Служба разработки законодательства

Development Law - Issue #4 of 2020


In this issue:

  • AMR-lex – Legislation relevant for antimicrobial resistance

  • AQUALEX- a versatile database for rules and policies affecting the water sector.

  • FISHLEX: a database providing easy access to national fishing requirements

  • NALO Database: A FAOLEX Subset on Aquaculture legislation

  • PORTLEX: A Subset of FAOLEX Database on Port States Measures

  • SoiLEX: Global Database of National Legislation on Soil Protection, Conservation and Restoration

  • The SSF-LEX: a new FAOLEX subset database for the small-scale fisheries sector

1. AMR-lex – Legislation relevant for antimicrobial resistance

The development and spread of antimicrobial1 resistance (AMR) has become a global health threat that requires multi-sectoral action to curb it. AMR refers to microorganisms that have acquired resistance to antimicrobial substances2. While this phenomenon can occur naturally through the adaptation of microbials to their surrounding environment, it has been exacerbated by anthropogenic activities.

Law is an essential part of a country’s governance structure that is required to regulate antimicrobial use (AMU) and to control AMR. To strengthen national governance structures, it is necessary to analyse their regulatory frameworks in a holistic and cross-cutting manner in order to identify any gaps and areas for improvement.

Identifying regulatory areas that are relevant for AMR is a challenge because of the expanse of activities and areas that could impact AMR. Based on the relevant international standards and best practices however, the Development Law Service of FAO (LEGN) has developed a Methodology to analyse AMR-Relevant Legislation in the Food and Agriculture Sector (the Methodology)3. This Methodology identifies the legal areas that are relevant for AMR governance in the food and agriculture sectors, as well as the key regulatory elements within each area that directly contribute to AMR.

Based on this Methodology, LEGN developed a FAOLEX subset legal dataset called AMR-lex to facilitate direct access to legislation relevant to AMR. AMR-lex includes a collection of legal instruments and policy documents relevant to AMR and AMU in seven main areas:

  • Veterinary medicinal products (VMPs), which contain antimicrobials for veterinary use. As all stages of the lifecycle of VMPs will influence the accessibility, quality, use and disposal of antimicrobials, legislation relevant for each stage of the lifecycle of the VMPs has been included.

  • Feed for terrestrial and aquatic animals, including laws on the production, distribution and use of medicated feed, feed ingredients and additives, and the wider legal frameworks on feed chains.

  • Animal health and production (terrestrial and aquatic), that have an impact on good practices in animal husbandry, disease prevention and control.

  • Plant health and production, including the use of antimicrobial pesticides and manure from treated animals as fertilizers, as well as legislation to enhance plant health and minimize the need for antimicrobial pesticides.

  • Safety of food, ingredients and substances that may contain antimicrobial residues, including laws on the monitoring and control of Maximum Residue Limits (MRLs) of VMPs and pesticides in food, and labelling requirements.

  • Prevention, monitoring and control of antimicrobials, antimicrobial residues and resistant material into the environment, including environmental protection and waste management laws in relation to terrestrial animal production, aquaculture, slaughtering houses, plant production, feed mills, and manufacturing of veterinary medicinal products and pesticides. These may include different regulatory mechanisms, such as environmental impact assessments, licensing or permit requirements.

  • Quality of water as an input for agriculture and food production (including crops, livestock, aquaculture and other places where plants, animals or food are produced or where animals are handled), and as an output of agriculture (disposal and waste management).

1. The Codex Alimentarius defines as antimicrobial agent “[a]ny substance of natural, semi-synthetic, or synthetic origin that at in vivo concentrations kills or inhibits the growth of microorganisms by interacting with a specific target . The term includes, therefore, all substances used to treat or prevent infections (and diseases) caused by microorganisms in humans, animals and plants. Antimicrobials is the overarching name for antibiotics (that work against bacteria), antivirals (against viruses), anti-fungals (against fungi), and anti-parasitics (against parasites).”
2. Food and Agriculture Organization of the United Nations, 2016. The FAO Action Plan on Antimicrobial Resistance 2016-2020: Supporting the food and agriculture sectors in implementing the Global Action Plan on Antimicrobial Resistance to minimize the impact of antimicrobial resistance, Introduction, p.1.
3. Food and Agriculture Organization of the United Nations, 2020. Methodology to analyse AMR-Relevant Legislation in the Food and Agriculture Sector – Guidance Document for Regulators. This is a draft document that has been launched for public review from 7 October, 2020. Available at http://www.fao.org/3/cb1121en/cb1121en.pdf

AQUALEX- a versatile database for rules and policies affecting the water sector.

