Random fish kill, wishful law The management problem of incidental catch

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Random fish kill, wishful law- The management
problem of incidental catch

• Stig S. Gezelius
• NILF

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The problem of incidental catch

• Most modern fisheries management systems attempt
  to regulates catches.
• Fish kills are always to some extent random,
  especially in mixed groundfish fisheries.
• Consequently, there is and inevitable risk of
  unintended violations of fisheries law.

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This risk entails a two-level management problem

• The legal problem of finding legitimate criteria
  for criminal liability in fishing.
• The resource conservation problem of combining
  legitimate liability criteria with incentives for
  sound fishing practices.

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The legal level
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• Just principles of criminal liability prescribe
  that law punishes deliberate acts of people
  rather than unforeseeable consequences of acts.
• Consequently, finding clear and legitimate
  criteria of due care is important in order to
  ensure legitimate enforcement of fisheries
  regulations.
• However, the random nature of fishing makes clear
  and legitimate definitions of due care
  difficult to establish.

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The resource conservation level
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The problem of applying the principle of due care

• Applying the principle of due care actively means
  that fishermen with illegal catch cannot be
  punished unless they are proven to have acted
  carelessly.
• However, the unpredictable nature of fishing
  often makes criminal negligence difficult to
  prove.
• This reduces the risk of punishment, the purpose
  of which is to deter fishermen from careless
  fishing and deliberate pursuit of illegal catch.

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The problem of strict criminal liability

• Strict criminal liability means that illegal
  incidental catch is always regarded as a result
  of criminal negligence.
• Strict criminal liability efficiently removes any
  judicial loophole that could provide incentives
  for the deliberate pursuit of illegal catch.
• However, it creates incentives to conceal illegal
  incidental catch through discards or misreporting.

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Incidental catch thus raises an enforcement
dilemma

• Incentives to land and report illegal incidental
  catch easily creates incentives to pursue illegal
  catch.
• Removing incentives to pursue illegal catch
  creates incentives for discards and misreporting.
  
• Implementation of catch regulations requires a
  balance between these two concerns.

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Three management responses

• The EU, Norway, and the Faeroe Islands

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The European Union

• Regulated landings and required discards

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Basic features of CFP

• CFP defines catch limit as a limit on
  landings.
• Landings are of a far less incidental nature than
  fish kills.
• Thereby, EU regulations govern deliberate acts
  rather than more or less unpredictable
  consequences of acts.
• This makes the question of criminal liability
  easier to handle.
• ...but has entailed required discards of illegal
  catch.
• The two-level problem of incidental catch is
  circumvented at the cost of losing track of
  fishing mortality.

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Obstacles to changing the present policy

• Each member state is responsible for implementing
  CFP regulations in their own waters.
• National fisheries legislations that only allow
  for sanctions authorised in penal law (e.g.
  Danish law), require clear criteria of criminal
  liability.
• Consequently, EUs heterogeneous setting for
  implementation requires a simple basis for
  enforcement.
• The EU is currently considering a ban on
  discards, but lacks credible answers in terms of
  implementing such a ban.

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Norway

• Regulated catches and non-penal forfeiture

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Basic features of management system

• Regulations concern actual catches.
• Ban on dumping of dead and dying fish.
• In effect, regulations relate directly to fishing
  mortality.
• As a result, the two-level problem of incidental
  catch must be dealt with.

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Response to the two-level problem

• Illegal catch not considered to be the
  fishermans private property.
• Consequently, confiscation of such catch may not
  be classified as penalty in a legal sense.
• The two-level problem is attempted solved through
  non-penal forfeiture of illegal incidental catch.

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The system of non-penal forfeiture

• A fisherman must always forfeit illegal catch,
  regardless of criminal liability.
• He will keep the legal part of his catch and not
  be penalised,unless he can be proven to have
  acted carelessly or intentionally,
• Non-penally forfeited catch will not be deducted
  from the fishermans quota.
• In demersal fisheries, the fisherman normally
  receives 20 of the value of the illegal catch as
  a compensation for bringing it to shore.

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The effects of non-penal confiscation

• Reduces incentives to pursue illegal catch, as
  such catch must be forfeited regardless of
  criminal liability.
• Reduces incentives to discard illegal incidental
  catch, as the fisherman risks no penalty when
  landing it.

