The Decision-Making is all that Matters: How Fisheries is Caught …files.isanet.org/ConferenceArchive/1bb244905bd547c5b6572... · 2013-03-26 · While the International Relations

Panel – Theorizing Contested Norms in Fisheries Governance: Communication Gaps and Organising Principles – International Studies Association – San Fransisco April 4th 2013

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The Decision-Making is all that Matters:

How Fisheries is Caught up in a Top-down Regulatory Labyrinth (first draft – not for publication – for comments only)

Peter Örebech Norway

[email protected] Content 1. The aims of this paper; to depict the alternatives ............................................................................. 2 2. The platform for further thinking ....................................................................................................... 2 3. Why drop the governmental command: The top-down tragedies ..................................................... 4 4. Top-down EU politics is out of touch with realities? A Means-End pyramid ..................................... 5 5. The market distribution system: A third route to sustainability? ....................................................... 9 6. The prosperous system: what to do? ............................................................................................. 11 Abstract

By the fisheries, global commons, illustration, this article is modeling different routes towards a

successful fisheries management policy. Fish is straddling, highly migratory or at least distributing throughout the oceans covering the high seas and exclusive economic zones, territorial seas and internal water. Most of these are shared with other countries. The common pool resources challenges traditional thinking on resources management and invites to innovative thinking and new solutions. While the European Union (EU) by its Common Fisheries Policy and EU-waters was construed to overcome these trans-boundary migrations and non-coordinated harvest, decision-making has failed to provide the EU with viable fisheries resources.

This article points at the democratic deficit and thus lacking validity as reason for the failing top-down governmental micro-management. Many have simply lost faith in logics and rationality as the answer to environmental challenges.

This contribution rejects the market based distribution of fishing rights (Individual transferable quotas) as the new and easy fix. A high standard culture of compliance is not enough, faced with economic threats no moral or ethics is strong enough to avoid overfishing and degradation of stocks. Both tools are captured by non-democratic elements and thus lack legitimacy. A third – and viable – route is the bottom-up common pool arrangements – the either contractual or customary law based regimes. To obtain a workable sustainable fishery interactive processes are vital: A system that recognizes a history of past adaptation, which is adaptive-response-evolved, time-tested and wise, facilitates negotiation of modifications can be tweaked without wholesale revision and if privatizing this move is combined with private responsibility, dispute settlement and enforcement. Such a tool is the liability to restore stocks damaged by overfishing by the instrument of restoration.

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1. The aims of this paper; to presenting the alternatives This paper studies fisheries management options, the platform upon which a future viable

harvesting system may be obtained. It is part of Global Governance studies, and its emphasis is on the role of bottom-up negotiated normativity. I am seeking for a flexible and adaptive governance structure.

For the top-down decision making the special emphasis is on the discrepancy between policy ambitions and de facto effects by two different regimes; i.e. the top-down micro-management regime, and the system of adaptive management stakeholder involvement in self-governing common pools. My perspective is a political- and legal theory method combined. These are the alternatives:

Codification

Non existent private power

Passive acknowl-edgementt

Inquisitive consultati-ve power

Transactional delegation ad hoc power

Co-manage-ment, shared power

Self-governing private authonomy

Figure 1: From top-down to bottom-up: Actor involvement in management approaches

While the International Relations theory is mainly based on political analysis, my contribution draws on the wider social, norm based environment in which norms evolves and acquires meaning. Common believes in social results, regularities of repetitive events may be singled out and throughout years’ time, establishes customary laws.1 There are tacit and explicit ways of communicating these practices. Both normative structures results from stakeholders’ practices.2 In case of lacking habits, failing top-down decisions, a third solution is contractual and negotiated. Here stakeholders should have a say to explore common ground construe the “rules of the game” – i.e. the organizing principles.

2. The platform for further thinking

“Irrationalism was born of the experience that life is too difficult, too complex, and too changeable to be understood, that nature is driven by dark and mysterious forces opaque to science and that a conventionalized society is intolerably rigid and superficial”.

George H. Sabine3 The EU is under the CFP chasing a robust bottom-up resource decision-making structure –

stakeholder responsibility – which is not only predictable, but also capable of avoiding perverse incentives and unexpected results. We are looking for viable systems in the distributive plurality; i.e. a trial and error system of governance. It is a search for a “common ground” for norm-building structures that hail legitimacy among the players. 1 Peter Örebech & Fred Bosselman & al. The Role of Customary Law in Sustainable Development (Cambridge University Press 2005). 2 Georg Jellinek: Allgemeine Staatslehre (2nd ed. 1905) p. 330. 3 George H. Sabine, A History of Political Theory (George G. Harrap & Co. LTD London 1966).

Customary law: Subtle signs of normative structures

Top -down

0% Continuum of stakeholder involvement 100%

100% Continuum of agencies involvement 0% B

o tt om up
















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Since collective action problems differ according to the changing living fabric of life, one cannot canonize one and only one solution. Oversimplification is not the answer to the social and political life. Different solutions are needed for different events and instances. The basic question is whether regulation is necessary. If the answer is in the positive, the puzzle is whether top-down or bottom-up systems should prevail. In the latter case alternatives are several, either negotiated norms, like contracts and agreements or a trade practices that over time evolve into customary laws.

