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Towards Sustainable Fisheries Law A Comparative Analysis Gerd Winter Editor Towards Sustainable Fisheries Law IUCN Environmental Law Programme Environmental Law Centre Godesbergerallee 108-112 53175 Bonn, Germany Phone: ++ 49 228 / 2692 231 Fax: ++ 49 228 / 2692 250 IUCN Environmental Policy and Law Paper No. 74 [email protected] www.iucn.org/law IUCN_EPLP_74_ENG.indd 1 18.06.2009 14:04:30 Uhr Towards Sustainable Fisheries Law A Comparative Analysis i ii Towards Sustainable Fisheries Law A Comparative Analysis Edited by Gerd Winter IUCN Environmental Policy and Law Paper No. 74 iii The designation of geographical entities in this book, and the presentation of the material, do not imply the expression of any opinion whatsoever on the part of IUCN or the University of Bremen concerning the legal status of any country, territory, or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries. The views expressed in this publication do not necessarily reflect those of IUCN or University of Bremen. This publication has been made possible by funding from University of Bremen. Published by: IUCN, Gland, Switzerland in collaboration with the IUCN Environmental Law Centre, Bonn, Germany Copyright: © 2009 International Union for Conservation of Nature and Natural Resources Reproduction of this publication for educational or other non-commercial purposes is authorized without prior written permission from the copyright holder provided the source is fully acknowledged. Reproduction of this publication for resale or other commercial purposes is prohibited without prior written permission of the copyright holder. Citation: Winter, Gerd (Ed). 2009. Towards Sustainable Fisheries Law. A Comparative Analysis. IUCN, Gland, Switzerland. xiv + 340 pp. ISBN: 978-2-8317-1142-3 Cover design by: IUCN Environmental Law Centre Cover image: magoodesign • Markus Kahlenberg, Bonn, Germany The map on the cover is a redesigned example of the fishing maps available at the website of the International Council for the Exploration of the Seas (ICES). Layout by: ceterum printdesign - Dieter Müller, Meckenheim, Germany Produced by: IUCN Environmental Law Centre Printed by: Druckerei Gerhards GmbH, Bonn, Germany Available from: IUCN Publications Services Rue Mauverney 28 1196 Gland Switzerland Tel . +41 22 999 0000 Fax +41 22 999 0010 [email protected] www.iucn.org/publications A catalogue of IUCN publications is also available. The text of this book is printed on Claro 90 g/m² paper made from raw materials originating from responsibly managed forests. iv Table of Contents Foreword xi Preface xiii PART A: The International Law Framework 1 The International Legal Standard for Sustainable EEZ Fisheries Management 3 Marion Markowski I. Introduction 3 II. International legal requirements on EEZ fisheries management 4 1. Conservation and sustainable use of fisheries resources 4 1.1. The 1982 UNCLOS 5 1.2. The UN Fish Stocks Agreement 8 1.3. Obligations under customary international law 10 1.4. General principles of law 13 2. The precautionary principle 15 2.1. The 1982 UNCLOS 15 2.2. The UN Fish Stocks Agreement 15 2.3. General international law 17 3. Transboundary cooperation 20 3.1. Fisheries treaties 20 3.2. Customary international law 22 III. Conclusions 23 Bibliography 24 PART B: Exemplary National Approaches 29 1. Promotion and Management of Marine Fisheries in Indonesia 31 Laode M. Syarif Summary 31 I. Environmental and socio-economic background 32 1. Geography 32 2. State of the environment 34 3. The state of relevant fisheries resources 37 4. Multiple demands on the coastal zone 40 5. Perception of basic fisheries issues 42 II. The legal regime governing fisheries 46 1. The evolution of fisheries governance 46 2. Institutional structures 50 3. Instruments for promoting fisheries 53 4. Instruments of fisheries management 57 III. The impact of and coherence with international agreements and organizations 62 1. Fisheries management 62 2. International trade agreements 65 v 3. Fisheries organizations promoting fisheries 65 IV. Special provisions of fisheries governance for the Exclusive Economic Zone 67 1. Management tools 67 2. Institutional/organizational structures 71 V. Empirical case study on coastal and offshore fisheries management 72 1. Legal basis 72 2. Geographical conditions 73 3. Co-management 75 4. Challenges 77 5. Expanding MPAs 78 VI. Conclusions 79 Bibliography 80 2. Promotion and Management of Marine Fisheries in Kenya 83 Evanson Chege Kamau, Andrew Wamukota and Nyawira Muthiga Summary 83 I. Environmental and socio-economic background 84 1. State of the relevant fisheries resources 86 2. Overview of multiple demands on the coastal zone 89 3. Public perceptions of basic fisheries issues 92 II. The legal regimes governing fisheries 93 1. Global and regional international legal instruments affecting Kenya 93 2. Overview of domestic legislation 94 3. Institutional structures 99 4. Instruments promoting fisheries 100 5. Instruments of fisheries management 102 6. Special fisheries management measures in the EEZ 105 7. Special fisheries management measures in the