Assessing law as a factor towards the Aichi Biodiversity Targets 1 With illustrations of Target 6 (Fisheries) Gerd Winter 1. Methodological options of Aichi target reporting Many studies have been undertaken developing and applying methodologies of assessing the state and prospects of the environment. Most widely accepted is the pressure - state - response (PSR) - approach which analyses human pressures on the environmental resources, describes the state of those resources, and elaborates human responses including social, economic and legal ones (OECD 2003; McGrath 2006, pp. 106-135). Table 1 shows the version proposed by the OECD. Table 1: Pressure State Response (PSR) Approach (OECD 2003, p. 21) Of course, the sequence can be reversed starting with the description of the state of the art, proceeding with the identification of pressures and resulting in a discussion of responses. The methodology has been refined in the reports of the European Environmental Agency (EEA). It was best explained in the third assessment illustrating it in the following graph. Its sequence of issues is driving forces - pressures - state of the environment - impacts - societal responses (DPSIR) (see table 2). 1 Prepared as a resource for the legal component of the IUCN Natural Resource Governance Framework.
Table 2: Driving forces - pressures - state of the environment - impacts - societal responses (DPSIR) approach (EEA 2003, p. 13) In the DPSIR approach the pressure category is split into, on the one side, more fundamental causes (such as population growth) and, on the other, human activities impacting on the environment such as emissions of pollutants from industrial production. Likewise, the category state of the environment is divided into on the one side the situation of the environment such as the concentration of pollutants in the air and and on the other the impact that situation has on certain endpoints such as human health and ecosystems. A third refinement consists of the 4 arrows departing from responses indicating that policies can aim at the driving forces, the pressures, the state and/or the impact rather than only at the pressures, as suggested in the simple PSR-model (McGrath 2006, p. 129). This methodology could also be applied in an analysis of pathways to the Aichi targets. Of course, care must be taken to orientate the assessment towards the attainment of the targets. A rather rough version in that direction was tried in the Global Biodiversity Outlook of the CBD secretariat of 2014 (Outlook 4, 2014) which addresses the following topics: (1) Recent trends, current status and future projections (2) Actions to Enhance Progress Towards the Target A more sophisticated methodology still resounding the PSR-logic was proposed by the CBD Secretariat s Report on Progress towards the Aichi Biodiversity Targets: An Assessment of Biodiversity Trends, Policy Scenarios and Key Actions of 2014 (Leadley e.a. 2014). The report declares to apply a mixture of 4 basic methods of analysis which are as follows (Leadley e.a. 2014, p. IX): (1) Extrapolations of current trends statistical extrapolations of current trends are sometimes coupled with simple models of management or policy options. We have limited these extrapolations to the 2020 time period.
(2) Socioeconomic storylines plausible socioeconomic development scenarios are coupled with models of impacts; e.g., analyses based on MA, GEO, IPCC storylines. (3) Policy options policy options are added to storylines of "business-as-usual" socio-economic development and then tested for impacts. (4) Backcasting or desirable endpoint analyses desirable multi-criteria endpoints are set for the future and then plausible scenarios are developed that come as close as possible to reaching these end points. The mixture of approaches adopted by the said report consists of a number of questions that are answered concerning all of the 20 targets in turn. The sequence of questions is as follows (Leadley e.a. 2014, p. XII): (1) Are we on track to achieve the Target? a) Status and trends b) Projecting forward to 2020 (2) What needs to be done to reach the Target? a) Actions b) Costs and Cost-benefit analysis (3) What are the implications for biodiversity in 2020? (4) What do scenarios suggest for 2050 and what are the implications for biodiversity? (5) Uncertainties and data requirements (6) Dashboard - Progress towards Target Question (1) ( are we on track? ) corresponds to method (1)( current trends), question (2) ( what needs to be done? ) to method (3) (policy options), question (3) (implications for biodiversity) to method (4) (desirable endpoints), and question (4) (scenarios) to method (2) (socio-economic storylines). Question (5) (uncertainties) crosscuts all other questions, and question (6) (dashboard) sums up the analysis. Although by following this sequence of questions the report did trigger a great wealth of information it however appears to have three major shortcomings: (1) The description of trends is sometimes not systematically separated from their evaluation. For such evaluation the yardstick the Aichi Targets - must first of all be reconstructed. This is not always easy given their often elusive wording. (2) The observed trends are not always explained by an analysis of possible causes. Only if causes are identified policy options can be formulated. It is true that the report sometimes includes causes in its analysis of trends but this is done rather cursorily. To some extent causes may also appear in the scenarios but scenarios are rather descriptions of alternative trends than explanations of observed facts. (3) The report focusses on scientific facts, economic cost-benefit considerations and policy guesses. Legal issues are hardly ever addressed. This is counter-intuitive given the fact that policies only become binding if framed as law, and that law is a fact which heavily contributes the achievement or non-achievement of the targets. Of course, not all of these gaps can be filled by the present study. We will nevertheless insist in a more systematic evaluation of trends and in a thorough analysis of causes. The focus will however be on the factor law.
