Fisheries Law Research Articles

The role of government in post-legislative scrutiny: case study of revision to the Indonesian Fisheries Law

The role of government in post-legislative scrutiny: case study of revision to the Indonesian Fisheries Law

Evolving adaptive governance: challenging assumptions through an examination of fisheries law in Solomon Islands

Datta, A. W., and B. C. Chaffin. 2022. Evolving adaptive governance: challenging assumptions through an examination of fisheries law in Solomon Islands. Ecology and Society 27(2):30. https://doi.org/10.5751/ES-13251-270230

The role of government in post-legislative scrutiny: case study of revision to the Indonesian Fisheries Law

The role of government in post-legislative scrutiny: case study of revision to the Indonesian Fisheries Law

CORPORATE LIABILITY FORMULATION POLICY ACCORDING TO ARTICLE 101 OF LAW NUMBER 31 OF 2004 JUNCTO LAW NUMBER 45 OF 2009 CONCERNING FISHERIES IN TERM OF CRIMINAL LEGAL REFORM IN INDONESIA

The corporation is the brain and source of funds for all illegal fishing activities and other crimes that occur along the chain of fishing business activities. According to Law Number 31 of 2004 in conjunction with Law Number 45 of 2009 concerning Fisheries, Article 101 states that: "In the case of a criminal acts as referred to in Article 84 paragraph (1), Article 85, Article 86, Article 87, Article 88, Article 89, Article 90, Article 91, Article 92, Article 93, Article 94, Article 95, and Article 96, the acts are committed by corporations; prosecution and criminal sanctions are imposed on their management and the fine is added by 1/3 (one third) of the sentence imposed." It is necessary to renew the Fisheries Law in order to provide an overview in determining the Corporate Liability Formulation Policy according to Article 101 of Law Number 31 of 2004 in conjunction with Law Number 45 of 2009 concerning Fisheries in the context of Criminal Law Reform in Indonesia. The type of this research was normative by using primary, secondary and tertiary sources of legal materials. From the results of research and discussion, it was revealed that Corporate Liability according to Article 101 of Law Number 31 of 2004 in conjunction with Law Number 45 of 2009 concerning Fisheries in Indonesia currently does not explain things about the meaning of the word "management", which parties in the management structure of a corporation that can be held accountable, or to what extent the authority possessed by parties in the management structure of a corporation can be subject to criminal responsibility. Therefore, the Corporate Liability Formulation Policy according to Article 101 of Law Number 31 of 2004 in conjunction with Law Number 45 of 2009 concerning Fisheries in the context of Criminal Law Reform in the future should be changed, this is important considering the formulation stage is the most strategic stage in the efforts to prevent and to control crime by including / expanding criminal liability, not only for the management but also for the corporation and its management.

A Study on the Training and Education of Inspectors to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated (IUU) Fishing in Turkey

The aim of this study was to examine present training conditions of inspectors and the current situation in Turkey to prevent, deter and eliminate IUU fishing within the scope of the training of qualified inspectors which was one of port states’ duties according to the PSMA to Prevent, Deter and Eliminate IUU Fishing. In Turkey, the inspectors of the Ministry of Agriculture and Forestry and the Command of Coast Guard had sufficient training according to the Annex-E of Article 17 of the PSMA to Prevent, Deter and Eliminate IUU Fishing. The trainings related to the provisions stated in the Annex-E of Article 17 of the PSMA to Prevent, Deter and Eliminate IUU Fishing should be planned or necessary studies should be carried out by the Ministry of Agriculture and Forestry for authorized institutions and organizations other than the Ministry of Agriculture and Forestry and the Coast Guard Command. Legal arrangements should be made on the training of inspectors in order to prevent IUU fishing in the Fisheries Law.

