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Regulatory control of adaptive fisheries: Reflections on the implementation of the landing obligation in the EU common fisheries policy
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Regulatory control of adaptive fisheries: Reflections on the implementation of the landing obligation in the EU common fisheries policy Brita Bohmana,b,∗ a b
University of Gothenburg, Sweden Stockholm University, Sweden
ABSTRACT
The most recently revised CFP Regulation, adopted in 2013, includes a number of significant changes with the aim to make fisheries more in tune with concept of the ecosystem approach and to avoid unsustainable exploitation of marine biological resources, including fish, as a natural resource. As part of that the CFP Regulation introduced the landing obligation, an obligation to land all catches as opposed to previous praxis where fisheries have been relying on a system of discarding fish and other marine biological resources in order to optimize their catch. One aim with the landing obligation is to push for new adaptive fishing methods and in a way to implement an ecosystem approach since the fishing strategies are meant to be adjusted to ecosystem factors. To be effective, the system for controlling implementation must be adjusted to take different aspects of the ecosystem approach into account. The paper presents some reflections on the required balance between adaptive approaches connected to the ecosystem approach and the strictness established by principles of rule of law in relation to the so called EU CFP landing obligation. It is concluded that the best way to create a control system adjusted to these factors seems to be by giving more influence to the industry itself. Involving those concerned at all levels, and thus applying all aspects of the regulatory governance under an ecosystem approach, would create an effective adaptive system where the rule of law is also safe-guarded.
1. Introduction The EU Common Fisheries Policy (CFP) has been reformed during the last decades [1]. The most recently revised CFP Regulation [2], adopted in 2013, includes a number of significant changes with the aim to make fisheries more in tune with concept of the ecosystem approach and to avoid unsustainable exploitation of marine biological resources, including fish, as a natural resource. The 2013 CFP Regulation introduced a new important regulatory measure for commercial fisheries, an obligation to land all catches as opposed to previous praxis where fisheries have been relying on a system of discarding fish and other marine biological resources that did not match their quotas or even just required size in order to optimize their catch [3]. This paper presents some reflections on the required balance between adaptive approaches connected to the ecosystem approach and the strictness established by principles of rule of law in relation to the so called EU CFP landing obligation. The adoption of the landing obligation (also referred to as the discard ban), was aimed to achieve more sustainable commercial fisheries through better conservation of the marine biological resources. The landing obligation accomplish this by reducing unwanted catches
through creating incentives for improved selectivity and adaptive measures in the choice of fishing gear and strategies. In this way, fish stocks are to be restored to levels that can sustain maximum production over time without harming biodiversity and the capacity of future generations to obtain fish and other marine biological resources. However, banning discards will inevitably induce diverse short- and long-term ecological, economic, and social impacts, which may determine whether the landing obligation's objectives will be achieved [4]. The landing obligation could be seen as a way to implement an ecosystem approach since the fishing strategies are meant to be adjusted to ecosystem factors. The system for controlling implementation must, however, because of the short- and long-term impacts mentioned, take those aspects into account to be effective. The overall theme for this special issue is ‘the tensions (or instead synergies) that may arise between adaptive governance approaches and certain rule of law values’1. Effectiveness in a regulatory system depends on its strictness, the ability to actually operationalize the law and so through compliance ensure the values set out to be guarded by those laws. However, the potential for operationalization in an environmental law context also depends on the ability of the law to adjust to specific circumstances in the issue area regulated. The ecosystem approach can
University of Gothenburg, Sweden. E-mail address: [email protected]. 1 On 15th of June 2018, the Scandinavian Institute of Maritime Law, University of Oslo together with the Department of Law, University of Gothenburg and the Law School at University of Eastern Finland arranged a workshop in Oslo on ‘Reconciling the Rule of Law with Adaptive Governance of Marine Ecosystems’, which is the background to this publication. ∗
https://doi.org/10.1016/j.marpol.2019.103557 Received 2 May 2019; Accepted 21 May 2019 0308-597X/ © 2019 Elsevier Ltd. All rights reserved.
Please cite this article as: Brita Bohman, Marine Policy, https://doi.org/10.1016/j.marpol.2019.103557
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in some aspects be a way to accomplish this. Compliance, however, generally depends a combination of factors; in addition to the potential for operationalization and adjustment, the acceptability of the law in question, as well as enforcement plays important parts. The wider the general acceptability is for the law in question, the less enforcement is needed. The ability to ensure compliance entails ensuring a general respect for the fundamental idea of the rule of law and certain principles connected to that, like predictability, legal certainty, legitimacy, and in the end the general platform of stability that the rule of law creates for a society based on these values. With the above assumption of the connection between the rule of law, compliance, operationalization and acceptability as backdrop, the purpose of this paper is to review the implementation of the so-called landing obligation in the 2013 CFP Regulation. The review of the landing obligation will focus on its potential for providing adaptive (selective) measures in commercially regulated fisheries as part of the operationalization of an ecosystem approach in the EU fisheries management, and how this relates to the above proposed general rule of law values and principles. The study is based on a legal analysis of the CFP Regulation, especially Article 15, taking into account preparatory works and other reports that explains the purpose and background of these rules. The general focus on law is as part of a wider governance system. Moreover, the analysis builds on theoretical ideas of how operationalization, compliance and effectivity work in a regulatory perspective, building on examples found in literature. The aim is to propose a more general perspective on how to achieve compliance and effective operationalization of adaptive fisheries in addition to, and directly through, other means than enforcement in the light of a strict top-down ‘command-and-control’ approach.
approach, and adaptive governance are compatible may vary and depend on what the intended aim of adaptivity is, how adaptivity is to be implemented, and on how compliance is monitored, measured and reviewed. The paper also argues that adaptivity is actually also a prerequisite for effectiveness and compliance in environmental law, as a tool for operationalization of laws and the rule of law as mentioned in the introduction above. The ecosystem approach originally arose from more general environmental governance perspectives. It can be seen as a governance model that calls for a strategy with a range of measures that have the potential to adjust its approach in relation to different situations [7]. Opposite to the intentions and origin behind the concept of ecosystem approach, it is easy to argue that the principal role of law is not to provide for mechanisms related to governance but rather to provide more strict control of actions. Especially at national level of legislation there are many examples of conflicts or obstacles [8]. This is despite the fact that in practice many fields of law do not regulate actions very strictly, but rather guide actors by means of principles or general goals. However, there are also examples where the ecosystem approach in some ways becomes a tool for compliance and implementation, thus also indirectly a tool for the principles of the rule of law. This is the case where the ecosystem approach is implemented in such way that it promotes a system of an adaptive and cyclic process, where re-evaluation of measures taken is central parts of the regulatory governance structure. In such processes, even activities that for different reasons may be difficult to regulate with strict measures and strict control will be integrated into a system of reviewing compliance and evaluating progress in implementation [9]. Moreover, in some situations the operationalization of an ecosystem approach and adaptive governance are dependent on the kind of steering and control that only law can provide [10]. This seems, for example, to be the case in the implementation of the CFP landing obligation and its connected aim of selective fishing [11]. Hence the role of law in implementing and providing for ecosystem approach and adaptive governance may be diverse and the relation between adaptive governance and rule of law is not straight forward or one way only. Put simply, an ecosystem approach within the context of law is, all in all, a legal design or structure where the regulatory approach or regulatory measures applied are based on, connected, or adapted to the prerequisites and conditions of the regulated ecosystem. Ideally, to contribute to a more sustainable or resilient ecosystem, an ecosystem approach must in addition aim to impact or change the ecological variables in the ecosystem governed. To achieve such impact the regulatory structure or measures are often based on ecological indicators and targets, or other ecological measure points. However, regulatory measures are not capable of changing ecosystems by direct inter-action. Instead the regulatory approach must be designed to guide actors (e.g. stakeholders) into making changes that affects the ecosystem. As a result, to be effective a regulatory design based on the ecosystem approach must also include other features, mechanisms, or measures than such that are directly connected to the ecosystem variables, i.e. features, mechanisms and measures that are effective primarily in guiding or pushing relevant actors into taking measures. The focus or function of these features, mechanisms or measures should be the effects that they can have in stabilizing the overall regulatory or governance system and creating formal pathways for action and participation. Some general features that are identified as connected to an ecosystem approach in this sense are: knowledge-based adaptivity; flexibility; stakeholder or public participation; and multi-level governance [12]. The inclusion of such other types of functions is important in relation to the ecosystem approach because of their capacity to help match the ecosystem prerequisites with different regulatory approaches, at different levels of governance, adjusted to the very specific aims and needs. The design of the overall governance system in this regard will be decisive for potential success [13]. In this range of features and mechanisms, the main feature of the
2. Outline After the above introduction to the general perspective and purpose of this paper, the next section presents the understanding of the ecosystem approach represented in this paper. This presentation of the ecosystem approach discusses its origin, general features and connection to adaptive governance. The chosen aspects of the ecosystem approach and adaptive governance are then discussed and reviewed in relation to the CFP Regulation and the implementation of the landing obligation in Article 15. The following sections aim to show both the potential opportunities for integrating these concepts or features in the CFP Regulation, as well as the potential obstacles. In the end, alternative approaches to both implementation and monitoring of such laws to ensure compliance are presented. Approaches that would also be more in line with the main features of the concept of ecosystem approach. These suggested alternative ways of implementation and control are, inter alia, to include structures for wider participation by different stakeholders, including the fishing industry, and by forms of comanagement. 3. Ecosystem approach and adaptive governance The concept of ecosystem approach, including adaptive governance, has become a well-known and central concept within environmental law. Ecosystem approach also holds a central stand in the EU CFP. However, it is debated how this concept with adaptive and flexible features fits into a legal context and whether such features are compatible with the rule of law [5]. It has frequently been observed that general requirements on legal certainty cannot apply to, or be combined with, such concepts as adaptive governance and the ecosystem approach because of their inherent flexibility and transformability. It is debated whether it is possible to combine such features of flexibility and adaptivity with sufficient control and legal coherence, instead of them forming mechanisms that lead to a ‘race to the bottom’ or ‘freeriding’ [6]. While the potential conflict might be obvious, this paper argues that whether and to what extent legal control, ecosystem 2
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ecosystem approach is still generally seen to be adaptivity, or adaptive governance. Adaptivity represents the very core of an ecosystem approach since it corresponds with measures and approaches that can adjust to changes or transformations in the ecosystem or to new knowledge about the ecosystem and the environmental problem in focus of regulation [14]. Hence adaptivity is in this way seen as a prerequisite for a regulation to be coherent with or in line with the dynamic preconditions given by the ecosystem. While the other features or mechanisms presented above as part of a system operationalizing the ecosystem approach are important and necessary alongside features for adaptivity, to make the governance system complete and effective in other ways. Still, adaptivity as a feature within a legal system is, as stated above, also an issue under debate. What seems important for the balance between the rule of law and adaptive governance, though, is how and in what way adaptivity is operationalized, as well as, what more specifically is to be accomplished with adaptivity in different situations and in relation to different problems. In the following section different aspects of ecosystem approach and adaptivity are evaluated in relation to the implementation of the 2013 CFP landing obligation. The aim is to clarify if and where potential obstacles and opportunities may appear in relation to the effectiveness and implementation of these rules.
