Introducing the Marine Benefits project: Benefit-sharing and small-scale fisheries
October 2015: A new blue skies research project under the Ecosystem Services for Poverty Alleviation (ESPA) programme, namely the Marine Benefits project, is being initiated at the University of Edinburgh to investigate how science can be translated into law in ways that encourage sustainable fishing that benefits the poor, through the lens of the legal concept of fair and equitable benefit-sharing.
This blog post – the first one in a series – aims to initiate a discussion around the complexities to be addressed in the coming year by taking a look at the 2014 FAO Small-Scale Fisheries Guidelines (SSF Guidelines), discussing the role of benefit-sharing in the context of the ecosystem approach to fisheries management. Here we raise a few preliminary questions pertaining to the integration of the Guidelines into the broader corpus of international oceans policy and law towards sustainable, science-based and equitable fisheries governance and management.
Benefits from Sustainable Fisheries – A prelude to the complexity
Fish stocks have been declining worldwide due to overfishing and associated impacts (e.g. habitat destruction, bycatch). The FAO estimates that 28.8 percent of fish stocks have been overfished, and fully fished stocks (with no room to grow) accounts for 61.3 percent, and only about 9 percent of stocks being underfished. It is also estimated that rebuilding overfished stocks could increase production by 16.5 million tonnes and annual rent by US$32 billion (FAO, SOFIA 2014). With currently about 53 million people employed in the fisheries sector, fisheries remain an extremely important social and economic activity that depends on a healthy and productive ecosystem to remain viable. Rebuilding fish stocks could also incur in enhanced nutritional benefits for the malnourished (estimated to be around 800 million people) if fishing resources are subject to a fair and equitable management regime.
Fisheries resources remains a highly contested ecosystem service arena, due in part to the paradoxical combination of both declining fish stocks and technological advances enabling increased catch, playing out in a world of growing food security. Both the status of, and access to, fishery resources are further challenged by complex, often opaque and confusing arrays of policy and legal instruments (international, regional and bilateral legal instruments) that most directly affect access to and management of marine resources by developing countries and by small-scale fishing communities (bilateral and national legal instruments).
The above is due in part to disconnects generated by the highly dynamic and transboundary characteristics of marine species and ecosystems and the typically static nature of marine governance and spatial planning. Furthermore, disconnects also arise from the lack of legal clarity regarding the role of fishermen, particularly vulnerable ones, and their limited voice in the context of global treaties such as the United Nations Convention on the Law of the Sea (UNCLOS) and the UN Fish Stocks Agreement (UNFSA), and subsequent regional and bilateral fisheries agreements. UNCLOS focuses on inter-state dimensions, and brings to light the principles of conservation and equitable and just utilization of marine living resources, considering “the interests of and needs of mankind as a whole and, in particular, the special interests and needs of developing countries, whether coastal or land-locked” (fourth preambular para.). In turn, UNFSA expands this concept to sustainable fisheries beneficiaries, such as small-scale fishers, women fishworkers and indigenous peoples in developing states (Art. 24). This is to be achieved through a number of general provisions that can be related to the concept of fair and equitable benefit-sharing, including capacity building, technology transfer and access to fisheries (UNFSA, Part VII). UNFSA therefore introduces a new dimension (an intra-State one) to the international law of the sea, where the actual rights of people, or more specifically, small-scale fishers, are expressly recognised.
The adoption of the SSF Guidelines by FAO Committee on Fisheries in 2014 can provide a useful lens through which the investigation of these provisions and related fisheries governance complexities can be better addressed.
An introduction to the FAO Small-Scale Fisheries Guidelines
The development of the SSF Guidelines appears to have been largely influenced by the 2008 Global Conference on Small-scale Fisheries. In fact, a number of the Guidelines provisions, including those related to human rights-based approach to fisheries reflect the calls of the International Collective in Support of Fishworkers represented at the time by the honorable Chandrika Sharma, who immensely contributed to this accomplishment.