Blue revitalization or dispossession? Reform of common resource management in Japanese small‐scale fisheries

AbstractBased on in‐depth anthropological field research in rural Japan, this paper analyses the ongoing reform of Japanese fishery governance and its social and environmental justice implications, as globally proliferating discourses on the ‘blue economy’ and ‘blue growth’ are driving the enclosure of one of the last vestiges of natural resource commons in small‐scale fisheries. Coastal fisheries in Japan are often idealized as one of the last bastions of resource co‐management in an industrialized country, with local cooperatives collectively controlling territorial fishing rights. However, demographic change, declining profitability, and dwindling resource stocks are challenging their viability. Reform of the fishery law, designed to stimulate new growth and industrialization – particularly in aquaculture – includes the opening up of coastal fishery resources to corporate investors, the strengthening of top‐down regulation, and the introduction of individual fishing quotas (IQ). The desire to boost domestic seafood production also has to be seen within the context of the double anxiety of high dependency on international trade for foodstuff and of Japan's vanishing rurality. This emphasis on private capital and presupposed economic and scientific rationality builds on the same rationale of blue economy and blue growth discourses, which promise financial along with ecological returns on large‐scale investments in sustainable ocean economies. Growth‐oriented reform in Japan now imperils successful resource co‐management in coastal small‐scale fisheries. Its analysis therefore offers deeper insights into the transformative as well as dispossessive potential of the global paradigmatic shift towards an intensified industrial exploitation of the oceans. The question of social and environmental justice is central in the re‐allocation of access rights to ocean spaces and resources and the re‐arrangement of decision‐making processes in fishery governance, as local fishing communities face a very real threat of dispossession and disempowerment.

Analyses of Protection and Conservation According to the Fish Act 1950 in Bangladesh’s Kaptai Lake Fisheries Management

Kaptai Lake (KL), the largest inland watershed in Bangladesh (ca. 700 km2) and one of Southeast Asia’s largest artificial reservoirs, features an abundant variety of indigenous fishery species. Moreover, it provides a plethora of ecological benefits to society. Nevertheless, the KL is suffering from multidimensional natural and anthropogenic stressors that threaten these wetlands’ sustainability. Though the legal framework assures sustainable conservation of fisheries resources, the implementation scenarios of fisheries laws, regulations, and policies in the KL wetland are insufficient. This study aimed at assessing the fisher’s perception of the regulation implementation efficiency of the Protection and Conservation Fish Act of 1950, while analyzing the effectiveness of the legal framework in the context of biodiversity conservation and the management sustainability of KL. By integrating qualitative and quantitative data collected through participatory Rural Appraisal (PRA) tools viz. 225 interviews with fishers, four focus group discussions, and 12 key informant interviews, the investigation was performed in four selected areas in KL. The findings show that fishers routinely disregard laws and restrictions of the Protection and Conservation of Fish Act 1950 due to various socioeconomic and political forces. Although the annual fish harvest rate from KL appears to be increasing, the lake is losing its charismatic biological diversity primarily due to inappropriate and ineffective enforcement of fishing regulations. Many fishers believe that they still follow the act’s significant laws and regulations while being involved in several destructive and prohibited fishing practices. There is a link between community awareness, the scope of the act’s provisions, the effectiveness of its enforcement, and the strength of its execution. One of the leading causes of biodiversity loss in the KL is inadequate and ineffective fishing regulations. Improvement in the enforcement of the fishing act may be the prominent option to ensure better biodiversity conservation and sustainable management of this wetland. This result calls for functional and policy attention to revising the regulations to account for socioeconomic and political elements contributing to environmental degradation. This study also highlights the urgent need for transdisciplinary collaboration initiatives and synchronous cooperation among the agencies in order to effectively implement the fishing laws and contribute to better conservation and sustainability of the Kaptai lake fisheries resources.

Assisting Developing and Least Developed Countries in Legal Aspects of WTO Negotiations: A Case Study of the Fisheries Subsidies Negotiations

