreporting the location, date and time of fishing, and the amount and species of the catch, by-catch and  discards (i.e. unwanted catch). Tsamenyi, Kuemlangan and Camilleri2; in noting this oddity in their attempt to “unpack” the I, the U and the U in “IUU fishing” suggested that the term “unreported fishing” be rearticulated as, “non-reporting of fishing activity” (i.e. non-reporting of location, date and time of fishing), “non-reporting of catch”, “underreporting of catch”, and “misreporting of catch”. Another peculiarity concerning the term “unreported fishing” as referred to in the IPOA-IUU is that where non-reporting of fishing activity or non-reporting or under-reporting of catch occurs in contravention of applicable laws, these occurrences are, technically, “illegal fishing”. Conversely, if these activities are not in contravention of applicable laws, then they are or can be “unregulated fishing”. Interpreted this way, the term “unreported fishing” as used in the IPOA-IUU becomes redundant.

An examination of the IPOA-IUU term “illegal fishing” in the context of national legislative practice and international fisheries agreements (see the Convention on the Conservation and Management of High Migratory Fish Stocks in the Western and Central Pacific Ocean ) , will reveal that “fishing” is not always considered to be restricted to the act of catching, extracting or taking fish from the natural environment. For example, certain national laws define “fishing” as:

(a) searching for, or taking, fish; or 

(b) attempting to search for, or take, fish; or

(c) engaging in any other activities that can reasonably be expected to result in the locating, or taking, of fish; or

(d) placing, searching for or recovering fish aggregating devices or associated electronic equipment such as radio beacons; or

(e) any operations at sea directly in support of, or in preparation for, any activity described in this definition; or

(f) aircraft use relating to any activity described in this definition except flights in emergencies involving the health or safety of crew members or the safety of a boat; or

(g) the processing, carrying or transhipping of fish that have been taken ( Australia, Fisheries Management Act 1991; New Zealand’s Fisheries Act 1996 ).

Normally, the actions described in (d) of the example above occur before or in preparation of actual fishing while the activities in (e) and (f) of the same example are, technically, non-fishing activities.

The IPOA-IUU term “unregulated fishing” is rather broad and includes the fishing activities of stateless vessels (i.e. vessels without nationality or having two nationalities)3 in an area of application of conservation and management measures (CMMs) of a regional fisheries management organization (RFMO), or fishing in such area by a non-party to the RFMO. The term also covers fishing in an area where no RFMO CMMs apply but such fishing “is conducted in a manner that is inconsistent with international law” (IPOA-IUU, paragraph 3.3.2). A relevant observation is that international law does not permit a vessel to be stateless i.e. being without nationality or having two nationalities. States may, based on their national laws, take enforcement action against such vessels. In this context, the fishing activity by a stateless vessel is not “unregulated” but “illegal” under the applicable national law and falls under the term “illegal fishing” described in paragraph 3.1.3 of the IPOA-IUU.

Is it an exercise in futility to undertake the kind of analysis of the term “IUU fishing” as initiated here? The response to such a question should be an unqualified “no”. Such an exercise is necessary due to the need for a better assessment of the global magnitude and impact of IUU fishing. It is also equally vital to analyse and understand the term “IUU fishing” in the context of the ongoing negotiations by the members of the World Trade Organization (WTO) on an agreement on fishing subsidies, in particular in relation to the proposed use of “IUU fishing” as a trigger for denying subsidies. In the former situation, the Fisheries and Aquaculture Department (FI) and the Legal Office (LEG) of FAO have collaborated with experts and partners4 to understand the I, the U and the U of IUU fishing in order to provide guidance for methodologies, which could be used to measure the magnitude of IUU fishing in specific contexts. To this end, FI will soon publish a best-practice guide. In the case of the latter, FI and LEG are collaborating with the Secretariat of the WTO to make available relevant information to the negotiations process. FI and LEG are also collaborating with partners such as the International Centre for Trade and Sustainable Development (ICTSD) to help stakeholders of the relevant WTO negotiation process understand the concept of IUU fishing5. Continuing and building on the initiatives of FAO and its partners to understand IUU fishing and its characteristics will be necessary now and in the future in the context of using the concept of “IUU fishing” in addressing emerging global challenges and for as long as IUU fishing remains a global scourge.