The latest State of Food and Agriculture (SOFA 2020) focusses on overcoming water challenges in agriculture and affirms that our very existence depends on water. According to SOFA 2020, effective water governance influences 11 out of 17 of the Sustainable Development Goals (SDG) of the 2030 Agenda for Sustainable Development, which itself recognizes water management as being important for achieving a wide range of development goals. FAO is responsible for SDG Indicator 6.4.2 on water stress and, in this context, evidence of persistent water shortages and water scarcity underscores the need for urgent action to ensure that water is managed sustainably.

Water is almost everywhere and this is reflected by the fact that legal norms concerning water can be found not only in legislation specifically aimed at regulating the water sector, but also in a wide variety of normative texts regarding renewable natural resources, notably environmental, forestry and wildlife legislation4 . SOFA places great emphasis on improved water governance and more specifically, on better (integrated) policies and rules that are relevant to the water sector. Policy coherence and governance mechanisms across sectors are essential for efficient, sustainable and equitable water resources management. FAO identifies the following key principles for enhancing effective governance: participation, transparency, accountability, legitimacy, equality and fairness, efficiency and effectiveness, and the rule of law5. Water governance must specifically address inequalities in access to reliable water to avoid conflict. Regulatory frameworks should promote sustainable water use, foster better land management practices and encourage water quality improvements. Institutions and rules should enable water users and land managers to continuously enhance the productivity of water use for human development and ecosystem protection6.

Against this background, LEGN is revamping its existing collection of water laws, the Aqualex Thematic Collection (ATC), which currently (end of 2020) holds a collection of more than 20 thousand entries, of which almost 1700 policy documents and 500 transboundary agreements. The ATC contains national legislation that is sometimes not even readily available in the countries concerned. For each entry, an abstract in English, French or Spanish and the full text in the original language (of which more than one-third in around 60 other languages) or a translation is provided. The ATC can be readily accessed through FAOLEX.

Building on this existing body of knowledge, the new AQUALEX dataset, which is a subset of FAOLEX, is being developed in collaboration with external partners (Environmental Law Institute). It is programmed to be accessible from the end of March 2021. It will contain updated and refined country legal profiles and international watercourse agreements profiles. The country profiles will also include legal information on water rights, both formal and informal, and other areas of emerging interest and relevance. The existing ATC collection will be incorporated into the new AQUALEX subset, where new profiles will continue to be added as they are completed.

As mentioned above, a key emphasis of SOFA is on improved water governance, which aims at ensuring the most productive use of limited water resources, while safeguarding water-related ecosystem services and ensuring equitable access for all. Water governance mechanisms vary considerably across countries and regions due to the varying characteristics of water resources, socio-economic and political frameworks, and resulting challenges. However, during its research, LEGN has noted that despite significant country-specific variations, there exists a solid common ground; most legal and governance reforms typically include components as identified by the UNDP/SIWI Water Governance Facility, i.e. on decision-making, integrity & accountability, collaboration, roles & responsibilities.

AQUALEX will provide easy access for policy makers, researchers and any other interested persons to up-to-date legal and policy information pertaining to national and international legal regimes governing water resources. It can be instrumental in comparing national legal and policy frameworks for the water sector, as well as identifying their strengths and weaknesses. As such, AQUALEX will be a useful tool for national and international governance reform. LEGN hopes that it will support the development of new and more effective rules for water management and conservation, as well as support and guide a possible future set of international voluntary guidelines on water rights for agriculture and livelihoods.

4. See also the preface to the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (VGGT) (FAO,2012)
5. Exploring the concept of water tenure- Land and Water Discussion Paper No. 10, FAO 2016. http://www.fao.org/3/a-i5435e.pdf
6. Law for water management: a guide to concepts and effective approaches- FAO Legislative Study No. 101

 FISHLEX: a database providing easy access to national fishing requirements

The Code of Conduct for Responsible Fisheries, the UN Convention on the Law of the Sea, the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of on Straddling Fish Stocks and Highly Migratory Fish Stocks, the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, play an increasingly important role in the management of world fisheries resources.

