G. 1995 FAO Code of Conduct for Responsible Fisheries: development considerations and implementation challenges

David J. Doulman
Fisheries Department
FAO, Rome, Italy

BACKGROUND

The concept of a code of conduct for responsible fisheries and the possibility of elaborating guidelines or a code of practice was first mooted at the Nineteenth Session of the Committee on Fisheries (COFI) in 1991 within the context of its deliberations concerning large-scale pelagic driftnet fishing.^[1] In this connection, COFI recognized that FAO " ... had an important role to play in promoting international understanding about the responsible conduct of fishing operations and recommended that FAO should strengthen its work on gear selectivity and behaviour of marine animals in relation to fishing gear particularly but not exclusively those types of fishing gear which are employed in high seas fisheries. Such technical work could result in the elaboration of guidelines or a code of practice for responsible fishing which would take into account all the technical, socio-economic and environmental factors involved." It was in this manner that the concept of, and the need for, a Code of Conduct for Responsible Fisheries was conceived.

Responding to the call from COFI, the Government of Mexico in consultation with FAO organized the International Conference on Responsible Fishing in Cancún in May 1992.^[2] The objectives of this Conference were threefold to.^[3]

• attain consensus on the need to establish a fishing activities code of conduct which would lead towards responsible fishing principles and which would be observed by producer and consumer countries;

• analyze the research and technological development needs for the best use of resources and their preservation, without damaging the environment, and to explore ways to attain technology transfer and technological and scientific cooperation; and

• propose criteria to be used in defining the adequate approaches for responsible fishing and the commercial practices that could offer the consumer access to quality fish at a fair price.

The Conference was well attended with representatives from more than 60 countries and the European Community. In addition, representatives from key intergovernmental organizations, non-governmental organizations (NGOs) and regional fishery management organizations (RFMOs), participated. The Conference considered background papers focusing on the world’s fisheries situation; fishery resources and their environment, management and development; fish capture activities, and fish trade.

The Conference adopted the Declaration of Cancún. It noted, inter alia, the vital need for fishing to continue and to develop within a comprehensive and balanced system under the concept of "responsible fishing". The Declaration further noted that this concept encompassed the:

• sustainable utilization of fisheries resources in harmony with the environment;

• use of capture and aquaculture practices that are not harmful to ecosystems, resources or their quality;

• incorporation of added value to such products through transformation processes meeting the required sanitary standards; and

• conduct of commercial practices to provide consumers access to good quality products.

The Declaration urged States to implement a wide range of measures as a means of achieving sustainable fisheries. Finally, the Declaration, inter alia, called upon FAO, in consultation with relevant international organizations, to draft an International Code of Conduct for Responsible Fishing.

Significantly, the Cancún Conference provided input to the 1992 United Nations Conference on Environment and Development (UNCED), or Earth Summit, that was held shortly after the Cancún Conference. UNCED hastened the process within FAO to address issues relating to responsible fisheries as a result of the adoption of Agenda 21: The United Nations Programme of Action from Rio.

In 1993 the Twentieth Session of COFI noted that the FAO Council in November 1991 had already endorsed the request made in the Declaration of Cancún for FAO to elaborate, in consultation with relevant international organizations, a Code of Conduct for Responsible Fisheries.^[4] COFI agreed that such a Code would be important for achieving sustainable fisheries development. At the same time COFI expressed satisfaction that FAO would contribute in a technical and scientific capacity to the UN Fish Stocks Conference. The Committee also agreed that the negotiation of the Compliance Agreement should be kept on a "fast track", while reiterating that flagging issues would be among the issues to be covered by the Code.^[5]

The scope and the process of elaboration of the Code were major items for discussion at the 1995 Twenty-first Session of COFI. The Committee stressed the importance of the Code as an instrument to support the implementation of the 1982 Convention on the Law of the Sea (1982 Convention) as well as the fisheries outcomes of UNCED. COFI also noted that technical guidelines would be developed by FAO to support and facilitate the Code’s implementation.^[6]

The Code’s elaboration was largely achieved through open-ended technical working groups. All of these working groups met at FAO Headquarters in Rome.^[7] Open-ended groups were convened so as to encourage as wider participation as possible in the negotiation process. Recognizing the financial difficulty that many developing countries had in participating in the work of these groups, FAO supported the participation of some countries at meetings with a view to maintaining regional representation and balance. Moreover, in the elaboration process close relations between FAO and international NGOs were encouraged. Many of these NGOs made sustained and important technical contributions to the elaboration process. This participation and transparency was highly appreciated both by FAO Members and the international NGO community.