management. One approach intended to operationalize adaptive governance as part of an ecosystem approach in the 2013 CFP is primarily the landing obligation. The landing obligation is combined with other important measures and goals, inter alia to set a limit for total allowable catch or the former fishing quotas, in relation to the overarching aim of maximum sustainable yield [24]. In its preparatory proposal to the revised 2013 CFP the Commission suggested that in order to achieve the goal of maximum sustainable yield, including the landing obligation, the regulatory approach should move away from micro-management by the co-legislators [25]. Instead, it is stated, the EU legislation on these plans and measures should only define the essentials, such as the scope, targets, evaluation indicators and time frames. This is a way of implementing also the ‘new governance’ that is also more generally promoted by the Commission [26]. A governance strategy which has played an important role in developing the EU environmental legislation, characterized by adaptive and flexible structures, and which has also set the frame for important water and marine environment EU laws (i.e. the Water Framework Directive [27] and the Marine Strategy Framework Directive [28]). The Commission thus proposed that decentralization may authorize Member States to adopt the conservation and technical measures necessary to achieve the objectives and targets using a tool box of measures under the conservation policy [29]. Hence, not only creating a frame for adaptive approaches but also with considerable flexibility. The purpose was also expressly to create regional flexibility and simplification of the policy. Similar ideas have been proposed for the CFP elsewhere in consideration on how to achieve a sustainable fisheries policy [30].
4. Ecosystem approach and adaptive governance in the CFP As mentioned in the introduction, the EU CFP has been reformed during the last decades [15]. The most recently revised CFP Regulation from 2013 includes a number of significant changes with the aim to make fisheries more in tune with the ecosystem and avoid unsustainable exploitation of fish as a biological or natural resource and achieve production at level with ‘maximum sustainable yield’ [16]. Beside environmental sustainability and the precautionary principle, the 2013 CFP Regulation requires implementation of an ecosystem-based approach to fisheries management so as to ensure, inter alia, that ‘negative impacts of fishing activities on the marine ecosystem are minimised’ [17]. The ecosystem approach as adopted in the 2013 CFP Regulation is operationalized through a range of measures, but could also be discussed in its function as a counterweight in ensuring also economic and social values set out in the objectives of the Regulation [18]. Those values are for example; achieving economic, social and employment benefits; providing conditions for economically viable and competitive fishing capture and processing industry and land-based fishing related activity; and, to contribute to a fair standard of living for those who depend on fishing activities. These aspects will however not be dealt with in this paper. Instead, focus is on the role of the landing obligation and the fact that it is directly stated that the aim with the ecosystem-based approach is to promote the adoption of management measures in the aim to create adaptiveness and incentives for more diverse fishing methods [19]. The purpose and goal of the landing obligation, or the discard ban, is to end the practice of discards and hence reduce unwanted catches. With a few exceptions, it requires that all catches of species which are subject to catch limits shall be brought and retained on board the fishing vessels, recorded, landed and counted against the quotas where applicable, except when used as live bait [20]. Catches of fish or other marine biological resources below minimum conservation reference size that otherwise would have been discarded, are now regulated to certain usage and cannot be sold for human consumption [21]. To comply with the landing obligation, the fisheries must use selective fishing gear and other adaptive strategies to avoid unwanted catches [22]. In one of the first more specific elaborations on the concept of ecosystems approach to fisheries, the specifics were identified as the ‘regulation of human activity inputs (gear, effort, capacity) or output (removals, quotas) and trade.’ [23] Hence, that is what should be targeted when applying the concept of ecosystem approach to fisheries
5. Implementation of the CFP landing obligation The landing obligation in Article 15 reflects an implementation of the ecosystem approach due to its aim of creating incentives for more adaptive fishing strategies. It does, however, also include flexibility in line with the general idea of an ecosystem approach with the aim to make the application of this rule more practical. Despite the aim of adopting an ecosystem approach through selective measures and adaptive governance in commercial fisheries, the implementation of the landing obligation have been questioned and criticized [31]. Compliance with the landing obligation is difficult to control, additionally selective measures are both difficult and sometimes expensive to introduce [32]. Thus, it seems as if unwanted catches are being unlawfully discarded despite the new obligation to land all catch [33]. This, of course, instead leads to a negative development for the ecosystem, as well as it creates a situation where the data and scientific information on fish stocks is incorrect due to unreported discards. In this context it is important to also note, that these unlawful discards are made despite some flexible mechanisms in this legal construction. The flexibility in the landing obligation is meant to create lee ways for the fisheries in situations where a strict application of the landing obligation is unreasonable or simply unnecessary in relation to the aim. The landing obligation does for example not apply to species in respect of which fishing is generally prohibited and species for which scientific evidence demonstrates high survival rates, or catches falling under a certain ‘de minimis’ exemptions [34]. Such de minimis exemptions applies to up to 5% of total annual catches of all species subject to the landing obligation where scientific evidence indicates that increases in selectivity are very difficult to achieve or in cases where it is relevant to avoid disproportionate costs of handling unwanted catches under [35]. Flexibility is also integrated through a derogation from the obligation to count catches against quotas. Catches of species that are subject to the landing obligation and that are caught in excess of quotas of the stocks in question may under certain conditions be deducted from the quota, if they do not exceed 9% of the quota of the target species [36]. In addition, the member states may also use a year-to-year flexibility of up to 10% of their permitted landings [37]. 3
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As the first part of the paper made clear, the landing obligation could be a valuable tool for implementing an ecosystem approach and thus if it is implemented effectively also be a valuable tool for the protection of the marine ecosystem. This requires that an exploitation pattern close to the optimal is achieved in relation to given quotas, which is only possible by completely avoiding to capture undersized and non-commercial species and by avoiding so-called ‘over-quotacatches’ [38]. Such outcome thus relies on strict compliance with the discard ban and on providing strong incentives for fishers to alter their fishing practices [39]. Hence, in regard to the rule of law the adaptive measures required here rely on strict enforcement and control measures, and thus on a successful implementation of the law. Traditionally discarding has been taking place because it was allowed in legislation and because fishers expect to profit from this practice. While the landing obligation removes the legal requirement to discard, fishers may still have an incentive to discard for economic reasons and the lack of control measures make that possible [40]. Thus, it has been stated, an effective implementation of the landing obligation will require stringent control and enforcement, and/or economic incentives to land more of the catch.
REM, while 9 out of 10 interviewed fishers without REM experience were against REM [49]. This somehow opens up for this as an alternative, given that despite general critique from the fishers it seems as if it can be acceptable if they get used to it. In this study the fishery inspectors saw on-board observers, at-sea control and REM as the three best solutions to control the landing obligation. However, they also shared the general belief that the landing obligation cannot be enforced properly and will be difficult for fishers to comply with [50]. This instead opens up for alternative mechanisms for implementation and control. While strict control mechanisms and measures as those suggested above may be important, it is also necessary to find acceptance and legitimacy among the different actors involved, including the fishers, in order to grow such culture of compliance. Only strict control measures will not be sufficient. For legitimacy and effectiveness, and in relation to the wider perspective on the ecosystem approach, it is important to increase influence of civil society actors and the participation of resource users. If implementation is to be successful, their views, knowledge, and cooperation are vital. Otherwise, resistance becomes too high, and regulation becomes more symbolic than a tool for change [51].
