APPENDIX F

1995 FAO Code of Conduct for Responsible Fisheries: Underpinning Concepts, Goals and Principles

David J. Doulman^[5]

ABSTRACT

This paper discusses basic concepts of long-term sustainability and responsibility that underpin the post-UNCED international fisheries instruments including the Code of Conduct for Responsible Fisheries. Significantly, the Code points out that the right to fish carries with it certain obligations to act responsibility; it is no longer morally acceptable to act in a way that denigrates resources in the pursuit of personal gain. The Objectives and General Principles of the Code are also reviewed. They provide the backdrop for the substantive sections of the Code in Articles 7 to 12.

BACKGROUND

The 1995 FAO Code of Conduct for Responsible Fisheries is a voluntary or soft-law instrument. This means that governments and other stakeholders are urged to implement it but, unlike binding or mandatory agreements such as the 1993 FAO Compliance Agreement and the 1995 UN Fish Stocks Agreement, there is no legal obligation for governments to implement them after they have been accepted and after they have entered into force. There is, however, in the case of the Code of Conduct, a moral obligation for governments to take steps to promote responsible and long-term sustainable fisheries.^[6]

CONCEPTS OF RESPONSIBILITY AND SUSTAINABILITY

Since the early 1990s, two important new concepts in fisheries management have emerged and have entered the fisheries vocabulary and practice. These concepts are long-term sustainability (1992) and responsible fisheries (1995). Increasingly, these concepts are used interchangeably to convey the same idea. In this regard, they should be considered mutually reinforcing and aimed at the same goal.

Underlying the achievement of long-term sustainability and responsible fisheries is the assumption that governments are prepared to politically support action to achieve these objectives. In some cases, this requires governments to implement unpopular decisions, including closing fisheries or reducing the fishing effort (i.e., reducing the numbers of fishers and vessels operating in a fishery). In extreme cases, it might mean imposing moratoria on fishing for particular stocks that are threatened and which need rehabilitation. This action has been taken, for example, in the North West Atlantic Ocean for some cod and plaice stocks.

Long-term sustainable fisheries

In the 1980s, concern about the environment and its degradation focused attention sharply on natural resources, including the way in which fisheries resources were being used and misused. This concern led to a number of initiatives, including the 1991 FAO/Netherlands den Bosch Conference on Agriculture and the Environment, which refined and adopted the term sustainable development. It defined sustainable development as:

the management and conservation of the natural resource base and the orientation of technological and institutional change in such a manner as to ensure the attainment and continued satisfaction of human needs for the present and future generations. Such development (in the agriculture, forestry and fisheries sectors) conserves land, water, plant and animal genetic resources; is environmentally non-degrading, technically appropriate, economically viable and socially acceptable.^[7]

The 1992 United Nations Conference on Environment and Development (UNCED), also known as the Earth Summit, set the stage for action in the 1990s and beyond by adopting Agenda 21: A Programme of Action for Sustainable Development. The World Summit on Sustainable Development (WSSD), which was held 10 years after UNCED in Johannesburg in 2002, reinforced Agenda 21 and led to the adoption of the Johannesburg Plan of Implementation (JPI). This Plan is significantly different to Agenda 21 in that it prescribes timetables for the achievement of certain important events. The JPI addresses fisheries issues in an extensive manner. Emphasis is placed on marine fisheries but it also stresses the importance of aquaculture development and small-scale fisheries.

An important outcome of UNCED was the agreement that the concept of long-term sustainability should be the underpinning premise for the use of renewable resources. Moreover, it was recognized that the implementation of policies that facilitate long-term sustainability in fisheries should take into consideration social, cultural, economic, physical and development considerations. In doing so, those policies should focus on two critical elements:

inter-generational equity in terms of access to resources, and
measures designed to regulate the use of resources in order to prevent degradation.

Measures that could improve fisheries management and be used in key action areas are spelled out in Chapter 17 of Agenda 21. This chapter is entitled "Protection of the oceans, all kinds of seas, including enclosed and semi-enclosed seas, and coastal areas and the protection, rational use and development of their living resources." Chapter 17 is divided into the following programme areas^[8]:

integrated management and sustainable development of coastal and marine areas, including exclusive economic zones;
marine environmental protection;
sustainable use and conservation of marine living resources of the high seas;
sustainable use and conservation of marine living resources under national jurisdiction;
addressing critical uncertainties for the management of the marine environment and climate change;
strengthening international (including regional) cooperation and coordination, and
sustainable development of small islands.

Of significance to the promotion and achievement of sustainable fisheries and the implementation of Chapter 17 are Sections 2 and 3 of Agenda 21, which address, respectively, strengthening the role of major groups (i.e., stakeholder participation) and the means of implementation.