The SSF Guidelines also build upon on the (very) general commitment made by states at the 2012 UN Conference on Sustainable Development (or Rio+20) outcome document “The Future We Want” to
“… observe the need to ensure access to fisheries, and the importance of access to markets, by subsistence, small-scale and artisanal fishers and women fish workers, as well as indigenous peoples and their communities particularly in developing countries, especially small island developing States” (para. 175).
While voluntary in nature, the SSF Guidelines’ principles and operational provisions can guide the interpretation of legally binding treaties and other obligations under international law. The Guidelines have among their objectives the enhancement of the contribution of small-scale fisheries to global food security and nutrition, while supporting the realisation of the right to adequate food (para. 1.1 (a)). They also aim at contributing to the equitable development of small-scale fishing communities and poverty eradication and improvement of the socio-economic conditions of fishers in sustainable fisheries management (para. 1.1 (b)). Additionally, they seek to achieve sustainable, responsible and ecosystem-friendly utilisation and conservation of fisheries resources in accordance with the FAO Code of Conduct for Responsible Fisheries and related instruments (paras. 1.1 (c) and (e)).
To realize these objectives, the following guiding principles should be highlighted here, as these will be the object of further assessment throughout the Marine Benefits project: human rights and dignity; equity and equality; consultation and participation; transparency and accountability; rule of law; economic, social and environmental sustainability; and holistic and integrated approaches. Human rights and a human rights-based approach are evoked throughout the SSF Guidelines, which recognise the right to livelihood, and the corollary need for access to fisheries resources, of small-scale fishing communities, including indigenous peoples and particularly vulnerable and marginalised groups,.
Specific reference to human rights standards such as universality and inalienability, non-discrimination and equality, participation and inclusion, accountability and the rule of law is also provided. The recognition of these standards is not only due by states, but also by business enterprises, although states remain responsible to regulate businesses and ensure their compliance with human rights standards.
It remains to be seen, however, how the relevant economic, social and environmental sustainability principles under the SSF Guidelines can be balanced with one another. In particular, it remains to be clarified how the application of the precautionary approach can contribute not only to avoid negative environmental impacts, but also social and economic ones. While the SSF Guidelines do not provide a definition of the ‘precautionary approach’ per se, it is unclear whether the Guidelines have embraced the specific guidance on the precautionary approach to fisheries embodied in Article 6 (and Annex II) the UN Fish Stocks Agreement, including with respect to setting of precautionary reference points to rebuild depleted fisheries. This is an interesting point for further investigation, since it has direct implications not only for the sustainability of fisheries management (e.g. when developing harvest control rules), but can also have an impact on equity issues.
With regards to holistic and integrated approaches, the SSF Guidelines recognise the “ecosystem approach to fisheries as an important guiding principle, embracing the notions of comprehensiveness and sustainability of all parts of ecosystems as well as the livelihoods of small-scale fishing communities, and ensuring cross-sectoral coordination as small-scale fisheries are closely linked to and dependent on many other sectors.”
Benefit-sharing in the FAO Small-Scale Fisheries Guidelines
An ecosystem approach to fisheries could serve as a useful tool to address both environmental concerns, as well as fairness and equity challenges within the context of sustainable development. In effect, the SSF Guidelines support the equitable distribution of the benefits yielded from the responsible management of fisheries and ecosystems, with a particular view to rewarding small-scale fishers and fish workers, in connection with their social and cultural well-being, their livelihoods and sustainable development (para 5.1). This appears motivated by the fact that customary practices for the sharing of resource benefits in small-scale fisheries, which have been in place for generations, have been changed as a result of non-participatory and often centralized fisheries management systems, rapid technological developments, unequal power relations particularly when large-scale fishing or other sectors such as tourism, agriculture, mining or infrastructure development is at stake. The SSF Guidelines further point to the need for preferential treatment of women, indigenous peoples and marginalized groups where it is required to ensure equitable benefits.