6. Compliance control
7. Participation and co-management in fisheries regulation
The control measures related to the CFP, which are necessary for a strict implementation of the landing obligation is regulated separately [41]. Stricter systems for control and stronger sanctions have recently been proposed by the Commission, thus some changes could come in this regard [42]. However, fisheries control and enforcement are typically rather expensive. It is also difficult to enforce, due to the nature of the fisheries. Surveillance to ensure full implementation of the CFP landing obligation could prove to be extremely costly considering the size and diverse nature of the EU fleet [43]. One example where the landing obligation is especially difficult to enforce is in relation to socalled mixed fisheries, i.e. when several species of fish are targeted with the same fishing method, this often leads to unwanted by-catches in the case where the quota of one species is exhausted while quotas for other species still remain and motivates continued fishing. This then makes fishermen feel the need to discard the fish that was landed exceeding the quota limit for the exhausted quota [44]. One suggestion to achieve stricter control has been so-called Remote Electronic Monitoring (REM). REM has been tested in a variety of fisheries worldwide for different purposes and is currently considered as one tool to ensure compliance with a European ban on discards [45]. The CFP Regulation mentions different options for monitoring and control, including observers, CCTV and others. The new proposal from the Commission on stricter control measures did include an opening for these forms of monitoring, although only requiring a low percentage of fisheries to adopt such methods [46]. However, if such control measures are to be effective for the implementation of the landing obligation they depend on a high coverage level and cooperation with the fishing industry in other aspects on compliance too [47]. In its aim to provide prerequisites for regional variations and adjustments, the EU avoids to further define what control measures the Member States shall adopt. It does simply state that the Member States shall respect the principles of efficiency and proportionality and that they shall aim for a culture of compliance [48]. REM could represent an important mechanism both to ensure control and to increase legitimacy and a culture of compliance. It would remove some obstacles for coherence with the rule of law, since such monitoring would entail strict control and thus a smaller margin or leeway for non-compliance, while also creating better prerequisites for enforcing selective, adaptive fishing methods. However, as stated, that would require a more general and high level of application of REM on the majority of fishing fleets, instead of only a small percentage as currently proposed. A study on Danish fishery inspectors and on fishers using REM, showed that both inspectors and REM-experienced fishers expressed positive views on
The CFP is based on a Regulation and is thus according to EU law directly binding in its wording, thus creating little flexibility in comparison with a Directive for example. The flexibility in Article 15, as described in the section above, is mainly based on a number of derogations. Beside difficulties of effective enforcement in such a system with a rather strict top down approach, a traditional centralized, top down approach to fisheries management also makes it difficult to respond in an adaptive way to regional variations at sea-basin levels in the EU. There have, however, been many suggestions on how to increase adaptivity and flexibility in the implementation of the CFP rules through, inter alia, a closer cooperation with different kinds of stakeholders – not least the fishing industry. This is not new, stakeholders have had an important role in the CFP since 2002, but the formal pathways for their participation have been limited [52]. The Commission even suggested in its Green Paper on the revision of the CFP to change the incentives for fishers and other stakeholders to comply. Changed incentives also seem like a main point of concern in studies on different forms of monitoring and control as discussed above. Changed incentives could be achieved by giving fishers or the fishing industry both more freedom as well as duties to be involved in developing fishing strategies, technical solutions and rules as part of a process to implement and enforce the landing obligation [53]. The Commission emphasized the need to involve different parts of the fishing industry as an actor important for effective implementation and to make them understand why it is important to change the CFP. The Commission, however, suggests and emphasize that their role for implementation must be built on, and depends on, both responsibilities and rights, in practice, this would mean ‘results-based self-management’. The suggestion given was that public authorities would set the limits within which the industry must operate, such as a maximum catch or maximum by-catch of young fish, and then give the industry authority to develop the best solutions economically and technically. The rights could be given, and have been given, to actors in the industry in order to encourage and provide incentives for them to change in a positive direction [54]. To some extent such cooperation is already established, but the role of stakeholders and the importance of improving communication between scientists, policy makers and stakeholders particularly within the Regional Advisory Councils (RACs) and the Advisory Committee on Fisheries and Aquaculture (ACFA) and securing their full commitment was emphasized [55]. Environmental legislation based on goals providing wide space for adaptive and flexible implementation is also rather common in other 4
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areas of EU environmental governance, and with rather good results. The Commission has proposed a similar results-based management for fisheries. Instead of establishing rules about how to fish, the rules would focus on the outcome and the more detailed implementation decisions would be left to the industry and the Commission to establish. A governance system based on results-based management would relieve both the industry and policy-makers of part of the burden of detailed regulation of technical issues, which have also had uncertain success [56]. It would however reverse ‘the burden of proof’ which of course is a step away from the rule of law in the sense that the industry will have to prove that the decisions and rules set are appropriate and complied with. It would be up to the industry to demonstrate that it operates responsibly in return for access to fishing [57]. However, also in other areas this has been suggested and given such complex environmental problem such reversed reporting and monitoring seems to be a valid alternative for effective implementation and legitimacy. The kind of adaptive approaches that could be operationalized this way would both strengthen the adoption of selective measures and the methods to safeguard the biological resources and the ecosystem, it would also support the rule of law in that it provides for greater legitimacy and compliance, which also means a more effective regulatory system. The idea of wider participation and including stakeholders could also create incentives for compliance through increased legitimacy or through processes of ‘managerial compliance’ [58] approaches to implementation. All in line with a wider perspective on regulatory structures for ecosystem approach discussed above. Such approaches could also create a platform for a use and integration of more alternative fishing measures, gear and methods, hence increase the adaptivity in the regulatory system. Some approaches already proven include: technical measures; effort regulations, and catch quotas. The involvement of fishers may thus lead to a strengthened development of more selective fishing gear or the emergence of new markets for traditionally-discarded species or sizes [59]. Similarly, the use of so-called co-management procedures in trying to reduce discards have also shown to be effective in providing knowledge exchange that can help shape the requirements of discard reduction methods to fit specific fisheries and discard problems. Additionally, if such methods are decided in co-operation with the involved fishers (or other stakeholder), it shows that co-management also contributes to higher acceptability and thus easier implementation of discard reduction methods. That, of course, is important for the perspective on how the rule of law can be safe-guarded. Last but not least, it then also contributes to improved legitimacy of the regulations and specific methods among the fishers and thereby higher compliance [60]. A general perspective seems to be that adaptive approaches and ecosystem approach in the implementation of the CFP and the landing obligation must be based on regional cooperation and participation. Adaptive approaches of course also need to be applied at a suitable scale. However, existing multi-level governance arrangements that have emerged and evolved over the last decades to govern activities such as shipping and fisheries or that focus on marine environmental protection more generally have much wider and more complex spatial territory. Thus, by developing institutional linkages with these governance arrangements it could be possible to ensure a common discourse, policy objectives and decision-making and implementation of sectoral measures for ecosystem approach at the regional sea level [61]. The governance system for ecosystem approach and adaptive governance needs decision-making to be decentralised, in order to create room for local participation and new knowledge. Such system could also be nested and polycentric joining together different geographical scales and jurisdictions. A nested governance approach refers to the layer of constitutional rules and principles that define the organisation of the system, i.e. the links between EU, regional and sectoral governance arrangements [62]. It is considered a strength of the CFP Regulation that the policy is subject to a continuous process of review and reform. Important
revisions have been made in 1992, 2002, and from 2009 through to 2013. In the last revisions the EU Commission brought together several multidisciplinary research teams to work on solutions on how to improve fisheries management [63]. This is of course also an important form of including stakeholder participation in the development of the policy, however, one could perhaps also use this structure for review as a tool for trying also more elaborate and direct forms of participation in the management, such as co-management or other forms of management that have been suggested and reviewed. Although being a long and complicated process in some ways, this continuous revision of the CFP Regulation also entails that there is room for trying new approaches and evaluating them with the next revision. Hence, the CFP actually provides a good platform for an adaptive approach in itself. The recent efforts to reform the CFP are indicative of developments at an international level to resolve the global crisis in marine fisheries. The shift away from centralized ‘command-and control’ structures to a governance model that reflects the interests of stakeholders is ultimately aimed at making EU fisheries management more efficient, effective, accountable and transparent. Greater stakeholder participation in fisheries governance, regulation and management shall then be based on economic, political, social, environmental and legal considerations. It is argued that the fishing industry is often best placed to implement management measures as they have a clear understanding of the tasks and challenges encountered in the practical aspects of conservation and resource utilization [64]. 8. Conclusions From the standpoint of enforcement, a traditional centralized, top down approach to fisheries management makes it difficult to respond in an adaptive way to regional variations at sea-basin levels in the EU. This is a strong incentive for making a real change in the institutional structures of the CFP to better include stakeholders and have a more decentralised approach. This is also in line with the wider view of ecosystem approach and the effects that different features, measures or mechanisms can have for the overall governance system, as explained above. However, an important counter-argument to take into account is also that the interests of fishers frequently diverge from those of other interest groups [65]. Still, the reasons for opening up to stronger stakeholder participation and co-management are convincing. The Commission also argues for responsibilities and rights to the industry, in order to provide for comanagement or self-management [66]. As stated in the introduction, the chosen point of view in this paper is that effectiveness in a regulatory system depends on its ability to actually operationalize the law and ensure the values set to be guarded by those laws. Operationalization and compliance is here seen to also entail a perspective of general respect for the idea of rule of law and certain connected principles or values. However, without being able to adjust to the issue in focus of legislation, laws will often miss their aimed target and so also their legitimacy. This is a balance that law and legal systems have to keep at all levels of implementation. In terms of protecting ecosystems and the environment, adaptivity or adaptive governance and ecosystem approach are crucial for adjusting applied measures to the problem. Adaptive governance measures in law does not have to entail unpredictable laws or uncertainty. In the example of the landing obligation, as discussed in this paper, it only means giving actors involved a choice of how to implement given rules in the best way, and while doing that, adjust measures to the conditions set by the ecosystem. However, given this flexibility there is always a risk that some actors instead use the leeway given by adaptivity as a possibility to stay at a low level of implementation or plain non-compliance. This is a classic ‘free-rider’ problem and it makes the rule of law weak in the sense that it may appear to be voluntary to follow the law as a result of the fact that what is actually required by law becomes more vague when it is adaptive. Hence, adaptivity must be accompanied with effective 5
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compliance control, but such control system must also be adjusted to this vagueness and can also be designed in many different ways. In the case of the landing obligation, the praxis banned by law, i.e. discards, is rather clear and it is only the choice of method used to avoid such discards that is to be flexible and adaptive. The latter is also the part of this legislation that is hard to control and decide on a general level since many factors may have impact on this, such as the kind of fish, the region, the size of fishing fleet etc. Moreover, fisheries at sea are difficult to control only by inspections and monitoring, but does actually seem to depend on cooperation with the industry and to change incentives. Hence, the best way to create a control system and a system where appropriate choice of fishing methods can be applied, seems to be by giving more influence to the industry itself as this paper has showed. Involving those concerned at all levels, and thus applying all aspects of the regulatory governance under an ecosystem approach, would create an effective system where the rule of law is also safeguarded. In the long run, such adjusted form of operationalization and enforcement will hopefully contribute to reduced catches so that fish stocks can be restored and sustain maximum production over time.
