campaign against child labour ferraro

Domestic Implementation of International Regimes The Case of Marine Fisheries in Developing Countries

Gianluca Ferraro This research is part of the EU-funded project “Ecosystems, Societies, Consilience, Precautionary Principle:

Development of an Assessment Method of the Societal Cost for Best Fishing Practices and Efficient Public Policies”

(ECOST).

1. Introduction

Fisheries resources have suffered from a serious depletion in the majority of the world’s oceans since the

1970s (Christensen, Aiken, and Villanueva 2007), mainly caused by excessive fishing activity (over-

fishing) (Caddy & Cochrane 2001). The loss of fish stocks directly translates into a socio-economic

damage (e.g., loss of income and employment, and decrease of food security) (Hanna 2003) which is

more acute in developing countries highly dependant on fisheries (FAO 2007).

Such crisis of fisheries resources has occurred despite the system of governance developed at

the global level for the management and conservation of marine living resources (McConnell 2003). More

precisely, four documents have addressed all types of fisheries in the sea area under the national

jurisdiction of coastal states, the Exclusive Economic Zone (EEZ). While the focus of the United Nations

Convention on the Law of the Sea (UNCLOS 1982, 1994) is on the allocation and exploitation of

resources through the introduction of the EEZ, Agenda 21 (adopted by the United Nations Conference on

Environment and Development in 1992) represents a shift towards the sustainable use and conservation

of resources. This concern for sustainability has been later confirmed by the FAO’s Code of Conduct for

Responsible Fisheries (CCRF 1995) and the Johannesburg Plan of Implementation (JPOI) (adopted at the

2002 World Summit on Sustainable Development) (Freestone, Barnes and Ong 2006).

Intended as “sets of implicit or explicit principles, norms, [and] rules […] in a given area of

international relations” (Krasner 1982: 186, quoted in Stokke 1997: 31), international regimes can only be

effective if statutory obligations are voluntarily incorporated by states into their national legislations, and

applied and enforced in areas, such as the EEZ, which follow completely under national jurisdiction (Cicin-

Sain et al. 2006).

The question of ‘domestic implementation of international commitments’ becomes then extremely

important (Young 1999a). With implementation generally understood as ‘the execution of decisions for the

achievement of given goals’ (Hill & Hupe 2002), the domestic implementation of international regimes is a

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process through which international commitments are translated into national legislation, national laws are

executed by the administrative system, and laws and acts are finally enforced (Andresen, Skjoerseth, and

Wettestad 1995).

Despite the relevance of domestic implementation for the effectiveness of international regimes, this

process has been little investigated by scholars of international relations (see below).

On the basis of these factual and theoretical considerations, the paper analyzes ‘to what extent’

and ‘why’ developing countries are failing in implementing international fisheries agreements. By

answering this puzzle, the research aims at contributing, on one hand, to the reforms of fisheries policies

in developing countries (practical intent) and, on the other hand, to regime theory through the use of

implementation studies (theoretical ambition). The presentation of the theoretical framework is followed by

methodological considerations. Later, results for the two cases studied are presented with a focus on

implementation achievements (‘to what extent…?’) and constraints in the process (‘why…?’). Finally,

some general considerations are drawn from the processes traced in the study.

2. Theoretical framework

The process of domestic implementation of international regimes has been little investigated by scholars

of international relations, with the exception of few recent studies (Brown Weiss & Jacobson 1998/2000;

Underdal & Hanf 2000; Victor, Raustiala, and Skolnikoff 1998). Nevertheless, they have neglected the

details of the domestic component (Najam 1995), which, by contrast, have been systematically taken into

account by the literature on Europeanization and policy studies.

In the framework of Europeanization studies, the implementation of EC/EU policies and legislation

has been explained as a process of penetration and influence directed from the EU to national Member

States (Héritier 2001; Radaelli 2003), which creates an ‘adaptational pressure’ (Risse, Cowles and

Caporaso 2001) and is likely to induce institutional transformations and policy change within the member

states (Featherstone 2003a; Haverland 2003). International (non-EU) obligations are expected to create a

similar tension for adaptation or ‘pull towards compliance’ (Franck 1990, cited in Bernstein & Cashore

2000).

According to the intensity of the adaptation implied, the induced change faces the mediation of multiple

factors (Risse et al. 2001) which are domestic in nature and determine the capacity of the state to reform

(change, indeed) national policy practices, administrative structures, and patterns of interest

intermediation (Héritier 2001).

The validity of concepts such as adaptational pressure and reform capacity to explain success

and failures of national implementation is confirmed by policy studies. By adaptation from Goggin,

Bowmann, and Lester (1990), it can be argued that the ‘message’ which originates from international

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agreements (similarly to the mandate decided at the US federal level in Goggin et al. 1990) reaches the

state level. Here, implementation depends on the state’s ability to reform, which rests on state-level

politics and state-level capacity (Goggin et al. 1990).

The focus on message (or policy characteristics), politics (or arena of conflicts), and capacity (or

resource requirements) (confirmed by several implementation studies – e.g., Winter 2003) recalls the

‘Interactive Model of Policy Implementation’ proposed by Grindle and Thomas (1991) to explain policy

change and reform capacity in developing countries. According to this model, any reform initiative can be

opposed and diverted at any stage by the reactions it generates from the bureaucracy and the target

groups. Resources, both political (e.g. legitimacy of the regime and political support) and bureaucratic (i.e.

financial, managerial and technical resources) might be insufficient to overcome such conflicts.

In their study on decentralization reforms in Africa, Ndegwa and Levy (2004) show how not only a

bureaucratic and public arena (as in Grindle & Thomas 1991) but also the political elite are relevant for

reform.

