Fisheries Law Research Articles

Assessing the Brazilian federal fisheries law and policy in light of the Voluntary Guidelines for Securing Sustainable Small-scale fisheries

The Voluntary Guidelines for Securing Sustainable Small-scale Fisheries (SSF Guidelines) endorsed in June 2014 by the member States of the Food and Agriculture Organization of the United Nations (FAO) was a landmark for the recognition, promotion and protection of the subsistence and artisanal small-scale fisheries (SSF) sector in the world. This instrument is part of contemporary International Fisheries Law, integrating management and development of fisheries with a range of other relevant matters such as human rights, gender and climate change, following a human rights-based approach (HRBA) and taking into account the ecosystem approach to fisheries (EAF). In this context and with a view to contribute to the realization of the Sustainable Development Goals (SDGs), this article provides an analysis of the SSF Guidelines and informs on how its’ implementation can be supported by the Brazilian Federal Law No. 11,959/2009, which provides for the National Policy for the Sustainable Development of Aquaculture and Fisheries in Brazil. It is seen that certain issues of the SSF Guidelines are better addressed in other federal legal instruments, which should be read, interpreted and applied in combination with that legislation. This analysis aimed at assisting legal practitioners and policy-makers in the implementation of the SSF Guidelines in Brazil.

Indian Ocean fisheries regulation: exploring participatory approaches to support small-scale fisheries in six States

ABSTRACTIn the Indian Ocean region fish and other marine living resources are vital for food security, local livelihoods, national economies, and future development opportunities. Of particular importance is the small-scale fishing sector, which supplies food and employment for many local people and coastal communities. To ensure the longevity of artisanal and subsistence fisheries, and healthy oceans and marine living resources, improved legal governance is critical. Most Indian Ocean States have adopted fisheries laws to achieve this goal, yet successfully balancing conservation and sustainable use of marine resources remains a challenge. To enhance fisheries laws in efficient, effective and equitable ways, inclusive governance approaches are needed. This article analyses fisheries laws in six Indian Ocean States, and critically assesses the incorporation of participatory approaches that support small-scale fisheries. The comparative analysis provides a resource that will assist States in identifying legal options to enhance public participation and inclusive fisheries governance.

Challenges and opportunities for fishery rights negotiations in disputed waters – A Taiwanese perspective regarding a fishing boat case incident

Maritime and territorial disputes have created tension among States bordering the South China Sea for decades. Such problems are exacerbated for Taiwan because of its special political status. Further, because it is not a party to the United Nations Convention on the Law of the Sea (UNCLOS), Taiwan cannot refer to that treaty to resolve disputes. A tense and tragic incident that illustrates the challenge for resolving maritime disputes that involve Taiwan is the 2013 Guang Da Xsing No. 28 conflict in which a Taiwanese fisherman was killed by shots fired from a Philippine maritime enforcement vessel. Taiwan demanded that the Philippines officially apologize, take appropriate compensatory and punitive actions, and negotiate to prevent future incidents. However, little information has been made public about what was achieved. Taiwan subsequently invoked a series of sanctions against the Philippines. This created the opportunity for both sides to negotiate and establish a liaison officer mechanism to facilitate early resolution of future incidents. After several rounds of negotiations over the past few years, Taiwan and the Philippines concluded the Agreement Concerning the Facilitation of Cooperation on Law Enforcement in Fisheries. The intention of this Agreement is to achieve safety and mutual benefits and to avoid damage to the bilateral relationship between the parties. This is a pragmatic and diplomatic approach to resolve disputes outside of, but in the spirit of, UNCLOS. This paper examines the incident in question, and the subsequent Taiwan-Philippines agreement on cooperation in fisheries law enforcement in disputed waters.

The difference between instantaneous and permanent infringements: regarding the infraction typified in numeral 66) of article 134 of the regulation of the General Fisheries Law

In this paper we analyze the difference between instantaneous and permanent administrative infractions, in light of article 252 of the Single Orderly Text of Law N° 27444, Law of General Administrative Procedure, approved by Supreme Decree N° 004-2019-JUS and the most approved doctrine; to then evaluate whether the infringement stipulated in the current numeral 66) of article 134 of the Regulations of the General Fishing Law, approved by Supreme Decree N° 012-2001-PE, amended by Supreme Decree N° 017-2017-PRODUCE, is an instantaneous infringement, as considered by the Sanctions Appeals Council of the Ministry of Production in Plenary Agreement N° 003-2017, by developing the legal nature of the same assumption of fact contained in the old infraction typified in numeral 101) of article 134 of the Regulations of the General Fishing Law, approved by Supreme Decree N° 012-2001-PE, modified by Supreme Decree N° 013-2009-PRODUCE, concluding that the Sanctions Appeals Council of the Ministry of Production is mistaken in considering the infraction in mention as instantaneous, because in fact is a permanent one.