[15] [16] [17] [18] [19]
[20] [21] [22] [23] [24] [25] [26] [27] [28] [29] [30]
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See e.g. R. Churchill and D. Owen, (2010), pp. 3-29. 2013 CFP Regulation, Art 2 (2). 2013 CFP Regulation, Arts 2 (1)–(3). 2013 CFP Regulation, Arts 2 (1) and 2 (5). Communication from the Commission to the Council and the European Parliament ‘The role of the CFP in implementing an ecosystem approach to marine management’, COM(2008) 187 final; M. Salomon, M. Till, M. Dross, ‘Masterstroke or paper tiger – The reform of the EU׳s Common Fisheries Policy’, Marine Policy 47 (2014), 76–84, p. 79. 2013 CFP Regulation, Arts 15 (1) and 15(4). 2013 CFP Regulation, Art 15 (11). See e.g. H.C. Nilsson, E. Andersson, M. Hedgärde et al. (2018). FAO Report, Table 1, p 4 See 2013 CFP Regulation, Preamble (6), (7), (8) and Articles 2 and 9. EU Commission, Proposal for a Regulation of the EU Parliament and the Council on the CFP, COM, 2011, p. 7 425 final, (Proposed Fisheries Regulation). Communication from the EU Commission, ‘European Governance – A White Paper’, COM, 2001 428 final, 25.27.2001. Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, OJ L327/1. Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy, OJ L164/19 EU Commission, COM, 2011, p. 7 425 final, (Proposed Fisheries Regulation). See e.g. J. Raakjaer, A Fisheries Management System in Crises – The EU Common Fisheries Policy, Aalborg University Press (2009), pp 89ff; R. Long, ‘Stakeholder Participation in the European Common Fisheries Policy: Shifting the Legal Paradigm Towards Rights and Responsibilities’, Ocean Law and Policy: 20 Years under UNCLOS, (2017). E.g.: M. Fitzpatrick, K. Frangoudes, L. Fauconnet, A. Quetglas, ‘Fishing Industry Perspectives on the EU Landing Obligation’, in S.S. Uhlmann, C. Ulrich, S.J. Kennelly (eds), The European Landing Obligation, Springer, Cham (2019), https:// doi.org/10.1007/978-3-030-03308-8_4 ; J. Guillen, S.J. Holmes, N. Carvalho et al. (2018); T.L. Catchpole, A. Ribeiro-Santos, S.C. Mangi, C. Hedley, T.S. Gray, ‘The challenges of the landing obligation in EU fisheries’, Marine Policy 82 (2017), 76–86; F. Maynoua, M. del Mar Gilb, S. Vitalec, G. Battista Giustoc, A. Foutsid, M. Rangele, R. Rainhae, K. Erzinie, J.M.S. Gonçalvese, L. Bentese, C. Vivaf, P. Sartorf, F. De Carlog, I. Rossettig, M. Christouh, K. Stergiouh, C.D. Maraveliash, D. Damalas, ‘Fishers’ perceptions of the European Union discards ban: perspective from south European fisheries', Marine Policy (2017), https://doi.org/10.1016/j.marpol.2017. 12.019 ; B.I. De Vos, R. Döring, M. Aranda, F.C. Buisman, K. Frangoudes, L. Goti, C. Macher, C.D. Maravelias, A. Murillas-Maza, O. van der Valk, P. Vasilakopoulos, ‘New modes of fisheries governance: Implementation of the landing obligation in four European countries’, Marine Policy 64(2016), 1–8; Salomon M, Till M, Dross M, (2014). K.M. James, N. Campbell, J.R. Viðarsson, et al., Tools and technologies for the monitoring, control and surveillance of unwanted catches, in: S.S. Uhlmann, C. Ulrich, S.J. Kennelly (Eds.), The European Landing Obligation, Springer, Cham, 2019Nilsson HC, Andersson E, Hedgärde M, et al (2018) https://doi.org/10.1007/ 978-3-030-03308-8_18. See e.g. D. Valentinsson, K. Ringdahl, M. Storr-Paulsen, N. Madsen, R. Hubbard, Programme Director, Our Fish, Thrown away: How Illegal Discarding in the Baltic Sea is Failing EU Fisheries and Citizens, Executive Summary, November 2017, (2019) https://www.dr.dk/nyheder/penge/forskere-fiskere-smider-ulovligt-1300ton-torsk-ud [2018-07-30] http://www.our.fish/thrownaway2017 , Accessed date: 24 July 2018. 2013 CFP Regulation Art 15(4)(a)-(c). 2013 CFP Regulation Art 15(5)(c). 2013 CFP Regulation Art 15(8). 2013 CFP Regulation Art 15(9). See also, D.G. Reid, et al., The best way to reduce discards is by not catching them!, in: S.S. Uhlmann, C. Ulrich, S.J. Kennelly (Eds.), The European Landing Obligation, Springer, Cham, 2019, https://doi.org/10.1007/978-3-030-03308-8_13. J. Guillen, S.J. Holmes, N. Carvalho, et al (2018), p. 4. A. Hoff, H. Frost, P. Andersen et al., ‘Potential Economic Consequences of the Landing Obligation’, in S.S. Uhlmann, C. Ulrich, S.J. Kennelly (eds), The European Landing Obligation, Springer, Cham, (2019), https://doi.org/10.1007/978-3-03003308-8_6 . See also: L.G. Anderson and R.L. Dwight, ‘Optimal Governing Instrument, Operation Level, and Enforcement in Natural Resource Regulation: The Case of the Fishery’, American Journal of Agricultural Economics, (1986) Vol 68:3, https://doi.org/10.2307/1241552 . Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006, OJ L343/1. EU Commission Proposal for a Regulation of the European Parliament and the Council, amending Council Regulation (EC) No 1224/2009, and amending Council Regulations (EC) No 768/2005, (EC) No 1967/2006, (EC) No 1005/2008, and Regulation (EU) No 2016/1139 of the European Parliament and of the Council as regards fisheries control, Brussels, 30.5.2018, COM(2018) 368 final, 2018/ 0193(COD). J. Guillen, S.J. Holmes, N. Carvalho et al. (2018), p. 4. See also: K.M. James, N.
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B. Bohman Campbell, J.R. Viðarsson et al. (2019). [44] Green Paper, COM(2009)vol. 163, p. 15; L.G. Anderson and R.L. Dwight (1986). [45] K.S. Plet-Hansen, S.O. Eliasen, L.O. Mortensen et al., ‘Remote electronic monitoring and the landing obligation – some insights into fishers’ and fishery inspectors' opinions', 76 Marine Policy (2017) 98–106.; M. Salomon, M. Till, M. Dross, ‘Masterstroke or paper tiger – The reform of the EU׳s Common Fisheries Policy’, 47 Marine Policy (2014), 76–84, p. 79. [46] EU Commission Proposal, Brussels, 30.5.2018, COM(2018) 368 final, 2018/ 0193(COD) [47] K.M. Kames, N. Campbell, J.R. Viðarsson, et al. (2019). [48] 2013 CFP Regulation, Art 15(13). [49] K.S. Plet-Hansen, S.O. Eliasen, L.O. Mortensen, et al, (2017). [50] K.S. Plet-Hansen, S.O. Eliasen, L.O. Mortensen, et al, (2017). [51] B.I. de Vos, R. Döring, M. Aranda, et al., New modes of fisheries governance: implementation of the landing obligation in four European countries, Mar. Policy 64 (2016) 1–8. [52] R. Long, (2017). [53] E.g: K.M. James, N. Campbell, J.R. Viðarsson, et al. (2019). [54] Green Paper, COM(2009)vol. 163, pp. 11-12. [55] Green Paper, COM(2009)vol. 163, p. 21. [56] Green Paper, COM(2009)vol. 163, pp. 11-12.