Figure 2: Instruments for peaceful resolutions – theoretical approach: The alternatives

Cass R. Sunstein said: These various problems - collective action problems, lack of coordination,

lack of expertise, and democratic failures - suggest that a common law system will be both inefficient and undemocratic. This was the basic insight that led to the substitution of regulatory machinery for the common law in the environmental area.4 As indicated in figure 1 such generalization is impossible. However; the Sunstein position does not take the Ronald Coase observation into consideration: "It is my belief that economists, and policy-makers generally, have tended to over-estimate the advantages which come from governmental regulation.”5 It is the understanding of this author that lawyers in civil law countries are part of that false positivist hypothesis.

This author subscribes to the skepticism of professor Coase, and sign up to the following statement by Peter Karsten; “Rules adopted by ordinary people ‘work;’ those they don’t accept, those forced upon them by ‘pig-headed’ legislators, often don’t work.”6

Governance within the frames of “negotiated normativity” which ultimately will result in customary laws – and not only as input in the top-down decision-making, requires discourse, communication, and acknowledgement. This includes both explicit and tacit collaboration – the end product of which is contracts and agreements and customary law. We may experience; in areas that require unanimity, that people find way to make agreements. In areas where pacts are impossible, but agreements are unnecessary, one may say that we have a well-functioning society. The same is the case in societies where agreement is impossible, but the state provides decision-making-processes that overcome “weakness of will”: Again, if this is the fact; we got a well-functioning society.

4 Cass R. Sunstein: “Public versus Private Environmental Regulation.” 21 Ecology L. Q. 455, 456 (1994). 5 See R. H. Coase. "The Problem of Social Cost," 3 J.L. & Econ. 1, 18 (1960). 6 Peter Karsten, Between Law and Custom 539 (Cambridge University Press 2002).




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Figure 3: Discourse as a product of “weakness of will” and “weakness of ability”

3. Why drop the governmental command: The top-down tragedies 1. Fish regulation puzzles can be described as follows: It becomes increasingly difficult to

succeed in having a democratic filtered will launched – and not only introduced to the arena of executive officers, but to find its way through contradictory landscapes of agency- and private hostility. How to pilot scientifically based solution through the wilderness of executive orders, implementation, communication, acknowledgment, interpretation and application? How do players interact?

The subject matter The entities

Figure 4: The top-down decision making labyrinth

Regulations often results in dubious battles over interpretation, which end ultimately in diverse interpretation. The laxness of top-down decision-making is stated by Elinor Ostrom; “politics involving rule changes must be viewed as experiments. Further, since ecological, social and political settings are always changing over time, no specific set of rules will produce the same distribution of benefits and

Parliamentary desicion Taxation, Legislation

Constitution Acts, Laws

Statute, explanatory notes Executive order

Implementation Agency practice

Procedoures Notification Communicate

Acknowledge, legitimacy private adaptation

Suit Interpretation(1)

Application (2) Dispute settlement

Lobbying Policy Initiation

sfsf

Strongly The Group II opposed possible

Agreement is necessary

Tacit agreement is

possible

Explisit agree-ment is possible

The Group I Strongly F ibl i i ( i )

Legal Draft

Democratic deliberations

Executive branch Oligarchic Decision

indvidual reaction

Popular communal reaction

Courts decision































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costs over time”.7 Trial and error is the situation. Those that lost the democratic battle the first round will rebound and return to the battlefield for a “play-off”. Resulting decisions are often out of touch with the democratic base and are thus lacking validity. The contested position is not only related to the objectives but also to the tools: There is always debatable whether the one and another tool “will float”?

4. Top-down EU politics is out of touch with realities? A Means-End pyramid

"Von Ohngefähr" - ist der älteste Adel der Welt, den gab ich allen Dingen zurück, ich erlöste sie von der Knechtschaft unter dem Zwecke". (Coincidence, the oldest of all nobility in the world, I gave it back to all matters. I freed it from the bondage of purpose) Friedrich Nietzsche8

The EU fisheries are in a terrible situation as described by the Green Paper, and in the legislative

proposal to the EU parliament.9 The problem is perhaps structural? Is it related to the above complications resulting from the decision making labyrinth (figure 4)? Is the EU more or less democratic decision making system simply impossible? And due to this fact; the detailed top-down prescriptions is discredited. Could an easy re-make do the job? To make the top-down governmental command and control work one need to place ones trust in a comprehensive means–end model of which fundamental norms are – through organising principles – fulfilled by the uses of well-directed instruments. As it seems: the top-down model got uneasy predictions: Solutions to these complex policy problems are resulting from the compulsory involvement of multiple actors with diverse positions and a lack of a single political actor who would have the authority and legitimacy as well as capacity to adopt global regulations, monitor compliance and sanction non-compliance. Thus multiple actors imply nothing but “horse-trading”, logic and rational “single-minded” and stringent thinking are vanished. Under this scenario, the road to viable fishing and sustainable fish stocks are long and rugged.