In the absence of a grand theory on implementation, the work by Grindle and Thomas (1991)

represents a useful map for the integration of most variables explained in implementation literature, with a

distinct focus on developing countries. A huge number of variables can explain implementation (O’Toole

2000; Winter 2006), so that any complete systematization of factors accountable for good or bad

implementation is ‘impossible’ (Hill & Hupe 2002). Yet, the attempt of my research to trace causal

processes intervening in implementation (rather than identifying responsible factors and covaration of

variables) calls for a ‘conceptual map’ which tries to depict “the broad forces that have been at work”

(Pollitt & Bouckaert 2004: 25). The model by Grindle and Thomas (1991) has this characteristic.

Nevertheless this model needs to be adapted to the implementation of international instruments

understood as enactment, execution, and enforcement. Hence, I propose a replication of the process

(characteristics, conflicts, resources) in three phases: 1) from the international provision to the enacting

national law (i.e. enactment); 2) from this law to its executing acts (or administrative rules) (i.e. execution);

3) and from such rules to the induced behavioural change through the application of those acts (i.e.

enforcement).

The reproduction of the process suggests that the three sets of actors, i.e. political, bureaucratic, and

public arena, can distort the penetration of international objectives in the national policy framework in

three different moments: in the formulation of a new law, in the definition of its implementation framework,

and in the enforcement of the national policy (see Annex A). Similarly to Ndegwa & Levy (2004: 286), I

expect that “roles vary across stakeholders and, for a given stakeholder, across different phases of the

[implementation] process”.

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Refinement of the framework. The framework defined will be further specified during the following months, along

tow main dimensions: an upward link to higher-level theories, and a downward conceptual specification.

Firstly, the emphasis on constellations of domestic actors which act as filters in the penetration of sets of international

rules (understood as institutions) may link the framework adopted here to a broader theoretical perspective, such as

actor-centred institutionalism (Scharpf 1997).

Secondly, the framework adopted reveals similarities with studies on multilevel regulatory regimes, where the

international level of regulations adds a further layer to the regulatory state (Doern & Johnson 2006; Jordana & Levi-

Faur 2004). In this framework, the role played by constellations of regulatory actors (Jordana & Sancho 2004) in

policy change and as resistance to change (Thatcher 2009) seems particularly interesting. Literature on policy

networks and related taxonomies (Howlett & Ramesh 2003) could be integrated in the research to study the influence

of different network configurations on the implementation of international provisions for given policy tools.

3. Methodology I have defined implementation as the process which translates intentions into action (‘implementation as

execution’) for the accomplishment of given goals (‘implementation as achievement’). It follows that

studying implementation means understanding the logic of such execution process, as well as assessing

the success or failure of implementation (Lane 1995).

3.1. Assessing implementation

According to Lane (1995), assessing implementation includes three ‘logically separate activities’: a)

clarification of the policy objectives, taken as reference points in the assessment (goal function); b)

clarification of the relationship existing between outputs produced and outcomes achieved (causal

function); and c) clarification of the relation between policy objectives, on one side, and outputs/outcomes,

on the other, in order to ‘measure’ the degree of goal achievement (accomplishment function).

Goal function

For the clarification of policy objectives, I have focused on the goals formally specified in international

‘statutes’ (Gysen, Bruyninckx, and Bachus 2006). Furthermore, according to Andresen et al. (1995) and

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Mitchell (1994, cited in Chayes, Chayes, and Mitchell 2000), implementing international regimes means

implementing specific treaty rules (either binding or non-binding) decided at the international level.

Because of the focus of my research on implementation, I have selected rules specifying the policy tools

for fisheries management. Indeed, policy implementation involves the application of tools (or instruments),

understood as methods (or devices) through which governments address a specific problem and seek a

policy objective (Howlett & Ramesh 2003; Salamon & Lund 1989).

According to literature on fisheries management (Charles 2001) and international guidelines (FAO

1997), fisheries are managed through three types of instruments: input controls, output controls, and

technical measures. Input controls, such as fishing licenses, regulate the amount of fishing activity and

constitute ‘economic regulation’. Economic regulations are used in fisheries also as output controls, which

rule the amount of catch though the establishment of a Total Allowable Catch (TAC) and a quota system.

For reasons of space, I will not deal with output controls in this paper. Technical measures embrace

various instruments addressing the ‘how, when and where’ of fishing. Because of their relevance in the

international debate on biodiversity conservation, I have selected marine protected areas (MPAs) within

this category. MPAs are usually defined as “areas of the marine environment designated for some form of

protection” (Charles 2001: 233) and constitute an interesting example of ‘direct government’ (policy tool)

(Leman 2002).

These policy tools have appeared in the international fisheries regime at different times, and have

been defined, re-defined and specified along its evolution (see Annex B). Only licensing systems and

MPAs will be analyzed in this paper.

LICENSES. While the UNCLOS calls for coastal states to protect resources from overexploitation through

licensing systems and capacity limitations, the CCRF requests coastal states to ensure that fishing effort

is commensurate to sustainable use of resources, and prevent, or reduce, excess capacity (see Tab. xx).

(The lengthy discussion on initiatives for capacity reduction cannot be dealt with in the framework of this

paper.)

MARINE PROTECTED AREAS. The need to establish MPAs for the protection of biodiversity, absent in

the UNCLOS, is introduced by Agenda 21. The JPOI not only confirms the commitment to the protection

of marine environment through the establishment of marine protected areas, but calls for the

establishment of representative networks – intended as corridors between MPAs – by 2012.

The parallel analysis of national measures and international definition of fisheries tools will allow us

understand which objective, under which document’s formulation, has been implemented in a given

country.

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Causal function

For each policy tool selected I have looked at both domestic outputs – i.e. all national laws and rules

enacting and executing the international obligations (Breitmeier, Young, and Zürn 2006; Underdal 2002)

and cumulatively constituting a policy (Birkland 2001; Howlett & Ramesh 2003) – and outcomes – i.e. the

actual change, measured through the following indicators (Bryman 2004):

Licensing system Number of vessels, tonnage and power Marine Protected Areas Number and size of areas

The selection of indicators has been based on relevant literature and reports of international organizations

(e.g. FAO), as well as on interviews and conversations with practitioners.