At the 1997 Twenty-second Session of COFI, the Code of Conduct was addressed as a substantive item. In considering this item the Committee focused, to a significant extent, on securing funding to support the implementation of the Code in developing countries and on monitoring and reporting on its implementation. COFI agreed that progress reports should be presented to the Committee at each session. These reports would address achievements and progress with implementation. Governments and civil society would be requested to provide information to FAO on progress achieved with national implementation through the use of a questionnaire. This information would then be incorporated into a consolidated report for COFI.^[8]

SCOPE AND OBJECTIVES

The Code’s scope is broad and comprehensive. It prescribes principles and standards for the conservation and management of all fisheries, and to this end, the Code addresses the capture, processing and trade in fish and fishery products, fishing operations, aquaculture, fisheries research and the integration of fisheries into coastal area management. Moreover, the Code takes cognisance of the state of world fisheries and aquaculture, and proposes actions towards implementing fundamental changes within the fisheries sector to encourage sustainable utilization of fisheries and aquaculture, as envisaged by COFI when the Code was proposed and Agenda 21.

The rationale underpinning the Code is the notion that structural adjustment within the fisheries sector is required if long-term sustainability goals are to be realized. Moreover, the Code recognizes that while policy decisions concerning the changes aimed at achieving sustainability rest firmly with governments, the effective implementation of the Code requires wide stakeholder participation and cooperation (i.e. from fishermen, processors, NGOs to consumers).

The Code’s objectives are in Article 2. The objectives are to:

• establish principles, in accordance with the relevant rules of international law, for responsible fishing and fisheries activities, taking into account all their relevant biological, technological, economic, social, environmental and commercial aspects;

• establish principles and criteria for the elaboration and implementation of national policies for responsible conservation of fisheries resources and fisheries management and development;

• serve as an instrument of reference to help States to establish or to improve the legal and institutional framework required for the exercise of responsible fisheries and in the formulation and implementation of appropriate measures;

• provide guidance which may be used where appropriate in the formulation and implementation of international agreements and other legal instruments, both binding and voluntary;

• facilitate and promote technical, financial and other cooperation in conservation of fisheries resources and fisheries management and development;

• promote the contribution of fisheries to food security and food quality, giving priority to the nutritional needs of local communities;

• promote protection of living aquatic resources and their environments and coastal areas;

• promote the trade of fish and fishery products in conformity with relevant international rules and avoid the use of measures that constitute hidden barriers to such trade;

• promote research on fisheries as well as on associated ecosystems and relevant environmental factors; and

• provide standards of conduct for all persons involved in the fisheries sector.

STRUCTURE

The Code is a voluntary instrument. In total, the Code has 12 articles and two annexes. Articles 1 to 5 cover, respectively, the nature and scope of the Code, objectives, the relationship with other international instruments, implementation, monitoring and updating, and the special requirements of developing countries.

The substantive articles of the Code are found in Articles 6 to 12. These articles are:

• Article 6 General Principles;

• Article 7 Fisheries Management;

• Article 8 Fishing Operations;

• Article 9 Aquaculture Development;

• Article 10 Integration of Fisheries into Coastal Area Management;

• Article 11 Post-harvest Practices and Trade; and

• Article 12 Fisheries Research.

The Code’s two annexes provide respectively, background information on the elaboration of the Code and the text of FAO Conference Resolution 4/95 concerning the adoption of the Code.

Resolution 4/95, recalling Article 5 of the Code, urged that the special requirements of developing countries be taken into account in implementing its provisions. The resolution also requested FAO to elaborate an interregional programme for external assistance for these countries.^[9] The purpose of this programme is to target the upgrading of developing countries’ capabilities so that they would be better placed to meet their obligations under the Code. Unfortunately, FAO has not met with great success in securing trust funds to support the inter-regional programme.