2. The legal factor The law can come in at various stages of the assessment of Aichi Target attainment. It could be a target in itself. However, most of the Aichi targets are aimed at patterns of human behaviour and their effects on biodiversity. Only T16 aims at the introduction of a legal instrument (the Nagoya protocol) as a target, but by requiring that the Protocol shall become operational the target ultimately aims at a societal practice. The law should rather be addressed either as part of the causative factors or as part of the recommended policy. In both respects it must be explained what exactly the law means. In a narrow sense law is just binding legal texts such as the constitution, the simple laws emanating from the legislative bodies, and sublegal acts such as regulations and by-laws. Although the importance of a well designed law in this sense should not be underestimated, law in the books is often a world different from law in real society. In other words, the institutions making the law respected in society - courts, administrative authorities, public prosecutors, etc. - should be included in a more comprehensive understanding of the law. They operate on the basis of their own legal texts which (as secondary law) empower them to implement the primary legal rules. For instance, a legal act setting emission standards for industry will be enforced on the basis of e.g. an administrative infringement act. Such broader understanding should, in addition, also take into account the institutions that prepare and adopt the laws, which are, inter alia, the legislature and the executive on the levels of the central state and if applicable - regions and local communities. Courts sometimes also act as lawmaking institutions. Once again, these preparatory institutions have their own legal acts as power basis, such as, for instance, rules on the procedures of law-making. States are more and more embedded in international conventions and organisations. Therefore, when designing laws and institutions serving the targets it must be discussed whether this is compatible with or supported by any existing international law. It may also be that due to competition between states an international agreement must be concluded that harmonises the reformatory steps. State made formal law must be juxtaposed with societal informal law which is made by citizens, industries and other societal actors. The common view of lawyers is that formal law supersedes informal law not only in the legal but also in the factual sense. This is correct in legal terms. De facto, however, the reverse relationship is more realistic. Compliance with formal law often depends on whether the social norms correspond with it; often developments in social norms are more dynamic than developments in formal law, or the former precede the latter; but sometimes formal law may indeed push social norms and social behaviour into new directions. Just like states which form international agreements and organisations societal actors more and more get into collaboration with their fellow actors in other countries. They enter into what is called transnational relations, the trans ( in the sense of through ) pointing to the fact that they pierce the official diplomatic relations between states. Depending on the people and history of a state both state based and society based law can be complemented by customary law of indigenous and local communities. The constitution of such
states sometimes acknowledges that the customary law is a sui generis source of binding law besides state made law, as long as the latter does not explicitly set aside the former. In sum, the law in the comprehensive sense includes the primary legal rules that in our context contribute to that the Aichi targets are failed or reached the institutions and (secondary) legal rules which are destined to implement the primary legal rules the institutions and (preparatory) legal rules which are aimed at elaborating and adopting primary legal rules the informal legal rules made by societal (including economic) actors the customary law of indigenous and local communities. Formal legal rules and institutions can be local/regional, national and international. Informal legal rules can likewise be local/regional, national and transnational. Law in this sense must be distinguished from policies. It gives them a form and makes them (formally or informally) binding. Such law should also be distinguished from economic efficiency or cost benefit analysis. Law is more pragmatic. It works on the basis of educated guess and common sense, not as the application of theories or models of grand design. 3. A method of identifying the legal factor in Aichi Target attainment Building on the foregoing I suggest the following sequence of topics that should be addressed in the assessment of legal contributions towards the Aichi Targets: (1) describing the current conditions and trends of biodiversity (2) evaluating the conditions and trends in terms of the Aichi targets (3) identifying causal factors of the conditions and trends a. social, economic, political b. natural c. in depth: legal (4) elaborating and evaluating options for reformatory measures a. social, economic, political b. in depth: legal I will explain the recommended 4 steps in turn illustrating them by some of the Aichi targets, with an emphasis on T6 (fisheries). (1) Describing the current conditions and trends of biodiversity Even if the assessment shall focus on the role of the law it is important to start with a description and evaluation of the current state and trends of biodiversity in the country of study. Without such start a point of reference is lacking for the laws that shall be scrutinised. The study would risk to indiscriminately describe the entire legal system. The conditions and trends can be broken down into a description of the environment as such and of impacts on important endpoints. The Aichi targets are mostly addressing impacts on endpoints, such as in T5 (loss of habitats), T6 fish stocks, T7 (areas under agriculture etc., T8 (pollution) etc.