In line with research conducted under the BENELEX project, these references could be related to the concept of fair and equitable benefit-sharing developed as part of the ecosystem approach under the Convention on Biological Diversity. The ecosystem approach encapsulates benefit-sharing with regard to stakeholders responsible for maintaining or restoring ecosystem functions, though capacity-building, especially at the level of local communities managing biodiversity, the proper valuation of ecosystem goods and services, and the removal of perverse incentives that devalue ecosystem goods and services, and, where appropriate, their replacement with local incentives for good management practices.
This may further be related to the unanimously adopted UN General Assembly resolution on the post-2015 development agenda, which calls for an ‘integrated approach’ to combat poverty, preserve the planet, promote sustainable growth and social inclusion, as all these challenges are closely inter-related. Interestingly, the agenda does not specifically call for any particular approach, but recognises the diversity of approaches available to achieve such goals. Nevertheless, it reaffirms previous Sustainable Development Summits outcomes, which have called for an ecosystem approach to oceans management (including fisheries), such as the World Summit on Sustainable Development, among others.
Ecosystem approach to fisheries management
It would, therefore, seem timely to further investigate the role of the ecosystem approach as an integrative tool for achieving sustainable development in all of its three dimensions (social, economic, and environmental) in the context of fisheries – namely the ecosystem approach to fisheries management (EAFM). EAFM emerged as a legal concept in the 1980s under the Convention on the Conservation of Antarctic Living Marine Resources (CCAMLR). Since then it has been incorporated into an array of policy instruments (e.g. UN General Assembly resolutions, FAO instruments), global treaties (UN Fish Stock Agreement) and more recently, regional fisheries management organisations (RFMOs) convention texts.
While no single definition currently exists, the EAFM aims to better address the practical needs of transboundary species and ecosystems, rebuild depleted stocks, and increase fishery productivity in a precautionary manner by considering the interaction between species and their habitats within natural boundaries (or biogeographic areas) and carrying capacity of the ecosystem. The approach is based on a better knowledge of ecosystem functions and structure, and the role of biodiversity in these processes (CBD, Decision V/6).
It is expected that the implementation of the EAFM can contribute to the equitable and long-term conservation and sustainable use of marine resources, which in turn will generate ecosystem services that human societies depend upon, including the most vulnerable communities. However, the development and application of EAFM under the above-mentioned international instruments has rarely made explicit reference to benefit-sharing in relation to small-scale fishers. And the SSF Guidelines, in turn, do not make reference to ecosystem services.
Overall, despite the increasing support for this concept by the international community, including through its incorporation into the SSF Guidelines as a guiding principle, the EAFM is far from being fully implemented. This may be due to a number of reasons, ranging from institutional constraints related to scientific and technical capacity or institutional mandate limitations to insufficient clarity regarding trade-offs, equity issues and the human dimension of EAFM. In this context, the SFF Guidelines, and their reference to benefit-sharing, provide a good opportunity for exploring new avenues for the operationalization of EAFM, including in light of climate change effects and its disproportionate impacts on the most vulnerable communities (see SSF Guidelines Part 9).
In light of the elements discussed above, the following research questions emerge:
- Do the SSF Guidelines reinforce the connection between human rights and the environment, through the notion of fair and equitable benefit-sharing towards small-scale fishing communities?
- Can the ecosystem approach to fisheries management provide the nexus between healthy, productive and resilient marine ecosystems, ecosystem services, and the sharing of benefits associated with food (and nutrition), livelihoods and well-being?
- What legal mechanisms are necessary for the empowerment of small-scale fishing communities in the sustainable management of fishing and other marine resources?
In addition, the SFF Guidelines fall short of exploring the nexus between regional fisheries management organisations (RFMOs) and bilateral agreements among States to gain access to fisheries in developing countries’ waters, which may have trickle-down effects upon small-scale fishermen. A multi-scalar analysis is thus needed, which leads to the additional question: which enabling conditions are necessary for the realisation of fair and equitable benefit-sharing from sustainable fishing at all (from global to regional and local) levels of governance?