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The challenges of non-penal forfeiture

• Requires a fine balance between providing
  incentives to land illegal catch and incentives
  to avoid taking it.
• Requires an administrative apparatus for routine
  handling of landings of illegal incidental catch.
• Requires fisheries legislation with enforcement
  provisions that operate independently of penal
  law.

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Conditions for Norways solution
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A corporatist management model

• First-hand trade of fish are organised through
  law-protected fishermens sales organisations.
• Consequently, all landings are managed by a
  centralised, practically semi-governmental,
  system.
• These organisations fullfil core implementation
  tasks relating to catch registration, non-penal
  confiscation, and control.

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Fisheries law with sector-specific enforcement
provisions

• Fisheries law has three provisions for forfeiture
  of illegal catch, only one of which is classified
  as a penal provision.
• The non-penal provisions are detached from the
  liability criteria of Norwegian penal law, and
  thereby adapted to the random nature of fishing.

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Can the EU learn from Norway?
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It is a popular belief (in Norway)that they can
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.but the basis for this belief is questionable

• EUs fisheries management must be adaptable to
  national fisheries- and penal legislations in 27
  member states.
• Consequently, it is far less able to implement
  regulations that require unique enforcement
  provisions.
• The EU lacks Norways uniform semi-governmental
  organisation of the first hand trade of fish.

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Are there simpler, alternative paths?

• The case of the Faeroe Islands

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The Faeroese experience with catch regulations

• Regulations aimed to control fishing mortality
  not introduced until the cod fisheries collapsed
  in the early 1990s.
• TAC-based management and ITQs introduced in 1994.
• Rapid recovery of the cod generated big problems
  of illegal incidental catch.
• Severe amounts of illegal discards and black
  landings resulted.

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The Faeroese response to the problem of
incidental catch

• The entire TAC-based system for managing demersal
  fish stocks was abandoned.
• Small fisheries administration need for a
  management system that was easy to administrate
  and enforce, yet removed incentives for discards
  and black landings.
• A system of sea days replaced TAC-based
  management in 1996.

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Todays management of Faeroese demersal fisheries

• Holders of fishing licenses are allocated fishing
  time instead of catch quotas.
• This is combined with closed areas and seasons.
• No incentives to discard or misreport incidental
  catch.
• Trip registration, satellite tracking, and sales
  notes are the main means of control.

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Advantages of the sea day system

• Violations are rarely accidental proving
  criminal liability relatively easy.
• Relatively simple to administer and enforce.
• Reliable data on fishing mortality.

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Problems with the sea day system

• Demanding to control fishing mortality through
  regulation of fishing effort.
• Incentives to increase fishing capacity.
• Ensuing need to monitor and control fishing
  capacity.
• The value of a sea day depends on fishing
  capacity, which brings a potential for
  distributional conflict.

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Conditions for the Faeroese solution

• Faeroese demersal stocks are exclusively
  national managed and distributed by a single
  government.
• Consequently, the Faeroe Islands is less
  vulnerable to allocation problems than Norway and
  the EU.
• Also, TAC-based management of demersal stocks are
  not bound to international agreements.
• The ensuing political autonomy in fisheries
  management made TACs easy to part with.

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Can the EU learn from the Faeroe Islands?
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Yes..

• The system is relatively simple in terms of
  administration and penal legislation.
• Consequently, it is adaptable to many national
  settings.
• Efficiently removes incentives for discards and
  misreporting of landings.

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and no

• Effort regulation is highly vulnerable to
  international distributional conflicts, because
  the value of fishing time depends on fishing
  capacity, which is difficult to measure
  accurately.
• The EUs management is tied to fragile
  distributional compromises that would be
  difficult to reconstruct outside TAC-based
  management.

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Summary

• Norway and the Faeroe Islands have established
  different, but coherent systems based on their
  unique national conditions.
• The EU appears to be trapped in a lack of
  conditions for implementing either model
  sufficiently.
• Consequently, capacity reduction schemes have
  continued to play a major role in the EUs
  resource management.
• These schemes are combined with landing quotas,
  which allow for distribution. The Recovery Plans
  for severely overfished stocks supplement landing
  quotas with restrictions on sea days.
• The EU is moving towards a ban on discards, but
  will be faced with the two-level problem of
  incidental catch and appears to have few
  solutions to this.