Descriptions of the state of the environment can of course nevertheless be included. They are sometimes even mentioned in the formulation of the targets. An example is T8, which requires that the pollution is described and assessed in terms of detriments to ecosystem functions and biodiversity. While most of the Aichi Targets focus on the state and trends of the environment some also address societal phenomena. These include cultural aspects (T1: people s awareness, T19: knowledge), governmental measures (T2 and T17: strategies, planning, accounting, T3: subsidies, T18: respect for indigenous and local communities, T20: financial resources). As often recommended indicators should be developed that appropriately grasp the characteristic facts. In the OECD definition an indicator is a parameter, or a value derived from parameters, which points to, provides information about, and describes the state of a phenomenon / environment / area, with a significance extending beyond that directly associated with a parameter value. Indicators have two functions: they reduce the number of measurements and parameters that normally would be required to give an exact presentation of a situation, and they simplify the communication process by which the results of measurement are provided to the user. Indicators are only one tool of evaluation. They need to be complemented by background information, data, analysis and interpretation. Indicators are normally expressed in quantitative terms. Yet, iif the phenomena that shall be described are complex a qualitative examination will be preferable (OECD 2003; McGrath 2010, pp. 112-116). Some of the Aichi targets can indeed only be represented in qualitative language, such as, for instance, that the people shall become aware of biodiversity values (T1), that biodiversity values shall be integrated into development strategies (T2), that areas under agriculture shall be managed sustainably (T7), etc. Of course, for the purpose of an assessment focussing on the legal factor the relevant information cannot be generated from the scratch but must be compiled from existing sources such as official reports, inofficial consultancy papers and scientific publications. Some material of this kind concerning many different states is available from the CBD website. We will test the feasibility of this design of step 1 by looking at T6 (fishstocks etc.). Indicators and qualitative descriptions would have to be developed, concerning the territory, territorial sea and EEZ of the state under scrutiny, for the state and trends of stocks of harvested fish stocks of harvested invertebrates aquatic plants affected by human activities depleted species 2 fishing effort and catch fishing gear bycatch and discarded fish illegal and unreported fishing fishing effort and catch in other countries jurisdictions and the high seas originating in the country under scrutiny 2 The term depleted would have to be defined. The FAO suggests it to mean that catches are well below historical levels, irrespect ive of the amount of fishing effort exerted (FAO 2004)
In addition, any significant adverse impacts of fisheries on threatened species and vulnerable ecosystems must be identified. It appears that this can only be done by qualitative analysis. The role of fish stocks in inland and marine ecosystems must be explained and causation chains examined. (2) Evaluating conditions and trends of biodiversity in terms of the Aichi targets Considering that the Aichi targets are a commitment states have agreed to, the yardstick of determining achievement or failure must be carefully clarified. It should be avoided that the state can claim success because of a misinterpretation of the target. Inversely, one should not pretend high expectations where the targets do not set precise benchmarks. For instance, T1 (awareness of people) does not say what the percentage of a given people is that must show awareness, neither is clear what awareness of the values of biodiversity and of the steps they can take to conserve and use it sustainably means. In spite of this unclear language one should not discard the whole target as meaningless. One could posit that the percentage of aware people must since 2010 have grown significantly, that the majority must in 2010 have been reached, that awareness means a minimum of knowledge about the notion, systemic services and amenities of biodiversity, and of the prospects of the individual to conserve and make use of it. Easier to determine are of course the targets which set a quantifiable benchmark. For instance. T11 (conservation areas) demands to establish protected areas on at least 17 % of the land and inland waters and 10 % of the coastal and marine areas. It nevertheless rests to define when they are effectively and equitably managed. Returning again to our case study it appears that T6 (fishstocks etc.) is an example of medium precision. Definitions can however draw on the terminology developed by fish biologists who must themselves be understood by policy-makers. The benchmark is divided into different dimensions: overfishing is avoided : this can be translated into the level of maximum sustainable yield (MSY) which is in practice split into a definite level and a precautionary level. The is requires certainty of achievement which can only be ensured if the precautionary level is met. recovery plans and measures are in place for all depleted species : this target is not one of effect but one of instruments. It presupposes that the term depleted is defined and information about the rate and number of depleted species is available. It should not be difficult to find out if and how many recovery plans and measures are in place in a give state. no significant adverse impact of fisheries on threatened species and vulnerable ecosystems: significant adverse is not defined but can be circumscribed as: minor adverse effects being accepted (such as the killing of a low percentage of specimen of a population) but the depletion of a population to be prevented. safe ecological limits of impacts of fisheries on stocks, species and ecosystems: this is once more an elusive wording. However, safe presupposes certainty which means that a precautionary limit must be envisaged. Ecological limits is a problematic category because even a depleted ecosystem is still an ecosystem. Ecology is a science and hence unable to set benchmarks. It can nevertheless provide information on effects of stresses on stocks, species and ecosystems, and thus help regulators to set which shall avoid such effects. (3) Identifying causal factors of conditions and trends of biodiversity Of course causal factors need only be analyzed if the evaluation of conditions and trends of biodiversity concludes that the target has not been attained. We assume this to be the case for the following considerations.
