by Michel Boutet
63 Rue Dugay Trouin
29100 Douarnenez
France
Abstract
This short note addresses there main aspects of a potential precautionary approach to fishery technology, namely Impact Assessemnt (IA), pilot projects and fishery technology classifications. These approaches could be used as part of procedures to be implemented before approval for new technologies, gears and practice is granted. The paper reviews the nature and scope of the IA, its control, and limitations. It looks at the contractual framework for pilot projects as well as their large scale appraisal. It also reviews the priniple and potential for using technology classifications as a means to facilitate agreements on the “friendliness” of fishing technology, as well as enforcement problems.
The implementation of a precautionary approach to fisheries has still to be developed in practice. Some of the devices developed for environmental management could be used for fisheries management with the proper adaptation to take account of the particular nature of fisheries and of their impact. In particular, when considering the possibility to introduce a new technology, gear, of practice in an existing fishery or before authorizing the start of a new fishery, the precautionary approach foresees inter alia: (a) a mandatory requirement for a prior impact assessments (similar to the well known Environmental Impact Assessments, E.I.A.); (b) the implementation of pilot projects with adequate scientific analysis of the results through agreed analytical protocols; and (c) the reference to agreed fishery technology classifications elaborated at national or regional levels. These approaches are examined briefly below.
The following sections examine the legal bases and nature of impact assessment, the control and impact of its applications, its limitations and viability.
The Nature and Scope of Impact Assessment
Impact assessment is an important legal tool in environmental law and subordinates the implementation of any project to obtaining assurances that its repercussions on the environment can be appraised in advance and any necessary measures adopted to limit their scope to an acceptable level. As a preventive measure, this kind of assessment makes it possible to judge the viability of a project in terms of its environmental effects. Prior administrative authorization has to be obtained before planned activities can commence. The relevant authority takes its decision on the basis of the findings of the Environmental Impact Assessment. The project can then be either authorised or not, or if necessary modified, in order to take into account the conclusions of the environmental impact assessment. For an environmental impact assessment not only takes stock of a particular situation, but also proposes solutions to remedy any of the problems to which the scheduled work is likely to give rise.
It would be unrealistic to submit every project to an Environmental Impact Assessment, however. A preliminary selection may be made between the activities that require an impact assessment and those which are exempt. In the United States a prior appraisal is made to see whether a particular project should be subjected to an impact assessment in view of its importance and implications. Another method, such as the one used in France, is to draw up a list of the activities which require a prior impact assessment. A third way, combining the other two, also exists. This consists of drawing up a list of impact assessments to be carried out under certain circumstances. In cases for which no explicit provision is made a prior appraisal must be carried out to decide whether a scheduled activity should be subjected to impact assessment and added to the existing list. The fact that an impact assessment of a plan or a general programme has been carried out must not be used as a reason for not carrying out impact assessments for specific projects under that plan or programme.
Provision for the impact assessment must be made as part of a statutory procedure for granting authorization or issuing permits for specific activities (e.g. installing road furniture, industrial farming facilities, etc.). A specific authority or government department must be designated for this purpose with responsibility for commissioning and subsequently supervising the impact assessment. It should be empowered to make a decision subject to legal challenge on the basis of the conclusions of the assessment. Lastly, the administration must impose a set of specifications for the conduct of the assessment. They must set out a clear-cut but sufficiently broad and flexible framework to allow undetected aspects of the problem to emerge when the assessment is carried out.
Control and Impact Assessment
Four types of control are required over the conditions for conducting an impact assessment, and assessing its relevance and objectivity:
At all times the contractor must be able to appeal against an impact assessment which is not being conducted according to the statutory rules.
It must be possible to appeal against the licensing authority's final decision if it is in total contradiction to the conclusions of the impact assessment.
When the impact assessment is completed, the conclusions must be submitted to the authority which takes its decision after verifying its reliability. The authority ought to be able to control the whole performance of the assessment, thereby guaranteeing the best possible conduct of each phase.
The public must have the statutory right to be consulted during the performance of the impact assessment. The public should be given advance information in order to be able to take part in the impact assessment itself. Discussions should be organised to enable all the parties to debate their points of view, etc.
The petitioner and the government department concerned must give real and effective consideration to public opinion. The public must be given a right of appeal when they that the impact assessment in not being carried out in accordance with the law or when they wish to challenge its conclusions. The public must also be able to take legal action if the decision taken by the authorities appears totally in terms of the conclusion of the impact assessment.