Accomplishment function

I have defined the accomplishment function as the relation between policy objectives, on one side, and

outputs/outcomes, on the other (Lane 1995). This function measures the degree of goal-achievement, or

goal-attainment (Winter 2006), which represents the main indicator of implementation addressed as the

dependent variable of this research. On the basis of this indicator, I have assessed national progress (in

terms of outcomes and not only output) towards international goals.

This study faces a major difficulty. While outputs and outcomes result from the implementation

process, policy objectives are mainly defined in the policy formation (Winter 2006), which corresponds in

my research to the development of international obligations. In the study on the implementation of

international provisions, hence, the relationship between objectives and outputs/outcomes is complicated

by the presence of two levels of policy making, where an international document (output) defines

objectives for national action (Buck 1998). This ‘causality problem’ has been treated already in literature

on EU compliance (Bugdahn 2005; Héritier & Knill 2001; Mörth 2003), and on institutional interaction

among regimes (Oberthür & Gehring 2006).

On the basis of this literature, in order to understand whether the international obligation has been

implemented at the national level, I have (1) looked for an output/outcome in the country which

corresponds to a specific commitment defined in the international document, and (2) proved whether the

national output/outcome is the result of such commitment by tracing the possible causal pathway. Only if

this causal interaction is proven, we can talk of implementation of the international provision.

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3.2. Process tracing as the research method

With regard to implementation as a process of execution, my investigation emphasizes causal

mechanisms rather than effects and relies on through process-tracing as the research method. Used in

within-case analyses, the method of process-tracing incorporates historical narratives of specific events

within general theoretical frameworks elaborated in social sciences (George & Bennett 2005). Indeed, the

causal mechanism (or process) at work in a specific situation is not simply traced, but mapped in a

‘theoretically informed way’ (Checkel 2005; George & Bennett 2005). The use of this method for my

research has been motivated by four main considerations.

Firstly, from an operational perspective, studies that have analyzed the influence of EU policy

development on national policy frameworks (Mörth 2003; Radaelli 2003) suggest historical analyses as

the method of research in order to detect institutional interactions and causal pathways (see above).

Secondly, the option of studying causality through a covariational approach presents

methodological weaknesses often neglected in literature. Briefly, “in exercises that use the method of

agreement and difference, the investigator cannot be sure that all the possibly relevant independent

variables have been identified or that the study has included a sufficient variety of cases of the

phenomenon” (George & Bennett 2005: 156).

Thirdly, I faced a contextual constraint. The absence of an extreme case among developing

countries, intended as a case of good implementation of international fisheries agreements (Interviews

with officers from international organizations, Rome and Paris, October 2007), would have imposed a

Most Different Systems Design to my research. The use of a MDSD is strongly discouraged by literature

(Collier & Mahoney 1996; Gerring 2007).

Fourthly, I have defined implementation as a process and analyzed various obstacles which might

intervene in the domestic implementation of international fisheries agreements. The purpose of the study

is to unravel (escalating) constraints which might emerge in different steps of this process. Furthermore,

controlled comparison requires independent variables which do not interact with each other, while my

theoretical model contains factors which are intertwined as steps in a process (of implementation).

Annex C shows this process, where policy characteristics are taken as the independent variable,

implementation results as the dependent variable, and the arena of conflicts as the ‘intermediate activities’

(Mayntz 2004).

Case selection

The case selected for this research is China. Although the country is experiencing a fast growth, it still

remains a developing country (UNDP 2006), and represents a relevant case for compliance with

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international fisheries agreements, under two main aspects: gaps in literature (Zhao 2005) and its

international (economic) relevance in fisheries (FAO 2007). Faced with the issue of remarkable provincial

differences across the country (Saich 2004), the Guangdong Province has been taken as a specification

of the case for the sub-national aspects of policy implementation. The selection is motivated in the

framework of the ECOST project which studies fisheries in the Pearl River Delta as one of the selected

sites.

Although process-tracing is usually referred to within-case studies, processes can be compared

across cases. Through the juxtaposition of historical cases, we might find regularities that make the

description more sophisticated, the explanation more powerful, and generalizability more plausible (Miles

& Huberman 1994). Senegal has been chosen as a secondary case, so that the two countries (China and

Senegal) have functioned, respectively, as formal and informal cases.

The fact that this study is part of a broader project has constrained the selection of a second case.

Although such constraints cannot be denied for sake of clarity and transparency, Senegal does represent

a useful case for revealing the peculiarities of the Chinese case, on one side, and (consequently) the

regularities which might explain the weak implementation of international agreements in less developed

countries, on the other.

In conclusion, the process of implementation of international provisions will be traced and

analyzed for the two policy tools selected (licenses as regulations; MPAs as direct government) in China

and Senegal. Cross-country comparisons on each single tool will allow interesting considerations on

policy characteristics, arena of conflicts, and resource requirements for both regulations and direct

provisions. (In a later stage of the research, a comparative assessment will be developed across the two

tools and the two countries; this paper does not include this part). The comparative rationale explained

here is represented in figure 1.

Fig. 1: Comparative rationale

China al Seneg

Licenses Licenses

MPAs MPAs

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3.3. Data collection

The international fisheries regime has been firstly reconstructed on the basis of available primary

documentation (agreements and reports by international organizations) and secondary sources

(literature). In a second phase, ten semi-structured interviews with top officers from international

institutions (FAO and IOC-UNESCO) carried out in October 2007 (in Rome and Paris) have provided

useful information, and confirmed the relevance of the four documents selected and the emphasis on

policy tools.

The evolution of fisheries policies has been traced in both countries since the early 1980s, when the

UNCLOS was signed.