In an assessment of the law s contribution to the Aichi targets the analysis of causal factors must logically focus on the legal factor. But the societal factors patterns of social life, the polity and the economic spheres must also be examined, because they may be the dominant causes or because they interact with the law in more complex causation chains. Moreover, natural factors must be taken into account, for it may be that it is a natural phenomenon and not society which has induced a certain situation or trend. For instance, as a case study showed (McGrath 2006), the depletion of the Australian Great Barrier Reef is caused by climate change much more than by immediate impacts from tourism, fishing or the introduction of waste or toxic substances. Of course, climate change itself is caused by humanity so that the law can be used for mitigation, but this kind of law is very different from the law which regulates waste, fisheries and discharges of toxic substances. This means, if natural factors are identified as dominant the analysis must go further to capture possible human causes behind them. A layer of direct human treatment of the environment should be distinguished from a layer of factors influencing the treatment. The patterns of direct treatment of the environment must be differentiated according to the Aichi targets. For instance, for T8 (pollution) the emissions of noxious substances to air, water and soil from various point and diffuse sources must be identified. For T12 (extinction of threatened species) a broad scope of detrimental activities must be taken into consideration including practices of industrialised agriculture, the fragmentation of landscapes by transportation infrastructure, hunting and fishing practices, and trade in rare species, including illegal and unreported practices and trade. Concerning the deeper layer of factors the social dimension includes cultural perceptions of nature, life styles and patterns of behavior in relation to the use of natural resources (such as the choice of products and services, the handling of waste, the use of energy), population density and growth, disposable income, environmental dimensions of education, etc. are to be considered. The economic dimension points to the kinds of industries in the country, the ratio of collective and individualised transportation, the self-regulatory culture of industries, etc. The political dimension refers to the presence of biodiversity issues in the media, in party programmes, in governmental plans and programmes, the relative power of parties with green programmes, freedom of the media to report on environmental issues, the existence of environmental NGOs, independence of a country or its government from powerful multinationals, etc. The legal factor, finally, must be explored keeping the multiple legal orders and institutions in mind which were sketched out above. The relevant laws and institutions will vary with the different targets. For instance, the law relevant for pollution (T8) is different from the law impacting on the genetic diversity of cultivated plants and farmed animals (T13), and both again from the law influencing the loss or conservation of natural habitats. Some issues however crosscut the sectoral ones. They comprise questions such as the following: I. Is the law at all taken seriously in the studied state or is it easily set aside in practice? II. Is the state party to relevant international law? If so, have the relevant provisions been transposed into domestic law? If not, is according to the national law international law directly applicable?
III. Does the national constitution contain rules relevant for the pertinent sectoral question IV. What is the formal quality of the relevant laws? a) Is there a specific law on the sector? b) Is the legal language precise and in line with general legal doctrine? c) Does the law cover all necessary elements of sector, i.e., does it set out: i. principles ii. instruments of promotion (if any) iii. instruments of management iv. structures and competences of institutions v. delegation of powers for specified purposes vi. requirements of transparency and participation vii. powers to investigate and monitor viii. definition of infringements and sanctions ix. access to courts for affected parties and NGOs? d) Was the law properly promulgated and disseminated? e) Is the law s relationship with other laws unambiguous? What meta-rules are applicable in case of conflicts? Is mutual adjustment of interpretation possible in such case? Are the lex specialis and lex posterior rules applicable? f) Is the law compatible with constitutional requirements? g) What is the formal quality and content of pertinent sublegal norms? V. What material standards guide the relevant law? a) Is the protected natural resource defined as a common good, public interest, public trust, and how does this affect the level of protection? b) If sustainability is prescribed how is this interpreted? Is a strong version of sustainability applicable that would give priority to the conservation of biodiversity, or are the three interests (social, economic, ecologic) considered to be of equal value? c) Are ecosystem effects to be considered? d) Are a high level of protection and precaution to be applied? e) Are best available techniques and practices prescribed? VI. How are the competent institutions organised? a) Is the allocation of competences to legislate and administer between the different levels of government clearly defined? Are overlaps excluded? b) Is the tension between the exploitation and protection of the environment reflected in the structure of public authorities (ministries etc). How are inner-ecological conflicts between climat/energy policy and biodiversity policy reflected in that structure? c) Does the law provide for participation of stakeholders and in particular of environmental NGOs? d) Have self-regulatory structures of nature users been established? e) Is public access to information and transparency of decision making ensured? VII. Is distributional justice ensured? 3 VIII. What informational resources are provided about the sector? a) public and private research institutions b) monitoring institutions c) data bases accessible for governmental authorities and the public d) access of stakeholders and the public to relevant information IX. What promotional measures are taken? 3 The analysis of attainment of the targets should always look at side effects of legal mechanisms. In particular, if the target is biodiversity protection, it must be ensured that this is not attained in disregard of distributional justice.