1. IUU fishing is undesirable and should be curtailed or eliminated as it threatens aquatic ecosystems and undermines national and regional efforts to manage fisheries sustainably and conserve aquatic biodiversity. 
2. Tsamenyi, Kuemlangan and Camilleri, Defining Illegal, Unreported and Unregulated (IUU) Fishing in FAO FIRO/R1106 (En), Report of the Expert Workshop to estimate the magnitude of illegal, unreported and unregulated fishing globally, Rome, 2-4 February 2015. 
3. See Article 92, United Nations Convention on the Law of the Sea of 10 December 1982. 
4. This effort commenced with the Expert Workshop to estimate the magnitude of illegal, unreported and unregulated fishing globally in 2015. See FIRO/R1106 (En), Report of the Expert Workshop to estimate the magnitude of illegal, unreported and unregulated fishing globally, Rome, 2-4 February 2015
5. FAO participated in several ICTSD-organised events in 2017 and 2018 including the recent seminar entitled: WTO: Paths Forward Negotiations on Fisheries Subsidies: Taking Stock after MC11, Geneva, 10 April 2018.

Linking wildlife conservation with food security: A Human Rights Based Approach to Sustainable Wildlife Management

As a UN organisation, FAO is committed to protecting and promoting human rights across the full range of its action. Putting people’s rights at the centre of wildlife management will ensure that a suitable balance between conservation and the use of wildlife resources for food is found. Meeting dietary and economic needs of those who depend on wildlife resources and, at the same time, harvesting those resources at levels that do not threaten their survival, or the ability of future generations to meet their own dietary and economic needs, is an example of sustainable development.

The development of responsive legal frameworks can safeguard the legitimate rights of wildlife-dependent communities and individuals along the wild meat value chain, effectively prevent the depletion of wildlife resources, and generate long-term health and economic benefits. In concrete terms, this has seen the conceptualisation by the FAO Development Law Service of a Human Rights Based Approach (HRBA) to Sustainable Wildlife Management, which builds on existing UN methodologies. It puts a strong emphasis on aspects that are essential to the achievement of the Sustainable Development Goals, such as inter alia public participation and consultation, the right to food, gender equality and access to justice. It also includes a detailed protocol to obtain the Free Prior and Informed Consent (FPIC) of Indigenous People in the context of sustainable wildlife management.

The HRBA, in a recently initiated Sustainable Wildlife Management Programme, disaggregates each human right into three to five questions, to encourage the Programme’s implementation teams to: a) consider whether their proposed activities undermine, respect or promote the human rights of the people that they engage with under the Programme; and b) take appropriate action to address the negative impact of an activity and avoid causing harm, and – wherever possible – to promote the realisation of human rights. For example, to ensure that the right to food is adequately considered in the development of legal activities, the methodology asks the question “Does the legal activity undermine, respect or promote access to adequate food?” and provides three proxies to help the implementation team gauge the potential impact of their proposed activities on the Programme’s stakeholders. The proxies used for this question are:

  • Does the legal activity undermine, respect or promote existing access to food?

  • Does the legal activity undermine, respect or promote the quality and availability of food that meets dietary needs?

  • Does the legal activity undermine, respect or promote consumption and feeding patterns that can adapt to changes in quality and availability of food?

  • Does the legal activity undermine, respect or promote gender equality in access to food?

These proxies could readily be applied in other areas of activity. Ultimately, the HRBA to sustainable wildlife management aims to empower rights holders (indigenous people and local communities, stakeholders in the wild meat value chain, etc.) to claim and exercise their rights, and to strengthen the capacity of duty-bearers (Government, Programme’s actors, local communities and indigenous people, etc.) to respect, protect, and promote these rights.