With regard to China, initial useful information has been provided by books on the Chinese system

and articles on environmental policy in China. Later, I have analyzed the content of national laws,

regulations and measures, as well as provincial legislative documents since the early 1980s. I have

obtained further information on the policy, management and administrative framework for fisheries through

interviews with policy makers and civil servants carried out in China (Guangdong Province) in the period

June 2007–June 2008. The thirteen interviewees belong to the two main functions involved in fisheries in

China: fisheries management divisions and (marine) environmental protection departments and bodies.

While the initial round of interviews was conducted directly by the Chinese investigator, I was present in a

second round (May 2008). Moreover, one interview at the FAO regional office for Asia and the Pacific

(Bangkok, May 2008) helped contextualize the data collected through interviews in China and put them in

perspective within the Asian region.

Periodical meetings have been arranged with the Chinese local expert, through three visits in the region

(Guangzhou, April 2007 and May 2008; Bangkok, April 2008) and ICT tools.

The section on Senegal has relied on Anglophone and Francophone literature (from different

fields), together with policy documents of the last thirty years. Nevertheless, the most relevant information

came from field research carried out in Dakar in March 2009. The ten interviews have been mainly

conducted at the Ministry of Marine Economy, but also included representatives of professional

organizations and NGOs.

4. Preliminary findings: accomplishment of international objectives This section answers the first part of the research question, i.e. “to what extent are developing countries

failing in implementing international fisheries agreements?”. The answer to this question implies two levels

of analysis, on the outputs produced and the outcome achieved for each tool selected (licensing system

and marine protected areas) in the two countries.

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4.1. China

General legal framework

After the translation of Agenda 21’s concern for sustainable development through China Agenda 21

(1994), the year 1996 marks an important milestone in the legislative framework for fisheries resources

management: the UNCLOS is ratified and China Ocean Agenda 21 is adopted to complete the framework

established by China Agenda 21. Consequently, the two legislative acts ruling fisheries management and

marine environmental protection – respectively the 1986 Fisheries Law (FL) and the 1982 Marine

Environmental Protection Law (MEPL) – have been revised (in 2000 and 1999).

Nevertheless, the Chinese legal framework for fisheries appears still ‘embryonic’ and ‘far from complete’

(Zou 2005), which mirrors the general ‘vagueness’ of the Chinese legal system (Beyer 2006; Saich 2004).

Duties are not better specified in regulations and administrative acts, which either do not exist or remain

rather general. This leaves responsibilities unclearly demarcated (Beyer 2006; Zou 2005) and enhances

the interpretative discretion of sub-national officials (Beyer 2006).

Fig. 2: China’s legal framework

UNCLOS

A21

CCRF

Fisheries management Licenses

Marine protection Marine Protected Areas

1986 Fisheries Law 1987 Implementation Measures

1982 MEPL 1994 Regulations on natural reserves 1995 Measures on natural reserves

2000 Amended FL 2002/04 PAFL

1999 Amended MEPL

1994 China Agenda 21 (Chapter 14F) + 1996 Ocean Agenda 21

1996 UNCLOS Ratification 1998 Law on the EEZ

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Implementation of licenses

Although a system of fishing licenses had existed in China since the 1976, the FL 2000 (following the

ratification of the UNCLOS) has extended China’s jurisdiction to all fishing activities in the EEZ and

enhanced the system of licensing with stricter requirements, in line with the CCRF (Xue 2005; Zou 2005).

According to the FL 2000 licenses are issued by the fisheries administration of the central government

(within the Ministry of Agriculture) and the provinces.

In contrast with what stated above in general terms, the legislative framework for the licensing system has

been properly executed and followed by administrative implementation. In 2002, the Ministry of Agriculture

adopted the Provisions on the Administration of Fishery Licensing (PAFL) (further amended in 2004) in

order to implement the system of licenses described in the FL 2000. Yet, the discretion left to subnational

authorities is high. Indeed, confirming the FL 2000, the PAFL recognize to the provincial fisheries

administration important competences in the issuing and controlling of fishing licenses (under the control

of the Ministry of Agriculture).

Implementation of marine protected areas

Most of the Marine Protected Areas designated on the basis of the 1982 MEPL remained on paper. On

the wave of the UNCED process, China Agenda 21 and China Ocean Agenda 21 called for a revision of

the 1982 MEPL; the new law of 1999 gave a new boost to MPAs (Xue 2005; Zou 2005). Although the new

MEPL (1999) improved the division of competences on environmental protection (Interviews with civil

servants, Guangdong, May 2008), the law ahs left the division of authority among national administrations

still unclear (Zou 2005).

Furthermore, the management of MPAs is still ruled by the Measures on the Management of Marine

Nature Reserves of 1995, which implement the MEPL of 1982 (Zou 2005). After the adoption of the new

MEPL (1999) no new executive act has been produced.

Final outcome

Despite China’s efforts of enactment and execution, the final results of the licensing system and the MPAs

put in place are rather weak. A high number of violations of the licensing system still occur in the South

China Sea, and the number of MPAs is still insufficient (Zou 2005).

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4.2. Senegal

General legal framework

The main document ruling fisheries in Senegal has been amended several times. After the independence,

Senegal passed a Code for Fisheries Management (CMF) in 1976 (Camara 2008), amended in 1987 after

the country ratified the UNCLOS (1984), and revised again in 1998 for commercial matters. The

government has recently acknowledged the crisis of the fisheries sector and the ineffective application of

the Code of 1998 (despite the Implementation Decree of 1998). Hence, the government has committed to

a further revision of the Code (MME 2007; 2008). The new Code is also believed to fully respond to the

evolution of the international frameworks for fisheries and the commitment to a more responsible use, as

requested by the CCRF and the JPoI (Interviews with civil servants, Dakar, March 2009).