RELATIONSHIP WITH OTHER RECENT FISHERY INSTRUMENTS

The Code is closely related to several other fishery instruments and it serves, in different ways, to re-enforce and support their goals and purpose.^[10] To this extent the Code and these other instruments, which have similar overall goals but more limited foci, can be viewed as a package designed to confront fisheries and aquaculture problems at different levels and on different fronts. These instruments include the 1993 FAO Compliance Agreement, the 1995 UN Fish Stocks Agreement and the international plans of action (IPOAs) dealing with the:

• incidental catch of seabirds in longline fisheries;

• conservation and management of sharks;

• management of fishing capacity,

• prevention, deterrence and elimination of illegal, unreported and unregulated fishing; and

• improving information on the status and trends in capture fisheries.

1993 FAO Compliance Agreement

The 1993 FAO Compliance Agreement is an integral component of the Code, even though it has a different legal status to the Code.^[11] Currently, 28 States and the European Community have accepted the Compliance Agreement^[12]. The Agreement will enter into force on the date of receipt by the Director-General of FAO of the twenty-fifth instrument of acceptance.

The purpose of the Agreement is to permit countries to take effective action, consistent with international law, to deter the reflagging of vessels by their nationals as a means of avoiding compliance with high seas conservation and management measures. This means that countries that have accepted the Agreement are obligated to ensure that their flag vessels operating on the high seas are duly authorized to fish there. Such authorization should, as a result, enhance flag State control in high-seas fisheries and enable these fisheries to be more effectively managed.

1995 UN Fish Stocks Agreement

The Code, because of its application to all fisheries, reinforces the principles and provisions of the 1995 UN Fish Stocks Agreement with respect to the conservation and management of straddling fish stocks and highly migratory fish stocks. If effectively implemented in tandem, the Code of Conduct and the 1995 UN Fish Stocks Agreement should enhance the long-term status of these two types of stocks.

International plans of action and strategy

To date four IPOAs and one strategy have been concluded within the framework of the Code. These IPOAs and strategy support the Code’s fundamental trusts and intent while focusing on specific fisheries management issues.

The IPOAs target specific fishery conservation and management issues that have been identified by the international community as requiring urgent attention. The IPOAs for the management of fishing capacity and IUU fishing, in particular, address directly and indirectly, issues of fundamental concern such as overfishing and the need to rebuild fish stocks. The IPOAs on the conservation and management of sharks and incidental catches of seabirds in longline fisheries focus on rebuilding depleted stocks and the minimization of waste in fisheries. These issues, among others, and the need to address them in a timely and coherent manner were identified in the 1995 Rome Consensus as being critical to improving sustainability.

The Strategy for Improving Information on Status and Trends of Capture Fisheries (Strategy-STF), endorsed by the FAO Council in 2003, is a voluntary instrument that applies to all States and entities. Its overall objective is to provide a framework, strategy and plan for the improvement of knowledge and understanding of fishery status and trends as a basis for fisheries policy-making and management for the conservation and sustainable use of fishery resources within ecosystems.

IMPLEMENTATION

In adopting the Code of Conduct in 1995 the FAO Conference made a call to all those involved in the fisheries sector, including both FAO and non-FAO Members, intergovernmental organizations and NGOs, industry and fishers to collaborate in the fulfilment and implementation of the Code’s objectives and principles.

This call by the Conference has been heeded and is gaining strength. FAO, countries, RFMOs, industry, NGOs and academia have, individually and jointly, initiated activities in line with the Code’s principles to facilitate sustainable fisheries. The results of these activities are already apparent in some cases with notable improvements in the way in which some fish stocks are utilized. However, rapid adjustment and change in the fisheries sector, as a consequence of steps taken to implement the Code, are unlikely to result, nor indeed should they be expected. Rather, progress towards implementation of the Code, and the benefits generated from policies and measures adopted by governments to facilitate sustainability, are more likely to yield phased and incremental results.

Food and Agriculture Organization

FAO has a responsibility to globally facilitate the implementation of the Code and to technically support national and regional initiatives towards this end. In this respect, FAO has a critical catalytic role to play in the implementation process but the Organization does not implement the Code per se. This point is sometimes not clearly understood, and there is a perception that FAO is responsible for the implementation of the Code.