a) Direct/ indirect subsidies b) Iincentives/ disincentives for biodiversity protection X. What specific instruments and management tools are applied? XI. How effective are the surveillance and enforcement mechanisms? We will now illustrate how the list of legal tools can be applied by once more taking T6 (fisheries) as an example. 4 The focus will be on marine fisheries leaving out inland waters. It should be noted that the legal analysis should avoid a boring listing of the many laws and institutions that may have to do with fisheries. Rather, it is important to focus on the crucial ones and show how they are linked to effective fisheries management. We recommend that - among others - the following topics should be explored: I. Is the law at all taken seriously in the studied state or is it easily set aside in practice? If it is not taken seriously this explains much of the non-attainment of fisheries regulation even if the latter aims at a high level of protection.. II. Is the state party to international law provisions on fisheries, such as those of UNCLOS? If so, have the relevant provisions been transposed into domestic law? If not, is according to the national law international law directly applicable? III. Does the constitution contain rules relevant for fisheries, such as obligations of environmental protection, sustainable use of natural resources, and precaution? How are these duties balanced by the rights of free enterprise and property protection? IV. What is the formal quality of the relevant laws? a) Is there a specific law on fisheries? b) Is the legal language precise and in line with general legal doctrine? c) Does the law cover all necessary elements of fisheries management, i.e., does it set out: i. principles; ii. instruments of promotion (if any); iii. instruments of management; iv. structures and competences of institutions; v. delegation of powers for specified purposes; vi. requirements of transparency and participation; vii. powers to investigate and monitor; viii. definition of infringements and sanctions; ix. access to courts for affected parties and NGOs? d) Was the law properly promulgated and disseminated? e) Is the law s relationship with other laws unambiguous? What meta-rules are applicable in case of conflicts? For instance, does nature protection law prevail over fisheries law? Is mutual adjustment of interpretation possible in such case? Are the lex specialis and lex posterior rules applicable? f) Is the law compatible with constitutional requirements? g) Is the law compatible with principles of international law? If not, with what effect? h) What is the formal quality and content of any sublegal norms? i. Are they based on and consistent with higher-ranking law? ii. Are they compatible with other sublegal norms? iii. Are they appropriately promulgated and disseminated? iv. Do they impose sanctions for infringements? V. What material standards guide the application of fisheries management instruments? a) Are fish resources defined as a common good? b) If the sustainable use of fish resources is prescribed how is this interpreted? Is a strong version of sustainability applicable that would give priority to the conservation of stocks, or are the three interests (social, economic, ecologic) considered to be of equal value? c) Are ecosystem effects to be considered? 4 The following text is reproduced from Winter (2009) but adapted to the purposes of the present study.
d) Is the precautionary principle to be applied? e) Do measures have to be based on best available scientific knowledge, notably concerning maximum sustainable yield? VI. How are the responsible institutions shaped? a) Is the allocation of competences to legislate and administer between the different levels of government clearly defined? Are overlaps excluded? b) Is the ministry for environmental protection involved in decision making on fisheries management? c) Does the law provide for participation of fishermen s associations and environmental NGOs? d) Have self-regulatory structures of fishermen been established? e) Is transparency of decision making on total allowable catch etc. ensured? VII. Is distributional justice ensured? a) Are inshore areas reserved for artisanal fishing? b) Is fishing in the EEZ nationalized (e.g., by imposing landing and processing requirements or reserving the EEZ to the national fleet)? c) Are quota for individual effort and catch allocated according to fair criteria? Is tradability of quota qualified by distributional conditions? VIII. What informational resources are provided about: a) research on stocks and ecosystems? b) monitoring of catch in the territorial sea and EEZ, of landings, of transhipments, and of fishing by foreigners? c) monitoring of fishing capacity (vessels, gear)? d) data banks? e) access of stakeholders and the public to fisheries-related information? IX. What promotional measures are taken? a) In the case of undercapacity of fishing vessels: Are promotion policies in line with sustainable catch limits? b) In the case of overcapacity: Are promotion policies reoriented towards reducing capacity (phasing out subsidies, early retirement and retraining of fishermen)? X. What specific instruments and management tools are applied? a) Catch limitation: scientific basis and precaution, link to safe biological limits, criteria of allocation of catch quotas/individual quotas; b) Effort limitation: interrelation with catch limitation, link to safe biological limits; c) Technical measures: prohibition of destructive methods, selectivity of nets, reduction of bycatch, etc.; d) Marine protected areas (pollution prevention, nature protection, recovery and special management zones); e) Time and area limitations protecting spawning and nursery; f) Organization: bottom-up in the coastal zone, participatory top-down in the EEZ and high seas? XI. How effective are the surveillance and enforcement mechanisms? a) Does the surveillance cover the strategic topics (catch, by-catch, landing, transhipment, foreign catch)? b) Do fishermen, buyers and port authorities have recording duties? Are they necessary, reliable and cost-effective? c) What safeguards are in place against corruption? d) How qualified is the inspection personnel? What technical equipment is available? e) Are legal remedies available for: affected parties? public interest groups? XII. Is there flag state control over fisheries in the high seas and foreign EEZs, e.g., a) participation in regional fisheries commissions; b) licensing of vessels; c) catch limitations; d) control of landings; e) vessel monitoring systems? f) Is there port state control of landings from vessels flying foreign flags and fishing in high seas and foreign EEZs? XIII. Is there port state control of landings from vessels flying foreign flags and fishing in high seas and foreign EEZs?