Fig. 2: Senegal’s legal framework

Code for Marine Fisheries 1998 Law No. 98/32

Implementation decree 1998 Decree No. 98/498


Decree 2004-1408 Marine protected areas

UNCLOS

A21

CCRF

JPOI

New Code


1984 UNCLOS Ratification

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Implementation of licenses

With a licensing system for industrial fisheries has always existed in Senegal and has been adapted to the

EEZ by the CMF 1987 after the ratification of the UNCLOS (Interviews with civil servants, Dakar, March

2009), a licensing system for artisanal fisheries has been established only in 2005 (Arrête n° 5916). Yet, it

has been the increasing depletion of fisheries resources and its acknowledgement by small fishers which

has made it possible to change the system of access to the sea. The influence of international provisions

has been irrelevant (Interviews with civil servants, Dakar, March 2009).

The Code for Marine Fisheries 1998 recognizes the Ministry of Marine Economy (MME) as the competent

authority for all fisheries management activities, carried out by its Directorate for Marine Fisheries.

Implementation of marine protected areas

There is no trace of the concept of MPAs in the primary legislation of Senegal, neither under the CMF

1998, nor under the Code of the Environment of 2001 (MME 2008; confirmed by interviews with civil

servants, Dakar, March 2009). Yet, five MPAs have been designated in 2004 by presidential decree

(Decree No. 2004-1408). The commitment of the President manifested in the occasion of the adoption of

the Plan of Implementation at the WSSD in Johannesburg (2002) has put the creation of MPAs high on

the political agenda (Interview with civil servants, Dakar, March 2009). The new Code (still under

discussion) will include legal provisions for MPAs (Interviews with civil servants, Dakar, March 2009).

According to the Presidential Decree 2004-1408, the five marine protected areas had to be jointly

managed by the ministries in charge of fisheries and the environment, which had to define a managing

authority and plan for each MPA (Decree 2004-1408). Recent evolutions are shifting all competences for

managing MPAs to the MME, possibly under a new Directorate (Direction des Aires Marines Protégées).

Final outcome

Overall, results are disappointing in Senegal. Illegal fishing is quite a common practice (Pramod & Pitcher

2006) and only one of the five areas has been reported in interviews as fully functioning and successful in

its goals (Interviews with civil servant, Dakar, March 2009).

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4.3. Cross-country considerations on compliance

The two countries differ in level of accomplishment of international objectives, with a better enactment in

China than in Senegal. Nevertheless, this initial assessment reveals how the main defects appear not in

the legal compliance with international objectives, but at the level of actual change. Legal and

administrative frameworks have been put in place for both tools and in both countries, though with some

flaws, but the final outcome is not in line with international requirements. The reasons for this weakness

are explained in the following sections.

5. Preliminary findings: tracing inducements and constraints

This section answers the second part of the research question, i.e. “why are developing countries failing in

implementing international fisheries agreements?”. In so doing, the following analyses will apply the

theoretical model and trace the process embodied in it.

5.1. China

Licenses

A system of fishing licenses has existed in China since the 1976, so that the ratification of the UNCLOS

has not implied any major pressure for reforming the system of access to fisheries resources already in

place. It follows that the adoption of the Fisheries Law (FL) 2000, which de facto enacts the UNCLOS and

the CCRF, has not faced major conflicts with target groups. With regard to the bureaucratic arena, the FL

2000 clearly recognizes the provincial fisheries administration, i.e. the Guangdong Oceanic and Fishery

Administration (GDOFA) in my study, as the primary authority for the implementation of the licensing

system. The FL 2000 has been followed by the Provisions on the Administration of Fishery Licensing

(PAFL) in 2002, which have confirmed and better specified the framework of the Fisheries Law with

(apparent) no opposition from the public and bureaucratic arena. Nevertheless, a high number of

violations to the licensing system put in place still occur – e.g., fishing without licenses or fishing against

licenses’ prescriptions. It is the process of enforcement which represents the main bottleneck.

First of all, with regard to the policy design, although the FL 2000 has enhanced the legal liability

of (Chinese and foreign) vessels fishing in violation of the national licensing systems and established a set

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of higher fines, the amount of fines is still negligible. It results that fishing in violations of the law pays

more than the loss due to penalties1 (Zou 2005).

It follows that enforcement does not generate open conflicts with target groups (i.e. fishers) in

China. Furthermore, conflicts with fishers are never visible, because they tend to be watered down by

inspectors though administrative tolerance. Indeed, a high level of administrative discretion and inaction

can easily be detected in the Chinese fisheries’ street-level bureaucrats while enforcing license

regulations (Interviews with civil servants, Guangdong, May 2008).

A severe enforcement would require a much higher amount of administrative resources than the

ones available. Although since 1988-89 a system of collection of fees is linked to the emission or renewal

of licenses, funds (as well as personnel, equipment and facilities) are in general inadequate vis-à-vis the

vast marine area to be monitored, crossed by a high number of vessels and characterized by numerous

harbours (Xue 2005; Zou 2005).

Nevertheless, scarce resources are only partially responsible for the general administrative

tolerance shown by local fisheries inspectors. According to Saich (2004) the Chinese policy process is

characterized by the intervention of strong interests and informal relationships of patron-client type

especially at the level of local governments (e.g. between local entrepreneurs and local officials) (Saich

2004).

The problem is even more acute when local enterprises are run by local officials or the same provincial

government (Saich 2004). For example, the government of the Guangdong Province owns one of the

major companies fishing in the South China Sea. Addressing such conflict of interests, frequent in many

economic fields in China (Beyer 2006), as a potential cause of bad implementation and fish stock

depletion should not be surprising: Saich (2004) has already identified in the state-owned massive forestry

industry the main ‘culprit’ in forestry destruction in China.

Marine protected areas

Most of the MPAs designated on the basis of the 1982 Marine Environmental Protection Law (MEPL)

remained on paper because of the absence for many years of detailed implementing regulations (Zou

2005). The first text of the MEPL (1982) was specified more than ten years later by the Regulations on

Natural Protected Reserves of People’s Republic of China issued by the State Council in 1994, and by the

SOA’s Measures on the Management of Marine Nature Reserves (1995) (Xue 2005; Zou 2005).

