20. Mr Blaise Kuemlangan, Legal Officer, FAO, Rome, Italy, made a presentation entitled "Legal Considerations for the 1995 FAO Code of Conduct for Responsible Fisheries and Related International Plans of Action". He stated that the Code of Conduct and the related international plans of actions (IPOAs) were voluntary. This meant that they were not legally binding and were intended to facilitate, inter alia, the implementation of other binding fisheries instruments, namely the 1982 United Nations Convention on the Law of the Sea, the 1995 UN Fish Stocks Agreement and the 1993 FAO Compliance Agreement. It was noted that those sections of the Code that reflect binding international instruments should be seen as binding on Parties to those instruments. It was noted that the measures outlined in voluntary instruments could have significant legislative implications. The fact that the Code of Conduct was now referred to in many multilateral and bilateral agreements has increased this prospect. The most meaningful way to implement the Code of Conduct from a legislative point of view was to use it as a reference document in developing legislative provisions for legal frameworks. However, this should not discourage the implementation of the Code and other voluntary instruments by non legislative means. Much could be achieved through informal arrangements for the implementation of the Code. What was important was to begin the process of adapting the Code of Conduct and the IPOAs to the needs of the State for application within national jurisdiction. A copy of the paper on which the presentation was based is attached as Appendix H.
21. The Workshop took note of the status of the Code of Conduct and the relationship it had with other binding and non-binding international fisheries instruments. The Workshop also recognized the essential role of the Code in facilitating policy development and legislative review and revision. It was pointed out that many practical issues were involved in the process of translating the Code's principles and concepts into policy and legislation. These issues may be unique for each country. In this regard, the importance of a clear policy framework was stressed so as to ensure that legislation reflected and supported that policy; indeed, it was acknowledged that if policy was "right" it would greatly assist the development of legislative frameworks that facilitated the attainment of management objectives. It was further noted that the revision of legislation often required consideration of cross-sectoral issues and some non-fisheries legislation. The Workshop agreed that there was considerable merit in attempting to consolidate all issues relevant to fisheries in the principal fisheries legislation.
22. While noting that Pacific Island countries have basic framework legislation in place for fisheries, the Workshop recognized that a lack of legislative frameworks for coastal fisheries and aquaculture management was notable.
23. With respect to ensuring stakeholders' participation in fisheries management and the implementation of legislation, there was increasing awareness in Pacific Island countries of the importance of legislating the requirement to involve stakeholders in decision-making. Such involvement may occur through membership to advisory committees or through community-based fisheries management. In this context, it was noted that some countries already involved stakeholders in the development and review of fishery management plans.
24. The Workshop was advised that some Pacific Island countries had taken steps to implement community-based fisheries management through existing legal frameworks, with considerable success. However, it was stressed that there was no blueprint approach for the development of this type of management and that it was paramount that there be careful consideration of existing governance structures including traditional social structures and institutions in order for community-based fisheries management to take firm root. Developing legislative frameworks might be needed to implement community-based fisheries management but this should be guided by clear policies on the conceptual and operational aspects of such management.
25. It was reiterated that four IPOAs have been concluded by FAO Members within the framework of the Code of Conduct. However, discussion in the Workshop focused primarily on the IPOA-IUU. It was pointed out that the four IPOAs contained provisions relating to the development of national plans of action (NPOAs). They were the mechanisms for implementing the IPOAs. It was pointed out that the NPOAs-IUU should be elaborated by June 2004. The purpose of the NPOAs was to focus national action on IUU fishing in a systematic and coherent manner and to provide the policy framework for subsequent legislative review and revision, as might be required.
26. Participants discussed possible conflict in the objectives of the Code. An example cited was the potential conflict between promoting food security (e.g. increasing production) and the need to achieve responsible resource use (e.g. production reduction). The Workshop recognized this potential for conflict but expressed the firm opinion that the main underlying principle of the Code was that fisheries resources should not be excessively exploited. It was explained that in elaborating fishery policy and in revising fishery legislation, care should be exercised to ensure that objectives were compatible. The Workshop noted that article 4 of the Code provided for, inter alia, updating, making it a "living document". Similarly, it was pointed out that national conditions and policies were likely to change through time and that policy and legislation would require review to reflect such changes. In this way, national fishery policies and legislation should also be seen as being dynamic.
27. The Workshop considered the role of NGOs in promoting the implementation of the Code of Conduct. Participants noted that most fishery administrations in the Pacific Islands took a positive stand with respect to NGOs and their involvement in the fisheries sector, encouraging their constructive engagement in review processes and decision-making. Participants expressed the view that policy, administrative and legislative frameworks should be reviewed and enhanced to ensure an appropriate level of participation by NGOs.
28. The Workshop agreed that NGOs had an important role to play in the fisheries sector, and especially in:
Participating in the review of fishery and aquaculture policy and in the formulation and review of national fishery and aquaculture plans;
Promoting awareness among stakeholders about the need to pursue responsible policies in fisheries and aquaculture. In this connection, the powerful role played by a theatre group in the Pacific Islands was mentioned as a model for promoting and sensitizing communities about important social and economic issues such as responsible fisheries;
Fulfilling a "watchdog" role with respect to policies and measures being implemented by governments, and
Proactively participating in other activities that promoted the health of the fisheries sector (e.g. undertaking checks on water quality, etc.).