The Advisory Centre on WTO Law (ACWL) is an international organization charged with assisting developing countries and least developed countries (LDCs) in all legal aspects arising from the law of the World Trade Organization (WTO). Among its services, the ACWL provides, upon request, legal advice in WTO negotiations. The ACWL does not influence the political position of its Members or the LDCs. Rather, it confines itself to providing legal inputs that would enable its developing country Members and LDCs better to participate in WTO negotiations. In particular, the ACWL assists in drafting proposed legal provisions when a requesting government wishes to propose an idea. In addition, the ACWL conducts legal analyses of proposals tabled by other WTO Members in order to ascertain their potential legal effects were they to become part of the WTO covered agreements. In the context of the fisheries subsidies negotiations, the ACWL has made strides to become familiar with such areas as international law of the sea, fisheries law, and the legal aspects of sustainability and development in order to provide well informed legal advice to its developing country Members and the LDCs. Legal advice on the fisheries subsidies negotiations has, both qualitatively and quantitatively, become an important part of the ACWL’s work. Legal advice, WTO negotiations, fisheries subsidies, fisheries management, treaty interpretation, ACWL, developing countries, least developed countries

Protection Of Wildlife: Analysis Of Legislative Periods In Turkey

The first legal arrangements concerning hunting and wildlife were held in “Mecelle (Ottoman code of civil law)” was declared in 1976 and was abolished in 1926. Prior to this date, hunting was carried out freely, and game animals were regarded as “waif” and there were no legal re-strictive regulations. Only it was forbidden to enter the hunting areas of the Sultan and this ac-tivitis were punished. When analyzed Mecelle seen that there were made general regulations on hunting and game animals about catch or ownership . The first basic arrangement on hunting and wild animals in Turkish law was made in 1937 by the Law of Hunting, Numbered 3167. Law No: 3167 had provisions as definition of hunting animals, hunting principles and prohibitions, it was abolished in 2003 by the with the current law which numbered 4915. Law No 4915 is more detailed law than the 3167 with regards to con-servation provisions and at the same time in terms of compliance with international agreements related to wildlife and biodiversty. In this study will be discussed the process and developmet of the legislation related wildlife and hunting from 1900 to the present day and analyzed in terms of international agreements. These are Mecelle, Constitutions, Civil Laws, Criminal Laws, Land Hunting Laws, Forest Laws, Fish-ery Law and Environmental Law.

Fisheries extractivism and the right to subsistence: Conflicting governance models and the legal structures that enact them

Approaches to global fisheries governance generally fall into one of two broad categories, tending to rely either on an extractivist model that prioritizes macroeconomic growth or a norms-based model that subordinates economic processes to ethical social objectives. While global fisheries could contribute much more effectively and directly to fulfilling the human right to subsistence (an ethical norm that is as universal and binding as any under international law), their potential to do so is undermined by legal structures that favor the extractivist model and fail to legislate ethical norms. These legal structures undermine the human right to subsistence, in large part by marginalizing small-scale fisheries, which provide for the subsistence needs of many more food-insecure people around the world than do their industrial counterparts. After illustrating the conflict between extractivism and ethical norms in international fisheries law, this article turns to the case of South African small-scale fisheries, which provides a more concrete and place-based view of these power dynamics and demonstrates the resilience of the extractivist paradigm in the face of norms-based challenges. If global fisheries are to contribute more fully to the realization of the human right to subsistence, the extractivist model will need to be seriously constrained and ethical norms will have to be given pride of place in fisheries law and policy.

Analyses Implementation Realities of Legal Frameworks for Sustainable Management of Tanguar Haor Fisheries Resources in Bangladesh