1 The explanation provided for such a system of low fines is that the Chinese socio-economic development goes much faster than the process of laws and (rules) revision (often affected by the bureaucratic fragmentation) (Interviews with civil servants, Guangdong, May 20008).

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Similarly, the new MEPL 1999 has not been followed by implementing measures, and the

management of MPAs is still ruled by the Measures on the Management of Marine Nature Reserves of

1995. Although the new MEPL (1999) has improved the division of competences on environmental

protection (Interviews with civil servants, Guangdong, May 2008), the law has left the division of authority

among national administrations still unclear – mainly between the State Environmental Protection

Administration and the State Oceanographic Administration (Zou 2005). The conflicts typical of the

Chinese bureaucratic system have (again) impeded the update and upgrade of the implementation

framework for MPAs.

It follows that the policy design in place is inadequate. For example, policy characteristics are

weak with regard to sanctions: those foreseen in the Management Measures and the Regulations for

Natural Reserves are extremely low. Nevertheless, violations from fishers do not seem to represent the

main problem in the management of MPAs (Interviews with civil servants, Guangdong, May 2008).

Tensions emerge more frequently within the bureaucratic arena, mainly on the Beijing-Province dis-

alignment.

The 1995 Management Measures assign to provincial governments the management

responsibilities for provincial MPAs. The consequence of such delegation of competences is that the

coastal provinces have the power to manage their own MPAs and, hence, prioritize development projects

on the conservation of MPAs, even when Beijing commits to sustainability (Interview with MPA

management body, Guangdong, November 2007 and May 2008).

The frequent provincial emphasis on development also affects budget allocation. According to the

1994 Regulations, most funds for nature reserves should come from local governments, which, concerned

with economic development rather than environmental protection, have insufficiently funded MPAs (Zou

2005). The result of financial shortage is the low amount of resources available for basic needs, such as

personnel and equipment, which has made daily management and monitoring of MPAs extremely weak

(Interviews with civil servants, Guangdong, November 2007 and May 2008). The situation is worsened by

the fact that the MEPL calls for SEPA and SOA to manage independently their own monitoring activities,

which duplicates efforts and wastes manpower and financial resources (Zou 2005).

5.2. Senegal

Licenses

A licensing system for industrial fisheries has been put in place right after the ratification of the UNCLOS

(1984) and the designation of Senegalese’s Exclusive Economic Zone. The Code for Marine Fisheries

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(CMF) of 1987 introduces a licensing system for industrial fisheries, confirmed by the CMF 1998.

The initial draft of the CMF 1998 also contained provisions introducing (for the first time) a system

of licenses for small-scale (or artisanal) fisheries. Artisanal fishers and their organizations strongly

opposed this possible change. Because of the political weight of small fishers, due to their number and the

relevance of their constituencies, the part of the draft CMF 1998 foreseeing a systems of licenses for

small fisheries was torn out once the text reached the Office of the Presidency (Interviews with civil

servants, Dakar, March 2009).

The context of serious depletion of fisheries resources (evident also to artisanal fishers in the last

decade), made the ruling of small fisher’s access unavoidable in recent years. Hence, the Arrête n° 5916

of 2005 has introduced a licensing system also for artisanal fishers, which has changed the regime of

open access in place until 2006 (MME 2008; Pramod & Pitcher 2006; République du Sénégal 2007;

confirmed by interviews with civil servant, Dakar, March 2009).

Although the Code has been followed by implementing measures right after its adoption

(Implementation Decree 1998), many objectives of the CMF 1998 have not been executed (Camara 2008)

for lack of resources (Interviews with civil servants, Dakar, March 2009). Nevertheless, the country has re-

opened the policy process, by embarking on a revision of the text of 1998.

Therefore, Senegalese fisheries management is weakened not by the absence of laws, but rather by their

incomplete execution, as well as its weak enforcement (Camara 2008).

Although the new CMF of 1998 specifies an adequate sanctioning system (e.g., the sanctions

foreseen are rather high), the main problem has been the weak monitoring mechanism (Pramod & Pitcher

2006). More administrative resources are needed for adequate surveillance (MME 2008), but a serious

problem in Senegal is the administrative tolerance of inspectors.

This tolerance ultimately explains why licenses for small-scale fisheries have been accepted. The formal

protest has vanished under the certainty that controls are absent. Hence, the imposition of payments to

access fisheries resources has not implied real changes for small fishers. Fishing without license is a

rather common practice, since monitoring and sanctioning on small fishers are rather rare (Interviews with

artisanal fisheries association, Dakar, March 2009). The political weight of artisanal fishers is high and

alternative sources of income are absent.


The designation of the five MPAs by the presidential Decree No. 2004-1408 is the direct result of the

President’s commitment to the provisions of the Plan of Johannesburg, signed by the country in 2002.

Agenda 21 has not been influential from this perspective.

What was changed compared to the period after Agenda 21, which allowed the introduction of

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MPAs in the Senegalese policy framework, was the general situation of non opposition from the target

groups, mainly artisanal fishers. At the beginning of the years 2000, small fisheries actors could no longer

deny the crisis of fish stock. Nevertheless, another reason explains why oppositions from artisanal fishers

to the establishment of MPAs have been always very limited. Monitoring on the areas is extremely weak,

so that small fishers have continued to fish in MPAs without being sanctioned. The only MPA which works

efficiently (Bambour) has never been a zone of marine fisheries (Interviews with artisanal fisheries

associations, Dakar, March 2009).

Hence, target groups did not oppose the presidential decision, and neither did the bureaucracy of

the country. The general climate of agreement did not create any burden of political resources

requirement. With regard to administrative resources, adequate funds have been provided by the central

administration (Interviews with civil servants, Dakar, March 2009).

More problems emerged during the execution phase, and at the level of the bureaucratic arena.