coastal zone 110 8. The national management system as applied in relation to the impact of the ‘North’ 120 III. Examples of coastal fisheries management 125 1. Local management in the Diani-Chale area 125 2. Sea turtle protection in Kenya 128 IV. Proposed policy reforms 130 V. Conclusions 131 References 133 3. Promotion and Management of Marine Fisheries in Namibia 139 Raywood Mavetja Rukoro Summary 139 I. Environmental and socio-economic background 140 1. Environmental conditions 140 2. Overview of multiple demands on the coastal and Exclusive Economic Zone 142 3. Fisheries 144 4. Economic importance of the fisheries sector 148 vi Table of Contents 5. Public perception of basic fisheries issues 151 II. The legal regimes governing fisheries 154 1. Global and regional international legal instruments affecting Namibia 154 2. Overview of domestic legislation 159 3. Institutional and organizational structures 162 4. Instruments promoting fisheries 165 5. Instruments of fisheries management 166 III. The national management system as applied in relation to the impact of the “North” 175 1. Fishing by EC/North American/Japanese fleets 175 2. Trade in Namibian fish with the North 176 IV. Case studies on fisheries management: focus on enforcement 177 1. Preventing foreign vessels from illegal fishing in the Namibian EEZ 177 2. Monitoring and surveillance of catches 179 V. Conclusions 180 References 183 Field itinerary 186 4. Promotion and Management of Marine Fisheries in Brazil 187 Mauro Figuereido Summary 187 I. Environmental and socio-economic background 187 1. State of the relevant fisheries resources 188 2. Overview of multiple demands on the coastal and Exclusive Economic Zones 189 3. Structure of the fisheries sector 191 4. Fishermen’s organizations 193 5. Political perception of basic fisheries issues 194 II. The legal regime governing fisheries 195 1. Legislation and institutions relating to coastal and marine management 195 2. Instruments promoting fisheries 200 3. Instruments of fisheries management 203 4. Special provisions of fisheries governance in the EEZ 205 5. Special provisions of fisheries governance in the coastal zone 209 III. Case study: the Arvoredo Biological Marine Reserve 218 Bibliography 227 List of abbreviations 230 5. Promotion and Management of Marine Fisheries in Mexico 233 G. Ponce-Díaz, F. Arregín-Sánchez, A. Díaz-de León and P. Alvarez Torres Summary 233 I. Environmental and socio-economic background 233 1. Geography 233 2. Fisheries 233 3. Fishermen’s organizations and communities 238 vii 4. Public perception of basic fisheries-related issues 239 II. Legal regimes governing fisheries 239 1. Global and regional international instruments 239 2. Guiding principles of domestic legislation 240 3. Institutional structures 242 4. Instruments promoting fisheries 245 5. Instruments of fisheries management 245 6. Foreign fishing activities and the purchase of fish 248 III. Case study: the Gulf of California 249 6. Promotion and Management of Marine Fisheries in the European Community 253 Till Markus Summary 253 I. Environmental, socio-economic and political background of the European Common Fisheries Policy 253 1. Overview of multiple demands and pressures on the EC coastal zones and marine ecosystem 253 1.1 Overview of human activities affecting Europe’s coasts and marine waters 254 1.2 Overview of the nature and socio-economic significance of the Community fisheries sector 254 2. State of the marine environment and fish stocks throughout the Community 255 3. Formation of the Common Fisheries Policy 256 3.1 The central elements of the Common Fisheries Policy 256 3.2 The structure of the political debate 257 3.3 The interests of the Member States and negotiations in the Council 257 3.4 The Commission’s role in the CFP 258 3.5 The political dialogue with the European Parliament 258 3.6 Public perception and its integration in the CFP 259 II. Institutional and organizational structures 260 1. Community competences under the Treaty 260 1.1 Legal base 260 1.2 Territorial scope 260 1.3 Exclusive and shared competences 261 2. Substantive and territorial scope of CFP secondary legislation 262 3. Distribution of tasks – centralization v. decentralization 262 3.1 Re-delegated powers 262 3.2 Unregulated fisheries issues 263 3.3 Participation rights of stakeholders within the CFP legislative process 264 III. Fisheries management under the CFP 264 1. Fisheries management instruments 264 1.1 Quantitative catch and effort limitations 264 1.1.1. Total allowable catch and quotas 264 1.1.2. Effort limitations 269 1.2 Licensing system 270 viii Table of Contents 1.3 Technical measures 271 1.4 Recovery and management plans 272 2. Community control and enforcement measures 273 2.1 The Community control regime 274 2.2 Community control over Member States 275 2.3 Implementation deficits 277 IV. Community instruments promoting fisheries 277 1. Sources of subsidies to the Community’s fisheries sector 277 2. Promotional measures within the Community’s structural policies 277 2.1 Administrative aspect of the CFP’s structural policy 278 2.1.1.
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