WP 10

Legal Aspects

The team

EU

• Gerd Winter

• Marion Markowski

• Till Markus

Namibia

• Manfred Hinz

• Mavetja Rukoro

Brasil

• Mauro Figueiredo

Indonesia

??

Coopted

• Kenya– Nyawira Muthiga

• Nicaragua– Joseph Ryan

Structure of Deliverables• Contribution to legal data base (D 10.1

• Coastal zone management (D 10.2, 3, 4, 5, 6, 7., 7.2)

• EEZ management (D 10.3, D 10.7.3)

• Structural policy (D 10.7.4)

• North/South access, benefit sharing, trade (D 10.8)

Deliverables

D 10.1 Contribution to data base on ratifications and legislation (June 06)

D10.2 Brasil: focus on participatory approach to MPA management (Sept. 06)

D10.4 Nicaragua: focus on communal approaches outside MPA with local property rights (Sept. 06)

D10.5 Kenia: focus on communal approaches outside MPA and without property rights (Sept. 06)

D10.6 Indonesia: focus ??(13)

D10.7.1 EU: focus on coastal fishery (Sept. 06)

D 10.7.2: comparison of management tools in the coastal zone (Sept. 06)

Deliverables cont´d

D10.3 Namibia: focus on TAC and EEZ(May 07)

D 10.7.3 EU: focus on TAC and EEZ (May 07)

D 10.7.4 EU: focus on reorientation of structural policy (Sept. 07)

D10.8 “North/South” access to resources and benefit sharing (Sept. 07)

D 10.9 Overall synthesis; recommendations (March 08)

D 10.1 Contribution to data base on ratifications and legislation (June 06)

D10.2 Brasil: focus on participatory approach to MPA management (Sept. 06)

D10.4 Nicaragua: focus on communal approaches outside MPA with local property rights (Sept. 06)

D10.5 Kenia: focus on communal approaches outside MPA and without property rights (Sept. 06)

D10.6 Indonesia: focus ??(13)

D10.7.1 EU: focus on coastal fishery (Sept. 06)

D 10.7.2: comparison of management in the coastal zone (Sept. 06)

Challenge: earth system analysis

Global ressource, but multitude of levels, locations and instruments of governanceTo learn from experiences with levels, locations and instruments To transfer knowledge among states and between levels of governance To find optimal governance levels, locations and instruments ensuring sustainable use of the resource

Sustainability in the Global Dimension

Consumers,fishermen, food industry

of the South

Environment protection:preservation

of fish resources

Consumers,fishing & food industry

of the North

Tension Exploitation/Management

Management

Exploitation

The 4 P´sProtection (by law): >protected zones >catch quota >fishing rulesversusPull: >high demandPush: >local and industrial fisheriesPromotion (by law): >structural policy >sales and price guarantee

Shift of Exploitation Pressure Towards the South

EU Com m on F ishery PolicyPromotion of fisheries

• structural policies• market organisation

Fisheries Management

Dem and of thefood industry of the North

Third country developm ent interests

Pressure on third country resources

2 Strategies of the Law

• Allocation of property rights in resources (sovereign rights, dominium)

• Regulation of exploitation (jurisdiction, imperium)

• Regimes differing in the coastal zone, EEZ, continental shelf, and high seas

Sources of Law Related to Fisheries

International Law

BindingUNCLOS 1982

1995 Straddling Stockse.g. North East Atlantic Fisheries Convention

Regional Law (e.g. EC)

EC pooling national sovereignty

Member of international treaties

Law of National States

National fisheries laws

Members of international treaties

Non-Binding

FAO Code of ConductAgenda 21

Legal approaches to sustainable fisheries

•Matching pressure on and protection of fish resources within national systems

•Matching North/South interests with a view to sustainability of fishing

Matching pressure and protection

-Data base on ratifications and legislation-Country studies Brasil, Nicaragua, Kenya, Namibia, Indonesia, EU-Comparison, synthesis and recommendations

Matching North/South interests

-Study on international agreements, private law contracts, national foreign trade and investment legislation

- Evaluation and recommendations

Details on deliberables

D.10.1Data base on ratifications and legislation

Draw on existing data bases (fishbase, IUCN, FAO, Ocean Law, etc.) Develop legal indicatorsApply indicators to selected countries Explore correlations between legislation data and fish data (?)

D. 10.2,3,4,5: Country studies

> Common list of topics

> Geographical, political, legal particularities

Common list of topics

• Overview of the environmental & socio-economic conditions

• Report on the legal regimes governing fisheries- International co-operations and agreements- Promotion - Management- Self Regulation

• Empirical information on implementation & compliance

• Conclusions & Recommendations

EU common fisheries policy

To be studied as an example for – how to reduce promotional policies in order to facilitate management– how to improve management tools– TAC– MPA– Enforcement

Brasil

In depth case study on management plan in a MPA based on participation of stakeholders

Nicaragua

• Coastal fishing management based on communal property rights, outside MPA

Kenia

• Coastal fishing management without communal property rights, outside MPA

Namibia

Indepth case study on

•TAC and trading in TAC quota

•Joint ventures

D 10.6 North/South dimension

1. Access and benefit sharing;joint ventures (international agreements, private law contracts, foreign investment law)

2. Fish trade flowing from South to North (foreign trade law, selfregulation)

Synergy with other WPs

WP 1: Legal data base?