According to the Presidential Decree 2004-1408, the five areas had to be jointly managed by the

ministries in charge of fisheries and the environment, which had to define a managing authority and plan

for each MPA (Decree 2004-1408). In practice, since their creation and until 2008, MPAs have been direct

competence of the Ministry of Environment, under the Directorate for National Parks (Direction des Parcs

Nationaux) (Camara 2008).

In 2008 an institutional reorganization has shifted the competences for the management of MPAs from the

Ministry of Environment (MoE) to the Ministry of Maritime Economy, although the related Decree has not

been published yet. The final ‘machinery’ for the administration of MPAs is still unclear (Interviews with

civil servants, Dakar, March 2009). This results in a high level of confusion and paralysis in the actual

management of the MPAs. The MoE has recently recalled its personnel from the existing MPAs, so that

the President – and NGOs – had to intervene to avoid the collapse of the 5 areas (Interviews with civil

servants, Dakar, March 2009).

6. Preliminary discussion The final purpose of research is producing general knowledge (King, Keohane, and Verba 1994). Even

when the focus is on particular events for their intrinsic interest, the final purpose of research is to move

from the particular to the general for better understanding the general and the particular (King et al. 1994).

In a world of unique events, we want to abstract key features of social phenomena from a mass of

particular facts, by act of simplification, and distinguish regularities of a phenomenon (which are

persistent) from random factors (which are transitory) (descriptive inference). Later, by connecting causes

and effects, we aim to move from description to explanation of phenomena (causal inference) (King et al.

1994). Generalization (or external validity) consists, then, in the extent to which we can translate the

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case’s findings beyond the immediate case (Bryman 2004; Burns 2000; Yin 2003).

External validity constitutes a major problem in qualitative research, especially when it is based on

single case studies (Bryman 2004; Rueschemeyer 2003). Usually generalizability fades when we look at

particular cases because of the very particularistic nature of case-oriented analyses (Burns 2000; George

& Bennett 2005; Miles & Huberman 1994). The result is a possible risk of overgeneralization (George &

Bennett 2005).

Nevertheless, my study has some ambitions of generalization, despite its focus on a relevant case. Partial

generalization can be claimed on the basis of a second peripheral case, the theory-development purpose

of the work, its theoretical base, and some logical reasoning.

Firstly, I have argued earlier, that processes can be compared across cases to see whether the

pattern found in one case is confirmed. Hence, the juxtaposition of historical cases might reveal

regularities, which makes the description more sophisticated, the explanation more powerful, and

generalizability more plausible (George & Bennett 2005; Miles & Huberman 1994).

Secondly, a conventional methodological view distinguishes two main contexts: the ‘context of

discovery’ (or generation) of new hypotheses (‘theory development’), and the ‘context of validation’ of

explanatory propositions (‘theory testing’) (Rueschemeyer 2003). According to the same view, single-case

designs can only lead towards theory development. On the contrary, some authors (George & Bennett

2005; Rueschemeyer 2003) argue that single cases not only can develop new hypotheses and theoretical

insights but also can test initial hypotheses (or theory testing). The nature of my research, which is

exploratory and lacks initial hypotheses, places my study in the ‘context of discovery’.

Thirdly, case studies do not have to be intended as a purely inductive exercise. According to

Rueschemeyer (2003: 317), “the studies that have yielded the most analytic insight were informed by

intensive advance theoretical reflection” often made explicit through a theoretical framework.

The deductive nature of my research, which starts from “what is known about” in the specific domain of

implementation (the ‘theory’ ), places my work in the field of theory-driven case studies, where the process

of gathering and analyzing data has been led by a focused theoretical framework. This ‘advance

theoretical reflection’ (in the form of a leading theoretical framework) enhances the generalizability of the

final results.

Fourthly, similarly to Brans’s (1992) argument on local government reorganization in industrialized

countries, so many developing countries experience failures when it comes to the implementation of

international agreements that common explanations cannot be denied. The argument is that if different

developing countries fail in implementation independently from each other, then such trend powerfully

suggests that there are some underlying common processes (adapted from Brans 1992).

Therefore, this research will attempt to produce final possible causal hypotheses which might lead future

(comparative) research. I leave the generation of hypotheses for a later stage of this research. In the following sections I

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will rather highlight some cross-case regularities detected through the application of the theoretical

framework embedded in some initial country-specific considerations.

6.1. Tools, phases, and arenas

A preliminary analysis of the findings seems to confirm that the obstacles to the implementation of

international regimes emerge when international commitments exert a high adaptational pressure on

policy frameworks already in place. In other words, the goodness to fit decreases the level of conflict. Yet,

each tool implies the reaction of a specific set of actors at a specific point of the implementation process

(see fig. 2).

Fig. 2: Tools, phases, and arenas

Licenses

Both in China and in Senegal, the implementation of international commitments regarding regulatory

initiatives (such as fishing licenses) is captured by clientelist relationships between the public and

bureaucratic agenda, and administrative tolerance by street-level bureaucrats during the enforcement

Direct government

Economic regulations

Licenses

MPAs

Political arena Public arena

Enforcement Bureaucratic arena Public arena

Enactment

Execution Bureaucratic arena

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phase. Particularly, the administrative inaction is not only due to resource scarcity, but mainly to the

political will of avoiding potential conflicts.

The policy environment adds further facets to this common core.

Firstly, in the model adopted from Grindle and Thomas (1991) conflicts are clearly framed within two

distinct arenas, the bureaucratic system on one side and the general public on the other. The distinction

applies very well to political contexts where the public and private spheres are clearly separated, but in

China ‘who rules’ and ‘who is ruled’ have often blurred demarcations. The Province has high discretionary

power on managing fishing licenses, owns an important fishing company, and is responsible for its own

budget in a situation of fiscal decentralization. A clear conflict of interests pushes further the exploitation of

fisheries resources, which still constitute an important source of public revenue.

