‘Unlocking’ some legal and policy frameworks for small-scale fisheries

Prepared byJulia N. Nakamura, Moustafa El Halimi, Nhat Lihn Vu, Eric Opoku, Danielle Medeiros, and Vesna Kerezi

The more small-scale fishers and those working with them understand what legislation and policy provide for, the better are the chances for implementing the SSF Guidelines and making valuable opportunities, which small-scale fishers and communities can benefit from. While the current focus of States is on the global Covid-19 crisis, this situation cannot be used as an excuse by States to leave vulnerable and marginalised small-scale fisheries behind.

Law can bring powerful and firm grounds to small-scale fisheries or, in other words, some assurance during the sea of uncertainties challenging small-scale fisheries in the time of Covid-19. Whichever political, legal and/or customary system a country may have, law offers an important legal ground for small-scale fishers to seek formal recognition and protection of their rights while ensuring the burden of applicable duties does not fall disproportionate on their end. Policy is another fundamental instrument that can be used to draw attention of government and relevant authorities to small-scale fisheries issues, periodically setting out priorities, objectives, strategies and plans, which small-scale fishers can benefit from. While more flexible and non-formally binding, policy is regularly updated, offering greater opportunities to address emerging societal needs, especially during the current Covid-19 crisis.

Since the endorsement of the Voluntary Guidelines for Securing Sustainable Small-Scale Fisheries in the Context of Food Security and Poverty Eradication (SSF Guidelines) by the Committee on Fisheries of the Food and Agriculture Organization of the United Nations (FAO) in 2014, the collective efforts of States and a wide-range of stakeholders, including the Too Big To Ignore Global Partnership for Small-Scale Fisheries Research (TBTI), have been focused on its implementation. The numerous issues concerning small-scale fisheries, which law and policy should provide for are presented in the instrument but have not been examined from the legal perspective. In light of this need, we conducted a targeted analysis of fisheries legislations and policies in some regions of the word with the aim of ‘unlocking’ some countries’ legal and policy frameworks and build on a preliminary understanding of how they address small-scale fisheries matters and related issues.

The work for this research was performed by a group of international students at Memorial University, hired through the Covid-19 Job Initiative, a joint strategy, funded and facilitated by TBTI, Ocean Frontier Institute's research Module I 'Informing Governance Responses in a Changing Ocean' and Nippon Foundation Nereus Program, to help alleviate the precarious situations that they find themselves in due to Covid-19 pandemic. Through desk study research, the students collected laws, information, legal and policy instruments, including constitutions, legislations, regulations, decisions and fisheries management plans, covering 21 countries across Africa (Algeria, Angola, Egypt, Gambia, Ghana, Kenya, Lesotho, Libya, Morocco, Mozambique, Nigeria and Tunisia), Asia (Cambodia, Indonesia, Malaysia, Philippines, Singapore, Thailand and Vietnam), Caribbean (Jamaica), and Europe (France and Portugal). A more detailed account of the country-based legal policy analysis, including the findings of the analysis of the relevant issues raised in the SSF Guidelines, will be published in the upcoming TBTI Research Report.

Over 90 legal and/or policy instruments were found using FAOLEX database and relevant government websites. Some of these were selected for an analysis of their coverage of small-scale fisheries and related issues. A more detailed subsequent analysis vis-à-vis the relevant issues raised in the SSF Guidelines has brought about important findings, which provide better understanding of small-scale fisheries, from both legal- and policy- standpoints. Some of the findings, i.e. examples of issues relevant for small-scale fisheries found in national legislation and policies are highlighted below.

Of particular relevance at the international law level, is the fact that Thailand was the first country in Asia to ratify, on 30 January 2019, the International Labour Organization (ILO)’s Work in Fishing Convention No. 188, 2007, which protects the living and working conditions of fishers on board vessels. This convention covers minimum requirements for work on board, conditions of service, accommodation and food, occupational safety and health protection, medical care and social security for all fishers. Out of the countries covered by this research, France and Morocco are parties to this treaty as well. Portugal has ratified it too, but such ILO convention will only enter into force for this country on 26 November 2020.