Are human societies at all capable of directing its effort towards a particular objective, in a manner that makes the outcome come true? Are the international societies of states under the truce of irrationalism,10 like it or not? Could irrationalism be the explanation to this puzzle; if everybody fancies fundamental norm of sustainability, why “are the regulations in support of sustainable fisheries contested”?11 In my effort to disclosing barriers to viable Common Fisheries Policy (CFP) 12 in an ongoing EU project,13 my working hypothesis is that since top-down governmental command and control is suffering from lack of workable results, a bottom-up solution should do the work. Is the best we could hope for the long chain of coincidence, combined with haphazard events that from time to time hit randomly, sometimes really hard, by a blow; a crisis. In this setting “crisis” is necessary and needed. It laid the ground for the acknowledgment of drastic changes to “business as usual”, and as a result, produced the environment on which changes could be made. Not all crises lead to improvements though; as told by Paul Krugman; “what we're seeing now is what happens when influential people exploit a crisis rather than try to solve it”.14

Is the reason for the failing success to the top-down approach that there is inconsistency in the chain from the meta-norms – fundamental principles – derivate operational norms – organizing

7 Elinor Ostrom, Understanding Institutional Diversity (Princeton University Press 2005) p. 255. 8 Friedrich Nietzsche, Also sprach Zarathustra (Project Gutenberg EBook): http://www.gutenberg.org/dirs/etext05/8zara10.txt 9 Proposal for a regulation of the European parliament and of the Council on the Common Fisheries Policy, Brussels, 13.7.2011, COM(2011) 425 final 2011/0195 (COD). 10 On this concept, see George H. Sabine, A History of Political Theory (George G. Harrap & Co. LTD London 1966) p. 888 ff. 11 This is the basic question on display in the contribution of Antje Vetterlein & Antje Wiener, Theoretizing Contested Norms in Fisheries Governance: Communication Gaps and Organising Principles 12 As displayed in Green Paper: Reform of the Common Fisheries Policy, Brussels 22.4.2009 COM(2009) 163final p. 9. 13 My study is conducted within the EU EcoFishMan frames – FP7-KBBE-2010-4 (2011-14). 14 New York Times, Op ed colum, “The Hijacked Crisis” August 12th 2011.



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principles and the means or instruments provided for the task? Should an explanation to the failure be sought in a disconnected chain of means-ends?

The EU adheres – as prescribed in Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy – to sustainable development in most fields, the fishing stocks, the fishing industry, as well as the coastal societies, its social conditions. The EU gives direction on how to rank the fundamental principles; “Economic and social sustainability require productive fish stocks and healty marine ecosystems. The economic and social viability of fisheries can only result from restoring the productivity of fish stocks. There is, therefore, no conflict between ecological, economic and social objectives in the long term”.15 Thus, the supreme objective is to provide the EU with sustainable fish stocks, while sustainable fishing industries and coastal societies are inferior. Which of the two that ranks the highest is not considered.

One of the main problems listed in the Green paper16 is to figure out “[h]ow can the objectives regarding ecological, economic and social sustainability be defined in a clear, prioritised manner which gives guidance in the short term and ensures the long-term sustainability and viability of fisheries?” The EcoFishMan indicators answer this challenge: Its measurable variables should determine the degree of adherence to a standard or the level of quality achieved. The achievement is to develop biological, economic, social and legal indicators, to determine to what degree a management system; in particular the adaptive management system of Responsive Fisheries (RFMS) in particular, fulfils the defined outcome sustainability targets.

In an early subscription to the project of ecological thinking, the Norwegian professor of philosophy Arne Næss outlined both a Means End model and prescriptions for a model to encourage a new and sustainability oriented society. His figure of a Mexican Style pyramid was as indicated in figure 5 unfinished: What should be a three layer pyramid, top – meta – level of fundamental principles,17 a middle layer – mesa level – of organizing principles however still empty as illustrated by the lofty blank spot, and the bottom of instruments, the implementation of which should lead to the fulfilment of the fundamental norm. While there are – and should be – horizontal connections and balances between Meta norms such as i.a. equality and sustainability; as is the case also at the bottom layer, the means (as illustrated in figure 3), there is no vertical coherence between the different layers. One simply has no clue whether the one or another instrument will result in the fulfilment of any of the fundamental norm. Perhaps the instruments utilized will achieve its manifest assumptions, perhaps not; it ends up with nothing but latent effects?

Figure 5. The imperfect, open- ended means- end pyramid One Næss’ effort is to bridge the gap and to unite these three layers, i.e. to establish a

comprehensive thinking in the case of policymaking. Another is to rank norms that all of them qualify as fundamental norms. Which one is the highest ranking; the Meta Norm? In the case of the EU Common Fisheries Policy one cannot pick these norms randomly from the top of one’s head, but need to stick to the EU priorities. As there is more than one fundamental norm we need to come to grips with the horizontal balancing of these norms. 15 Green Paper: Reform of the Common Fisheries Policy, Brussels 22.4.2009 COM(2009) 163final p. 9. 16 Op.cit. p. 10. 17 Arne Næss, Økologi og filosofi [Ecology and philosophy] (Universitetsforlaget, 1972) p. 123.