The “public” comprises both individuals and corporations. With regard to impact assessment the right to challenge is sometimes subordinate to the existence of a real and proven stake. This is of vital importance because it is necessary to ensure transparency, even though the possibilities of appeal must be clearly defined. Appeals may sometimes be filed to obstruct the administration or the petitioners when studies are being carried out it measures are not taken to restrict litigation to the persons whose stakes are really affected by the project to be assessed. In the field of the marine environment, such parties may be associations of fishermen, environment protection movements, other users, etc. However it should not be forgotten that the environment, including the marine environment, is tending increasingly to become the “interest” or everybody, making it difficult to identify genuine stake holders.
The public can be informed through legal notices. This publicity should be adequately significant and not merely be a formal communication. All preliminary and specific information given to the public should enable it to submit relevant opinions and collect the broadest largest and most representative number of observations. To do this, facilities must be provided to collect options, and someone appointed to inform the public about the project. Prieur (1994) has put it this way: “In reality whoever actually carries out the impact assessment, the procedure should be such that the public is considered its co-author or the natural opponent if necessary, both to enlighten and assist the public administration's project promoter”.
Administration courts should be the normal fora for challenging impact assessment. The administrative courts generally have the power to issue penalties for non-compliance with the rules laid down for impact assessments or to irregularities committed in the course of conducting them. The civil and criminal courts should be used for cases in which the failure to implement or to properly conduct an impact assessment is deemed to have caused loss, damage or injury, e.g. such as the construction of chemical plant close to a residential area.
Individuals, corporations, associations, and petitioners considering that they have been harmed by acts or decisions taken by the authorities, or even by the public, should be able to take legal action. It must be possible for the parties to provide expert testimony to substantiate contrary opinions. Implementation must be halted while appeals are being examined. When examining appeals, the court should be able to issued interim orders suspending work until the final Judgment is issued, in order to preserve the environment and ensure that the sites, biotypes or landscapes that have been adversely affected can be restored or rehabilitated without incurring prohibitive costs.
Limitations of Impact Assessments
The cost and funding of impact assessments
The financial cost of an impact assessment should be related to the potential damage and represent a reasonable proportion of the cost of the project1. The contractor accept this cost as a supplementary assurance, like any other necessary preliminary survey or study, such as the resistance studies carried out by building construction firms, or market surveys before embarking on a commercial activity. The question is whether or not the contractor should be required to pay this supplementary financial charge. It is of course possible to claim that this cost, which is legally imposed by the State, is the responsibility of the contractor. However, it should not be forgotten that a measure of this kind might curb investment. With fisheries, it might seen reasonable to require private individuals to pay for the impact assessment prior to the installation of a fish culture farm or for harvesting a known stock using a new fishery technique. However, this might be unrealistic in the case of large geographical scale assessments on totally new and uncertain resources.
It would appear lawful for technical as well as financial public aid to be provided in certain cases such as when the State intends to promote exploitation of new resources involving an economic risk. However, when the private sector envisages new developments, it should bear the cost of the impact assessment. While it may seem logical to place the cost burden on the contractor, this approach must be nuance because it would tend to dissuade many entrepreneurs from investing in a preliminary survey which is often costly and fraught with uncertainty2. Government aid might therefore be necessary as a means to allow and indeed promote technical progress while supervising and controlling it.
Informing the public
Informing, consulting with and involving the participation of the public presupposes that both the contractors and the authorities must comply with certain democratic rules. Furthermore, this participation must satisfy two requirements. First it must be open and broadly based, but it must not be used deliberately by a minority to arbitrarily block a project. This is not always the case and the converse is still often true today, the contractor and the government having always a wide margin for manoeuvre. Secondly, confidentiality may need to be protected because future profitability may depend on keeping it a commercial secret at the outset and breaking into a narrow market very quickly (e.g. in the case of the culture of a particular species to met a targeted commercial demand). Solution to that problem may be found in other areas such as in the pharmaceutical industries where extensive tests are required before allowing a product on the market.
The reliability of and trust placed in impact assessments
it is essential to ensure that an impact assessment is reliable. If the contractor carries out its own impact assessment the results obtained will obviously be treated with some caution, which marks it important for the authorities, and if necessary the courts, to verify/assess its reliability. Even when the State is responsible for the project, the reliability of the impact assessment which the State has to impose upon itself must also be questioned. An alternative would be to commission a third party a research institution or a firm of experts, etc. to carry out ht impact assessment. However, total independence can never be fully guaranteed. (It should not the forgotten that employment can sometimes be used as a pressure in the case of negative conclusions of the assessment.)