Regulation of the expiration of the fishing permit and of the operating license of processing plants in the General Fisheries Law and its regulations

The present paper is intended to make known the regulation of the expiration in the General Fishing Law, Decree Law No. 25977, and its Regulations, approved by Supreme Decree No. 012-2001-PE, and in which cases it is necessary to declare it, specifically with regard to the fishing permit and the operating license of processing plants. In effect, the way in which the expiration is regulated and the reasons for which the Administration proceeds to declare it, as well as its nature, is set forth.

Spain’s Action to Control and Suppress Illegal, Unreported and Unregulated Fishing: Current Status and Future Prospects

Abstract The aim of this article is to address the evolution of Spain’s action to fight against illegal, unreported and unregulated (IUU) fishing during the last thirty years, as well as its future prospects. Currently, Spain strictly complies with the provisions of the international fisheries law and the European Union’s Common Fisheries Policy. In addition, Spain adopted a complex and diverse normative framework, which allows it to establish administrative sanctions against various Spanish individuals and fishing companies, which are suspected of being involved in IUU fishing activities. Moreover, Spanish legal courts and tribunals had to adjudicate in a few cases occasioned by IUU activities. This article analyses the Spanish current legal framework regarding controlling and suppressing IUU fishing, as well as the enforcement of the legal norms in Spain by the public authorities with competences in this field and by the Spanish courts and tribunals.

Inducing state compliance with international fisheries law: lessons from two case studies concerning the Republic of Korea’s IUU fishing

Despite the expansion of international fisheries law, fish stocks are still threatened by illegal, unreported and unregulated (IUU) fishing. An inevitable question arises: What can be done to better induce state compliance with international fisheries law? This article reveals a factor affecting compliance with international fisheries law that had not yet been explored in the compliance studies literature: the processes for implementing that law. It notes that one actor’s implementation processes may enhance other actors’ compliance with international fisheries law if the processes aim to affect others’ behaviour and others conform to them. Accordingly, the purpose of this article is to identify conditions under which the implementation processes have such a socialisation effect. These conditions are explored in two case studies concerning IUU fishing: that existing between the Republic of Korea and the European Union (2013–2015) and that between the Republic of Korea and the Commission for the Conservation of Antarctic Marine Living Resources (2011). The case studies show that, from an institutional perspective, the design of transparent implementation processes with dialogue between the actors involved is crucial and, in terms of social context, the international leverage and reputations of the implementing actor and the targeted actor, as well as collaboration with media and civil society, are also significant factors in the processes’ socialisation effect.

Strategy of Law Enforcement Against Fisheries Crime in Indonesia

This study aims to find a law enforcement strategy against fisheries criminal offenses in Indonesia. This type of research used in this research is descriptive research. Analysis of the data used is quantitative. The results showed that the strategy of law enforcement in eradicating criminal acts of fisheries can be done by improving the licensing and supervision systems, applying criminal sanctions and involving the community, both in terms of planning and in terms of supervision. Law enforcement strategies can be realized well if supported by three ideal legal systems, namely the substance of the law itself, supported by the structure or law enforcement itself, and the culture of law in achieving good fisheries law enforcement. Keywords : fisheries crime, Indonesia, law enforcement, strategy. DOI : 10.7176/IAGS/77-05 Publication date: November 30 th 2019

Law Enforcement on Fisheries Crime After the Enactment of Law Number 45 of 2009: A Normative Analysis