These international legal and voluntary fisheries instruments also commit coastal States to the integrated conservation and management and sustainable development of the living marine resources under national jurisdiction and beyond. In some regions, fishing by foreign vessels in areas within the national jurisdiction is an important fishery. As such, States have gained considerable experience in developing and implementing regimes to regulate the access by foreign fishing vessels to national waters.

For many coastal States, granting access and licensing of foreign fishing operations in areas under national jurisdiction is a means of exercising effective control overfishing operations and from which coastal States draw benefits in the form of information on the resources and revenue.

The FAO dataset on Coastal State Requirements for Foreign Fishing, the precursor to the FISHLEX database, was first published in 1981 to assist lawmakers and fisheries officials of both industrialized and developing coastal states in developing or revising their policies and legislation to allow access to foreign vessels to fish in areas under national jurisdiction. It consisted of a series of tables summarizing the provisions of national legislation and bilateral and multilateral agreements governing foreign fishing in waters under national jurisdiction. The revised versions of these requirements were published in 1983, 1985, 1988, 1993 and 1996, respectively.

As this data set of coastal State requirements for foreign fishing was considered useful but not comprehensive enough, a subset database of FAOLEX called FISHLEX was created in 2000, as. Its objective was to keep the collection up-to-date and provide in-depth country profiles, including information on maritime delimitations, international commitments, requirements and conditions of access and fishing such as licensing and payment of fees and sanctions for unauthorized foreign fishing.

LEGN has seen that in recent years an increasing number of coastal States have been moving towards developing or improving the management of their domestic fisheries in the context of improving performance on the attainment of responsible fisheries targets and relevant SDGs. At the same time, fewer countries are interested in providing access for foreign fishing. In this context, the FISHLEX subset database will contain value-added, broader-in-scope and more relevant country profiles, which focus not only on coastal State requirements for foreign fishing access, but also on requirements for all types of fishing and fishing-related activities for each State. FISHLEX will display additional groups of information including provisions of national legislation on pre-requisite, pre-operational or pre-at sea requirements and other administrative requirements, legal requirements for operating a fishing business, authorizations, operational/at-sea requirements for fishing and fishing-related activities, fisheries violations/offences and penalties (or sanctions).

FISHLEX will serve, among others, as a vital tool for fisheries managers to publish the requirements and other relevant and real-time information about fishing activities in their waters.

NALO Database: A FAOLEX Subset on Aquaculture legislation

The database of National Aquaculture Legislation Overviews (NALO) is a repository of profiles of national aquaculture legislation. It consolidates information on both laws that have aquaculture as their specific focus, i.e. either a chapter in fisheries law or a piece of standalone aquaculture legislation, and legislation that is not aquaculture specific but relevant to aquaculture development, such as a law governing land or water resources, an environmental protection law, a trade law or a biosecurity law.

The NALO currently contains 65 country profiles, each containing, among others, basic fisheries and/or aquaculture legislation; the definition of aquaculture; national aquaculture policy framework; guidelines, codes of conduct and standards for aquaculture practice; licensing systems; access to land and water; site selection and Environmental Impact Assessment (EIA); water quality and waste management; fish movement; fish escapement; disease control; drug and chemical use control; restrictions on the use of feed; food safety and health.

The advantage of the NALO database is that it provides information on the most relevant requirements reflected in national legislation for aquaculture development and highlights the specific useful provisions from such legislation. Provisions from national legislation are extracted from the documents that are stored in the FAOLEX database, maintained by LEGN. All the cited provisions have an active link to the relevant FAOLEX records, that provide access to the full text of the normative document in its original language and an abstract in either English, French or Spanish.

Many countries are increasingly reliant on the aquaculture sector as a source of food and livelihoods and will require guidance on how to foster sustainable growth of the aquaculture sector. The NALO collection is available to the public, including all aquaculture practitioners, law and policymakers, stakeholders, academics. It is a useful tool to support legal advisors and policymakers in revising policy and legislation on aquaculture, drawing on the lessons that can be learnt from other countries and the guidance contained in global instruments.