2 Unless this is an indirect way of preventing some form of development
There is a danger in “trivialisation” of the impact assessment and failure to lay down a specific set of specifications for it as such assessment would be worthless and just another bureaucratic procedure, to be carried out quickly and without substance. If this is repeated too often the procedure could soon be viewed with a certain mistrust both by the public and the authorities and result in a lax attitude.
The Pilot Project: A contractual Framework
Pilot projects can also be viable in the framework of a precautionary approach to fisheries. They are not strictly speak a legal issue, but to ensure that they are effective, property specific rules must be laid down. Under a pilot project, the authorities have a wide margin of manoeuver in order to contractually impose the type of research, studies and experiments required when an innovation is introduced, or when new fishery zones are to be harvested, etc. The authority may also decide to have this kind of study carried out on its own account (e.g., in order to test a management measure). It could set out the programme for the pilot project by joint agreement with selected professionals. Moreover, the contractual relationship between the authority and the contractor provides the best possible guarantees to protest the economic interests (or “rights”) of the “discoverer” of a particular stock, or the inventor of a particular technique. Lastly, in both financial technical and scientific terms, the direct participation of the authority in such cases facilitates the studies to be carried out.
Since the pilot project involves the partial implementation in situ of the planned activities, it goes much father than an impact assessment, which is not theoretically preceded by a specific activity on such a scale. In addition, the authority may directly carry it out or commission it. When the authorities are faced with a new technique, or an invention that they wish to test, the pilot project enables them to try out the innovation and measure its consequences.
With fisheries, the pilot project is more appropriate and more flexible that the impact assessment. It may be implemented by the authority on its own account. In terms of a third party, it certainly appears more consensual and less arbitrary than an impact assessment and establishes a contractual relationship. It may however be sometimes difficult to cancel a project when larger investments were made at pilot project level and it is therefore advisable to ensure that the probability of success is sufficiently high before allowing a pilot project to start.
Unlike the impact assessment, however, the pilot project does not from part of any statutory procedure that makes it a pre-requisite for authorising the implementation of a project. Neither does it create any legal constraints on relations with third parties, and it provides no specific means of appeal to the public.
Large—scale appraisal
The pilot project can therefore be likened to a “ full—scale” experiment with a particular activity, gear, etc., controlled in terms of its timing and physical scope. The test monitored, the repercussions of the activity are studied and analyzed.
There are many advantages in such a full—scale appraisal. The pilot project does not run the risk of over—theorising, and its purpose must be to check predictions in the field. The pilot projects make up for the shortcomings of the impact assessment. An item of fishing gear or an innovation which brings about an improvement in terms of profitability might not be a threat to the environment a priori. Yet difficulties may arise when they are introduced on an industrial scale, which only come to light when tested on several ships: in other words, they may be revealed by the pilot project. Lastly, when an impact assessment is applied to fisheries, and is limited to a small scale, it does not easily allow to take account of the social environment. Various benchmarks based upon previous reactions of professionals to each of the problems that arise can, of course, be used. But the result will nevertheless always bean approximation. Conversely, because of its broad scope, an experimental trial can make it possible to analyze the social behaviour which is extremely important in fisheries. For instance, ITOs are a management strategy that may be considered innovative. While such a system may seem viable in theory, it was not until it was put into practice on a commercial scale that its limitations emerged mainly due to the social behaviour of the persons involved (high grading, concentration of individual quotas in a few hands, etc.).
Should the impact assessment and pilot project be viewed as two successive procedures? This may not always be necessary but, in view of a degree of uncertainty, it might sometimes be advisable to implement a pilot project after carrying out an impact assessment, provided of course that its results were favourable, in order to further refine the results. A group of fishermen could therefore request a pilot project to be implemented in order to verify the relevance of a particular type of gear in their fishery zone after it has successfully passed the impact assessment in another zone with the same features.
The pilot project can also be useful independently of the impact assessment. It is a system that can be used to compare the relevance of a particular fisheries management measure before bringing its application into general use. Thus the concept could be used to verify the relevance of a particular new fisheries management measure with the fisheries involved in the use of a particular fishing gear (e.g., a new mesh size regulation). This approach should, however, not be adopted by professionals as a means of challenging, delaying or preventing the adoption of a measure rendered necessary by the status of the fish stocks under consideration. It should also not be used by the sector to justify continuing tests with the sole purpose of protraction the commercial use of a particular item of fishing gear, or an innovation, on a limited scale serving only the interests of a small number of participants. If the gear or the innovation is hazardous on a larger scale, the small number of fishermen taking part in the pilot project that brings this hazard to light might find it financially to their advantage to protract the investigations, because that would enable them to continue harvesting. Conversely, when a pilot project demonstrates the viability of a particular technique, or the fact that no risks are associated with a new harvesting technique (deep water species) the fishermen taking part in that project will have every reason to ask for the investigations to continue because they fear competition. In either case, they skilfully create a monopoly position for themselves. Furthermore, the deadlines and the geographical scope of a pilot project must be clearly spelled out in advance so that there can be to complaints or pressures exerted to protract or expand it.