(4) Elaborating and evaluating options for reformatory measures Of course, reformatory measures must only be discussed if the analysis of causes concludes that the target will not be attained without reformatory measures. As the ought can in strict logical terms not be derived from the is, our recommendations cannot simply be deduced from the analysis of conditions, trends and causes. Nevertheless, insight into phenomena and causes does inform about better steps in a practical sense, in particular if comparative studies are available which show that certain instruments have proven to be successful. In relation to T6 (fisheries) we have indeed undertaken studies of fisheries management instruments that allow more general observations on the relationship between different management approaches and fishing behaviours and thus the condition of fish resources in different areas (Winter 2009). While these observations cannot claim to provide tested hypotheses that reveal the correlations between management measures and their effects, they can nonetheless be framed as rules of best practices in sustainable management. We will sketch out 12 of them, although more could easily be imagined. We will first frame these rules of good regulatory practice as general rules that can be applied to all compartments of biodiversity (or, more specifically, to t5 through T16) and as a second step apply them to T6 (fisheries). I. On the role of law in general: Take the law seriously; create cultural, institutional and economic conditions for its implementation II. On adherence to international law: Ensure national respect for the rules of international law III. On the constitutional status of the protected natural resource: Explore if the protection of resources is a constitutional obligation of the state and of citizens IV. On the formal quality of law: Adopt nature and environmental protection laws that are well-defined, conclusive and comprehensive V. On basic rules: Lay down basic rules guiding administrative action, including the sustainable use of resources, precaution, and ecosystem protection VI. On institutions: Clearly delimit and integrate competences of competing administrative bodies VII. On distributional justice: Support small-scale users of the natural resource; give newcomers a chance; allow for a limited nationalization of resource use VIII. On research and monitoring: Establish independent research on the state and sustainability limits of the natural resource and separate stock assessment from management; provide for socio-legal research to support decision making IX. On promotional measures: Link subsidies for activities entailing natural resource utilisation to sustainable thresholds; consider laying a charge the utilisation of resources when they are scarce X. On management instruments: Establish quantified environmental quality limits and require best available techniques and practices XI. On involving stakeholders in the organization of management: Distinguish between self-management, co-management and participation in decision making XII. On enforcement and legal protection: Combine self-control with control by public administration; involve certified experts in surveillance activities; ensure legal protection of individual and third-party rights
These rules of good regulatory practice shall now be explained taking T6 (fisheries) as a case for better illustration. 5 I. On the role of law in general: Take the law seriously; create cultural, institutional and economic conditions for its implementation It is a truism but nevertheless to be stressed that effective management not only requires good laws, but also societal conditions that support implementation. The infrastructure that underpins implementation of laws is comprised of cultural, administrative and economic elements, which will be described further below. Firstly, it is important to know if in a given country there is a culture of taking the law seriously. Where the law is not appreciated as the outcome of a legitimized democratic procedure but rather understood as a mere command of the state, people will attempt to circumvent it. Where the law is regarded as a mere symbol, it will be ignored and remain ineffectual. Even worse, it might even serve to disguise governmental mismanagement and to excuse inaction. In a bargaining culture, the law can function as a bargaining chip allowing, for instance, the purchase of catch quota for a bribe; those who can pay gain an advantage, but will ultimately lead to the collapse of the resource. Secondly, as fisheries management heavily relies on implementation by administrative bodies, adequate administrative capacity must be available. Where there is insufficient political will to provide qualified and adequately remunerated personnel as well as state-of-the-art equipment, the law will be a paper tiger and become obsolete. Finally, and probably most importantly, much of the law s application in practice depends on the economic circumstances of its addressees. If there is overcapacity of vessels and employment, the fisheries sector will use all of its means to secure or even expand catch activities. Industry members will make both covert and open attempts to influence scientists when they assess stocks, politicians when they take restrictive decisions, and administrators when they enforce the law. As overcapacity is often a result of incoherent promotional policies, the answer lies in the adjustment of promotional policies a question to be addressed later on. In addition to overcapacity, high fishing pressure also results from an overdemand for fish. High demand, especially from industrialized countries, is a powerful incentive for unsustainable fishing. The crucial question is how to alter the use of fish. As a first step, fish must be considered a high-level product reserved for food; the use as a low-level product for animal feed must be phased out. This would reduce market demand, and discourage overfishing. Moreover, we need to recast the popular notion of the egocentric consumer as an enlightened consumer, i.e., one who buys fish not only because of taste and price but also according to ecological criteria. Information on legal culture, administrative infrastructure, and fishing pressure allow for a preliminary assessment of whether a given country ought to focus on reforming the law itself, or instead work on strategies to improve the conditions of its implementation. II. On adherence to international law: Ensure national respect for the rules of international law 5 The following text is reproduced from Winter (2009) but adapted to the present study.