PORTLEX: A Subset of FAOLEX Database on Port States Measures

Port State measures are among the most robust and cost-effective tools to combat illegal, unreported and unregulated (IUU) fishing, whether such fishing occurs in waters under national jurisdiction or on the high seas. The 2009 FAO Agreement on Port State Measures to Prevent Deter and Eliminate Illegal, Unreported and Unregulated Fishing (PSMA) is the first binding international agreement that specifically targets IUU fishing. It lays down a minimum set of measures for Parties to apply when foreign vessels seek entry into their ports, or while in their ports. It sets out requirements for denial of entry into or use of the port by vessels that may have been involved in IUU fishing or related activities, such as transshipment or supply. It also provides for the reporting of confirmed cases of IUU fishing to other States, Regional Fisheries Management Organizations (RFMOs) and relevant international organizations.

Implementation of the PSMA measures at the regional and national levels is essential for it to be effective in achieving its objectives. At the regional level, RFMOs play a key role in implementing port State measures by adopting legally binding conservation and management measures (CMMs) aligned with the minimum standards of the PSMA. Parties to the PSMA and RFMO Conventions are thus legally bound to implement the requirements set therein through incorporation and effective implementation in national legislation.

In order to extract good practice in the implementation by States of these measures, LEGN created a legal dataset called PORT-Lex as a FAOLEX subset7. Port-Lex provides access to information on port State measures (PSM) adopted by States and RFMOs to prevent, deter and eliminate IUU fishing, through individual Country and RFMO profiles.

Information on national implementation measures can be accessed through a simple free text search or advanced search facility using country/RFMO names and/or both. This allows users to search the whole range of port State measures contained in the database and to compare different countries’ measures. In addition to port State measures strictu sensu, users can also search for additional measures imposed by States to enforce against IUU fishing as a follow-up to or complement to the specific port State measures such as refusal or port entry for fuelling, crewing and victualing. Port-Lex information is in English, French or Spanish. When the original text is not available in one of these languages, it is translated into English. The user should note that such translations are not official.

In addition to giving direct access to indexed national port State measures and extracts of legal documents, the Country and RFMO profiles provide a full set of information through links to FAOLEX.

A search using a selected port State or RFMO will lead to:

a port State profile which includes information on the country’s international commitments, the list of RFMOs the country is a party to, the National plan of action, the list of the most relevant legislation and the list of national legal provisions implementing the PSMA; and

an RFMO profile contains the list of participating countries, a brief description of the scope, objectives and the area of competence of the RFMO, the list of the most relevant resolutions and the list of the RFMO provisions implementing PSMA.

With PORT-Lex, national and regional law and policymakers, stakeholders and any member of the public interested in the effective implementation of PSMA, have access to a wealth of relevant information. National law and policy-makers for example may use PORT-Lex to review their own policy and legal frameworks by extrapolating best practices highlighted in the profiles. PORT-Lex is also valuable as a tool to promote harmonisation in the application and implementation of the PSMA by all State Parties.

7. the FAO legislative database containing the world's largest electronic collection of national laws and regulations on food and agriculture, including fisheries.

SoiLEX: Global Database of National Legislation on Soil Protection, Conservation and Restoration

Soil is one of the essential components for agriculture. It is vital to the production of sufficient and nutritious food and is a key provider of other ecosystem services, which are essential for the achievement of many SDGs. Soil is the largest carbon reservoir of terrestrial ecosystems, storing more carbon than the atmosphere and vegetation combined, thus contributing to climate change mitigation. Soil also contributes to water purification and groundwater quality by acting as a filter and buffer which immobilizes contaminants in the soil matrix. Soil is also a source of pharmaceuticals and genetic resources that is essential to fight new diseases and ensure a healthy life for all.

Soil management is often under the responsibility of different national institutions due to its cross-cutting aspects. Moreover, it has to date been sparsely addressed in national, regional and international legislation, be it in laws on agriculture or mining regulations, urban development or environmental protection laws.