Legislation for small-scale fisheries

In Algeria, a coastal fishing zone extending up to three nautical miles is reserved for the exclusive use of small-scale fishing vessels with a capacity of no more than 50 gross tonnage (Executive Decree No. 96/121, 1996).

In Ghana, the relevant legislation provides the definition of ‘artisanal fishing’ as the ‘traditional canoe fishing carried on by a citizen’ while ‘small local semi-industrial vessel’ means ‘a local fishing vessel of a length below 10 metres’ (Fisheries Act No. 625, 2002, sec. 140). There is a Fisheries Commission with a specific authority to protect and promote artisanal and semi-industrial fishing, including provision of extension and training services, registration of artisanal fishing vessels, promotion of artisanal fishing landing facilities, establishment of reserved areas for artisanal and semi-industrial fishing vessels and giving priority to artisanal and semi-industrial fishing in the allocation of fishing licenses or quotas (Fisheries Act No. 625, 2002, sec. 51).

In Morocco, the definition of small-scale fisheries was found in an old maritime legislation, which describes it as ‘usually exercised at a distance less than thirty miles from the coast by vessels of gross tonnage less than or equal to fifty tons’ (Maritime Commercial Code, 1919, art. 52). There are Chambers of Marine Fisheries, whose elected members include small-scale and artisanal fishers representatives, which are integrated into participatory decision-making processes concerning small-scale and artisanal fisheries (Dahir No. 1-97-88, 1997). Another important Moroccan law for small-scale fisheries has been enacted with objectives of preserving diversity and quality of fishery products, protection of cultural heritage linked to them, recognition of their origin characteristics, production methods, traditional knowledge, and enhancing the benefits of local operators (Dahir No. 1-08-56, 2008). It is worth noting the Morocco’s development fund for fisheries development, which covers a plan aimed at the sustainability, performance, competitiveness, governance and capacity-building of the fisheries sector, as something that small-scale fisheries can benefit from (Dahir No. 1-08-147, 2008).

In Mozambique, a National Institute of Fisheries and Aquaculture Development was created with the mandate to, among other responsibilities, develop statistical studies on fishing activities and for infra-structure development in support of small-scale fisheries. These include proposals of policies, strategies, plans and programs for the development of fisheries with emphasis on small-scale fisheries, and an undertaking and coordination of research and other related activities with the direct participation of local governmental bodies, fishing communities and small-scale aquaculturists (Decree No. 3, 2016, art. 5).

In the Philippines, the Municipal waters are reserved for small-scale fishers (Fisheries Code, 1998). A recently adopted act promotes the mechanization of the fisheries sector (Republic Act No. 10601, 2013), thereby covering small-scale fisheries that may need technical capacity to improve their value-chains, post-harvesting and trade activities.

In Thailand, the main fisheries law reserves the coastal waters (3 nautical miles) to small-scale fishing activities and provides for a licensing scheme, which distinguishes small-scale fishing licenses from commercial fishing licenses (Royal Ordinance on Fisheries B.E. 2558, 2015). These provisions help protect small-scale fisheries from resources competition with large-scale fisheries and other ocean users. Another Thai regulation offers some safety at sea requirements for fishers, which apply to small-scale fishers, prohibiting the employer to hire a person under 18 years of age to work in a fishing boat, requiring the employer to pay wage and provide holiday correctly as well as to supply workers with adequate hygienic food and drinking water, toilet, medical supplies and medicine for basic first aid and for work and living on fishing boat (Ministerial Regulation on Labour Protection in Sea Fishery Work, 2014). Though in broad terms, issues of gender equality in small-scale fisheries are captured in a recently adopted legislation, which protects all individuals from gender-based discrimination (Gender Equality Act, 2015).

In Vietnam, small-scale fishing vessels include those with length less than 6 meters, which, in turn, are exempted from the requirement to obtain a fishing license but must be registered with the village office for administrative purposes (Law on Fisheries 18/2017/QH14, 2017).

Policies for small-scale fisheries

In Algeria, the national fisheries and aquaculture development strategy (Aquapeche 2015-2020) promotes sustainability and participatory management in fisheries. It sets out the creation of secure and protected landing sites to allocate small-scale fishing activities and allow them to co-manage those sites. It also fosters capacity development through training and decentralization to better organize and improve the wellbeing of small-scale fishers and facilitate their integration into the local economy.