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A starting point is that not only document based goals matter: The fisheries sector goals are inferior to general achievements of the EU; some of which is not codified. For instance; it is said that fisheries is part of the marine sector which again is part of environment and efforts to defuse climate change. More important is it of course that some overarching interests are not at all codified or formally stipulated; the interests of the strong leagues of lobbyists and the corporate state, which here is named “the Pain Caucus”.18 While most actors seem to recognize the overarching goal of sustainable development it is strongly contested which instruments would best lead us to this objective?

However; one cannot adore everything good; conflicting meta-norms needs balancing and ranking. At the same time these fundamental norms should function. As things turns out the lofty top floor of the pyramid is not in touch with the solid fundament of it. To become functional we need to close the gap between the top and the bottom level of the pyramid. This is done by the introduction of derivate, operational norms, often named organizing principles, one illustration of which is found in the mackerel conflict between the EU and Norway on the one hand side and Iceland and Faroese Islands.19

While policy is random and often illogical, the Zarathustra canon of randomness20 should none the less, not be taken as a starting point. This article does not take the direction of philosophic irrationalism as a fact,21 but only as a possible hypothesis.

Figure 6: The perfect, coherent means-end pyramid Believing in political command and control one should at least try by rational means, to figure out

what might work, and what do not. And this try-out cannot take place without solid anchorage in logical thinking: One have to live with the fact that reason does not always triumph over suspicious beliefs, simply because of the impossibility to overcome the shadows cast over the future yet to come. Discussions here should, with regard to the objective of sustainable development be studied in connection with figure 7.

The basis for understanding political life, which de facto is resulting from “the living fabric or life”, is that logic and rational arguments do not carry the results of decision making processes. As told by Paul Krugman; “Ask for a coherent theory behind the abandonment of the unemployed and you won’t get an answer. Instead, members of the Pain Caucus seem to be making it up as they go along, inventing ever-changing rationales for their never-changing policy prescriptions”. 22 The Pain Caucus (at present the rentiers) is setting the agenda. And the norm put up by them and adapted by the ruling party and its agencies; are the superior. That superior norm is “the policy prescriptions of the Pain Caucus all have one thing in common: They protect the interests of creditors, no matter the cost.”23 Thus the strong

18 Expression originate from a radio discussion, as reported in The Harvard Crimson, March 23, 1937 Harris, Gilbert, Galbraith Warn of Economic Disaster; Harvard University Faculty Members in Radio Symposium Sponsored by the Harvard Guardian, see Paul Krugman, NY Times Op Ed comment of April 2, 2011.It symbolizes a group of economists, politicians and bankers who claim that raising interest rates and slashing government spending in the face of mass unemployment will somehow make things better instead of worse. 19 Peter Ørebech, The “Lost Mackerel” of the North East Atlantic – The Flawed System of Trilateral and Bilaterall Decision-making, International Journal of Marine & Coastal Law (Vol. 28, 2013). 20 Friedrich Nietzsche, Also sprach Zarathustra (Project Gutenberg EBook): http://www.gutenberg.org/dirs/etext05/8zara10.txt 21 More on this direction; George H. Sabine, A History of Political Theory (George G. Harrap & Co. LTD London 1966) p. 888 ff. 22 Paul Krugman, “Rule by Rentiers”. Op-Ed Column, New York Times, June 9th 2011. 23 Op. cit.



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corporative bonds and lobbyist financial industry makes a de facto ranking of fundamental norms that seems rather haphazard to priorities formally decided upon in the decision-making processes: “And that explains why creditor interests bulk so large in policy; not only is this the class that makes big campaign contributions, it’s the class that has personal access to policy makers — many of whom go to work for these people when they exit government through the revolving door.”24 The dogma of politics – “d’art possible” – is resulting from grand bargain processes. And here; "votes counts, but resources decide".25

Peter Sloterdijk seems to overlook the political arena and the rules of that game; even the best of knowledge cannot save us from crisis: I therefore disagree with Sloterdijk;

“Autrement dit, le "créditisme" est entré dans une crise finale. On a accumulé tant de dettes

que la promesse du remboursement sur laquelle repose le sérieux de notre construction du monde ne peut pas être tenue. Demandez à un Américain comment il envisage le remboursement des dettes accumulées par le gouvernement fédéral. Sa réponse sera surement: "personne ne le sait", et je crois que ce non-savoir est le noyau dur de notre crise”.26 [Said in other words, the "creditism" is in its final phase of crisis. One has accumulated that much debt that promises to reimburse, which is the trust that our world is reliant upon is no longer possible to keep. When asking an American how he conceives that the reimbursement will come true, his answer will certainly be "nobody knows", and it is my belief that this lack of knowledge is the hard nucleus of our crisis] Truly, it is only at an early stage that logic argumentation and dialogue based on facts play a role.27

Many are the events that is blurred by the uncertainty of the future that most knowledge held is of little help as all calculations inherit predictions and loose speculations on i.a. price development, substitutes and new discoveries.