This recently initiated EU-funded Programme on Sustainable Wildlife Management (SWM Programme) was launched at the initiative of the ACP Secretariat, funded by the 11th European Development Fund (EDF). It is being implemented through a collaboration between FAO, the International Cooperation Center for Agricultural Research for Development (CIRAD), the International Center for Agricultural Research (CIFOR) and the Wildlife Conservation Society (WCS). Within FAO, in addition to the Forestry Department, which hosts the Programme’s coordination, the Agriculture and Consumer Protection Department and the Fisheries and Aquaculture Department, the Development Law Service is at the forefront of this cooperation and leads the legal component.

The HRBA will be rolled out in two stages to ensure that the Programme’s design, implementation, monitoring and evaluation phases consider and respect the human rights of the individuals affected by its activities. It will guide the formulation of site-level activities during the Programme’s inception phase and will then be used yearly for reporting purposes.

Contact details: [email protected]; [email protected] 

Researching development law: a brief guide to online resources

Research for the development lawyer can be a daunting, complex and frustrating task. The areas to be consulted are many, the sources are dispersed and access to resources can be prohibitive. In this article, Chris Hedley provides a brief introduction to the challenges and solutions for research development law, as the first part of a serialised guide.

Research for the international development lawyer can be a daunting, complex and frustrating task. The areas of law that might be engaged in any single project can be numerous: general principles of international law, several thematic areas of law (trade, environment, human rights, food, etc.) nationally and internationally, as well as national public and administrative law questions. Being able to find relevant and reliable information efficiently can be difficult: there is no single database that stores all the existing knowledge one would need access to. Commercial databases are very helpful, but even they only store part of the global knowledge base and – if you do not have library access – are prohibitively expensive. Moreover, once you have found a relevant resource, if it is a commercially on sale book or journal, it is likely that the price will be eye-watering.

The good news is that more and more research is being published in digital format, on an open access basis or similar. The online delivery method and licensing of these publications varies, ranging from publications that are freely available to download, keep and use through to publications that can be viewed online, but not downloaded. There are also various databases, repositories and other collections that enable access to written works, legislative materials and other useful data. And for research and materials which remain in the commercial domain, there are various schemes which exist – particularly for institutions and researchers in developing countries – which enable access freely or at a (very) significantly reduced cost.

This article explores and reviews the enormous range of research tools and resources out there, so as to provide a comprehensive guide to researching development law. Whilst it covers all kinds of resources, the guide pays special attention to the needs of researchers with limited or no budget, and identifies ways to access legal resources. While the guide is by no means exhaustive, it is intended as a good starting point to search for information on development law.

Open access publishing

In short, OA refers to online research outputs that can be accessed free of charge, and are free from some or all of the usual restrictions on use (e.g. certain copyright and license restrictions). Open access can be applied to all forms of published research, including peer-reviewed and non-peer-reviewed books/studies, journal articles, conference papers, reports, etc. The provision of research on an open access basis varies from institution to institution and publisher to publisher, but the volume of open access research is growing all the time. A number of publishers publish only open access works. These represent a relatively small proportion of the research in the development law field, but nevertheless provide access to much that is useful. A number of other publishers retain a commercial portfolio, but provide extensive open access – and often the search engines on the publisher websites will allow you to search open access only content. In the case of journals, this might be a selection of open access titles (all volumes) and/or open access on a delayed basis, typically 1-3 years (such that older volumes are open access). In fact, virtually all publishers have some an open access policy of some kind, and provide at least a small amount of content freely. FAO’s Document Repository will shortly become fully open access, and many of its databases are already available on an open access basis.