In order to facilitate access to information on existing legal instruments for soil management and to better understand the scope of these instruments in the field of soil protection, the Global Soil Partnership (GSP) has developed SoiLEX, a global, online database of legal instruments. Building on the large amount of information collected by FAOLEX over the years, SoiLEX brings all relevant legal instruments for soil protection and prevention of soil degradation in a structure that is more adapted to soil-related concepts. This structure facilitates the search and allows more precise targeting of the information sought including searches for national soil-related legal instruments of the vast majority of FAO member countries and their regions, where applicable, according to the main threats to soil identified in the Status of the World's Soil Resources report (FAO & ITPS, 2015). These include soil pollution, soil erosion, loss of soil organic carbon, nutrient imbalance and loss of soil biodiversity. Other relevant aspects that have been included in SoiLEX are the regulations on soil monitoring and mapping, the harmonization and standardization of soil analyses and those related to overall soil protection and conservation. SoiLEX also enables interested countries to review their legal frameworks concerning soils and to extrapolate positive experiences from other countries and incorporate the same into their legal frameworks.

In a collaborative effort to complete and update existing information in the FAOLEX database, the national focal points of the GSP and other stakeholders participated in a survey to verify the relevance of all legal instruments extracted from FAOLEX. This survey also provided real time legal information and legal instruments relevant for soil protection, which were previously missing from the database. This joint action allowed FAOLEX and SoiLEX to expand both databases and to increase their accuracy according to the national responses.

The SoiLEX database is constantly being updated. A working group on soil legislation was created to support the urgent need to identify, compile and revise national legislation on soil protection, conservation and restoration. The working group also contributes to the analysis of the effective implementation of legal frameworks adopted in each country in terms of promoting sustainable soil management.

The SSF-LEX: a new FAOLEX subset database for the small-scale fisheries sector

For centuries, small-scale fisheries have been playing a key role in providing nutritious food, occupations, culture, and a safety net for both inland and coastal communities around the world. These communities belong to a marginalized segment of societies where the challenges of poverty and vulnerability prevail and where there is inadequate support is provided by governments and fisheries management systems. A big step to address this shortcoming was taken in 2014 with the adoption of the FAO Voluntary Guidelines for Securing Sustainable Small-Scale Fisheries in the Context of Food Security and Poverty Eradication (SSF Guidelines), the first international, non-formally binding instrument dedicated entirely to small-scale fisheries. A year later, the global community agreed on the SDGs, one of which has set the target to ‘provide access for small-scale artisanal fishers to marine resources and markets’ (SDG 14.b), measured through the indicator of the ‘application of a legal /regulatory / policy / institutional framework which recognizes and protects access rights for small-scale fisheries’ (SDG 14.b.1).

FAO is the custodian agency for SDG target 14.b.1 and the achievement of this target has been closely linked to the implementation of the SSF Guidelines. FAO supports activities at global, regional and national levels to implement the SSF Guidelines, including through policy and legal frameworks. A Legislative Guide for SSF and a supplementary SSF Legal Diagnostic Tool have been developed to assist relevant stakeholders in assessing countries’ legislation and policies with a view to align them with the SSF Guidelines.

To complement and reinforce the above, a new dedicated subset database named SSF-LEX, focussing on small-scale fisheries legislation, is being developed within the framework of FAOLEX. The richness and peculiarities of small-scale fisheries, coupled with the need to strengthen, protect and empower small-scale fisheries informed the development of this subset.

LEGN and the relevant Fisheries Division (NFI) of FAO’s Fisheries and Aquaculture Department have been working together towards developing this new subset database of policy and legal instruments with a view to, inter alia, (i) enhance the knowledge about small-scale fisheries from a policy and legal perspective; (ii) facilitate the identification of policy and legal instruments relevant to small-scale fisheries; (iii) promote the recognition and raise awareness about small-scale fisheries, the SSF Guidelines, policy and legal instruments relevant to small-scale fisheries and the importance of the sector; and (iv) support FAO’s role as a custodian agency for SDG indicator 14.b.1 by facilitating reporting on SDG 14.b.

The SSF-LEX will be developed in two phases, starting with development of a simple database that allows users to access more general information about small-scale fisheries for each country, and will progress to an elaborated database that provides detailed analysis of key policy and legal instruments relevant for small-scale fisheries. SSF-LEX represents a significant contribution of FAOLEX to the small-scale fisheries community and is something to be celebrated during the 2022 International Year of Artisanal Fisheries and Aquaculture (IYAFA).