Often hard bargain and political necessity lead to lost solutions in relation to the scientific assessment of a viable Total Allowable Catch. Here I draw on an interesting study from a not too different field; decisions made by participating countries in exhaustible resources, in casu oil as analysed in the mid-1970s with regard to the Organization of Petroleum Exporting Countries (OPEC).28 Clearly coalition theory is relevant: The economics of exhaustible resources may give a contribution to the analysis of fisheries management. While fisheries do not belong to exhaustible resources, the institution of yearly Maximum Surstainable Yields (MSY) and the non-transferable Total Allowable Catch (TAC) creates similarities; "each seller takes price as a datum because he is too small to affect it, and on the assumptions that each producer knows how much of the commodity he holds, that costs of production are known".29 This makes me think that a comparative study might be fruitful with regard to clashes between logic reasoning based on knowledge and political bargaining resulting from strength and the game of give and take, as plaid under repetitive players and grand bargain schemes.

Instead of adhering to scientific advice parties involved produces “paper fish” beyond safe limits. Here decision making do not suffer from lack of knowledge. To the contrary; whatever are the facts, solutions picked is seldom vaccinated against hard bargains compromises. More knowledge is not the solution to the problem. Despite the knowledge absorbed by most actors, solutions will occur in quite different directions due to political horse trading or grand bargain agreements. A representative of the

24 Op. cit. 25 Stein Rokkan; "Norway: Numerical Democracy and Corporate Pluralism" in R. A. Dahl (ed.) Political Oppositions in Western Democracies. New Haven: Yale University Press. 1966, p. 105 26 Le Monde, 27 May 2011; Des idees-force pour eviter les impasses de la globalisation, Le face-à-face Peter Sloterdijk et Slavoj Zizek. http://www.lemonde.fr/idees/article/2011/05/27/des-idees-force-pour-eviter-les-impasses-de-la-globalisation_1528141_3232.html 27 The new EU CFP is directed towards a compelling “science base for fisheries management”, Proposal for a regulation of the European parliament and of the Council on the Common Fisheries Policy, Brussels, 13.7.2011, COM(2011) 425 final 2011/0195 (COD) p.8. 28 Davis B. Bobrow & Robert T. Kudrle, Theory, Policy, and Resource Cartels: The Case of OPEC, The Journal of Conflict Resolution, Vol 20 (1976) page 3-56. 29 Op.cit. at p. 12.



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EU Commission30 told – in a meeting with this author – that while the Commission surely played the rationality and science card, politicians in the EU-parliament and in the EU Council did not. Once and again the bureaucrats in Brussels experienced how politicians more than once corrupted a scientifically well considered plan (more on the political processes in figure 5).

It remains to be seen whether the insight enlightened by the facts and scientific knowledge will gain success when finally launched probably in the spring semester 2013:

“The introduction of a system of transferable fishing concessions will constitute a major driver for fleet capacity adjustment. The impact assessment has shown clear positive and significant contributions from such a system of transferable fishing concessions to eliminate overcapacity and to improve economic results of the fishing industry”.31

It is however disputed whether these positions are in fact manifest or just loose predictions. While

Norwegian studies clearly confirm the overcapacity effect, the latter prospective of economic gains seems far-fetched.32 The reason for that is simply that each time a sell-out of fishing rights are taking place the rights’ price increases due to the fact that the second and third generation have to pay for the future monopoly (the monopoly power), which is additional to the price of the “resources rent”. This future monopoly profit is the price that the new generations fishermen and companies have to pay for the sole ownership to a certain percentage of the entire stock. When the fishing company is big enough, buyers have no other options than to buy fish from this specific fishing company. Thus the fishing industry becomes subject to financial management: equity capital similar to the present discounted present value is taken out, resulting in no future return to this industry. The CFP organizing principles and operational tool to fulfil the fundamental goal is formulated as follows:

“The proposal introduces a mandatory system of transferable fishing concessions … as from 2014 for all vessels with the exception of vessels under 12 meters with passive gear. In recognition of the specific characteristics and socioeconomic vulnerability of some small-scale fleets, the choice on introduction of transferable fishing concessions for the remaining vessels will be left to Member States. Member States may regulate transferable fishing concessions to ensure a close link between them and the fishing communities (for example, by limiting the transferability within fleet segments) and to prevent speculation. To respect and maintain relative stability transferability of these concessions may be limited to vessels flying the same flag”.33

5. The market distribution system: A third route to sustainability? In principle there are three options; a top-down approach, the bottom-up solution, or to navigate

through the system of market distribution, i.e. by the purchase of Individual Transferable Quotas (ITQ). While the market distribution system – with regard to the Individual Transferable Quota – seems laudable to most economists,34 some criticism has approached against adaptive management claiming that this avenue is unscientifically and based on nothing but fictitious believes. The “successes” told of is mainly fictions. 35

30 The EU Commission Directorate-General for Research and Innovation – Philippe Moguedet, EU project officer in personal communication to the author, Reykjavik March 2nd 2011. 31 Proposal for a regulation of the European parliament and of the Council on the Common Fisheries Policy, Brussels, 13.7.2011, COM(2011) 425 final 2011/0195 (COD) p. 7. 32 Torbjørn Trondsen & Peter Ørebech, Rettsøkonomi for fornybare ressuser [Law and economics of renewable resources] (Universitetsforlaget, Oslo 2011) 33 33 Proposal for a regulation of the European parliament and of the Council on the Common Fisheries Policy, Brussels, 13.7.2011, COM(2011) 425 final 2011/0195 (COD) p. 8. 34 See i.a. Grafton 35 One example, see Peter Orebech: What Restoration Schemes Can Do? Or, Getting It Right Without Fisheries Transferable Quotas, Ocean Development and International Law (2005) pp. 159 – 178.