Abstract. Indonesia is one of a country which have two geographical form as the characteristics, one as archipelago and one as a mainland country. Indonesia is located between two continent, Asia and Australia Continent and also by two ocean, Pacific and Hindian Sea which are very wide. Indonesia is a big and important archipelago country with the islands. We realized that in the Indonesian region there are so many resources which can sustain life and the people of Indonesia. This potential can cause natural disaster if the management does not paying attention to the limitation of the natural capability, for example the sea exploration and exploitation with the use of unmodern tools. It is undeniable that in the management of natural fisheries resources there are still violation by the unresponsible parties in that field. The violation can cause bad for the fisheries ecosystem in our country. The impact will reduce the fisheries resource in which could have been managed for the beneficial of the people. One of the matters that will be discussed in this article is about the philosophical juridical foundation about natural resource, knowing the normative review in the field of fisheries, element of criminal liability, modes of operation in fisheries crime, as well as the knowledge about the advantages and disadvantages of fisheries law change. However, in order to protect the national wealth in form of fisheries resources it is required that the government take action in preserving natural resources. In this case the role of law is very important, especially criminal and civil law as a media to control and prevent the action that can disturb the management and preservation of the fish resources and environment. In law number 31 year 2004 jo. Law number 45 year 2009 concerning fisheries, provides clarity and legal certainty towards law enforcement for criminal offense in the field of fisheries, which includes investigation, prosecution and examination at the court hearing. Suggestion in this article are legal rules regarding the law of fisheries which is still valid at the moment must be reconstructed and renewed so that the law enforcement authorities are more able to increase the supervisition and action in the Indonesian sea. Including the need of pulic attitude and awareness towards the law especially in the field of fisheries.

Is Banning Enough? The Intricacy Inherent to Marine Mammal Conservation

AbstractDeclining populations of marine mammals have led to growing concern about their conservation. As a result, a series of specific conservation measures have been put in place (bans on hunting and trading, establishment of protected marine areas). Such rules, although restoring the populations of some species of marine mammals, have nevertheless failed to protect them from the most challenging threat to their survival: the bycatch of non-target species. Accordingly, this Article highlights gaps within fisheries law, clarifying the efficacy of existing norms on the protection of the most endangered marine species of marine mammals, with a particular focus on cetaceans, from over-exploitation.To this aim, the Article explores the peculiar norms developed by treaties of global and regional scope and the European Union (EU) with reference to specific species, including whales, seals, small cetaceans—referred to as direct protection. The Article then proceeds to an analysis of fisheries law that addresses, in an incidental manner, marine mammal protection—referred to as indirect protection.The Article is based on the assumption that measures simply banning hunting or fishing, as envisaged by wildlife law, must necessarily be complemented by fisheries law—that is, Inter-regime linkages. Paradoxically, indirect protection can have a major impact in terms of improvement of both fish welfare and conservation; the problem lies in the fact that current fisheries law fails to provide an adequate response to bycatch. This Article proposes methods to improve fisheries law and also discusses whether the emerging concept of fish welfare can be an asset if included in fisheries rules; the Article ultimately contends that welfare issues must necessarily be part of future legal developments.

Regulation of the expiration of the fishing permit and of the operating license of processing plants in the General Fisheries Law and its regulations

Regulation of the expiration of the fishing permit and of the operating license of processing plants in the General Fisheries Law and its regulations

The difference between instantaneous and permanent infringements: regarding the infraction typified in numeral 66) of article 134 of the regulation of the General Fisheries Law

The difference between instantaneous and permanent infringements: regarding the infraction typified in numeral 66) of article 134 of the regulation of the General Fisheries Law

Is Banning Enough? The Intricacy Inherent to Marine Mammal Conservation

Declining populations of marine mammals have led to growing concern about their conservation. As a result, a series of specific marine conservation measures have been put in place, such as banning hunting and trading or establishing protected areas. This set of rules, although having restored the populations of some species of marine mammals, have failed to address the biggest threat to their survival, which consists of the bycatch of non-target species. On this question, fisheries law which should address critical issues contains some important protection gaps. This paper seeks to elucidate the efficacy of existing global and regional legal rules in protecting marine mammals, the most endangered marine species, from over-exploitation, with a particular focus on cetaceans. To this aim, the paper explores specific norms developed by global and regional treaties and the European Union (EU) for specific species (whales, seals, small cetaceans) (‘direct protection’). An analysis of the current international and regional legal framework (fisheries law) addressing marine mammal protection less directly is also provided (‘indirect protection’). The paper builds upon the assumption that measures that simply ban hunting or fishing, as envisaged by wildlife law, must be complemented by fisheries law (‘inter-regime linkages’). Paradoxically, indirect protection represented by fisheries law can significantly affect improvement of both fish welfare, which is often neglected, and conservation. The challenge lies in the fact that current fisheries law, in spite of having progressed the field, still fails to provide an adequate response to bycatch problems. A focus on marine mammal law illustrates the problem of fisheries management. In this context, the paper proposes tangible solutions to improve fisheries law and also discusses whether the emerging concept of fish welfare can be an ‘asset’ if included in fisheries rules, contending that welfare issues must necessarily be part of future legal developments.