Finding open access research

Various resources can help identify and locate open access research. Even collectively, the resources listed in this article do not exhaustively map all open access research outputs. Some publishers are not yet listed in the databases, and for some databases there is a delay in adding publications. The databases are also differently defined in terms of scope and focus. None is focussed on development law, or even development or law. However, all contain a large volume of research outputs that are likely to be of interest to a development lawyer. Given the relatively specific focus of the development lawyer within much wider databases, the databases will often need searching with precision and care. For some types of research enquiry, on some of the databases, researchers should also be prepared to sift through many Masters’ dissertations, conference papers and course notes which might not be what they are looking for. Nevertheless, combined, these databases provide a relatively simple and efficient way to connect to open access research.

Brief guide to the major search engines and databases for open access research

OA Search Engines

  • BASE Search
    The Bielefeld Academic Search Engine, from Bielefeld University Library (Germany), searches though more than 126 million open access documents in more than 6,000 sources worldwide.

  • OpenAIREplus
    The Open Access Infrastructure for Research in Europe project is an EU-based initiative to collect in one place "the entire Open Access scientific production of the European Research Area." They now provide access to more than 11.5 million publications from almost 6,000 repositories in EU member countries.

  • ROAD Directory
    ROAD (the “ISSN Directory of Open Access Scholarly Resources”) is an international collection of OA journals, conference proceedings, and other scholarly works that have been assigned an ISSN (International Standard Serial Number) from UNESCO. As of March 2018, it reports having over 25,000 resources (91 per cent journals) identified by an ISSN, and indexed by abstracting services, metrics and registries.

OA Books

Academic books published open access are subjected to the same stringent levels of peer review and editing as those published traditionally. The resources below include descriptions about their peer review process.

  • Open Access Publishing in European Networks (OAPEN) Library
    A collection of books published OA in Europe, available worldwide. Includes books published by Oxford University Press, Cambridge University Press, and Palgrave Macmillan, among many others. Books available through the OAPEN Library are free to read but not always free to share.

  • Directory of Open Access Books (DOAB)
    A service of OAPEN (OA Publishing in European Networks), DOAB is a discovery tool that finds books published elsewhere (as opposed to the OAPEN Library, which are books published with OAPEN). DOAB books are both free to read and free to share.

OA Journal Databases

  • Directory of Open Access Journals (DOAJ)
    Indexes more than 10,000 journals from 136 countries. Journals in DOAJ are subjected to acceptance criteria designed to ensure that they maintain the standards of peer-review and selectivity.

  • PubMed Central (PMC)
    Containing over 3.5 million articles, this is a free full-text archive of biomedical and life sciences journal literature (which includes environmental and social science research touching on development law issues) at the U.S. National Institutes of Health's National Library of Medicine (NIH/NLM). PMC is a repository for journal literature deposited by participating publishers, as well as for author manuscripts that have been submitted in compliance with the Public Access Policy mandated by NIH and similar policies of other research funding agencies.

  • Electronic Journals Library
    The EJL comprises over 95,000 titles from all areas of research (including a specific category for law), about half of which are accessible free of charge.

OA Repositories - General

  • Open Directory of OA Repositories (OpenDOAR)
    Search for repositories by subject, content, repository type, country, language, or software.

  • Registry of Open Access Repositories (ROAR)
    ROAR sorts repositories by repository type, country, year founded, institutional association, and software, making it a useful resource not just as a list of repositories but as a way to study trends in repositories overall.

OA Subject Repositories

  • Social Science Research Network eLibrary
    More than 680,000 abstracts and almost 600,000 full-text papers in social science research.

  • Research Papers in Economics (RePeC)
    An economics-based repository that indexes publisher websites for more than 1.7 million documents in 82 countries.

Legislating for Antimicrobial Use (AMU) and Antimicrobial Resistance (AMR).

The Development Law Service (LEGN) has been working on developing a methodology for legislating for AMR to assist countries to tackle this growing problem, that affects both animal and human health, as well as the environment, food and agriculture.