Agenda 21, in the post-UNCED period, has stimulated the inclusion of the concept of long-term sustainable management in a number of other international instruments such as the 1995 UN Fish Stocks Agreement and conventions establishing regional fishery management organizations (RFMOs).

The importance of the 1995 FAO Code of Conduct for Responsible Fisheries and its related four international plans of actions (IPOAs) and technical guidelines^[9] that are designed to facilitate the implementation of the Code, are specifically recognized in the JPI^[10]. Significantly, WSSD agreed on specific deadlines for five major fisheries issues:

Development and Implementation of National and Regional Plans of Action to put into effect the IPOA-IUU Fishing by 2004;
Development and Implementation of National and Regional Plans of Action to put into effect the IPOA-Capacity by 2005;
Application of ecosystem approach to fisheries by 2010;
Restoration of depleted fish stocks by 2015, and
Establishment of "representative networks" of marine protected areas by 2012.

These timeframes place an additional and heavy burden on governments, stakeholders and RFMOs in their attempts to improve the way in which fish stocks are used.

Responsible fisheries

The 1995 FAO Code of Conduct for Responsible Fisheries introduced the notion of responsible fisheries. It implies that all those engaged in the fisheries sector, regardless of their different roles, should act in a way that does not prejudice access to resources by current or future generations. In this way, governments, fishers, processors, consumers and other stakeholders are morally challenged and encouraged to take responsibility for their actions, or lack of action, if this leads to resources being depleted. Significantly, the notion of responsibility also conveys the idea that stakeholders should be socially accountable and answerable and act in a trustworthy way.

In the past, little attention was given to the apportionment of blame when a fishery collapsed. This is no longer the case. In the case of a collapse, it is likely that stakeholders will be called on to answer why this situation has occurred. Indeed, the first principle of the Code of Conduct (Article 6) states that:

The right to fish carries with it the obligation to do so in a responsible manner so as to ensure effective conservation and management of the living aquatic resource.

In RFMOs, for example, in the interest of promoting transparency and a franker approach to fisheries management, contracting and non-contracting parties that fail to honour commitments or undermine the work of these organisations are being named in meetings and in the international press (a so-called 'name and shame' approach). Previously, such country naming was not encouraged in RFMOs or other international fora for a in the interests of promoting harmony and cooperation among members. This is no longer the case, and the need to deal effectively with management issues is taking precedence over diplomacy.

OBJECTIVES AND GENERAL PRINCIPLES OF THE CODE

Objectives

The Code of Conduct has 10 objectives that focus on five types of actions. The Code stipulates that the objectives are to be pursued in a manner consistent with international law. This principally means that the Code is to be applied in a manner consistent with the 1982 United Nations Convention on the Law of the Sea (1982 Convention) and other important instruments such as the 1995 United Nation Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (1995 UN Fish Stocks Agreement).

The actions addressed in the Code's objectives are:

to establish principles......;
to serve as an instrument of reference........;
to provide guidance.......;
to facilitate and promote cooperation......;
to promote standards of conduct......

What the objectives seek to do in the Code is to spell out, in a clear and precise manner, the direction in which governments and stakeholders should move as they implement polices and related technical measures to achieve long-term sustainable fisheries.

To move in this direction a government and stakeholders should adopt policies consistent with pre-determined goals (e.g. a reduction of by-catches, rehabilitation of stocks to certain levels, etc.) and, in turn, devise and implement technical measures to achieve these goals.

A government can conclude that it has realized its goal of addressing a particular fisheries problem if the policies and measures that it has put in reduce the incidence of the problem being addressed. Ideally, there should be indicators that can quantify the extent to which goals have been achieved.

General Principles

The General Principles or skeleton of the Code of Conduct provide an introduction to the contents of the substantive issues in Articles 7 to 12. The General Principles summarize the essential elements of those articles. The substantive articles of the Code provide the flesh to cover and fill out the skeleton.

The General Principles, and indeed the other articles of the Code, are presented in the conditional tense (i.e. States should..... act in a particular way). This is because the Code is a voluntary instrument. Although there are no sanctions imposed for not acting in a particular way or in adhering to the Code's prescriptions, the weight of moral persuasion serves to encourage responsible behaviour and action.

In contrast, in non-voluntary instruments such as the 1993 FAO Compliance Agreement or the 1995 UN Fish Stocks Agreement, States accepting these instruments do so by making a formal commitment. As a consequence, States are obligated (i.e. States shall or will..... act in a particular way) to undertake certain activities or to refrain from certain actions as a means of fulfilling their obligations under such agreements.