[57] Green Paper, COM(2009)vol. 163, pp. 11-12. [58] See the concept of managerial compliance as formulated in: A. Chayes and A.H. Chayes, The New Sovereignty: Compliance with International Regulatory Agreements, Harvard University Press (1995). See also: Bohman B, (2018). [59] S. Sigurðardóttir, E. Kemp Stefánsdóttir, H. Condie, et al., How Can Discards in European Fisheries Be Mitigated? Strengths, Weaknesses, Opportunities and Threats of Potential Mitigation Methods, See also Bohman B, 2018, pp. 366–374 51 Marine Policy (2015). [60] S. Sigurðardóttir, Kemp K. Stefánsdóttir, H. Condie, et al, (2015) p. 372. See also: R. Long, (2017), pp. 26–27. [61] J. Raakjaer, J. van Leeuwen, J. van Tatenhove, M. Hadjimichael, Ecosystem-based marine management in European regional seas calls for nested governance structures and coordination – a policy brief, 50 Part B Marine Policy (2014) 373–381. [62] J. Raakjaer, J. van Leeuwen, J. van Tatenhove, M. Hadjimichael, Ecosystem-based marine management in European regional seas calls for nested governance structures and coordination – a policy brief, 50 Part B Marine Policy (2014) 373–381. [63] R. Long, (2017). [64] R. Long, (2017). [65] R. Long, (2017). [66] Green Paper, COM(2009) vol. 163, p. 11.
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Marine Policy journal homepage: www.elsevier.com/locate/marpol
Regulatory control of adaptive fisheries: Reflections on the implementation of the landing obligation in the EU common fisheries policy Brita Bohmana,b,∗ a b
University of Gothenburg, Sweden Stockholm University, Sweden
ABSTRACT
The most recently revised CFP Regulation, adopted in 2013, includes a number of significant changes with the aim to make fisheries more in tune with concept of the ecosystem approach and to avoid unsustainable exploitation of marine biological resources, including fish, as a natural resource. As part of that the CFP Regulation introduced the landing obligation, an obligation to land all catches as opposed to previous praxis where fisheries have been relying on a system of discarding fish and other marine biological resources in order to optimize their catch. One aim with the landing obligation is to push for new adaptive fishing methods and in a way to implement an ecosystem approach since the fishing strategies are meant to be adjusted to ecosystem factors. To be effective, the system for controlling implementation must be adjusted to take different aspects of the ecosystem approach into account. The paper presents some reflections on the required balance between adaptive approaches connected to the ecosystem approach and the strictness established by principles of rule of law in relation to the so called EU CFP landing obligation. It is concluded that the best way to create a control system adjusted to these factors seems to be by giving more influence to the industry itself. Involving those concerned at all levels, and thus applying all aspects of the regulatory governance under an ecosystem approach, would create an effective adaptive system where the rule of law is also safe-guarded.
1. Introduction The EU Common Fisheries Policy (CFP) has been reformed during the last decades [1]. The most recently revised CFP Regulation [2], adopted in 2013, includes a number of significant changes with the aim to make fisheries more in tune with concept of the ecosystem approach and to avoid unsustainable exploitation of marine biological resources, including fish, as a natural resource. The 2013 CFP Regulation introduced a new important regulatory measure for commercial fisheries, an obligation to land all catches as opposed to previous praxis where fisheries have been relying on a system of discarding fish and other marine biological resources that did not match their quotas or even just required size in order to optimize their catch [3]. This paper presents some reflections on the required balance between adaptive approaches connected to the ecosystem approach and the strictness established by principles of rule of law in relation to the so called EU CFP landing obligation. The adoption of the landing obligation (also referred to as the discard ban), was aimed to achieve more sustainable commercial fisheries through better conservation of the marine biological resources. The landing obligation accomplish this by reducing unwanted catches
through creating incentives for improved selectivity and adaptive measures in the choice of fishing gear and strategies. In this way, fish stocks are to be restored to levels that can sustain maximum production over time without harming biodiversity and the capacity of future generations to obtain fish and other marine biological resources. However, banning discards will inevitably induce diverse short- and long-term ecological, economic, and social impacts, which may determine whether the landing obligation's objectives will be achieved [4]. The landing obligation could be seen as a way to implement an ecosystem approach since the fishing strategies are meant to be adjusted to ecosystem factors. The system for controlling implementation must, however, because of the short- and long-term impacts mentioned, take those aspects into account to be effective. The overall theme for this special issue is ‘the tensions (or instead synergies) that may arise between adaptive governance approaches and certain rule of law values’1. Effectiveness in a regulatory system depends on its strictness, the ability to actually operationalize the law and so through compliance ensure the values set out to be guarded by those laws. However, the potential for operationalization in an environmental law context also depends on the ability of the law to adjust to specific circumstances in the issue area regulated. The ecosystem approach can
University of Gothenburg, Sweden. E-mail address: [email protected]. 1 On 15th of June 2018, the Scandinavian Institute of Maritime Law, University of Oslo together with the Department of Law, University of Gothenburg and the Law School at University of Eastern Finland arranged a workshop in Oslo on ‘Reconciling the Rule of Law with Adaptive Governance of Marine Ecosystems’, which is the background to this publication. ∗
https://doi.org/10.1016/j.marpol.2019.103557 Received 2 May 2019; Accepted 21 May 2019 0308-597X/ © 2019 Elsevier Ltd. All rights reserved.
Please cite this article as: Brita Bohman, Marine Policy, https://doi.org/10.1016/j.marpol.2019.103557
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in some aspects be a way to accomplish this. Compliance, however, generally depends a combination of factors; in addition to the potential for operationalization and adjustment, the acceptability of the law in question, as well as enforcement plays important parts. The wider the general acceptability is for the law in question, the less enforcement is needed. The ability to ensure compliance entails ensuring a general respect for the fundamental idea of the rule of law and certain principles connected to that, like predictability, legal certainty, legitimacy, and in the end the general platform of stability that the rule of law creates for a society based on these values. With the above assumption of the connection between the rule of law, compliance, operationalization and acceptability as backdrop, the purpose of this paper is to review the implementation of the so-called landing obligation in the 2013 CFP Regulation. The review of the landing obligation will focus on its potential for providing adaptive (selective) measures in commercially regulated fisheries as part of the operationalization of an ecosystem approach in the EU fisheries management, and how this relates to the above proposed general rule of law values and principles. The study is based on a legal analysis of the CFP Regulation, especially Article 15, taking into account preparatory works and other reports that explains the purpose and background of these rules. The general focus on law is as part of a wider governance system. Moreover, the analysis builds on theoretical ideas of how operationalization, compliance and effectivity work in a regulatory perspective, building on examples found in literature. The aim is to propose a more general perspective on how to achieve compliance and effective operationalization of adaptive fisheries in addition to, and directly through, other means than enforcement in the light of a strict top-down ‘command-and-control’ approach.
approach, and adaptive governance are compatible may vary and depend on what the intended aim of adaptivity is, how adaptivity is to be implemented, and on how compliance is monitored, measured and reviewed. The paper also argues that adaptivity is actually also a prerequisite for effectiveness and compliance in environmental law, as a tool for operationalization of laws and the rule of law as mentioned in the introduction above. The ecosystem approach originally arose from more general environmental governance perspectives. It can be seen as a governance model that calls for a strategy with a range of measures that have the potential to adjust its approach in relation to different situations [7]. Opposite to the intentions and origin behind the concept of ecosystem approach, it is easy to argue that the principal role of law is not to provide for mechanisms related to governance but rather to provide more strict control of actions. Especially at national level of legislation there are many examples of conflicts or obstacles [8]. This is despite the fact that in practice many fields of law do not regulate actions very strictly, but rather guide actors by means of principles or general goals. However, there are also examples where the ecosystem approach in some ways becomes a tool for compliance and implementation, thus also indirectly a tool for the principles of the rule of law. This is the case where the ecosystem approach is implemented in such way that it promotes a system of an adaptive and cyclic process, where re-evaluation of measures taken is central parts of the regulatory governance structure. In such processes, even activities that for different reasons may be difficult to regulate with strict measures and strict control will be integrated into a system of reviewing compliance and evaluating progress in implementation [9]. Moreover, in some situations the operationalization of an ecosystem approach and adaptive governance are dependent on the kind of steering and control that only law can provide [10]. This seems, for example, to be the case in the implementation of the CFP landing obligation and its connected aim of selective fishing [11]. Hence the role of law in implementing and providing for ecosystem approach and adaptive governance may be diverse and the relation between adaptive governance and rule of law is not straight forward or one way only. Put simply, an ecosystem approach within the context of law is, all in all, a legal design or structure where the regulatory approach or regulatory measures applied are based on, connected, or adapted to the prerequisites and conditions of the regulated ecosystem. Ideally, to contribute to a more sustainable or resilient ecosystem, an ecosystem approach must in addition aim to impact or change the ecological variables in the ecosystem governed. To achieve such impact the regulatory structure or measures are often based on ecological indicators and targets, or other ecological measure points. However, regulatory measures are not capable of changing ecosystems by direct inter-action. Instead the regulatory approach must be designed to guide actors (e.g. stakeholders) into making changes that affects the ecosystem. As a result, to be effective a regulatory design based on the ecosystem approach must also include other features, mechanisms, or measures than such that are directly connected to the ecosystem variables, i.e. features, mechanisms and measures that are effective primarily in guiding or pushing relevant actors into taking measures. The focus or function of these features, mechanisms or measures should be the effects that they can have in stabilizing the overall regulatory or governance system and creating formal pathways for action and participation. Some general features that are identified as connected to an ecosystem approach in this sense are: knowledge-based adaptivity; flexibility; stakeholder or public participation; and multi-level governance [12]. The inclusion of such other types of functions is important in relation to the ecosystem approach because of their capacity to help match the ecosystem prerequisites with different regulatory approaches, at different levels of governance, adjusted to the very specific aims and needs. The design of the overall governance system in this regard will be decisive for potential success [13]. In this range of features and mechanisms, the main feature of the
2. Outline After the above introduction to the general perspective and purpose of this paper, the next section presents the understanding of the ecosystem approach represented in this paper. This presentation of the ecosystem approach discusses its origin, general features and connection to adaptive governance. The chosen aspects of the ecosystem approach and adaptive governance are then discussed and reviewed in relation to the CFP Regulation and the implementation of the landing obligation in Article 15. The following sections aim to show both the potential opportunities for integrating these concepts or features in the CFP Regulation, as well as the potential obstacles. In the end, alternative approaches to both implementation and monitoring of such laws to ensure compliance are presented. Approaches that would also be more in line with the main features of the concept of ecosystem approach. These suggested alternative ways of implementation and control are, inter alia, to include structures for wider participation by different stakeholders, including the fishing industry, and by forms of comanagement. 3. Ecosystem approach and adaptive governance The concept of ecosystem approach, including adaptive governance, has become a well-known and central concept within environmental law. Ecosystem approach also holds a central stand in the EU CFP. However, it is debated how this concept with adaptive and flexible features fits into a legal context and whether such features are compatible with the rule of law [5]. It has frequently been observed that general requirements on legal certainty cannot apply to, or be combined with, such concepts as adaptive governance and the ecosystem approach because of their inherent flexibility and transformability. It is debated whether it is possible to combine such features of flexibility and adaptivity with sufficient control and legal coherence, instead of them forming mechanisms that lead to a ‘race to the bottom’ or ‘freeriding’ [6]. While the potential conflict might be obvious, this paper argues that whether and to what extent legal control, ecosystem 2
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ecosystem approach is still generally seen to be adaptivity, or adaptive governance. Adaptivity represents the very core of an ecosystem approach since it corresponds with measures and approaches that can adjust to changes or transformations in the ecosystem or to new knowledge about the ecosystem and the environmental problem in focus of regulation [14]. Hence adaptivity is in this way seen as a prerequisite for a regulation to be coherent with or in line with the dynamic preconditions given by the ecosystem. While the other features or mechanisms presented above as part of a system operationalizing the ecosystem approach are important and necessary alongside features for adaptivity, to make the governance system complete and effective in other ways. Still, adaptivity as a feature within a legal system is, as stated above, also an issue under debate. What seems important for the balance between the rule of law and adaptive governance, though, is how and in what way adaptivity is operationalized, as well as, what more specifically is to be accomplished with adaptivity in different situations and in relation to different problems. In the following section different aspects of ecosystem approach and adaptivity are evaluated in relation to the implementation of the 2013 CFP landing obligation. The aim is to clarify if and where potential obstacles and opportunities may appear in relation to the effectiveness and implementation of these rules.