Alternative Histories and Futures of International Fisheries Law

Alternative Histories and Futures of International Fisheries Law

Fisheries management and governance in Bangladesh

Bangladesh is considered as one of the most suitable riverine country endowed with the rich inland and marine fisheries resources with enormous aquaculture potential. The suitable geographical location of Bangladesh along with its huge number of aquatic species offer excellent opportunities for the effective utilization and management of fisheries resources. Fisheries sector in Bangladesh represents as one of the most productive and dynamic sectors in the country. The country’s fisheries sector plays a significant role in food security, employment, and foreign exchange earnings in the economy. The sector contributes 3.65% to the national GDP and 23.81% to the total agricultural GDP. Fish and fishery products are the country's second largest export commodity contributing 1.97 percent of its exchange earnings in 2015–2016. From the year 2000 to 2016, aquaculture production increased from 712,640 to 2,060,408 mt, which was much higher than wild capture production of 1.023 million mt in 2016. There has also been a recent increase in the value of fishery exports, with more than US $34.08 billion in 2010 rising to more than US $46.60 billion in 2015. However, fisheries production is well below production targets despite the large gains seen in the aquaculture sector. However, the fisheries sector in the 21st century is facing the challenges of food security for the increasing population, habitat degradation, urbanization, and industrial development. Development of responsible fisheries management and optimal use of water bodies can address those challenges. Since fishery is a productive growth sector in Bangladesh, it has high potential to contribute in the socioeconomic development of the country. In this paper, we also make an attempt to examine the current legal status of Bangladesh fisheries and constraints in the implementation of fisheries laws. It is identified that twelve fisheries regulations are executed for the regulation and management of the fisheries resources in Bangladesh. Among these laws, a few are historically important for the regulating and managing of fisheries. These laws are implemented with some amendments for the development of legal mechanisms for fisheries development of Bangladesh. The implementations of these laws often met limited success due to a number of shortcomings in the legislations. The constraints in the implementation are the lack of clear policy guidelines and strategy; inadequacy of existing regulatory framework, non-enforcement of legislation and jurisdictional conflicts, the absence of regular law review and updating mechanism and formulation of by-laws, rules, orders etc. However, in recent years, Bangladesh Government has taken some initiatives towards the conservation and management of fish stocks (e.g., hilsa fishery), both to optimize total production and ensure fisher’s livelihoods. Furthermore, a comprehensive legal framework is required for sustainable management of fisheries resources in Bangladesh.

Combating Unregulated Fishing through Unilateral Trade Measures: A Time for Change in International Fisheries Law?

Unregulated fishing on the high seas – understood as fishing activities by vessels flagged to a non-member state in an area regulated by a regional fisheries management organisation – are a significant threat to the sustainability of high seas fishery resources. The European Union (EU) and the United States – two major market destinations for fishery products – have shown a strong determination to treat unregulated fishing as illegal fishing. They have applied or threatened to apply trade restrictions to states that have no treaty obligations to refrain from fishing on the high seas. These actions are conspicuous because the practical effect of these unilateral measures entails a challenge to the fundamental pacta tertiis rule. This article suggests that the application of unilateral trade-related measures by the EU and the United States against non-member states represents relevant state practice for the formation of a prohibition against unregulated fishing in customary international law.