International law provides a wealth of rules relevant to fisheries management (Markowski 2010). On one hand, these rules delineate the areas and scope of exclusive rights of coastal states (i.e., the territorial sea, exclusive economic zone and continental shelf) as well as areas of free access (i.e., the high seas). On the other hand, for fisheries located in the EEZs and high seas they require that states take measures, taking account of the best scientific evidence available to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors UNCLOS Articles 61 para 2 and 119 para 1 a. In doing so, states must apply the precautionary approach, which, if not yet a rule of international customary law, might be regarded as a general principle of international law within the meaning of Art. 38(1)(c) of the ICJ Statute. 6 In addition, international commissions set up by regional agreements on the basis of Articles 63, 64 and 118 of UNCLOS may agree on total allowable catch and fishing techniques used on the high seas and develop regulatory regimes for migratory and straddling species. The relationship between national law and international law is important to fisheries management. 7 International provisions have more national impact in countries that adopt the monist concept, which makes international law directly applicable by national authorities where national law leaves a matter unregulated. Under the monist view, international law might even rank higher than national law, setting aside any national law that is incompatible with international requirements. 8 For instance, if under national law the Fisheries Act does not regulate the inspection of vessels flying foreign flags, inspectors powers can be based on the relevant provisions of the Straddling Stocks Agreement. 9 The master of the ship could not oppose the boarding of an inspector on the ground that there is no legal basis for an inspection, and inspectors could not use this argument as an excuse for inaction. By contrast, states adopting the dualist concept require that international law is incorporated into national law by an express national legal act before it comes into force. This is a rejection of the direct application of international law by national authorities. However, even under this dualist approach, the so-called self-executing norms of international law are directly applicable as national law. A rule of international law is self-executing when it is unconditional, precise and addressed at individuals rather than states. These same criteria are often also required as preconditions of direct application by court jurisprudence in monist states. Therefore, there is a convergence in the approach of monist and dualist states regarding the direct applicability of international rules. In conclusion, there is an important body of directly applicable general as well as specific international standards of sustainable use. As yet, national authorities in charge of managing fisheries have barely explored this potential. This is particularly relevant to states with gaps in their 6 Maurmann 2008. In the 1995 Convention on Straddling and Highly Migratory Fish Stocks the precautionary approach was established as a provision of conventional law binding only (1) between contracting parties and (2) on straddling and migratory stocks, see Art. 5 lit. c), Art. 6 of the Fish Stocks Agreement. However, as a general principle of law, the precautionary principle goes beyond these treaty provisions, addressing all states and applying to all species. 7 For a rigorous study of testing national fisheries law in relation to international standards see Markowski (2010). 8 The question of rank is differently answered by different national constitutions. 9 See Art. 22 para 2: The duly authorized inspectors of an inspecting State shall have the authority to inspect the vessel, its licence, gear, equipment, records, facilities, fish and fish products and any relevant documents necessary to verify compliance with the relevant conservation and management measures.