management. One approach intended to operationalize adaptive governance as part of an ecosystem approach in the 2013 CFP is primarily the landing obligation. The landing obligation is combined with other important measures and goals, inter alia to set a limit for total allowable catch or the former fishing quotas, in relation to the overarching aim of maximum sustainable yield [24]. In its preparatory proposal to the revised 2013 CFP the Commission suggested that in order to achieve the goal of maximum sustainable yield, including the landing obligation, the regulatory approach should move away from micro-management by the co-legislators [25]. Instead, it is stated, the EU legislation on these plans and measures should only define the essentials, such as the scope, targets, evaluation indicators and time frames. This is a way of implementing also the ‘new governance’ that is also more generally promoted by the Commission [26]. A governance strategy which has played an important role in developing the EU environmental legislation, characterized by adaptive and flexible structures, and which has also set the frame for important water and marine environment EU laws (i.e. the Water Framework Directive [27] and the Marine Strategy Framework Directive [28]). The Commission thus proposed that decentralization may authorize Member States to adopt the conservation and technical measures necessary to achieve the objectives and targets using a tool box of measures under the conservation policy [29]. Hence, not only creating a frame for adaptive approaches but also with considerable flexibility. The purpose was also expressly to create regional flexibility and simplification of the policy. Similar ideas have been proposed for the CFP elsewhere in consideration on how to achieve a sustainable fisheries policy [30].
4. Ecosystem approach and adaptive governance in the CFP As mentioned in the introduction, the EU CFP has been reformed during the last decades [15]. The most recently revised CFP Regulation from 2013 includes a number of significant changes with the aim to make fisheries more in tune with the ecosystem and avoid unsustainable exploitation of fish as a biological or natural resource and achieve production at level with ‘maximum sustainable yield’ [16]. Beside environmental sustainability and the precautionary principle, the 2013 CFP Regulation requires implementation of an ecosystem-based approach to fisheries management so as to ensure, inter alia, that ‘negative impacts of fishing activities on the marine ecosystem are minimised’ [17]. The ecosystem approach as adopted in the 2013 CFP Regulation is operationalized through a range of measures, but could also be discussed in its function as a counterweight in ensuring also economic and social values set out in the objectives of the Regulation [18]. Those values are for example; achieving economic, social and employment benefits; providing conditions for economically viable and competitive fishing capture and processing industry and land-based fishing related activity; and, to contribute to a fair standard of living for those who depend on fishing activities. These aspects will however not be dealt with in this paper. Instead, focus is on the role of the landing obligation and the fact that it is directly stated that the aim with the ecosystem-based approach is to promote the adoption of management measures in the aim to create adaptiveness and incentives for more diverse fishing methods [19]. The purpose and goal of the landing obligation, or the discard ban, is to end the practice of discards and hence reduce unwanted catches. With a few exceptions, it requires that all catches of species which are subject to catch limits shall be brought and retained on board the fishing vessels, recorded, landed and counted against the quotas where applicable, except when used as live bait [20]. Catches of fish or other marine biological resources below minimum conservation reference size that otherwise would have been discarded, are now regulated to certain usage and cannot be sold for human consumption [21]. To comply with the landing obligation, the fisheries must use selective fishing gear and other adaptive strategies to avoid unwanted catches [22]. In one of the first more specific elaborations on the concept of ecosystems approach to fisheries, the specifics were identified as the ‘regulation of human activity inputs (gear, effort, capacity) or output (removals, quotas) and trade.’ [23] Hence, that is what should be targeted when applying the concept of ecosystem approach to fisheries
5. Implementation of the CFP landing obligation The landing obligation in Article 15 reflects an implementation of the ecosystem approach due to its aim of creating incentives for more adaptive fishing strategies. It does, however, also include flexibility in line with the general idea of an ecosystem approach with the aim to make the application of this rule more practical. Despite the aim of adopting an ecosystem approach through selective measures and adaptive governance in commercial fisheries, the implementation of the landing obligation have been questioned and criticized [31]. Compliance with the landing obligation is difficult to control, additionally selective measures are both difficult and sometimes expensive to introduce [32]. Thus, it seems as if unwanted catches are being unlawfully discarded despite the new obligation to land all catch [33]. This, of course, instead leads to a negative development for the ecosystem, as well as it creates a situation where the data and scientific information on fish stocks is incorrect due to unreported discards. In this context it is important to also note, that these unlawful discards are made despite some flexible mechanisms in this legal construction. The flexibility in the landing obligation is meant to create lee ways for the fisheries in situations where a strict application of the landing obligation is unreasonable or simply unnecessary in relation to the aim. The landing obligation does for example not apply to species in respect of which fishing is generally prohibited and species for which scientific evidence demonstrates high survival rates, or catches falling under a certain ‘de minimis’ exemptions [34]. Such de minimis exemptions applies to up to 5% of total annual catches of all species subject to the landing obligation where scientific evidence indicates that increases in selectivity are very difficult to achieve or in cases where it is relevant to avoid disproportionate costs of handling unwanted catches under [35]. Flexibility is also integrated through a derogation from the obligation to count catches against quotas. Catches of species that are subject to the landing obligation and that are caught in excess of quotas of the stocks in question may under certain conditions be deducted from the quota, if they do not exceed 9% of the quota of the target species [36]. In addition, the member states may also use a year-to-year flexibility of up to 10% of their permitted landings [37]. 3
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As the first part of the paper made clear, the landing obligation could be a valuable tool for implementing an ecosystem approach and thus if it is implemented effectively also be a valuable tool for the protection of the marine ecosystem. This requires that an exploitation pattern close to the optimal is achieved in relation to given quotas, which is only possible by completely avoiding to capture undersized and non-commercial species and by avoiding so-called ‘over-quotacatches’ [38]. Such outcome thus relies on strict compliance with the discard ban and on providing strong incentives for fishers to alter their fishing practices [39]. Hence, in regard to the rule of law the adaptive measures required here rely on strict enforcement and control measures, and thus on a successful implementation of the law. Traditionally discarding has been taking place because it was allowed in legislation and because fishers expect to profit from this practice. While the landing obligation removes the legal requirement to discard, fishers may still have an incentive to discard for economic reasons and the lack of control measures make that possible [40]. Thus, it has been stated, an effective implementation of the landing obligation will require stringent control and enforcement, and/or economic incentives to land more of the catch.