WP 2: Optimal baselines?

WP 3, 4, 7: Biomapping and modelling reliable information for decision making? „Simple indicators“ as an alternative

WP 5: Knowledge on effectiveness of management instruments in MPAs

WP 6, 8: Human dimension and economic valuation to be integrated into cost/benefit analyses for decsions on allowable catch

Draft Outline for National Reports (EC, Brasil, Argentina, Namibia, Indonesia)

• I. Environmental and socio-economic background

• 1.      State of the relevant fisheries resources,

• 2.      Overview of multiple demands on the coastal zone and the socio-economic relevance of the fisheries

• 3. Perception/non-perception of basic fisheries issues (e.g. political debate and public awareness with respect to the state of the fishing industry,overfishing, exploitation of adjacent seas by foreign fleets, implementation and coherence of fisheries policies etc.).

II. The legal regimes governing fisheries

1. Global and regional international legal instruments affecting the country concerned (the EU, respectively), including participation in Regional Fisheries Bodies,

2. Guiding principles in the relevant national fisheries regime,

3. Institutional/organisational structures (e.g. distribution of competences, participation, decentralisation, transparency, top-down/bottom-up approach),

4. Instruments promoting fisheries

a) structural policies (e.g. subsidies, funding new and the modernisation of vessels, adaptation of the fleet to the resources available for fishing, inter

alia through the scrapping of vessels, aids for local cooperatives, funding of fisheries in less developed regions, downstream (indirect) promotion, such

as subsidies for building ports or promotion of processing and marketing sectors),

b) market organisation (e.g. price guarantees and stabilization of prices), an

c) coherence with pertinent international agreements

5. Instruments managing fisheries

a) access and catch restrictions, technical measures under national law (e.g. licensing systems, rights-based management systems, restrictions on numbers, sizes etc. of vessels, TACs and TAQs, taxation, fishing gear, protected areas, stakeholder involvement, aspects of integration of multiple demands on coastal zones)

b) MPAs

c) Impact of and coherence with pertinent international agreements and organisations

6. The national management system as applied in relation to the unsustainable impact of the “North”

a) Fishing by EC/North American/Japanese fleets

b) Purchase of fish by EC/North American/Japanese food companies

III. Empirical information on implementation and compliance

1. information on promotion (e.g. who actually receives how much money?, how do subsidies affect the fishing industry, trade, local communities, TACs, fish stocks and the environment?, fleet statistics etc.),

2. information on management (e.g. monitoring and surveillance of catches, landings, gear, IUU fishing)

3. analysis of the divergence between ‘law in the books & law in action’.

IV.Conclusions

1. Coherence of the national legal regime governing fisheries (e.g. with respect to promotion versus management policies)

2. Conclusions on basic fisheries problems as identified under I. 3

3. Impact of attitudes of consumers and food industry (e.g. labelling, industrial quality standards, possible chances of consumer awareness)

4. Reform perspectives

D 10.6 Access to resources and benefit sharing between the EU and Southern

countries

Part 1 EU fishing in distant areas

A. Problem sketch

– History and development of EU fishing activities in ”the South”:

– A shift of exploitation pressure to Southern seas?

B. The legal framework for fisheries agreementsI. Allocation of resources and conservation duties in international lawII. Provisions for access to resources and benefit sharing in international treatiesIII. EU competence for the conclusion of fisheries agreements with third countries

C. Fisheries Agreements and EC lawI. International agreements and private law contracts providing for access to resources and benefit sharing between the EU and third countries1. Agreements with financial compensation2. ‚Second generation’ agreements3. ‘Fisheries Partnership Agreements’,

introduced in the course of the CFP Reform 2002, COM(2002)6374. Private law contractsII. Corresponding EC law

D. Effects of fisheries agreementsI. Implementation and compliance

II. Socio-economic and ecological impact

Focus: Shift of exploitation pressure towards ”the South”

III. Assessment1. Coherence with other EU policies

2. Coherence with European participation in pertinent international

treaties and soft law instruments3. Implications to state sovereignty

Part 2 Northern fish imports – a new shift of the problem?

A. Problem sketchDevelopment of fish trade: Flows from less-developed to more-

developed countries

B. The legal framework for fish tradeI. Relevant international rules on trade1. WTO rules2. CITES (Convention on International Trade in Endangered Species of Wild Fauna and Flora)II. EU External TradeIII. Trade preferences in the 5th ACP-EC Agreement of 2000 (Cotonu-Agreement)