The use of a system of lists is a technique used in many fields to regulate the trade in particular substances, and to govern certain activities. The design and the implementation of this approach varies in complexity according to the domain of application and adapting this system to fishery techniques may be more difficult than it seems.
The system of Lists in International Law
Using lists or classifications to govern the use of certain substances or techniques is extremely widespread even at the very highest level of the hierarchy of rules. Two international conventions provide good examples of the list system. One is the 1971 Convention on Psychotropic Substances which comprises four tables classifying psychotropic substances depending upon the threat they pose to public health. The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and Their Destruction (signed in Paris by 130 governments between 13 and 15 January 1993) also has an annex containing three tables listing the toxic chemicals subject to controls. The products listed in Table 1 may not be transferred to States which are not parties to the Convention. Additionally, these products can only be used for scientific, medical or pharmaceutical purposes, or as protection against chemical or toxic products, or chemical weapons.
The last system is particularly common in environmental law. The “Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)” uses it. The species that are seriously endangered and threatened with extinction, or which are disappearing as a result of intensive trade are classified. This classification is coupled with specific conservation measures, such as a total ban on trade in all or some of these animals.
Very interesting examples of the system of lists to govern the use of products or substances are found in the Conventions on sea pollution. These Conventions set up a classification system (usually through lists, tables, or annexes) for the pollutants, whose dumping or incineration are regulated. Thus the Oslo Convention for the Prevention of Marine Pollution by Dumping form Ships and Aircraft, of 15 February 1975. Which applies to the Northeast Atlantic, contains two separate lists of products of substances for which prior authorization is required before dumping. The 1972 London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter follows the same procedure. Both Conventions provide that the substances or products which are not set out in the pre-established lists can only be dumped if the competent authorities approve (Article 7 of the Oslo Convention) or if a “general permit” is first obtained (Article 4(1) of the London Convention). These lists, sometimes known as “black lists” and “grey lists”, are periodically updated.
Potential Application to Fisheries Law
Before this system can be applied to fishing operations, it is necessary to resolve the difficulties relating to the classification of fishing gear and to check the effectiveness of the lists. Both aspects are examined below.
A sensitive classification
It is tempting to set up a system which makes it possible to classify fishing gear in terms of its impact on the environment. The principle looks simple, and has the merit of being understood by all, particularly public opinion which would have an easy way of setting off the “good” against the “bad” fishing techniques classified, for example, in terms of a red list and blue list. There are some problems, however, related to the criteria to be adopted for classification, the diversity of environments and gears, and the process of updating. These three issues are addressed below.
First of all, it is necessary to define exactly what is to be classified and in particular whether one should only classify fishing gear or fishery techniques, or also the devices used to assist fishing in general (such as the use of satellites for tuna fishing). A second question relates to the procedures for classification and the benchmark elements by which to differentiate objectively between different types of fishing gear and technique. If the concern is responsible fishing and sustainable development, the classification of the fishing techniques and gear should be based on criteria that will guarantee them. Aspects such as the least possible impact on the biotope, selectivity, the best yield/energy consumption ratio, the nutritional quality of the catches, etc., could also be used. This makes it possible to object, for example, to the use of poison or explosives, or to favour otherwise more selective or environmentally friendly techniques, such as the harpoon or the hook. However, examining the issue more closely reveals other examples which show that this approach is not always that straightforward, as discussed below.
A given type of trawl differs in terms of selectivity as soon as its mesh is changed. The same applies to gillnets. Other minimal changes in one of the parameters of the fishing gear is enough to change trawling behaviour. Increasing the webbing of a gillnet on the type of otter-boards of a trawl or merely the propeller system of the trawler, or the size of the hooks on a long line, or the depth at which it is set, modify greatly the properties of a gear and complicates its classifications. In addition, the biotopes for which different harvesting techniques are used should also be considered. Bottom trawling has different effects in areas colonised by posidonia, seagrass, on muddy grounds. or on rocky seabeds. It is therefore vital to take account of all the different situations that might arise. For example, the 1973 International Convention for the Prevention of Pollution From Ships, signed in London on 2 November 1973 (Marpol Convention) laid down the maximum limits on the release of hydrocarbons from ships, depending upon the areas in which it takes place. Closed or semi-closed seas, for example, are more strictly controlled because of their particular situation (for example the low rate of water exchange. Drawing up lists of gear in terms of previously defined criteria (such as sustainable development or low bottom disturbance) is therefore only relevant if these lists also refer to such data as the biotopes and the species involved.