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Nobel Prize laureate (2010) Elinor Ostrom adhere to an adaptive management solution: “The rich case-study literature illustrates a diversity of settings in which appropriators dependent on common-pool resources have organized themselves to achieve much higher outcomes than is predicted by the conventional theory [or] under government operation.”36 Sociological observations on good indicators of whether system will be able to adapt in sustainable ways: We believe that the “ultimate test of a concept intended to have legal force and profound social and economic consequences is whether it changes behavior at both the individual and institutional levels.”37

The next figure is lining out which are possible strategies; or the different avenues towards a more well-functioning future society:

Figure 7: Top-down vs. market distribution: The race towards “fictitious believes”?

In modern terms, resilient systems of resource management are characterized as “adaptive

management” systems.38 They are capable of responding to what science increasingly sees as an unstable environment.39 As Shepard Krech observed in his extensive study of American Indian systems of resource management, some of these systems remained effective for centuries while others depleted the resource, forcing the tribes to move on.40 Management theory also emphasizes the benefits of deliberate “regenerative learning” as a feedback mechanism.41 Daniel Farber has spotlighted the importance of monitoring, feedback and evaluation to all environmental programs,42 and Carol Rose has stressed that one of the biggest advantages of community-based common property regimes is that they are able to alter the rules rapidly in response to feedback regarding environmental changes.43 Legal

36 Elinor Ostrom, Reformulating the Commons, in Protecting the Commons: A Framework for Resource Management in the Americas 17, 20-21 (Joanna Burger et. al. eds., Island Press, 2001). 37 See A. Dan Tarlock: “Ideas Without Institutions: The Paradox of Sustainable Development” Indiana Journal of Global Legal Studies (vol 9, 2001) p. 35, at p.37 – with further references. 38 Adaptive Management Practitioners’ Network http://www.iatp.org/AEAM/index.html 39 P. Lal et. al., The adaptive decision-making process as a tool for integrated natural resource management: focus, attitudes, and approach. 5 Conservation Ecology (2): 11 (2001). 40 Shepard Krech, The Ecological Indian 212 (Norton, 1999). 41 A. Dan Tarlock, Environmental Law: Ethics or Science, 7 Duke Envt’l L. & Policy Forum 193, 206 (1996) (need for feedback loops has long been advocated but ignored in environmental law). 42 Daniel Farber, Eco-pragmatism: Making Sensible Decisions in an Uncertain World, U.Chicago Press, 1999. 43 Carol M. Rose, Common Property, Regulatory Property, and Environmental Protection: Comparing Common Pool Resources to Tradable Environmental Allowances 13, Bloomington, Indiana, May-June, 2000.

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rules exhibit similar qualities of graininess.44 A rule is fine-grained if it is capable of being modified in terms of small increments.45

From this position all indicators points in the direction of opting for the third route, the market distribution of wealth; one has simply to dig deep to find serious antagonism. According to neo-classical economics markets are perfectly just: Those that are in need for something asks for it. Those that do not, are apparently not in urgent need. The closed entry and the ITQ system produce winners and prevent overexploitation. This is however a too single minded view since the just allocation of rights is left out: The “have-nots” has rarely anyone to speak out for them. Thus robberies of the common pools can easily take place.46 An approach is to say that the adaptive route is based upon a new rationality: "Adaptive management can be seen as a rediscovery of dynamic practices and institutions already existing in some traditional systems of knowledge and management, and to some extent in contemporary local communities" .47 I.e. on the whalers’ beliefs about the migration patterns of bowhead whales proved to be more accurate than those of the scientists. Several others have similar experiences: “The use of traditional ecological knowledge in an experimental way to learn from management interventions, with subsequent policy changes makes it a potential tool for Adaptive Management.”48 Madhav Gadgil suggests that sustainable management can be achieved when local people perceive that the resource is scarce, that substitution is difficult, and that own control over the resource is extensive.49

6. The prosperous system: what to do?

By the use of a semantic system … an ecosofi, is considered continuous deductions, i.e. transitions from the fundamental- and "boundary condition" expression from the top floor, thus the conclusion adhered to an action broadly speaking. The system is a unity, and an alteration wherever in the system, except the pretext expressions, results in a brand new system

Arne Næss50

We are now turning our attention towards a future, prosperous system of natural resources management: As indicated; natural science linear cause and effects models are inappropriate in the study of political systems, my trust is given to the spider’s web allegation; everything is interrelated and causes effects in all directions.

