Whereas the legal regime of marine fisheries has been the subject of considerable attention as it has evolved since 1945, the legal regime of aquaculture has tended to be neglected in comparison. However, aquaculture is increasingly being seen as an important method of improving food production, and there are impressive statistics on the increased volume of production in recent years. For these, and no doubt other reasons, it is timely to examine the legal regime governing this activity.
The purpose of the present study is to examine the legal regime of aquaculture, focusing in particular on the key legal issues governing this activity. In addition to some general matters discussed in the introduction, these are: the general place of aquaculture in the legal system, access to and use of water and land, environmental aspects, including fish disease, import of live fish and the introduction of non-indigenous species.
It would have been impossible to have considered all or even a majority of the laws concerning aquaculture throughout the world. The approach adopted, therefore, was to consider at least the laws of particular countries reflecting the differences between common law and civil law systems, developed and developing societies, and centrally planned and capitalist societies.
Because information was not available for many countries, and because the quality of information was also variable, relevant examples have been included wherever appropriate in this study.
Although this has inevitably resulted in some unevenness in the information underlying this study it has enhanced its overall value, not least by enabling attention to be drawn to examples of laws not otherwise conveniently available.
At this stage, it has also not been possible in every instance to relate the nature of the legal regime to the importance of aquaculture activity in a particular country. It is possible that a country could have an advanced aquaculture sector, but have virtually no direct legislation on aquaculture, the regulation of the activity being found in, for example, laws regarding land, water and environmental control. At another extreme, it is possible that a country could have an elaborate legal regime for aquaculture, but very little aquaculture activity. In both situations, as well as any existing within those two extremes, it would be necessary to obtain more information about the aquaculture activity in individual countries before a judgement could be made whether the particular legal regime was effective. In many instances, this can only be ascertained by visits to a particular country.
It is, furthermore, important to distinguish between different types of aquaculture, for the applicable national rules sometimes vary according to which type is under consideration: mariculture, sea cage farming, sea ranching, may well depend primarily on the general marine fisheries law (which may or may not address those questions specifically), aquaculture (often referred to as fish farming, fish culture, etc.) that utilizes public lands may depend primarily on the laws affecting the public domain or water resources laws while aquaculture occurring entirely on private land may depend primarily or even exclusively on the land laws, the water laws and environmental laws.
As will be seen, national laws do not always cover what they otherwise appear to be intended to cover, and difficult problems of interpretation can arise.
An important result of this study is to assist in identifying the legal issues which will need to be addressed in setting up an aquaculture regime. It will also, it is hoped, assist in identifying possible obstacles to aquaculture development. For example, the absence or scarcity of laws directly regulating aquaculture might lead to a situation where the existing land or water laws could unintentionally amount to a disincentive to undertake aquaculture development, by imposing multiple or conflicting obligations.
It will also be self evident that unlike the legal regime of marine fisheries, international law issues have only a marginal impact on aquaculture.
Where the activity in question is inland and in the vicinity of the border of another nation, there is the theoretical possibility that upper riparian use might have harmful effects across the border, or that a water table straddling a boundary is affected adversely by aquaculture activity, in which case international environmental law questions might arise. Otherwise inland aquaculture activity will be a matter of domestic law. In bays and creeks, and river mouths, the coastal state can impose such regulations as it wishes on aquaculture, whereas in the territorial sea, internal waters enclosed by newly proclaimed straight baselines and the EEZ, certain navigational rights for foreign vessels will need to be respected.
If a coastal state engages in ranching of the living resources, the provisions of the UN Convention on the Law of the Sea will need to be considered, especially if the species are anadromous (e.g. salmon) (Art. 66) or catadromous (e.g. eels) (Art. 67). Also if offshore structures are established for aquaculture purposes, these will be subject to control by the coastal state whether they are in the territorial sea (Art. 21) or in the EEZ (Art. 60).
The present study does not intend to give a comprehensive review of the world legislation on aquaculture. This would have required an enormous amount of time and information. Based on the work of the Legislation Branch of FAO and in close collaboration with the UNDP/FAO Aquaculture Development and Coordination Programme (ADCP), the main objective of this paper is a preliminary review of the variety of legal problems raised by aquaculture and its development.