The 1961 Single Convention on Narcotic Drugs (see the report of the Permanent Central Committee for 1965 E/OB/21) was a failure because it only dealt with the “classical” drugs made from natural products and did not consider (or foresee) the arrival of synthetic drugs. Sufficiently broad definitions should be found to include all types of fishing gear or changes to fishing gear or techniques in this list system. Therefore, to prevent such a system from rapidly becoming obsolete, from a technological point of view, a continuing updating procedure must be designed to include new fishing techniques on the list, and make any other relevant changes to them.
A possible application
The adoption of a list system could lead to a total ban on certain techniques (e.g., poisons, explosives) or a partial ban depending upon the area concerned (e.g., banning bottom trawling in spawning zones) or for particular species (e.g., banning the tanglenet for harvesting shellfish). Other gear could then only be used if certain features were introduced to make them more selective and more biotope-friendly. Certain techniques would be encouraged because of their particular suitability to enhance catches, or because of better energy-use or lower pollution levels, etc. Because of the need for location-and stock-specific lists, their establishment should be best established at regional and sub-regional level even though international guidelines and generalized assessments could be usefully developed.
Evaluations of new gear and techniques, for the purpose of inclusion in the list should be carried out under the responsibility of the fishery resource management and conservation authorities.
A system of this kind has already been partly effective for a long time, even though as far as we know there is no general listing system anywhere. Fishing gear use is often regulated in terms of the fishing zones, and some types of gear are prohibited in certain zones or for harvesting certain species. Such regulations exist in many countries. Examples of their enforcement show how difficult it is to guarantee compliance with such a system, which could appear to be too rigid if based upon a list system.
Enforcement Difficulties
A list system may be more easily enforced in an EEZ, under the sovereign rights of a particular State. On a regional scale, it is only through international cooperation that such a system could possibly be brought into force. The establishment of a regional list will require debate and negotiations. The debate on the merits of each technique is likely to become heated depending upon the interests of the various users involved. In the fisheries field, disputes between different trades are extremely common. The effectiveness of the system will depend upon the effectiveness of the regional monitoring and control system set in place. There are dozens of parameters that can be used by fishermen to change the properties of fishing gear in relation to the resource or the environment and their cooperation would be essential to ensure the success of the system.
An impact assessment makes it possible to stand back objectively and examine a particular situation before deciding whether to implement a particular project. It enables both the authorities and the public to participate in designing a project. The human and financial investments involved make it possible to prevent dramatic repercussions on the environment with socio-economic repercussions that in many cases are out of all proportion to the initial cost of the assessment. If the assessment is set in a legal and administrative framework that is strictly adhered to, respecting the right to information and the right of appeal, it can be not only a legal but also a scientific tool of vital importance in the environmental field. The more objective and transparent the impact assessment is, the more easily will it be accepted by all the parties involved.
However, there are various obstacles to using the impact assessment. It must therefore form part of a specific legal framework, respecting the rights of all the parties concerned, requiring transparency in its drafting and the public disclosure of its results, while leaving the possibility open to the government, third parties or the contractor concerned to appeal in the event of failure to comply with these procedures.
A listing system to classify fishing gear might be an appropriate way of improving fisheries management. This system could take account of technological developments providing for their systematic appraisal. To cover all sources of efficiency they should ideally take account of the possibility to use such devices as satellite positioners, fish attractors, sophisticated sounders, computer assisted piloting systems, etc.
The procedures established to appraise new development will make use of impact assessment procedures described above or may require a pilot project. This illustrates the close linkage between pilot projects, impact assessment procedures and gear classifications. The combined use of these approaches in any management systems would make it possible to implement a truly preventive action and would introduce a clearly precautionary character in the system.
Fitzpatrick, J. (1996). Technology and Fisheries Legislation. In Precautionary approaches to fisheries. Part 2. FAO Fishery Technical Paper, 350(2)
Prieur, M. (1994). Evaluation des impacts sur l'environnement pour un développement rural durable: étude juridique. FAO Legislative Study,(53):143 pp. Rome, FAO. French only