FAO’s promotional role focuses on a number of different, but related, activities. These initiatives accord with instructions from FAO's Governing Bodies in relation to supporting the wide dissemination and implementation of the Code. The initiatives include, not in priority order:

• Dissemination of text of the Code through FAO's work with governments and civil society. The Code and its guidelines have been distributed in FAO’s five official languages. Furthermore, FAO co-operated with other partners to facilitate dissemination of the Code in non-official languages. The Code is available in more than 50 languages making it the most translated FAO document ever.

• FAO worked with the UN Division of Ocean Affairs and Law of the Sea to produce a consolidated document including the Code, 1993 FAO Compliance Agreement, and 1995 UN Fish Stocks Agreement. This document also has a cross-referenced index for the three instruments.

• FAO staff, while undertaking routine duty travel, serve to promote awareness of the Code and its implementation at every opportunity.

• The dissemination of a CD-ROM containing all documents relating to the Code of Conduct.

• FAO Members have been encouraged to accept the 1993 FAO Compliance Agreement. Circular State letters to this effect have been despatched on several occasions. FAO’s efforts to urge acceptance of the Agreement continues.

• At all meetings of FAO regional fishery bodies the Code has been addressed. The meetings are utilized as a vehicle for promoting the Code and for obtaining feedback on national initiatives already underway towards implementation, and difficulties being encountered. FAO is also actively promoting the implementation of the Code through non-FAO fishery bodies.

• Establishment of an Internet Website on the Fisheries Department Home Page to facilitate public access to the Code of Conduct and the 1993 FAO Compliance Agreement. Some FAO Members have also established sites for their national programmes. The FAO Page has links to these national sites.

• Elaboration of FAO technical guidelines to support the Code’s implementation. These guidelines are intended to provide practical guidance and advice for policy makers and fisheries managers on how to implement the Code.

• An interregional programme of assistance, known as FishCode, to support the Code's implementation in developing countries.

• FAO is working with the UK Government on a major project in 24 West African countries. The project is designed to promote the sustainable livelihoods of poor coastal and riparian countries in Sub-Saharan Africa through the implementation of the Code.

• FAO facilitates regional workshops to disseminate and support the implementation of the Code. These workshops depend on extra-budgetary funding. The Organization also technically supports national Code workshops when this is possible.

• On an ongoing basis FAO assists Members to develop fishery management plans, to improve regulatory frameworks etc, with a view to securing sustainable fisheries. The incorporation of critical elements of the Code into national plans greatly serves to facilitate national implementation.

• FAO is focusing on a range of other activities that indirectly foster the Code’s implementation, and in turn the monitoring of its implementation. These activities include the elaboration of indicators of sustainability for aquaculture and capture fisheries; the strengthening of national regional and global information systems on fishery and aquaculture production systems and resources. FAO also provides assistance to Members in their effort to implement the Code and through its field programme.

An important feature of FAO’s work in implementing the Code of Conduct is that it provides a clear, but dynamic framework, in which to focus the Fisheries Department's programme of work and budget. Although FAO has worked for decades on projects and programmes to facilitate better fisheries management, the adoption of the Code provided an umbrella under which all the Department’s activities could be pulled together. This situation has encouraged, and indeed led to, enhanced coordination of activities in the Department.

FAO faces a number of constraints with respect to its efforts to promote the implementation of the Code. The constraints affect the pace and extent to which implementation might be facilitated. Two of the more important constraints include the rate of dissemination of the Code and a lack of awareness of it in fishing communities and FAO’s inability to secure trust funds to support the inter-regional programme.

Regional initiatives

The Code of Conduct is a global document and as such does not take account of all regional and fishery specificities. Indeed, when the Code was being negotiated FAO and its Members recognized this point. Consequently, it was acknowledged that to meet the particular fishery needs of different regions and fishery sub-sectors (e.g. inland fisheries), regional and sectoral implementation would be desirable. However, such regional and sectoral implementation should not violate the spirit and intent of the Code but rather serve to enhance and strengthen it.

