Some Food for Thought¹
Annick Van Houtte
Legal Office, FAO
¹This is one in a series of articles on legal aspects of aquaculture. Previous articles can be found in No. 7, August 1994, No. 8, December 1994 & No. 11, December 1995 of this Newsletter.
The Code of Conduct for Responsible Fisheries was unanimously adopted by FAO members in the 28th Session of the FAO Conference in October 1995. The Code was prepared in follow up to the outcome of the International Conference on Responsible Fishing, held in Cancun, Mexico in 1992, and on the recommendation of the FAO Governing Bodies. It provides a framework for national and international efforts to ensure sustainable exploitation of aquatic living resources in harmony with the environment.
Article 9 of the Code is devoted to aquaculture and comprises provisions relating to the responsible development of aquaculture in areas of national jurisdiction and within transboundary aquatic ecosystems, the use of aquatic genetic resources, and responsible practices at the production level. Governments around the world are becoming increasingly aware that one of the prerequisites for the development of responsible aquaculture is the existence of appropriate supportive legislation. This prerequisite is supported by sub-article 9.1 of the Code.
A wide variety of existing laws can and do affect aquaculture activities, either directly or indirectly, within any given country. There are also a number of legal issues which relate to or are originated by environmental concerns, which may complicate the growth of the industry. The present article attempts to highlight a few legal and institutional initiatives which have been taken in some countries for ensuring sustainable development of the sector without inflicting oppressive restrictions on the aquaculturist. They include improved authorisation processes, devolution of responsibility for resource management to local authorities, forms of user rights allocated to associations/co-operatives, and economic approaches.
Improved authorisation processes
Processes for the licensing of aquaculture activities in most countries are usually complex and involve a number of different institutions. Streamlining of approval procedures and an integrated consultation process would undoubtedly help to reduce bureaucratic complexities as well as transaction costs to governments and aquaculturists. A more serious problem perhaps is the fact that licensing systems sometimes lack specific instruments to help ensure sustainable development, which makes them less than ideal for protecting the environment; that is, they lack incentives and disincentives for promoting environmental protection. Because of this, new environmental tools have been and are being created and tried in several countries of the western hemisphere to supplement existing legal systems, to help achieve sustainable management of natural resources and compliance with environmental protection plans. Some of them, such as the "voluntary agreements" or "eco-contracts"( e.g. Denmark) or "covenants" (e.g. Netherlands) between Government bodies and industrial organizations could find an application in the aquaculture industry.
The rationale behind these agreements and arrangements is that an integrated and preventive pollution control cannot be achieved without close and active co-operation of the industry. They lay down binding objectives for the reduction of the use, the emission and disposal of specific potentially harmful products, substances and materials. As environmental action plans sometimes have objectives that are too broad to be of practical value, these "agreements" allow the definition of specific targets on a sector-by-sector basis. Government-industry agreements of this type help reduce the cumbersome bureaucracy involved in issuance of individual permits and the constant updating of such permits. The burden of reduction of pollution is shared among the members of a target group in a rather fair manner and the members preserve a certain freedom to set time frames for achieving targeted improvements in pollution control. Under these arrangements, companies appear to demonstrate more initiative in working out plans of action and mechanisms for their implementation, such as sharing costs of research, self-surveillance, etc., which reduces efforts and inputs from the legislators/regulators. The process of mutual surveillance among members of a group allows the institutions to concentrate on "environment protection-resistant or unfriendly" companies. At the same time, breaches or violations can be identified quickly and easily. However, these models are not universally practicable or applicable. They are enabled when the legal system of the country allows for this kind of "substitute" to national legislation; where a tradition of consensus-seeking and joint problem solving exists, and where associations or other groupings of the involved private sector are in place.
Devolution of responsibility for resource management to local authorities
In many countries, the present trend in national legislation is to devolve, where possible and appropriate, responsibility for resource management/control decisions to local authorities. The underlying reason is that those closest to the resource will make more appropriate management decisions, being better informed, with a much higher likelihood of acceptance by resource users and, therefore, a higher probability of implementation. This is the case since 1991 in New Zealand where the local authorities have practically all the legal power over access to and use of resources (specially marine and coastal resources). The central government has taken the role of adviser and is in charge of preparing the national policy statements which need to be taken into account by the local management plans. The latter are prepared at village and district level.
In the Republic of Korea, local and central fisheries authorities involved in planning and research consult and collaborate closely for the purposes of defining fisheries management policies, for issuing aquaculture licences, etc. Extension services have been set up in key aquaculture areas to maintain close contact with all elements of the sector. The extension services are responsible, among other things, for delivering monthly reports to the National Fisheries Administration and the National Fisheries Research and Development Administration concerning a variety of information collected from aquaculturists, co-operatives and aquaculture associations. In addition, the introduction of regulatory measures is usually accompanied by an educational program to help achieve the required acceptability and implementation of these measures by agriculturists.