Secondly, the research shows that target groups can capture the implementation of international provision

(and reform initiatives) also at the enactment level. Provided they have enough political weight (resources)

and their opposition can be expressed in the political system, target groups can exert pressures on the

political elite at the beginning of the process. Unlike Chinese fishers, Senegalese artisanal fishers could

block any change to access rules during the adoption of the Code 1998.


Conflicts with target groups seem less relevant for MPAs. Their nature of direct government makes the

conflicts in the public arena more important. It is the vagueness which characterizes the execution phase

(and the implementation framework) which creates most problems. In both countries studied, the

specification of implementing measures for this direct government tool is mainly captured within the

bureaucratic arena by competing agencies. Inter-organizational conflicts in the bureaucratic arena are

present both in China and in Senegal. Relationships between the MME and MoE have always been

tensed in Senegal, and the SEPA and SOA exercise overlapping competences in the management of

MPAs in China.

Conflicts multiply when more layers of government are involved, as it happens in China between

Beijing and the province (Guangdong in my study). The financial burden implied by direct government

tools on provincial budget (in a system led by fiscal decentralization), together with the responsibility of the

province in managing MPAs, explains the non execution of marine protected areas: provincial

governments can prioritize actions and divert resources away from MPAs.

In the specific context of a West African state, conflicts are not only institutional but often are the

result of personal gain. In Senegal, competences at ministerial level are periodically reshuffled, moved

away, and moved back among ministries; even when the machinery for implementation is clarified by the

law, a continuous production of presidential decrees can easily change responsibilities. New ministerial

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competences correspond to more job opportunities, which enhances the personal ‘clients’ of ministers and

their political support for future elections (Interviews with civil servants, Dakar, March 2009).

The final result, in both cases, is a high level of confusion on the management of MPAs and the

paralysis in the functioning of this tool.

7. Conclusions

Despite cross-country differences, the study shows some initial commonalities.

Firstly, it is not enactment the main problematic phase in the implementation of international

commitments, but rather execution and enforcement.

Secondly, execution and enforcement can be jeopardized by the same policy characteristics

designed by international and national policy makers, because their adaptational pressure may generate

reactions in multiple arenas.

Thirdly, different constellations of actors capture the process of implementation of specific policy

tools at different moments (enactment, execution, enforcement): target groups through local clientelism;

the administrative system with its bureaucratic politics; conflicting interests in situation of unclear

demarcation of roles.

Fourthly, in the presence of adaptational pressure, implementation seems to be accelerated by

the perception of crisis. In this situation, the ‘pull towards compliance’ exerted by international regimes is

enhance by the push of internal crises which make change unavoidable.

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Legal and administrative texts

INTERNATIONAL FRAMEWORK

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CHINA

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<http://www.fao.org/fishery/countrysector/FI-CP_CN/6> accessed 04.03.2008.

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SENEGAL

[CMF] Loi n° 98-32 portant Code de la Pêche Maritime, Dakar.

[CoE] Loi n° 2001-01 portant Code de l’Environnement, Dakar.

MME (1998) Décret n° 98-498 du 10 juin 1998 fixant les modalités d’application de la loi n° 98-32 du 14 avril 1998 portant Code de la Pêche maritime, Ministère de l’Economie Maritime, Dakar.

MME (2007) Lettre de Politique Sectorielle des Pêches et de l’Aquaculture, Ministère de l’Economie Maritime, Dakar.

MME (2008) Conseil Présidentiel sur la Pêche (Mars 2008), Ministère de l’Economie Maritime, Dakar.

President of the Republic, Décret n° 2004-1408 portant création des Aires Marines Protégées, Dakar.

République du Sénégal (2007) La révue des dépense publiques et l’analyse de la rentabilité économique du secteur de la pêche.

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Annex A: The theoretical model

Administrative rules

National legislation

International agreement

National legislation

Administrative rules

Behavioural change

ENACTMENT :

EXECUTION :

ENFORCEMENT :

Resource Requirements Political / Bureaucratic

Arena of Conflict Bureaucratic / Public

Policy Characteristics Objetives / Means










INPUT Prescription

OUTPUT (OUTCOME) Implementation results

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Annex B : International objectives

UNCLOS Part V

A21 Chapter 17

Programme Area D

CCRF Article 7

JPOI Paragraph 30-36

Licensing

Concept introduced

Coastal states’ conservation measures can relate to: - licensing of fishermen, fishing vessels and equipment, including payment of fees and other forms of remuneration, (art. 62.4.a) - regulating seasons and areas of fishing, the types, sizes and amount of gear, and the types, sizes and number of fishing vessels that may be used (art. 62.4.c)

Concept confirmed

States should ensure that marine living resources are conserved and managed in accordance with the provisions of the UNCLOS (art. 17.77)

Concept reinforced

Excess fishing capacity is avoided (art. 7.2.2, art. 7.1.8) or eventually reduced (art. 7.6.3)

Concept confirmed

Implementation of UNCLOS (Par. 30) Implementation of CCRF (Par. 31)

Quotas

Concept introduced

Coastal states shall determine the allowable catch (art. 61.1) Coastal states’ conservation measures can relate to: - fixing quotas of catch (art. 62.4.b)

Concept confirmed

States should ensure that marine living resources are conserved and managed in accordance with the provisions of the UNCLOS (art. 17.77)

Concept absent

Concept confirmed

Implementation of UNCLOS (Par. 30)

Marine Protected Areas

Concept absent

Concept introduced

States should identify specific marine ecosystems and provide necessary limitations on use in these areas, through, inter alia, designation of protected areas (art. 17.85)

Concept absent

Time specification

Establishment of MPAs and of representative networks by 2012 (Par. 32.c)

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Rules


Law



X1 or INPUT Y or OUTPUT

Agreement K Z R

Law K Z R Rules

K Z R Change

ENACTMENT :

EXECUTION :

ENFORCEMENT :

X2 or MECHANISM

Implementation results Outputs / Outcome

Goal function Causal function

Accomplishment function

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campaign against child labour ferraro

Documents