Modelling causality is not easy. In social settings; what is cause and effect? Is it, as displayed by Arne Næss; an interactive system of spiders web? All elements are influencing upon every other element. Life is a stochastic process. Law-abidingness is “comment si, comment ça”. Decision making processes do fail to perform. 44 For a discussion of the importance of a thorough understanding of language in the interpretation of customary resource management rules, see Eugene Hunn, The ethnobiological foundation for traditional ecological knowledge, in Traditional Ecological Knowledge: Wisdom for Sustainable Development 16 (Nancy M. Williams and Graham Baines, eds., Australian National University Centre for Resource and Environmental Studies, 1993). For example, some of the languages of the Peruvian Andes use several hundred names for different varieties of the plant that other societies usually just call “potato.” Id., at 19. 45 Clayton Gillette uses the term “reversibility” to “refer to the capacity of decisionmakers to revisit the probabilistic connection between the factual predicates for a rule and its justification” and he intends to include within that definition “the capacity to revise, as well as reverse, prior formulations.” Clayton P. Gillette, Rules and Reversibility, 72 Notre Dame Law Review 1415, 1417 (1997). The language of the rule can determine whether these revisions can easily be undertaken in small increments or whether it would be necessary to reverse the entire rule. 46 See Paolo Grossi: An Alternative to Private Property (The University of Chicago Press 1981). 47 Milton M. R. Freeman, The Alaska Eskimo Whaling Commission: successful Co-Management under Extreme Conditions, in Evelyn Pinkerton, ed., Co-Operative Management of Local Fisheries p.140-141 (University of British Columbia Press, 1989). 48 Fikret Berkes, Sacred Ecology: Traditional Ecological Knowledge and Resource Management 30, Taylor & Francis, 1999. 49 Madhav Gadgil, Prudence and profligacy: a human ecological perspective, in The Economics and Ecology of Biodiversity Decline: The Forces Driving Global Change 101 (Timothy M. Swanson, ed., Cambridge University Press, 1995). 50 Arne Næss, Økologi og filosofi [Ecology and philosophy](Universitetsforlaget, 1972) p. 119.




12

Changes in the environment

Experi-

enced a lot of things and attempt to learn from the results

No signal of danger →early signal of danger→confirmed

.

Figure 8: Socio-related bio-system: Signals from the outer world and changed direction thereof

Everyday news uncovers the grim realities of the living fabric of life: Small and seemingly insignificant events becomes from time to time the tipping point. No one neither scientist nor politicians predict the random and haphazard outcome that de facto results from intelligible decisions and actions. As a matter of fact, I venture in the continuation the unpredictability of social life and the best we could hope for by considering the improvements proposed by the philosophical thinking of Arne Næss with special emphasis on sustainability models.

What is the direction ahead? First of all we need to overcome the plight of non-linear development, since we refuse the presumption of Newton’s mechanical logic.51 Our “organic” system is directed by local dependence between linked together processes.52 The linkage is illustrated by the Arne Næss’ spider’s web.

Secondly; we are faced with the impossibility of rational behaviour towards future events. The difficulties of predictions are carefully studied in mathematical statistics.53 The calculus of probability is a possible route to all stochastic processes, which includes decision making processes in general, not only the business of insurance. Despite the objective science of mathematics, there are several pitfalls; one is that “there is always a certain risk of mistaken interpretation, when general conclusion is drawn on the basis of very limited empirical data”.54 Another is that even though we “often … encounter situations where certain processes are repeated under similar circumstances”55 no guarantees can be issued in relation to continuous repeated similar results. It is all about the question of “the relative frequency”.56 What we are looking for – and it could not be otherwise without enjoying the faculty of looking into the crystal bowl – is the “statistical regularity” upon which some deviations from the expectations is predicted to happen.57

51 Moshe Farjoun, Towards an Organic Perspective on Strategy, Strategic Management Journal Vol 23 (2002) s. 561-594, se s. 562. 52 As described by O.O. Aalen, Ø. Borgan, N. Keiding & J. Thormann, Interaction between life history events. Non-parametric analysis for prospective and retrospective data in the presence of censoring, Scandinavian Journal of Statistics Vol. 7 (1980) p. 161-171. 53 See i.a. Erling Sverdrup, Law and chance variations. Basic concepts of statistical inference, Vol. 1 (North-Holland Publishing Company, Amsterdam 1967) 54 Erling Sverdrup, Law and chance variations. Basic concepts of statistical inference, Vol. 1 (North-Holland Publishing Company, Amsterdam 1967) p. 5. 55 Op.cit. p. 7. 56 Op.cit. p. 7. 57 Op.cit. p 7.







13

In what philosophers call the policy-means-ends hierarchy (Arne Næss.1972), displayed by the customary principle of sustainable development are interdependent. In his pyramidal means-end model, sustainable development is the meta-goal, while precautionary principles are instruments to provide towards that end. Statutes may also be instruments designed to achieve sustainable development, but bureaucratic implementation often diverts legal results from the statute’s intentions.

Having these general considerations in mind, our remaining task is to reflect on the EU Common Fisheries Policy (CFP). The problem for discussion is whether the EU Common Fisheries Policy is among these alternatives. If not, the EU should look in another direction to “cure” its dysfunctional policy.

