Many problems in fisheries are political in nature. The equitable and sustainable exploitation and trade in fish – like any natural resources – depends to a large extent on the existence of civil and political rights, not just property rights as some believe. Political rights ensure people have access to information, they can participate in policy and law making, and that there is effective rule of law that holds those with power accountable, while protecting those without power from discrimination and abuse. These political rights create a condition of democratic accountability, which needs to be achieved nationally and, increasingly, internationally.
No doubt all organisations working on fisheries would agree such rights are essential. Yet a great deal of policy advice and reform efforts in fisheries forget this, and some end up working in the wrong direction, transferring powers to unrepresentative and largely unaccountable organisations. Strengthening democratic accountability has been overshadowed by other ideas and priorities. Consider, for example, the escalating international call for strengthening national and international law enforcement to fight IUU fishing. This may lead to human rights abuses and manipulation by political and business elites in countries and regions where the rule of law is weak and there are high levels of corruption. Non-State actors, including mercenaries, are also being identified to provide private policing in fisheries, which could diminish transparency and accountability further. Similar hazards can be raised against the so-called wealth-based approach to fisheries reforms that has been established by some fisheries experts, as well as the related efforts by leading international environmental NGOs to increase private investment and ownership in fisheries and marine conservation in developing countries. Part of the concern with these policies is the transfer of power and accountability away from local citizens - well meaning reforms can be dangerous where political and civil rights are absent or feebly defended.
In this context, initiatives that try and strengthen political rights in fisheries need more publicity and support. Some important efforts include two recent international guidelines prepared by the FAO - the Voluntary Guidelines on the Responsible Governance of Tenure in Land, Fisheries and Forestry, and the Voluntary Guidelines on Securing Small-Scale Fisheries. They are texts that will hopefully become more important in efforts to improve fisheries management and protect both the environment and marginalised fishing communities from the abuse of power by some political and corporate elites. However, another international agreement, which works to the same ends, remains largely unheard of among fisheries organisations. This is known as the Bali Guidelines, finalised in 2010. It was developed to extend the principles of Europe’s Aarhus Convention to other non-signatories countries. The guidelines compliment the other FAO initiatives on political rights, but they provide more detail and could therefore be useful addition for policy debates and advocacy in fisheries.
What are the Bali Guidelines?
The history behind the Bali Guidelines goes back to the Earth Summit held in Rio in 1992, where over 170 governments endorsed a Declaration on Environment and Development. Principle 10 of this declaration has become a critical point for campaigns about justice and accountability in environmental matters ever since. It reads:
Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided
In the mid 1990s a number of European countries drafted a piece of legislation that would provide a legal framework for the implementation of this text. It was finalised in 1998 in the Danish city of Aarhus, and was subsequently known as the Aarhus Convention. Its full name is the “Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters".
There are now 47 Parties to the Convention, consisting of all European countries, the European Union and several countries in central Asia. Switzerland was the last major European Country to become a Party, ratifying the Convention in 2014. Although it is mostly a European Convention, it was established as open to any other country.
As its name implies, the Aarhus Convention has three pillars, which can be briefly summarised:
On access to information:
The Aarhus Convention sets out stringent rules on providing citizens with information related to the environment. It treats access to information as a right, and contains a legal framework establishing legitimate reasons why public authorities can withhold information to the public. However, the Convention describes that the grounds for refusal to release information should be treated narrowly, so that only in exceptional cases can governments chose to keep information confidential. This is guided by a ‘public interest’ clause – information should be released to the public when there is a clear public interest in doing so. There are also timeframes stipulated for when public authorities have to respond to requests for information, and the Convention states that any person requesting information does not have to justify why they do so. The Convention also describes government responsibilities to establish systems to regularly compile and publish information on activities that impact the environment, and to ensure there are sufficient resources available to collate and disseminate this information.
On access to decision-making:
The Aarhus Convention contains extensive guidance on the responsibilities of states to ensure early and active involvement of people in decision-making processes. It sets out rules to ensure the public are informed of pending decisions affecting the environment so that their input can be given before final decisions are made. Citizens should also be allowed to engage in the review of laws affecting the environment and the development of new laws.
On access to justice:
The third pillar of the Convention requires states to ensure that citizens have access to a court of law or other independent and impartial body to challenge decisions of the government and seek legal redress, including on access to information and participation in decision-making. It further describes the importance of ensuring access to courts is as accessible as possible, that legal proceedings are achieved in a timely way and legal procedures do not discriminate those without resources. The Convention also states there is a responsibility among governments to ensure trainings and capacity building for the judiciary in matters relating to the environment.
The Aarhus Convention established a Compliance Committee in 2002 to provide advice to Parties for its implementation, as well as making recommendations on complaints submitted to it by other parties and members of the public regarding non-compliance. An important, if somewhat overlooked aspect of the Convention, is that Parties commit to promoting the principles of the Convention in their relationships with other countries. This is something to consider when European countries provide development aid for fisheries or sign trade and fisheries agreements with third countries.