REM, while 9 out of 10 interviewed fishers without REM experience were against REM [49]. This somehow opens up for this as an alternative, given that despite general critique from the fishers it seems as if it can be acceptable if they get used to it. In this study the fishery inspectors saw on-board observers, at-sea control and REM as the three best solutions to control the landing obligation. However, they also shared the general belief that the landing obligation cannot be enforced properly and will be difficult for fishers to comply with [50]. This instead opens up for alternative mechanisms for implementation and control. While strict control mechanisms and measures as those suggested above may be important, it is also necessary to find acceptance and legitimacy among the different actors involved, including the fishers, in order to grow such culture of compliance. Only strict control measures will not be sufficient. For legitimacy and effectiveness, and in relation to the wider perspective on the ecosystem approach, it is important to increase influence of civil society actors and the participation of resource users. If implementation is to be successful, their views, knowledge, and cooperation are vital. Otherwise, resistance becomes too high, and regulation becomes more symbolic than a tool for change [51].
6. Compliance control
7. Participation and co-management in fisheries regulation
The control measures related to the CFP, which are necessary for a strict implementation of the landing obligation is regulated separately [41]. Stricter systems for control and stronger sanctions have recently been proposed by the Commission, thus some changes could come in this regard [42]. However, fisheries control and enforcement are typically rather expensive. It is also difficult to enforce, due to the nature of the fisheries. Surveillance to ensure full implementation of the CFP landing obligation could prove to be extremely costly considering the size and diverse nature of the EU fleet [43]. One example where the landing obligation is especially difficult to enforce is in relation to socalled mixed fisheries, i.e. when several species of fish are targeted with the same fishing method, this often leads to unwanted by-catches in the case where the quota of one species is exhausted while quotas for other species still remain and motivates continued fishing. This then makes fishermen feel the need to discard the fish that was landed exceeding the quota limit for the exhausted quota [44]. One suggestion to achieve stricter control has been so-called Remote Electronic Monitoring (REM). REM has been tested in a variety of fisheries worldwide for different purposes and is currently considered as one tool to ensure compliance with a European ban on discards [45]. The CFP Regulation mentions different options for monitoring and control, including observers, CCTV and others. The new proposal from the Commission on stricter control measures did include an opening for these forms of monitoring, although only requiring a low percentage of fisheries to adopt such methods [46]. However, if such control measures are to be effective for the implementation of the landing obligation they depend on a high coverage level and cooperation with the fishing industry in other aspects on compliance too [47]. In its aim to provide prerequisites for regional variations and adjustments, the EU avoids to further define what control measures the Member States shall adopt. It does simply state that the Member States shall respect the principles of efficiency and proportionality and that they shall aim for a culture of compliance [48]. REM could represent an important mechanism both to ensure control and to increase legitimacy and a culture of compliance. It would remove some obstacles for coherence with the rule of law, since such monitoring would entail strict control and thus a smaller margin or leeway for non-compliance, while also creating better prerequisites for enforcing selective, adaptive fishing methods. However, as stated, that would require a more general and high level of application of REM on the majority of fishing fleets, instead of only a small percentage as currently proposed. A study on Danish fishery inspectors and on fishers using REM, showed that both inspectors and REM-experienced fishers expressed positive views on
The CFP is based on a Regulation and is thus according to EU law directly binding in its wording, thus creating little flexibility in comparison with a Directive for example. The flexibility in Article 15, as described in the section above, is mainly based on a number of derogations. Beside difficulties of effective enforcement in such a system with a rather strict top down approach, a traditional centralized, top down approach to fisheries management also makes it difficult to respond in an adaptive way to regional variations at sea-basin levels in the EU. There have, however, been many suggestions on how to increase adaptivity and flexibility in the implementation of the CFP rules through, inter alia, a closer cooperation with different kinds of stakeholders – not least the fishing industry. This is not new, stakeholders have had an important role in the CFP since 2002, but the formal pathways for their participation have been limited [52]. The Commission even suggested in its Green Paper on the revision of the CFP to change the incentives for fishers and other stakeholders to comply. Changed incentives also seem like a main point of concern in studies on different forms of monitoring and control as discussed above. Changed incentives could be achieved by giving fishers or the fishing industry both more freedom as well as duties to be involved in developing fishing strategies, technical solutions and rules as part of a process to implement and enforce the landing obligation [53]. The Commission emphasized the need to involve different parts of the fishing industry as an actor important for effective implementation and to make them understand why it is important to change the CFP. The Commission, however, suggests and emphasize that their role for implementation must be built on, and depends on, both responsibilities and rights, in practice, this would mean ‘results-based self-management’. The suggestion given was that public authorities would set the limits within which the industry must operate, such as a maximum catch or maximum by-catch of young fish, and then give the industry authority to develop the best solutions economically and technically. The rights could be given, and have been given, to actors in the industry in order to encourage and provide incentives for them to change in a positive direction [54]. To some extent such cooperation is already established, but the role of stakeholders and the importance of improving communication between scientists, policy makers and stakeholders particularly within the Regional Advisory Councils (RACs) and the Advisory Committee on Fisheries and Aquaculture (ACFA) and securing their full commitment was emphasized [55]. Environmental legislation based on goals providing wide space for adaptive and flexible implementation is also rather common in other 4
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areas of EU environmental governance, and with rather good results. The Commission has proposed a similar results-based management for fisheries. Instead of establishing rules about how to fish, the rules would focus on the outcome and the more detailed implementation decisions would be left to the industry and the Commission to establish. A governance system based on results-based management would relieve both the industry and policy-makers of part of the burden of detailed regulation of technical issues, which have also had uncertain success [56]. It would however reverse ‘the burden of proof’ which of course is a step away from the rule of law in the sense that the industry will have to prove that the decisions and rules set are appropriate and complied with. It would be up to the industry to demonstrate that it operates responsibly in return for access to fishing [57]. However, also in other areas this has been suggested and given such complex environmental problem such reversed reporting and monitoring seems to be a valid alternative for effective implementation and legitimacy. The kind of adaptive approaches that could be operationalized this way would both strengthen the adoption of selective measures and the methods to safeguard the biological resources and the ecosystem, it would also support the rule of law in that it provides for greater legitimacy and compliance, which also means a more effective regulatory system. The idea of wider participation and including stakeholders could also create incentives for compliance through increased legitimacy or through processes of ‘managerial compliance’ [58] approaches to implementation. All in line with a wider perspective on regulatory structures for ecosystem approach discussed above. Such approaches could also create a platform for a use and integration of more alternative fishing measures, gear and methods, hence increase the adaptivity in the regulatory system. Some approaches already proven include: technical measures; effort regulations, and catch quotas. The involvement of fishers may thus lead to a strengthened development of more selective fishing gear or the emergence of new markets for traditionally-discarded species or sizes [59]. Similarly, the use of so-called co-management procedures in trying to reduce discards have also shown to be effective in providing knowledge exchange that can help shape the requirements of discard reduction methods to fit specific fisheries and discard problems. Additionally, if such methods are decided in co-operation with the involved fishers (or other stakeholder), it shows that co-management also contributes to higher acceptability and thus easier implementation of discard reduction methods. That, of course, is important for the perspective on how the rule of law can be safe-guarded. Last but not least, it then also contributes to improved legitimacy of the regulations and specific methods among the fishers and thereby higher compliance [60]. A general perspective seems to be that adaptive approaches and ecosystem approach in the implementation of the CFP and the landing obligation must be based on regional cooperation and participation. Adaptive approaches of course also need to be applied at a suitable scale. However, existing multi-level governance arrangements that have emerged and evolved over the last decades to govern activities such as shipping and fisheries or that focus on marine environmental protection more generally have much wider and more complex spatial territory. Thus, by developing institutional linkages with these governance arrangements it could be possible to ensure a common discourse, policy objectives and decision-making and implementation of sectoral measures for ecosystem approach at the regional sea level [61]. The governance system for ecosystem approach and adaptive governance needs decision-making to be decentralised, in order to create room for local participation and new knowledge. Such system could also be nested and polycentric joining together different geographical scales and jurisdictions. A nested governance approach refers to the layer of constitutional rules and principles that define the organisation of the system, i.e. the links between EU, regional and sectoral governance arrangements [62]. It is considered a strength of the CFP Regulation that the policy is subject to a continuous process of review and reform. Important
revisions have been made in 1992, 2002, and from 2009 through to 2013. In the last revisions the EU Commission brought together several multidisciplinary research teams to work on solutions on how to improve fisheries management [63]. This is of course also an important form of including stakeholder participation in the development of the policy, however, one could perhaps also use this structure for review as a tool for trying also more elaborate and direct forms of participation in the management, such as co-management or other forms of management that have been suggested and reviewed. Although being a long and complicated process in some ways, this continuous revision of the CFP Regulation also entails that there is room for trying new approaches and evaluating them with the next revision. Hence, the CFP actually provides a good platform for an adaptive approach in itself. The recent efforts to reform the CFP are indicative of developments at an international level to resolve the global crisis in marine fisheries. The shift away from centralized ‘command-and control’ structures to a governance model that reflects the interests of stakeholders is ultimately aimed at making EU fisheries management more efficient, effective, accountable and transparent. Greater stakeholder participation in fisheries governance, regulation and management shall then be based on economic, political, social, environmental and legal considerations. It is argued that the fishing industry is often best placed to implement management measures as they have a clear understanding of the tasks and challenges encountered in the practical aspects of conservation and resource utilization [64]. 8. Conclusions From the standpoint of enforcement, a traditional centralized, top down approach to fisheries management makes it difficult to respond in an adaptive way to regional variations at sea-basin levels in the EU. This is a strong incentive for making a real change in the institutional structures of the CFP to better include stakeholders and have a more decentralised approach. This is also in line with the wider view of ecosystem approach and the effects that different features, measures or mechanisms can have for the overall governance system, as explained above. However, an important counter-argument to take into account is also that the interests of fishers frequently diverge from those of other interest groups [65]. Still, the reasons for opening up to stronger stakeholder participation and co-management are convincing. The Commission also argues for responsibilities and rights to the industry, in order to provide for comanagement or self-management [66]. As stated in the introduction, the chosen point of view in this paper is that effectiveness in a regulatory system depends on its ability to actually operationalize the law and ensure the values set to be guarded by those laws. Operationalization and compliance is here seen to also entail a perspective of general respect for the idea of rule of law and certain connected principles or values. However, without being able to adjust to the issue in focus of legislation, laws will often miss their aimed target and so also their legitimacy. This is a balance that law and legal systems have to keep at all levels of implementation. In terms of protecting ecosystems and the environment, adaptivity or adaptive governance and ecosystem approach are crucial for adjusting applied measures to the problem. Adaptive governance measures in law does not have to entail unpredictable laws or uncertainty. In the example of the landing obligation, as discussed in this paper, it only means giving actors involved a choice of how to implement given rules in the best way, and while doing that, adjust measures to the conditions set by the ecosystem. However, given this flexibility there is always a risk that some actors instead use the leeway given by adaptivity as a possibility to stay at a low level of implementation or plain non-compliance. This is a classic ‘free-rider’ problem and it makes the rule of law weak in the sense that it may appear to be voluntary to follow the law as a result of the fact that what is actually required by law becomes more vague when it is adaptive. Hence, adaptivity must be accompanied with effective 5
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compliance control, but such control system must also be adjusted to this vagueness and can also be designed in many different ways. In the case of the landing obligation, the praxis banned by law, i.e. discards, is rather clear and it is only the choice of method used to avoid such discards that is to be flexible and adaptive. The latter is also the part of this legislation that is hard to control and decide on a general level since many factors may have impact on this, such as the kind of fish, the region, the size of fishing fleet etc. Moreover, fisheries at sea are difficult to control only by inspections and monitoring, but does actually seem to depend on cooperation with the industry and to change incentives. Hence, the best way to create a control system and a system where appropriate choice of fishing methods can be applied, seems to be by giving more influence to the industry itself as this paper has showed. Involving those concerned at all levels, and thus applying all aspects of the regulatory governance under an ecosystem approach, would create an effective system where the rule of law is also safeguarded. In the long run, such adjusted form of operationalization and enforcement will hopefully contribute to reduced catches so that fish stocks can be restored and sustain maximum production over time.