Centralisation and decentralisation of authority have comparative advantages and disadvantages that vary from country to country depending on existing institutional factors. In addition, and in some instances, the high economic importance of some cultured species, and influential development interests, complicate the management and protection of the environment by local regulators and resource users.
Forms of user rights allocated to associations/co-operatives
Property rights often emerges as a key issue in the analysis of environmental problems associated with aquaculture. Studies have shown that the establishment of ownership and tenure systems are contributing significantly to the conservation and management of critical habitats and their resources. Where areas are owned and managed by the state, access may need to be regulated to avoid degradation, but the rationale behind restrictions and prohibitions is often not understood, and adherence to regulations is therefore often inadequate.
The granting of exclusive user rights to communities, co-operatives or other forms of association appears to enhance users' compliance with agreed regulations and the achievement of effective conservation and sustainable management of resources in a locality. In this regard, the combination of creating aquaculture associations or co-operatives and allocating exclusive "tenure" systems, articulated around concepts of self management, self implementation, self initiative and mutual surveillance, as practised in the Republic of Korea, may be a very effective approach. In view of these facts, there has been a trend in recent years to recognise that the principles which underpin traditional "regulatory" systems may be useful in promoting sustainable management and equitable allocation of natural resources for the purposes of aquaculture. For instance, in Japan, traditional fishing rights (including fish culture), originally controlled by village leaders, have now been transferred to village-based co-operatives.
In the future, planners and policy makers need to assess whether it is appropriate and useful to incorporate or recognise the customary rights of common ownership or common use in any new regime in order to attain the objectives of sustainable aquaculture and environment conservation. However, it is believed that management should not be left entirely to the discretion of the stakeholders; a basic supportive legal framework should be also be put in place to underpin and guide local management of resources.
In the process of introducing these "new" "tenure" systems, some countries (e.g. United States of America, Madagascar) have provided aquaculturists with the protection and benefits traditionally available only to terrestrial farmers, by amending their statutes to include aquaculture as a form of agriculture, for purposes of marketing, promotional activities and financing. As a consequence, aquaculture operations could be considered for loans, other credit facilities and insurance. Further, the setting up of co-operatives led to increased buying and selling powers through economies of scale, and provided tax advantages to qualifying groups.
Economic approaches have been employed to secure environmental protection based on the rationale that economic incentives are more likely to bring about production decisions favourable to environmental protection than traditional regulatory approaches. Most of these interventions impinge on production aspects and, therefore, on revenue. In some countries, rental systems for aquaculture areas have been linked to production output, and thus to an underlying decision on how much production should take place in a given locality. Other countries (e.g. Japan, Republic of Korea, Hong Kong, Denmark) have placed tariffs on the basis of stocking density.
Tariffs on continuous production can also be found in some national legislation (e.g. for cage culture of salmon in Scotland). This is intended to encourage fallow periods for production sites either through discontinuous production or site rotation. In some cases, the tariff is designed to encourage a period of zero production until the acceptable ecological conditions of the aquaculture site have been recovered. However, considerable difficulties have been encountered in the establishment of tariffs.
Tradable permits, most often used for air pollution, are another potential regulatory instrument. Such permits, are likely to be used to control the emission of nutrients to ambient waters in closed or semi-closed aquatic areas. In this case, the property right to emit nutrient-rich effluent would be divided into a number of units, their sum representing the maximum authorised level of emission for a particular site. The individual units would then be sold as permits for a specified quantity of nutrient output. This would tend to create a market for nutrient loading/emission credits in cases where licensed emission levels are not fully utilised by one or more polluters. This in turn would create a further incentive for pollution abatement and increased efficiency in production in a given site within the overall nutrient loading limits. Critical issues in this case relate to the assessment of the environmental capacity of a given water body to assimilate given or predicted nutrients loads, setting of critical loads and standards and the possible concentration of power, in the "license-to-pollute" market, in big producers.
FAO recognises that farmers, fishermen and forest dwellers - as ultimate users of many terrestrial and marine resources - need to be involved directly or through their organizations, in efforts to ensure sustainable resource use, including fisheries and aquaculture practices. Article 9 of the Code of Practice for Responsible Fisheries fully endorses this principle. All initiatives taken above show that laws can rarely produce the desired results without taking into account the "stakeholders" of the sector concerned. In addressing the need for regulations lawmakers must design and adopt laws tailored to their country-specific circumstances.
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