Why not encourage a continuous subscription to top-down systems? Because such systems suffer from intrinsic, insurmountable difficulties: are failing its mission due to bureaucratic departure from even clear formulations to the contrary in laws and statutes. Solutions often results in contra legem, due to the fact that most countries experience different cultures of compliance. Thus an EU uniform governmental command is difficult to obtain.

The EU Common Fisheries Policy (CFP) has so far (since 1972) been unsuccessful. The view of this author is that the difficulties results from the complex and time-consuming procedures applied. We experiences an incomplete means–end models of which the fundamental principles are not – through organising principles – connected to any operational well-directed instruments. The increased complexity results in prolonged proceedings the time of which is registered to have increased extensively comparing the period of 1999-2004 with 2004-2009.

And regarding the subject matter often hard bargain and political necessity lead to lost solutions in relation to the scientific assessment of a viable Total Allowable Catch. Thus parties involved might instead of adhering to scientific advice produce “paper fish” beyond safe limits.

On this basis we easily see that Global Governance is in need of a new direction to the fisheries management systems: The advice of this author is to base ones advice on scientific findings, displayed in the models presented.

Summing up this article my hypothesis is that solutions should follow along the lines illustrated by figure 14, read in connection with esp. figure 11-13. Thus we should encourage a system of explicitly negotiated and tacitly developed normativity in global governance.

What are the prerequisites to be considered to obtain a prosperous result in the EU CFP? How to succeed in directing renewable resources towards sustainability? Of course there is more than one route to the fundamental goal. Figure illustrates nothing but one possible route. All the operational norms are listed in the top arrow, while the instruments or means are illustrated by the bottom line boxes. As these elements are listed horizontally this indicates their parity, with the exception of the left hand box, that is superior to the other four. All are however cumulative elements.

The organizing principles (also called operational laws) work in conjunction with each other, so do the instruments or means at the bottom row. If fully satisfied, the means end of sustainable development should be within range. In the following a closer explanation is offered:

First: starting at left, at the means or instruments boxes, are the basic steppingstone for all the instruments; i.e. the Group owned intricate pattern of knowledge. As indicated by the vertical arrow, this insight is gained by populations according to the recognition of a history of past adaptation. The outcome of popular practices are documented, considered and acknowledged or rejected. It results in a feed back to the bottom row box of knowledge; see the reciprocal influence as illustrated by the two ways arrow. This first draw is a pure registration of insights gained by the populus in the past.

Second; the knowledge gained should face a system of refill; a continuous adaptive response, that is time tested as workable and wise. Subsequently, this practice produces normative structures of which sometimes customary laws come into being or, if already established; resurrect. To the benefit of authentication of new rules; one need to refer the alleged practices to a procedural decision making system so as to obtain a common understanding what the practice accepted is all about.




14

Group owned

intricate pattern of

Figure 9: A means-end model for an adaptive stakeholder management system58

Third; having found the normative basis of the stakeholder “subtle sign of normative structures”, the bottom up system is from time to time in need to come to a solution on new problems of sudden character. Here a traditional, democratic system has a role to play: the system of modification should bring up whatever issue which should be decided among the stakeholders. Since we here experiences repetitive players both feedback mechanisms as well as grand bargain strategies are possible.

Fourth; the changes that the third sequence requires should be easy to alter; no system of wholesale revision is to recommend. This fact encourages fine-grained rules that facilitate revision. As an illustration; it is easier to change a mesh size from 110 to 120 mm than to establish a system of mesh sizes. Or an example from the EU debate; it is easier to launch a decrease in the species that is capable of discharge than to establish a new system banning the discharge in total.

Fifth; the privatization of public or common property – if that is the choice – should always correspond to a private responsibility for the resources left over to the private. A basic requirement for a viable system is the equal footing ownership to rights and obligations. Failing such a system, quarrels and disorder is part of the daily order. Claims for a restructuring will inevitably result.

The number of pages allotted to this contribution does not allow this author to clarify whether the EU new CFP is considerate to these five prerequisites. While this is a puzzle for a new article to scrutinize, my firm understanding is that the satisfaction of these 5 elements is vital. Remember the EU triple goal of sustainability as displayed in the new EU policy documents: “The main problem of the CFP are – lack of focus in the objectives on environmental, economic and social sustainability”.59

58 The model is developed by this author according to ideas formulated by Fred Bosselman in our 1999 Bellagio Working Group (The Rockefeller Foundation) on the role of customary law in sustainable development. 59 Green Paper op.cit. p.10. See also Proposal for a regulation of the European Parliament and of the Council on the Common Fisheries Policy, Brussels, 13.7.2011, COM(2011) 425 final 2011/0195 (COD) p. 1.

Equal footing ownership to

rights & obligations

Encourages fine-grained rules that facilitate

revision

Procedural mechanisms for making

rule changes

Providing feedback mechanism repetitive play

Recognizes a history of

past adaptation

Adaptive response

evolved, time-tested and wise

Facilitate negotiation of modifications

can be tweaked without

wholesale revision

privatizing with private responsibility

1 2 3 4 5

Group owned intricate pattern of knowledge





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The Decision-Making is all that Matters: How Fisheries is Caught …files.isanet.org/ConferenceArchive/1bb244905bd547c5b6572... · 2013-03-26 · While the International Relations