The General Principles of the Code of Conduct has 19 sub-clauses. In implementing the Code, the General Principles urge that States should:

conserve aquatic ecosystems, recognizing that the right to fish carries with it an obligation to act responsibly;
promote the interests of food security, taking account of inter-generational considerations;
prevent overfishing and excess fishing capacity;
base management decisions on the best scientific advice available;
apply the precautionary approach;
develop further selective and environmentally safe fishing gear;
maintain the nutritional value, quality and safety of fish products;
protect and rehabilitate critical fishery habitats;
ensure fisheries interests are accommodated in the multiple use of coastal zones;
ensure compliance with conservation and management measures;
exercise effective flag State control;
cooperate through regional fishery organizations;
ensure that decision making is transparent;
conduct international fish trade in accordance with internationally agreed standards and instrument;
cooperate to prevent disputes;
promote awareness of responsible fisheries through education and training;
ensure that fishing facilities are safe and healthy, and that fair working and living conditions prevail;
protect the rights of fisheries and fishworkers; and
promote the diversification of income and diet, through aquaculture.

It would be difficult to find argument with the substance of the General Principles since in many respects they represent motherhood statements; that is, statements that are applicable to all for the general good of all. The General Principles propose actions that are deemed to be necessary to achieve responsible and sustainable resource management. However, it should be remembered that:

There are no unique or correct measures to be adopted to implement the General Principles, and differences in localities and fisheries will need to be taken into account (e.g. management measures will differ between small-scale and industrial fisheries, and even for industrial and small-scale fisheries in the same region); and
Disagreement could result concerning the choice of the most appropriate management measures to be employed. For example, a range of different measures is available to protect and rehabilitate critical habitats. Measures adopted range from seasonal closures of areas, where spawning takes place (i.e. a temporary/annual suspension of fishing) to permanent closures, and the designation of locations as marine protected areas (i.e. permanent suspension of fishing). The measures selected, for example, are likely to vary depending on local conditions, resource characteristics and the severity of the problems encountered.

CONCLUSION

Fisheries resources should be managed in a long-term sustainable and responsible if future generations are to have access to them in the same abundance as current generations and if resource degradation is to be avoided. The Code sets out clearly defined Objectives that provide the targets that governments and stakeholders should seek to achieve through the conservation and management measures they put in place. The General Principles, in turn, provide a basis for action to achieve the Objectives and responsible outcomes. However, it should be noted that there is no unique road map for the achievement of such outcomes, and, indeed there is likely to be controversy about what route to take. Consultation with stakeholders, taking into account particular social, economic and environmental considerations is required when management arrangements are being devised for a fishery. These sometimes competing considerations should be balanced among stakeholders and the need for action to achieve sustainable solutions.

^[5] The author is Senior Fishery Liaison Officer, Fishery Policy and Planning Division, Fisheries Department, FAO, Rome, Italy. The views expressed in the paper are those of the author and do not necessarily reflect the views of FAO or any of its Members.
^[6] In this paper the term 'fisheries' refers, as appropriate, to 'aquaculture'.
^[7] FAO. (1991). The den Bosch declaration and agenda for action on sustainable agriculture and rural development. FAO. Rome. 63 pages.
^[8] Each of the programme areas addresses:

· objectives;

· activities (including the management of related activities, data and information, and international and regional cooperation and coordination); and

· means of implementation (financing and cost evaluation, scientific and technological means, human resource development and capacity building).

^[9] The Technical Guidelines so far published (July 2003) have addressed:

1. Fishing operations;

1.1 Fishing operations: vessel monitoring systems;

2. Precautionary approach to capture fisheries and species introductions;

3. Integration of fisheries into coastal area management;

4. Fisheries management;

4.1 Fisheries management: conservation and management of sharks;

4.2 Fisheries management: the ecosystem approach to fisheries;

5. Aquaculture development;

5.1 Aquaculture development: good aquaculture feed manufacturing practice;

6. Inland fisheries;

7. Responsible fish utilization;

8. Indicators for sustainable development of marine capture fisheries;

9. Implementation of the international plan of action to prevent, deter and eliminate illegal, unreported and unregulated fishing.

Further technical guidelines to address other important issues (e.g. management of small-scale fisheries and the implementation of the IPOA-capacity) will be prepared and distributed.
^[10] The JPI identified a number of actions in the area of institutional policies that would bolster its implementation, and highlighted the strengthening of national and regional capacity in marine science and management, as required action. There were no references to fisheries trade issues or to the financial resources required to facilitate the implementation of the fisheries components of the Plan.