In March 2018, LEGN conducted a Regional Workshop on legislation on antimicrobial use and antimicrobial resistance in Bangkok, Thailand. National regulators from 10 countries in South-East Asia joined the workshop, together with representatives from the tripartite (OIE and WHO) and the regional organizations (ASEAN). Over two full days, participants discussed the status of their respective national legal frameworks in a number of areas relevant to AMR.

This workshop represented the first opportunity for LEGN to present its methodology for legal work on AMR and was successfully received by both countries and partner organizations. LEGN’s proposed methodology is based on:

    • the analysis of national legislation in all areas with an impact on AMR, including but not only legislation on veterinary medicinal products, pesticides, food safety, feed, aquatic and terrestrial animal health and production, environmental protection or water;

    • the establishment of coordination mechanisms to ensure a multidisciplinary approach to legal reform;

    • the identification of legal weaknesses and analysis of potential regulatory options to resolve existing gaps; and

    • participatory approaches to legal reform to introduce the policy priorities agreed upon in the National Action Plans (NAPs).

There are, in LEGN’s view, a number of regulatory options that could serve to address AMR policy priorities, such as the regulatory control over the use of antimicrobials for non-therapeutic purposes, the restrictions in the sale and use of medicated feed, or the need for prescription to sell and use antimicrobials. Different countries in Asia have adopted innovative measures to regulate the use of antimicrobials for growth promotion with interesting legal implications, such as the need to clarify what can be defined as prevention, control or therapeutic use as opposed to growth promotion. At this stage, different regulatory possibilities, from blanket prohibitions to the risk-based approach, are being analyzed and, at the workshop, countries presented their own experiences while also engaging actively in the consideration of other potential alternatives.

One of the conclusions of the workshop was that, in many countries, legislation is not sufficiently updated to ensure appropriate control over activities that may cause AMR. A second conclusion that emerged was the challenge of ensuring coordination among the different competent authorities with a role in the gamut of areas with an impact on AMR. It became clear that there is a need to take urgent action to combat AMR and to ensure that legislation is aligned with national policy priorities to ensure their enforceability and sustainability.

Also highlighted was the importance of a regional approach: regional collaboration can facilitate coordination, improve data collection and analysis, or promote harmonized regulatory approaches. Countries agreed on the need to set up a network of regulators to share expertise and experiences and to initiate proposals for regional harmonization. Finally, participants requested FAO to hold another workshop in one year’s time, when some of the countries will have moved forward in the analysis and revision of their national regulatory frameworks.

Next steps include the implementation of country support for legal revision in the countries that are part of the Fleming Fund 2 Project (funded by the United Kingdom) and, if possible, to look for additional funding to replicate this workshop in other regions, commencing in Africa. 

Fostering enabling regulatory frameworks for contract farming

Responsible contract farming can be a powerful tool for small scale farmers in developing countries to move towards larger scale commercial production. It can create economic wealth, contribute to supply chain efficiency through the production of larger quantities of better quality products, and contribute to achieving domestic food security objectives.

Maximizing these benefits while minimizing the inherent risks of contract farming is reliant upon the forging of an enabling environment, a key part of which is the domestic regulatory framework. Regulatory frameworks can address issues such as power imbalance between parties, increasing legal security and certainty through dispute resolution methods, and by promoting transparency.

As readers will know, FAO has been working with IFAD and UNIDROIT on responsible contract farming for several years now. As a continuation of this effort and to add to the resources publicly available on contract farming, a new Legislative Study entitled “Enabling regulatory frameworks for contract farming” has been published.

The Study, drawing upon analytical case studies from a representative sample of countries from different legal traditions and regions, provides guidance to domestic regulators on appraising and potentially reforming domestic regulatory frameworks for responsible contract farming by considering critical issues and objectives for the sector.