Adaptive capacity of small‐scale coastal fishers to climate and non‐climate stressors in the Western region of Ghana

Small‐scale coastal fisheries (SSCF) in the Western region of Ghana are affected by a combination of climate and non‐climate stressors. Coastal communities are particularly vulnerable to these stressors because of their proximity to the sea and high dependence on small‐scale fisheries for their livelihoods. A better understanding of how fishing communities, particularly SSCF, respond to climate and non‐climate stressors is paramount to improve planning and implementation of effective adaptation action. Drawing on the capitals framework, this study examines the adaptive capacity of SSCF to the combined effects of climate‐related (increasing coastal erosion, and wave and storm frequency) and non‐climate‐related stressors (declining catches; scarcity and prohibitive cost of fuel; inconsiderate implementation of fisheries laws and policies; competition from the oil and gas industry; sand mining; and algal blooms). The findings show how fishers mobilise and use adaptive capacity through exploitation of various forms of capital, including cultural capital (e.g., local innovation); political capital (e.g., lobbying government and local authorities); social capital (e.g., collective action); human capital (e.g., local leadership); and natural capital (e.g., utilising beach sand) to respond to multiple stressors. Nevertheless, in many cases, fishers’ responses were reactive and led to negative (maladaptive) outcomes. Furthermore, this study underscores the importance of critically considering the interactive nature of capitals and how they collectively influence adaptive capacity in the planning and implementation of adaptation research, policy and practice.

The legal impact of the common fisheries policy on the Galician fisheries sector

Spain's accession to the European Union on 1 January 1986 meant the incorporation into its domestic law of the Union's acquis and, therefore, of the rules related to the Common Fisheries Policy. This was preceded by tough accession negotiations and the inclusion of a long transitional period with regard to fisheries that particularly affected the Galician fisheries sector, which has had to adapt to this legal environment and to its successive revisions in 1992, 2002 and 2012. Today, it must also adapt to Brexit. The present paper will be organised in two parts. The first part will examine the situation of the Galician fisheries sector in the context of current European fisheries law. The second part will address those aspects in which the legal impact is most obvious, paying special attention to the consequences that the United Kingdom's withdrawal from the European Union may have for them.

Fish catch and community composition in a data-poor Mekong River subcatchment characterised through participatory surveys of harvest from an artisanal fishery

Many inland artisanal fisheries have not been surveyed by scientists. In this study we used some participatory research methods to characterise a data-poor fishery in a tributary of the Mekong River. Sixteen local villagers from four villages were trained to record harvest data along a 25-km reach of the lower Nam Kading River. Catch records included 65 fish genera representing at least 93 species, with 11 species of concern on the IUCN Red List. During 894 individual fisher landing surveys, a total of 1433.8kg of fish catch was reported. The majority of fishers (87%) used nets, and the catch per unit effort with gill-nets averaged 66g net–1h–1. Analysis revealed differences in catch rates and the genus assemblage among villages. High levels of diversity, and the presence of species assessed as endangered by the IUCN Red List, highlight the need for further studies and conservation interventions in the area. The National Fisheries Law in Lao PDR provides a unique opportunity for co-management, because shared management between civil society and government is written into the law and implemented extensively. Participatory research activities can serve as a bridge for communities to engage with government to inform fisheries management.

Status of fish and shellfish diversity and their decline factors in the Rupsa River of Khulna in Bangladesh

The study was aimed to find out the present status and causes of fish and shellfish diversity reduction in the Rupsa River of Bangladesh. Studies were conducted for a period of 6 months from July to December 2016. Focus group discussions (FGD), questionnaire interviews (QI) and key informant interviews (KII) were done to collect appropriate data from the local fishers and resource persons. A total of 62 species of fish and shellfish from 23 families were found in the river and 9 species disappeared in last 10 years. The species availability status was remarked in three categories and obtained as 14 species were commonly available, 28 species were moderately available and 20 species were rarely available. The highest percentage of fishes was catfishes (24.19%). There was a gradual reduction in the species diversity from previous 71 species to present 62 species with 12.68% declined by last 10 years. Average fish catch per fishermen per day reduced from 8.35 kg to 2.95 kg in last 10 years. Combined effects of some manmade and environmental factors are responsible for the loss of biodiversity. Majority of the respondents (90%) agreed that two manmade factors namely overfishing and navigation are mainly responsible for the loss of fish and shellfish diversity in the river followed by use of illegal fishing gears (86%), pollution (72.5%) and urbanization (64%). During the survey, 93.25% respondents reported water depth reduction as the main environmental factor followed by siltation and sedimentation (91%), temperature (61.75%) and turbidity (56%). The present work recommends preventing water pollution, maintaining fishing gears, increasing fishers’ awareness, implementing fisheries laws and establishing fish sanctuary to conserve finfish and shellfish diversity in the river. Moreover, counter and random surveys are also recommended to crosscheck the fishes’ status and decline causes for ensuring their proper management and conservation.