Tanguar Haor (TH) is considered one of the Ecologically Critical Areas (ECAs) of Bangladesh and is internationally recognized as RAMSAR wetland (2nd Ramsar site) known to provide multiple ecosystem services to the society. Nevertheless, multidimensional threats and stressors, the capacity to supply ESs, and the biodiversity of the TH significantly degrades and threatens this wetland’s conservation and sustainability. Although the legal framework promises the sustainable conservation of fisheries resources, information on the implementation scenarios of fisheries laws, regulations, and policies in the TH Ramsar are scant. By merging qualitative and quantitative data of primary and secondary sources, this research aimed to analyze the legal framework to check the effectiveness of regulations for non-conflicting fisheries resources and the sustainable conservation of the TH Ramsar. Primary empirical data were collected by employing Participatory Rural Appraisal (PRA) tools, i.e., 204 semi-structured questionnaire-based individual interviews with fishers, three focus group discussions, and 14 key informants’ interviews in three fishing villages in the TH. In contrast, secondary data was set by reviewing published literature and related official documents. Results showed that, due to weak enforcement with inadequate surveillance and poor implementation of the legal framework, there was a high non-compliance with fishing laws, rules, and policies. Destructive and prohibited fishing gears, e.g., the use of small mesh fine nylon nets (current jal), purse seine net (ber jal), and the harvesting during ban period-illicit catch were widespread in the study areas. In addition, catching undersized fish, fishing at the restricted areas (sanctuary area), and fishing during spawning seasons occur often. There is a crying need for a comprehensive legal and policy framework to contextualize the local context, ensure the proper implementation of the fishing laws and regulations, increase the managerial inefficiency of enforcing agencies, ensure livelihood support during the fishing ban, and afford good alternative income options are still significant issues for good governance in the Tanguar Haor ECA. Findings might help to identify the gaps and misunderstanding of the existing legal practice while submitting urgent attention to the need for drawing a comprehensive legal and policy framework (contextually modified according to the local context), taking initiatives and acting synchronously for proper implementation, and calling transdisciplinary collaboration and cooperation among the agencies that may ensure the non-conflicting use of the natural resources of the TH that can be also helpful for the better conservation of this Ramsar wetland.

At the crossroads of co-management in a complex socioecological system: Lessons from the first participatory management plan in Chile

Co-management of a system or resource should be understood as an approach to governance in which there is some redistribution of power between the state and a community of users. Despite its potential utility, its application in traditional, hierarchically complex systems faces social challenges that impede self-organization and/or self-management. In a new attempt to promote the sustainability of fisheries in Chile, Management Plans were incorporated into the Fisheries Law in 2013. These plans were based on the Management Plan for the Contiguous Zone (MPCZ), the first participatory Management Plan of a fishery in Chile. While the plan failed to achieve self-organization and expired after 14 years, part of its legacy includes a framework for the operation and governance of Management Plans. In this article, we adopted a general socioecological framework to analyze and discuss the MPCZ and its governance model. The hierarchy established by the state has restricted the development of the management process and threatens its potential contribution to the sustainability of fisheries. Distrust among users, scientists and state officials has also been an obstacle to strengthening co-management. The Management Plans represent an opportunity for traditionally hierarchical administration of fisheries to evolve towards co-management, as long as the state modifies its previous strategies and chooses to strengthen and consolidate the participative processes.

Menelaah Keadilan dalam Kebijakan Penanggulangan Illegal Fishing Di Indonesia: Perspektif Konsep Keadilan Thomas Aquinas

Justice is still an expensive item that is difficult to reach by every level of Indonesian society, including local fishermen who do illegal fishing. The criminal law policy in tackling illegal fishing which is represented in the Fisheries Law is not proportional and does not have a clear measure. Therefore, in the case of illegal fishing, a discourse of justice is attached. Related to the concept of justice offered by Thomas Aquinas, which emphasizes equality, justice, and the policy of tackling illegal fishing in Indonesia, it is interesting to discuss. This article aims to examine funds to analyze the concept of Thomas Aquinas 'philosophy of justice and to explore justice in the policy of tackling illegal fishing in the perspective of Thomas Aquinas' philosophy of justice. In order to answer these problems, this study uses a normative juridical method. Based on the research results, the concept of justice offered by Thomas Aquinas consists of distributive, commutative, and indicative justice. The essence of Thomas Aquinas' three concepts of justice is proportional to equality. Associated with Thomas Aquinas' concept of justice, the policy to combat illegal fishing in Indonesia has not provided justice. It is said that because the sanction for deprivation of freedom in the Fisheries Law only applies to local fishermen and has not reached foreign fishermen who do illegal fishing. In order to be fair, the sanction of deprivation of liberty should not apply to local fishermen who do illegal fishing as well as foreign fishermen.