FAO views regional and sectoral implementation in a positive light because it will yield benefits that will, in turn, positively impact implementation. Some of these benefits that are anticipated include:

• a sense of direct participation in the implementation process by stakeholders;

• Identification of specific regional and sectoral problems and priorities, including those relating to different fisheries, gear, management practice, fishery enhancement techniques and aquaculture development;

• identification of additional areas that are not specifically or sufficiently addressed by the Code, when these areas are regionally or sectorally important;

• identification of major "local" constraints to the Code’s implementation together with approaches to address these constraints; and

• elaboration of regional and sectoral regional strategies (including the possibility of preparing technical guidelines) to assist with the implementation of the Code in local languages. This is likely to be very important among fishery communities in developing countries.

At the regional and sectoral levels, both FAO and non-FAO regional fishery bodies (RFBs) have important roles to play in promoting the Code’s implementation. The mounting of regional workshops to disseminate information about the Code and launching activities designed to facilitate implementation are considered by FAO and its Members to be key initiatives. It is highly encouraging that non-FAO RFBs, of their own volition, are taking steps to implement parts of the Code.

Regional and sectoral implementation of the Code is hampered, in some instances, by a reluctance of RFBs to embrace the Code and by a failure of countries to implement measures that have been agreed regionally. Moreover, enhanced collaboration among RFBs is being encouraged. In view of the benefits stemming from this collaboration, FAO will continue to facilitate both formal and informal contacts among these bodies.

National activities

A fundamental concept underlying the implementation of the Code is the assumption that governments want better and responsibly managed fisheries, and that they are prepared to take difficult decisions, in the short-term, as a means of attaining longer-term sustainability gains. However, this assumption may be somewhat naive, since governments may have short planning and policy horizons. Under these circumstances, governments may seek to minimize social and economic disruption through their fishery policy interventions, even when it is recognized that such intervention is required to improve conditions in the sector. It is for this reason that technical advice concerning fisheries management and the policy decisions taken by governments concerning management often fail to intermesh.

In implementing the Code of Conduct, FAO encourages national fishery administrations to work with all stakeholders in the sector to promote the changes required towards long-term sustainability.

In large-scale fisheries, industry has a prominent role in implementing the Code. This role focuses on trying to ensure that industry complies with measures adopted. Such compliance will reduce significantly MCS costs, irrespective of whether they are paid for by government or industry itself.

In contrast, in artisanal and small-scale capture fisheries, fishing communities themselves (through community-based approaches to management) and NGOs are encouraged to promote and support the Code's implementation.

In response to COFI directives in 1997 concerning the need for FAO to monitor the implementation of the Code, FAO reported to the Committee in a substantive manner at the 1999, 2001 and 2003 Sessions of COFI. These reports consolidated and analyzed the self-assessment information provided to FAO by its Members.

In the most recent report to COFI in 2003, 105 FAO Members (57 percent of the FAO Membership) responded to the questionnaire. For this report there was a marked increase in reporting by Members that had not responded previously. In their responses Members identified constraints in implementing the Code. These constraints included:

• a lack of political will to support implementation;

• fisheries not being assigned high priority nationally because of their small economic contribution and the fisheries sector being poorly organized;

• open-access fisheries that are not subject to management leading to high levels of overfishing;

• insufficient attention to the development of management plans and the application of the precautionary approach;

• strong social and economic pressures on fisheries including vulnerability to poverty and a lack of alternative employment opportunities for fishing communities;

• inadequate resources (funds, trained personnel, equipment, research capabilities and facilities);

• poor levels of scientific research;

• weak institutional capacity (including poor national inter-agency coordination);

• conflicts between artisanal and industrial fishers;

• poor and inappropriate policy and legal frameworks;

• poorly developed MCS;

• lack of fishers participation in decision making concerning management;

• lack of awareness by stakeholders (including officials) about the Code and what it means for fishing communities leading to a lack of cooperation and irresponsible behaviour;

• persistent IUU fishing;

• a lack of adaptation of the Code to meet local needs;

• insufficient copies of the Code and related instruments for distribution; and

• a lack of availability of documents in local languages.