The implementation of the Aarhus Convention remains inconsistent among its Parties, but it has been tremendously important in providing citizens in Europe with far stronger rights to achieve democratic accountability in matters relating to the environment.
Based on the success of the Aarhus Convention UNEP developed guidelines to help non-signatory states adopt similar legislation. This led to the ‘Guidelines for the Development of National Legislation on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters’, formally adopted by its Governing Council in Bali in 2010.
UNEP, in partnership with other organisations, has embarked on several activities to promote these guidelines, ranging from high-level meetings to research and outreach and capacity building programmes. A recent report on all these efforts highlights a number of positive changes, particularly in South America, as well as in some countries in Asia and Africa. Perhaps the most promising signs that the principles established in the Aarhus Convention are spreading globally came in 2012 when 19 countries in Latin America and the Caribbean signed a declaration on their intent to take forward principle 10 of the Rio Declaration. Although the implications of this have yet to be finalised, it is hoped that this commitment will lead to a regional legal instrument in Latin America and the Caribbean similar to the Aarhus Convention.
Why are the Bali Guidelines important for fisheries?
So far efforts to promote and implement the Bali Guidelines have not engaged fishing communities to a great extent. Likewise, there’s very limited knowledge about the Aarhus Convention or the Bali Guidelines among fisheries organisations. However, the Aarhus Convention is applicable to the fisheries sector: CFFA used the Aarhus Convention to convince the European Commission to publish previously confidential evaluations on European Union fisheries agreements in 2011.
There are good reasons why those involved in advocacy work on improving fisheries governance should do more to engage with the Bali guidelines. One reason is that fisheries can fall victim of being somewhat parochial – not forming alliances between similar struggles and campaigns across different sectors. The FAO’s Voluntary Guidelines on Tenure was a welcome exception, as it made the link between agriculture, fishing and forestry, highlighting that problems of tenure are common across all three. But this is not typical, and fisheries are often approached in isolation, falling awkwardly between matters relating to trade, agriculture and the environment. Collaborating with those working on the Bali Guidelines would ensure that fisheries and marine ecosystems are included in ongoing work to set up national and regional legislation similar to the Aarhus Convention. It could help strengthen networks among civil society groups working in different sectors but on legislative reforms that are applicable across all natural resource sectors.
However, perhaps the most important reason for fisheries to take a closer look at the Bali Guidelines is that these are more detailed and comprehensive than other fisheries agreements and initiatives. Many fisheries agreements or guidelines – including the two FAO Guidelines on small-scale fisheries and responsible tenure - make reference to the need for access to information (or transparency), the importance of public participation and the need for access to justice. But they are vague on how these rights are interpreted and can be implemented in law.
The Bali Guidelines have the advantage of being based on the Aarhus Convention, which provides quite comprehensive details in its text on the implementation and interpretation of political rights. It also has generated extensive case law and examples, and has developed strong bodies to support and implement the Convention.
So, whereas the two recent FAO Guidelines speak of the need for transparency, they provide little further guidance on how public authorities should interpret confidentiality and under what circumstances citizens have the right to appeal. The two FAO guidelines are also vague on the procedures needed to implement access to information rules, and they do not contain the necessary details to elaborate on how access to justice needs to work in practice so it can protect the rights of poor people.
Likewise, other international agreements or reform strategies are very weak in elaborating on political rights. The 2001 International Plan of Action to Eliminate Illegal, Unreported And Unregulated Fishing makes reference to the need for states to improve ‘information sharing’, but also the need for respecting confidentiality. It does not explain how states should interpret this. Similar language is used in the 2014 Africa Reform Strategy for Fisheries and Aquaculture, where lack of transparency is highlighted as a problem in Africa’s fisheries, but the recommendation for African States is to improve information sharing while respecting any existing rules on confidentiality. This ambiguous wording leaves far too much room for interpretation and does little to establish democratic reforms as legal rights.
Many other examples in fisheries also fail to link reforms on information sharing or public participation with effective institutions for access to justice. Yet without access to justice, other political rights are feeble. This is a potential challenge to the success of transparency initiatives, such as the Fisheries Industry Transparency Initiative. It is good that governments and companies are discussing the need to publish more information, but this may not achieve very much if citizens do not have legally protected means to contribute and challenge decision-making. Indeed, a compelling aspect of the Aarhus Convention, reflected clearly in the Bali Guidelines, is the interdependent nature political rights - access to information is meaningless without access to decision-making and both depend on access to justice.
Overall, we therefore lack a strong framework for advancing political rights in fisheries if we limit ourselves to existing fisheries agreements and initiatives. The Bali Guidelines, in conjunction with the text and case law of the Aarhus Convention, provide a strong solution, giving us much more detail as well as making the case for the need to approach political rights as interdependent. The Bali Guidelines should become much more prominent in efforts to improve democratic accountability in fisheries, being a key reference point for assessing the strength of existing fisheries initiatives and a focal point for advocacy work for legislative reforms.