Fill the Gap between Law and Governance

Abstract The Sustainable Development Goals (SDGs) clearly address the difference as well as recognize the correlations among seventeen sustainable development dimensions. The SDGs also play an important role for the international community to pay attention to our future living. Taking oceans for instance, they are the biggest ecosystems on our planet, and their health are essential to our survival. In terms of conserving and sustainably using the oceans, seas and marine resource under SDG 14, several targets were agreed upon by the UN member States to help guide decision-making with regard to oceans, such as conserving marine and coastal areas in agreement with international and national laws and using the latest scientific information. This article mainly focuses on the matters of conserving and managing international fishery resources. It also addresses the issues between international law and global governance with perspectives on the implementation of SDG 14. This article concludes that in order to effectively implement international fishery laws and to reach the targets that SDGs have postulated, eliminating the commercial benefits might be the necessary consideration in filling the gap between international fishery law and fishery governance.

Reported capture, fishery perceptions, and attitudes toward fisheries management of urban and rural artisanal, small-scale fishers along the Bahía de Banderas coast, Mexico

Artisanal fishing is a very important activity for the subsistence of coastal inhabitants in Latin American countries. Increasingly, what has traditionally been a rural activity is being enveloped by urban expansion, resulting in urban-based artisanal fishers. We administered 98 questionnaires to artisanal fishers along the Jalisco coast of the Bahia de Banderas, on the Pacific Coast of Mexico. Approximately half of the participants belonged to each of urban (Puerto Vallarta) or rural collectives. The aim of the study was to understand the differences and similarities between urban and rural fishers with respect to demographics, fishing behaviors, assessments of past, current, and future fishing resources, attitudes towards fisheries management, and perceptions of human-environment relationships. The respondents represented an aging demographic with a low level of education. They reported catching 27 different species of fish, primarily of the Family Lutjanidae, although rural fishers reported a greater variety of species captured. Half of the respondents supplement fishing with a second form of income, a trend that is more prevalent in rural fishers. Fishers indicated that fishing was better in the past and predicted it will be poorer in the future; rural fishers were more negative about fishing conditions. Almost all fishers were concerned about the health of fish populations and three-quarters of them felt that fish populations are disappearing. Specific fishing practices were the highest cited problems facing fishing and making changes to these problems was identified to improve fishing. Half the respondents felt that there is conflict between artisanal and commercial sport fishers, but this is more prevalent in urban fishers. Respondents indicated that fishery managers need to do their job (e.g. resource monitoring, enforcement) and apply fisheries laws in order to help improve regional fisheries. Overall, concerns for a future sustainable fishery are reflected in an ecocentric view of humanity and nature by both groups, although it is often statistically greater in urban fishers. These results provide an insight into differences between urban and rural fishers that can be useful for local fisheries collectives, regional and federal fisheries management agencies, as well as global approaches to small-scale fisheries.

Care, not incarceration: exploring the carcerality of fisheries enforcement and potential decolonial futures in Hawaiʻi

Current U.S. environmental management paradigms default to enforcement mechanisms that feed into the prison industrial complex, such as fines and jailing. To avoid contributing to and reinforcing mass incarceration and militarism, environmental management systems need to be transformed towards non-carceral forms. Additionally, working towards Indigenous sovereignty and decolonization, requires the strengthening of Indigenous relations with and governance over the land under the respective paradigms of Indigenous communities. This paper uses Hawaiʻi state fisheries law and programmatic efforts to address a central question: What is the extent and nature of carceral norms within conventional environmental management systems and how do they affect management outcomes? The study examines the current fisheries enforcement scheme in Hawaiʻi, tracing the embedded logic of carcerality, the degree to which ultimate sources of harm are addressed, and the concentration of governing powers. The results highlight how current fisheries enforcement is insufficient in caring for the seascape and, through its carceral approach, contributes to social injustices, particularly for Kānaka Maoli (Native Hawaiians). Additionally, this paper demonstrates how current efforts in Hawaiʻi – Community-Based Subsistence Fisheries Areas (CBSFAs), the ʻAha Moku system, and the Makai Watch Program – attempt to empower communities, but ultimately keep enforcement powers centralized within the State, thus perpetuating dependency on the criminal justice system. This study ends with a discussion on how future decarceral environmental governance systems could be designed to center Hawaiian relations & paradigms, particularly by prioritizing the values of re-education, rematriation, and restoration.