Solutions suggested by Members in their responses to the questionnaire included:

• additional technical support from FAO and the international donor community to strengthen capacity and institutions (including training and the mounting of meetings to disseminate information about the Code to officials and other stakeholders);

• improved national inter-agency cooperation concerning the implementation of the Code;

• expansion of vessel buy-back programmes and industry restructuring arrangements to reduce fishing capacity;

• enhanced research capacity with the possibility of emphasis on twinning arrangements;

• implement plans for the recovery of over-exploited stocks;

• placement of observers on vessels the implementation of better fisheries management that control fishing effort;

• greater emphasis on social and economic aspects of fisheries management;

• initiate policy and legislation reviews to incorporate elements of the Code;

• improve MCS systems;

• promote alternative employment opportunities for fishers;

• translation of the Code and related instruments into local languages so as to deepen dissemination and awareness building;

• ensure that adequate copies of the Code are available in country;

• campaigns to create greater awareness about the Code to improve education and outreach including stakeholders to better organize themselves;

• develop technical guidelines for small-scale fisheries management;

• support for stronger NGOs involvement in the implementation of the Code; and

• facilitation of cooperation among fishers and national and regional organizations concerned with fisheries management.

Importantly all the reports tabled at COFI have noted that training and capacity building remain major preoccupations and priorities in most developing countries with respect to the implementation of the Code. Countries have also indicated that the lack of financial resources constrain implementation.

In considering national efforts to implement the Code, COFI has emphasized that the Code is an important basic instrument to facilitate sustainable utilization of fishery resources and hence to contribute to food security and wellbeing of people. Among other proposals, COFI requested FAO to assist further with the implementation of the Code through the provision of Code-related materials and through organizing workshops. Attention has been drawn to the large number of illiterate fishers in many countries and it has been suggested that suitable vehicles should be developed, such as audio-visual material, for informing such people of the Code and its objectives. FAO has attempted to address this issue through the preparation of a video and documents in non-technical language.

CONCLUSION

The 1995 FAO Code of Conduct for Responsible Fisheries seeks to facilitate change and adjustment in the fisheries sector as a means of ensuring that resources are utilized in a long-term sustainable manner. Comprehensive and integrated in nature, and intended to be implemented in a holistic manner, the Code addresses all aspects of fishery practice. While not only recognizing that the implementation of the Code must take account of the inter-relatedness of the various sub-sectors of the fisheries sector, the Code underscores the critical nutritional, economic, social, environmental and culturally important role fisheries play in artisanal and industrial fishing communities.

The effective implementation of the Code is a major challenge for all stakeholders in the sector. Implementation requires that problems are realistically assessed and national policies put in place to deal with them. In many cases these tasks involve difficult policy decisions for governments, especially where it is necessary to limit or reduce levels of fishing effort. In developing countries a lack of technical capacity hinders efforts to address issues of sustainability, and bilateral and multilateral technical assistance will need to be continued, and boosted, in order to strengthen capacity.

The implementation of the Code should not viewed in isolation. Indeed, as noted above, it serves to complement other recently concluded international instruments - notably the 1993 FAO Compliance Agreement, the 1995 UN Fish Stocks Agreement, the IPOAs and the Strategy. Indeed, from a fisheries conservation and management perspective these instruments might be best seen as a package. The successful implementation of these instruments should go a long way to addressing, if not resolving, most of the major problems that lead to unsustainable practices in the fisheries sector.

The implementation of the Code will be improved if:

• additional technical guidelines to support the implementation of the Code are prepared and translated into the official FAO and other languages. Translation of guidelines into local languages by NGOs and other stakeholders is encouraged as a means of transmitting this information to fishing communities. The type of information contained in the guidelines may need to be reviewed so that they contain more action-orientated activities in order to achieve the Code’s objectives;

• additional extra-budgetary funding is available to support implementation of the Code;

• the Code’s principles and articles are articulated in national fisheries policy, and, as appropriate, legislation;

• more effective monitoring indicators for the Code at the national, regional and global levels are elaborated by FAO in consultation with its partners. This will permit better assessments to be made as to the extent of the Code’s implementation and its impact on sustainability.

FAO is in a position to focus on, and influence, some of these issues but efforts by governments and stakeholders are also required.