The starting point of the Study is that, when evaluating possible approaches, countries should always consider their existing national legal system and legislation in force as well as the characteristics of their agricultural production sector. Accordingly, the Study does not advocate any single solution to regulate contract farming but provides several examples of different possibilities. These include drafting a self-standing piece of legislation for contract farming or embedding new provisions in more general legislation such as in agricultural codes or laws. Less “top heavy” solutions are also discussed, such as creating standard contracts or inviting the private sector to actively participate in the creation of the regulatory framework.

As explained in the Study, regardless of the legal mechanism chosen, it is often useful for legislation to reflect the minimum content that a contract should incorporate to be considered a complete agricultural production contract. These would include requiring that contracts be written and creating content requirements related to parties to the contract, quality and quantity requirements, input supply, price determination and payment, delivery, applicable law and (alternative) dispute resolution.

It is hoped that this Study will contribute to the making of more informed, evidence-based choices by readers when considering whether, and how, to regulate this area. The Study, as well as a variety of other materials relating to contract farming, can be accessed at FAO’s Contract Farming Resource Centre. 

Latin America and Caribbean region at the forefront: the PARLATINO adopted the world’s first Model Law on Small-Scale Fisheries

Supporting responsible fisheries and sustainable social and economic development for the benefit of current and future generations, and small scale fisheries in particular, makes an important contribution to nutrition, food security, sustainable livelihoods and poverty alleviation – especially in developing countries. FAO’s vision on small scale fisheries rests upon the notions that the contribution of small-scale fisheries to sustainable development is fully realized; small-scale fishers and fish workers are not marginalized; and the importance of small-scale fisheries to national economies and food security is recognized, valued and enhanced.

On 21 June 21 2017, a significant step forward in the promotion of and support to small-scale fisheries was taken: the Latin American and Caribbean Parliament (PARLATINO) adopted the world’s first Model Law on Small-Scale Fisheries. The PARLATINO has contributed to the efforts aimed at fighting hunger in the region as a result of a regional process technically supported by FAO, through the Hunger Free Latin America and the Caribbean Initiative (IALCSH) and the Mesoamerica Without Hunger program. One of the many notable features of this Model Law, in supporting the achievement of the objectives set out above, is its emphasis on small-scale fishers, fish workers, vulnerable and marginalized people and the promotion of a human rights-based approach.

The Model Law on Small-Scale Fisheries was prepared by a multidisciplinary team of FAO specialists in fisheries, aquaculture and international law. Its publication was prepared with the support of the Mesoamerica Hunger-Free program sponsored by FAO and the Mexican Agency for International Development Cooperation (AMEXCID). The drafting process of this Model Law took place in three phases. Firstly, a thorough review and analysis of existing fisheries legislation from selected countries of the region was carried out. Secondly, the alignment of the national laws with international standards was analyzed. FAO’s Code of Conduct for Responsible Fisheries , the Voluntary Guidelines for Securing Sustainable Small-Scale Fisheries in the Context of Food Security and Poverty Eradication (the SSF Guidelines), and the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security , were specifically addressed, among other relevant international instruments. To accomplish this analysis, 22 parameters were used as guidance. Then, the findings and conclusions reached were addressed in separate legal reports per sub region. Finally, an annotated table of contents for the law was prepared to provide a proper structure to the drafting process of the model law.

At the time the Model law was passed, most of the countries in the region had not enacted specific laws regarding small-scale fisheries. So it was a significant development when, on 23 March 2018, a draft law for the sustainability of the small-scale artisanal fisheries sector was presented to the Costa Rican Parliament for further review. The draft law was developed by INCOPESCA with the technical support of FAO.

Other countries in the region are continuing to evaluate whether it would be appropriate to enact a separate law on small-scale fisheries or to introduce the provisions of the Model Law on Small-Scale Fisheries into their national legislation.

The PARLATINO Model Law is currently available in Spanish, English, French and Portuguese, the languages of PARLATINO. The full Spanish text of the Model Law (official version) can be found here: http://www.parlatino.org/