CORPORATE CRIMINAL LIABILITY REGARDING IUU FISHING FOLLOWING THE JOB CREATION LAW ENACTMENT

This research analyses how is corporate criminal liability regulation in Indonesia regarding IUU Fishing following the enactment of the Job Creation Law. This research uses both statute approach and conceptual approach as the legal research methods to analyse the issued legal problem. Following the enactment of the Job Creation Law on 5th October 2020, some articles of Law No. 45 of 2009 amending law no. 31 of 2004 concerning Fishery are amended, including the corporate criminal liability regulation. This research’s analyses shows that in order to improve the effectiveness of IUU Fishing law enforcement, specifically the ones being committed by a corporation, the Job Creation Law needs to be amended, specifically its article concerning corporate criminal liability, by changing the used conjunction to ‘and/or, as regulated in the draft of Fishery Law as well. Furthermore, as the term of ‘person in charge’ is more appropriate, in case of corporate criminal liability system, than the one used in the Job Creation Law, which is ‘employee’, the Job Creation Law shall be revised by opting the former term into it.

Illegal Capture of Fish by Foreign State Ships from the Perspective of International Law

The Indonesian Sea has an area of 5.8 million km2, with 17,480 islands offering a coastline of 95,181 km2, with has a large and diverse fishery potential. The economic potential of fisheries offers a substantial and significant sustainable base for national development. However, there are a number of irresponsible parties who take Indonesian marine products illegally. The implementation of Act No. 45 of 2009 concerning Fisheries is a positive step and is a basis or rule in deciding legal issues related to illegal fishing. The Fisheries Law adopts several provisions of international law on maritime affairs, one of which is the 1982 United Convention on the Law of the Sea (UNCLOS) and Indonesia has ratified the UNCLOS through Act No. 17 of 1985. The government through the Ministry of Marine Affairs and Fisheries (KKP) issued several policies to prevent illegal fishing practices, including Improving Facilities and Infrastructure, Supervision of Law Enforcement in the Fisheries Sector, Establishing a Task Force to Eradicate Illegal Fishing.
 Keywords: Foreign Ships, Illegal Fishing, International Law

Adjustment trend of China’s marine fishery policy since 2011

Based on an analysis of China's marine fishery management policies since the promulgation of the Fisheries Law in 1986, this paper finds that before 2011, China's marine fishery policy mainly focused on the input control of fishing gear, fishing vessels and fishermen. Since 2011 China's marine fishery policy has been adjusted to output control in recent ten years. The management of marine fishery resources in China has gradually changed from input control management to input and output control management. The past decade was a key period in the adjustment of marine fishery policies. The characteristics of China's marine fishery policy in recent ten years include not only increasing output control on the basis of strict input control, but also paying attention to fishermen's livelihood, paying attention to the upgrading of fishing equipment, coordinating policy objectives and coastal ecological protection. In the future, China's marine fisheries management will face challenges in policy-making, such as multi species fisheries, long coastline, numerous fishing ports, large proportion of small fishing vessels, and scattered landing sites of catches. Ultimately, China's marine fishery policy aims to realize the sustainable development of the marine fishery industry under the dual goals of focusing on the livelihood of fishermen and repairing coastal and offshore fishery resources.

REPRODUCTIVE BIOLOGY IN GREEN SPINY LOBSTER, PANULIRUS REGIUS (DE BRITO CAPELLO 1864), FROM THE PETITE COTE OF SENEGAL, WEST AFRICA

Green spiny lobster is one of the highest economically valued fisheries resources in Senegal. However, knowledge on this species are relatively old and insufficient. To realize this study on reproductive biology of Panulirusregius, sampling has been carried out between April and September 2017 from small-scale fisheries landed catches at the Petite Cote, Senegal. The length at first sexual maturity computed from the body allometric relationship according to the cephalothorax length (CL) was 67.95 mm in females and 67.51 mm in males. The CL at which 50% of the females were mature during the breeding season (CL50) was 94.50 mm. Individual fecundity was between 229,860 and 638,775 eggs depending on CL of individuals. In the catches surveyed, 64% of landed individuals had a total length (TL) less than 200 mm, which is the minimum landing length in accordance with the Senegalese fisheries law. This result indicates the difficulties to apply management measures relative to this fishery, which could compromise its sustainability in Senegalese Petite Cote.