In Europe, there is a special fund for the fisheries sector, which, since earlier years (European Fisheries Fund, 2007-2014), has been promoting equal opportunities for men and women in the fisheries sector, an issue of particular relevance to small-scale fisheries where women constitute half of the labour force. This fund fosters the integration of gender perspectives, such as reducing gender-based segregation during the design, implementation, monitoring and evaluation of the fund.

In Gambia, one relevant policy (Fisheries Policy, 2007) is guided by principles of conservation and sustainable resource use, responsible fisheries and collective decision-making, comprising objectives relevant for small-scale fisheries such as increasing employment opportunities, especially of Gambian nationals in the fisheries sector, improving the institutional capacity and legal framework for the fisheries management.

In Ghana, two recent plans are worth noting. One (Fisheries Management Plan 2015-2019) supports sustainable fisheries, implementation of the ecosystem approach to fisheries, distribution of benefits among local fishers, and participatory decision-making and shared responsibility amid stakeholders. The other (Sector Medium Term Development Plan, 2014-2017, of the Ministry of Fisheries and Aquaculture Development) sets out provisions, which include the establishment of co-management mechanisms with fishing communities to promote sustainable management of fishery resources.

In Morocco, the general management plan of artisanal fisheries (Halieutis Plan, 2013) includes among its main goals ensuring sustainability of fishery resources and sustainably fishing practices by strengthening and sharing scientific knowledge, making fishers the first actors of responsible fishing, preserving marine biodiversity, and ensuring effective control and traceability along the entire value chain. Additionally, the country has issued a climate change plan (National Plan for the Fight Against Global Warming, 2009), which covers adaptation measures for the fisheries sector.

In Vietnam, the government recently took relevant decisions to build communication system and storm shelters in support of those vulnerable to disaster risks, which is of particular relevance to small-scale fishers. The government decided to invest in construction of regional-level storm shelters for fishing ships in coastal provinces and cities and on islands with high storm frequency, and step-by-step upgrading existing storm shelters linked with fishing (Decision 1976/QD-TTg, 2015). Another initiative relevant to small-scale fisheries was the program for sustainable fisheries economic development, aimed at inter alia improve the quality of food safety and environmental protection whilst restoring and developing traditional aquatic product processing villages as well as removing trade barriers for fishers (Decision 1434/QD-TTg, 2017).

Much more to ‘unlock’ in implementing the SSF Guidelines

The importance of law and policy to small-scale fisheries becomes evident when we know what such instruments provide for and address. Their broad coverage of fisheries in general make them applicable to small-scale fisheries and when they address topics in the SSF Guidelines, even at a general level, such as governance of tenure, sustainable resources management, gender and climate change, their application to small-scale fisheries becomes more pertinent. As highlighted above, some national legislation and policy provide specific or special provisions and treatment to small-scale fisheries, giving particular or special attention to this vulnerable and marginalised sector, as the SSF Guidelines call for. The usefulness of these instruments to small-scale fisheries is undeniable. Their coherent application, however, is challenging as multiple actors and sectors often have divergent interests, which may be in conflict with small-scale fisheries needs and concerns.

States and all relevant actors, including small-scale fishers and communities, should work together towards unlocking more legal and policy frameworks, identifying which provisions can be used as legal basis for them to fight for their rights, and clarifying which parts of the policy relate to their issues so they can participate and support in its implementation. The SSF Guidelines support this policy coherence and the long-term sustainable vision for small-scale fisheries (sec. 10). This is one which follows a human rights-based and ecosystem-based approaches, responsible fisheries trade and participatory inter-sectoral collaboration. The more small-scale fishers and those working with them understand what legislation and policy provide for, the better are the chances for implementing the SSF Guidelines and making valuable opportunities, which small-scale fishers and communities can benefit from. While the current focus of States is on the global Covid-19 crisis, this situation cannot be used as an excuse by States to leave vulnerable and marginalised small-scale fisheries behind.