national fisheries law. For instance, if the law does not provide criteria for licensing the catch of tuna, such criteria can be derived from the principles contained in the Straddling Stocks Agreement. An application for a fishing licence ought to be rejected on this ground if the stock is already overfished. In more practical terms, the simplest way to avoid the problem of the direct applicability of international law is of course to regulate the issue in the relevant national fisheries law. For instance, in relation to TACs concluded by International Fisheries Commissions for high-seas areas, a state that is party to the relevant convention may provide in its fisheries code that the TACs are directly binding on national authorities issuing individual quotas to fishing vessels. In doctrinal terms, this reference incorporates an international decision into national law. More difficult is the situation where national law regulates a matter but contradicts (possibly more ambitious) international standards. In this case, the direct applicability of international law (and the consequent setting aside of national law) depends on whether the national constitution assigns higher rank to international law. EU law, for instance, does so according to Art. 216 para 2 TFEU. In general, it must be kept in mind that international law normally establishes minimum requirements, allowing states ample room to be more restrictive. Unfortunately, states often take an opposite view, regarding international law as a yardstick for maximum resource protection. III. On the constitutional status of fish resources: Explore if the protection of resources is a constitutional obligation of the state and of citizens Some national constitutions such as, for instance, the Brazilian and Mexican consider marine fish resources (or the seas hosting them) a patrimony, the preservation of which is a duty of the state. The constitutions of other countries, such as the EU, regard fish resources as a common good which is a different approach but possibly with a similar outcome. The legal obligation of the state to protect the patrimony or common good as set out in the constitution is rather vague and may be of little practical significance. Nonetheless, such provisions may serve to guide the courts and administrative bodies in interpreting and applying the law. Constitutions formulated at a time when environmental protection was high on the political agenda often contain the principle of sustainability. For instance, the Namibian constitution states that the sustainable use of resources should guide governmental action. The true impact of such a provision depends on how it is defined. A robust interpretation of sustainability would place a greater priority on the survival of stocks over economic and social concerns; a weaker definition however allows for a more open balancing of the three pillars. A survey of the opinions of national courts and scholars would be necessary to determine the content of this constitutional duty. Constitutions often contain guarantees of private property and freedom of enterprise, which countervail the duty to protect resources. The status of fish resources as a common good means there is no per se right of individuals to claim property rights to them. The meaning of the right of free enterprise can also not be interpreted to extend to the exploitation of fish resources. This can be different if a fisherman or fishing company has established a business. To restrict fishing where rights have been vested does infringe basic rights of property and business. Nonetheless, restrictions imposed for reasons of resource protection could still be justified as long as they are proportional. Another constitutional principle is that of the equality of persons. It requires governments to treat equal conditions equally and unequal conditions differently, provided there are not reasonable
grounds for acting otherwise. For instance, in principle the equal treatment principle would be breached if a subsidies scheme was only aimed at industrial and not at artisanal fisheries as well. Inversely, it would be prima facie unequal treatment if the inshore areas were reserved for artisanal fishers. Such action could be justified, for example, on the basis of the greater poverty of small fishers, or the more detrimental fishing gear of large vessels. Finally, some national constitutions (e.g., Namibia and Indonesia) require the state to respect indigenous customary law. This means that a regulation that overrules customary law without justification may be unconstitutional. In conclusion, it appears that fisheries management is often still out of sync with constitutional principles. This is particularly true if national legislation contains unsustainable or discriminatory rules. IV. On the formal quality of law: Adopt a Fisheries Code that is well-defined, conclusive and comprehensive Legislation represents a distillation of political decisions. The more precise the law s language, the more clarity for administrative bodies (what to do or what to leave), and the more certainty for the individual investing labour and capital. Administrative officials and economic stakeholders are more apt to comply with a comprehensive law that covers most issues relevant to fisheries because it will facilitate its understanding and thus enhance the willingness to comply (or the chances of successful legal recourse). Fisheries laws often begin with statements of goals and general principles. These are not to be understood as definite rules, but instead they guide decision-making bodies in the exercise of their discretion. Although such provisions do not create legally binding obligations, it is still important that they cover the important issues and are carefully defined. Fisheries laws often establish administrative bodies and allocate competences to them. This means that they address the legal relationships within government. An extreme example in this regard is Brazil. Although it is important to establish clear boundaries between the different branches of government, the laws should go further and elaborate on the legal relationships between government and the individual. The rule of law demands that the law informs citizens about their precise rights and duties. For instance, the need to obtain a licence for a certain activity is an encroachment on individual freedoms and should therefore be introduced by parliamentary law rather than by administrative decree. Moreover, the law should specify the conditions for granting a licence and its terms. Often, the aim and criteria of the licence requirement for vessels are unclear: is licensing only a way to register the ship; or shall it ensure that safety and gear and equipment requirements are met; or shall it control vessel size and numbers in order to limit catch quantities? If the conditions for granting the licence are not specified, administrative bodies have broad discretion, which could result in arbitrariness and corruption. The rule of law is best served by precise laws. This will contribute to the legitimacy of fisheries management and hence the willingness of the individual fishermen to comply. V. On basic rules: Lay down basic rules guiding administrative action, including the sustainable use of resources, precaution, and ecosystem protection