[15] [16] [17] [18] [19]
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Kennelly (eds), The European Landing Obligation, Springer, Cham (2019), https:// doi.org/10.1007/978-3-030-03308-8_4 ; J. Guillen, S.J. Holmes, N. Carvalho et al. (2018); T.L. Catchpole, A. Ribeiro-Santos, S.C. Mangi, C. Hedley, T.S. Gray, ‘The challenges of the landing obligation in EU fisheries’, Marine Policy 82 (2017), 76–86; F. Maynoua, M. del Mar Gilb, S. Vitalec, G. Battista Giustoc, A. Foutsid, M. Rangele, R. Rainhae, K. Erzinie, J.M.S. Gonçalvese, L. Bentese, C. Vivaf, P. Sartorf, F. De Carlog, I. Rossettig, M. Christouh, K. Stergiouh, C.D. Maraveliash, D. Damalas, ‘Fishers’ perceptions of the European Union discards ban: perspective from south European fisheries', Marine Policy (2017), https://doi.org/10.1016/j.marpol.2017. 12.019 ; B.I. De Vos, R. Döring, M. Aranda, F.C. Buisman, K. Frangoudes, L. Goti, C. Macher, C.D. Maravelias, A. Murillas-Maza, O. van der Valk, P. Vasilakopoulos, ‘New modes of fisheries governance: Implementation of the landing obligation in four European countries’, Marine Policy 64(2016), 1–8; Salomon M, Till M, Dross M, (2014). K.M. James, N. Campbell, J.R. Viðarsson, et al., Tools and technologies for the monitoring, control and surveillance of unwanted catches, in: S.S. Uhlmann, C. Ulrich, S.J. Kennelly (Eds.), The European Landing Obligation, Springer, Cham, 2019Nilsson HC, Andersson E, Hedgärde M, et al (2018) https://doi.org/10.1007/ 978-3-030-03308-8_18. See e.g. D. Valentinsson, K. Ringdahl, M. Storr-Paulsen, N. Madsen, R. Hubbard, Programme Director, Our Fish, Thrown away: How Illegal Discarding in the Baltic Sea is Failing EU Fisheries and Citizens, Executive Summary, November 2017, (2019) https://www.dr.dk/nyheder/penge/forskere-fiskere-smider-ulovligt-1300ton-torsk-ud [2018-07-30] http://www.our.fish/thrownaway2017 , Accessed date: 24 July 2018. 2013 CFP Regulation Art 15(4)(a)-(c). 2013 CFP Regulation Art 15(5)(c). 2013 CFP Regulation Art 15(8). 2013 CFP Regulation Art 15(9). See also, D.G. Reid, et al., The best way to reduce discards is by not catching them!, in: S.S. Uhlmann, C. Ulrich, S.J. Kennelly (Eds.), The European Landing Obligation, Springer, Cham, 2019, https://doi.org/10.1007/978-3-030-03308-8_13. J. Guillen, S.J. Holmes, N. Carvalho, et al (2018), p. 4. A. Hoff, H. Frost, P. Andersen et al., ‘Potential Economic Consequences of the Landing Obligation’, in S.S. Uhlmann, C. Ulrich, S.J. Kennelly (eds), The European Landing Obligation, Springer, Cham, (2019), https://doi.org/10.1007/978-3-03003308-8_6 . See also: L.G. Anderson and R.L. Dwight, ‘Optimal Governing Instrument, Operation Level, and Enforcement in Natural Resource Regulation: The Case of the Fishery’, American Journal of Agricultural Economics, (1986) Vol 68:3, https://doi.org/10.2307/1241552 . Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006, OJ L343/1. EU Commission Proposal for a Regulation of the European Parliament and the Council, amending Council Regulation (EC) No 1224/2009, and amending Council Regulations (EC) No 768/2005, (EC) No 1967/2006, (EC) No 1005/2008, and Regulation (EU) No 2016/1139 of the European Parliament and of the Council as regards fisheries control, Brussels, 30.5.2018, COM(2018) 368 final, 2018/ 0193(COD). J. Guillen, S.J. Holmes, N. Carvalho et al. (2018), p. 4. See also: K.M. James, N.
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B. Bohman Campbell, J.R. Viðarsson et al. (2019). [44] Green Paper, COM(2009)vol. 163, p. 15; L.G. Anderson and R.L. Dwight (1986). [45] K.S. Plet-Hansen, S.O. Eliasen, L.O. Mortensen et al., ‘Remote electronic monitoring and the landing obligation – some insights into fishers’ and fishery inspectors' opinions', 76 Marine Policy (2017) 98–106.; M. Salomon, M. Till, M. Dross, ‘Masterstroke or paper tiger – The reform of the EU׳s Common Fisheries Policy’, 47 Marine Policy (2014), 76–84, p. 79. [46] EU Commission Proposal, Brussels, 30.5.2018, COM(2018) 368 final, 2018/ 0193(COD) [47] K.M. Kames, N. Campbell, J.R. Viðarsson, et al. (2019). [48] 2013 CFP Regulation, Art 15(13). [49] K.S. Plet-Hansen, S.O. Eliasen, L.O. Mortensen, et al, (2017). [50] K.S. Plet-Hansen, S.O. Eliasen, L.O. Mortensen, et al, (2017). [51] B.I. de Vos, R. Döring, M. Aranda, et al., New modes of fisheries governance: implementation of the landing obligation in four European countries, Mar. Policy 64 (2016) 1–8. [52] R. Long, (2017). [53] E.g: K.M. James, N. Campbell, J.R. Viðarsson, et al. (2019). [54] Green Paper, COM(2009)vol. 163, pp. 11-12. [55] Green Paper, COM(2009)vol. 163, p. 21. [56] Green Paper, COM(2009)vol. 163, pp. 11-12.
[57] Green Paper, COM(2009)vol. 163, pp. 11-12. [58] See the concept of managerial compliance as formulated in: A. Chayes and A.H. Chayes, The New Sovereignty: Compliance with International Regulatory Agreements, Harvard University Press (1995). See also: Bohman B, (2018). [59] S. Sigurðardóttir, E. Kemp Stefánsdóttir, H. Condie, et al., How Can Discards in European Fisheries Be Mitigated? Strengths, Weaknesses, Opportunities and Threats of Potential Mitigation Methods, See also Bohman B, 2018, pp. 366–374 51 Marine Policy (2015). [60] S. Sigurðardóttir, Kemp K. Stefánsdóttir, H. Condie, et al, (2015) p. 372. See also: R. Long, (2017), pp. 26–27. [61] J. Raakjaer, J. van Leeuwen, J. van Tatenhove, M. Hadjimichael, Ecosystem-based marine management in European regional seas calls for nested governance structures and coordination – a policy brief, 50 Part B Marine Policy (2014) 373–381. [62] J. Raakjaer, J. van Leeuwen, J. van Tatenhove, M. Hadjimichael, Ecosystem-based marine management in European regional seas calls for nested governance structures and coordination – a policy brief, 50 Part B Marine Policy (2014) 373–381. [63] R. Long, (2017). [64] R. Long, (2017). [65] R. Long, (2017). [66] Green Paper, COM(2009) vol. 163, p. 11.
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