Enforcement Guide: Near Shore Artisanal Fisheries

We need healthy oceans to support our way of life. Unfortunately, fish stocks are under growing pressure and the need to find innovative and pragmatic resource management strategies is more important than ever. Disregard for fisheries and environmental laws is common and if we are to succeed in reversing the declining trend, we must draft relevant regulations, design and fund comprehensive enforcement programs and cultivate a culture of compliance. Historically, marine law enforcement has been the competency of Naval and Coast Guard authorities; however, many fishery and park agencies, who lack training, equipment, and at times controlling legal authority, are tasked with fisheries management and enforcement. Complicating matters, most agencies are understaffed; lack budgetary resources, and possess limited authority (i.e. power of arrest and the ability to use force). WildAid in cooperation with The Nature Conservancy developed this guide to assist managers in designing a cost effective enforcement strategy for near shore artisanal fisheries. This document is not a recompilation of literature, but a practical guide based on our experience in the Eastern and Western Pacific. Generally, an enforcement system is designed to monitor all activities within a given area ranging from tourism, investigation, and transportation to fisheries; however, this guide will focus primarily on near shore artisanal fisheries. The objectives of this guide are three-fold:1. Examine all factors considered for the design and operation of a marine law enforcement system; 2. Illustrate key components of an enforcement system and evaluate surveillance technology and patrol equipment options; 3. Guide managers in the design and implementation of an enforcement system.In summary, it aims to equip managers with the tools needed to strengthen fisheries management and design enforcement systems that are practical, affordable and feasible to implement in a timely manner. Fisheries enforcement requires a holistic approach that accounts for surveillance, interdiction, systematic training, education and outreach and lastly, meaningful sanctions. Although it explores many surveillance technologies and management tools, this guide more importantly provides a blueprint for the capacity building and professionalization of enforcement officers, who truly are the core component of any fisheries enforcement program

Commentary to Andreas Fischer- Lescano & Gunther Teubner. The Legitimacy of International Law and the Role of the State

It will come as a surprise to many readers that Professor Teubner presented their fascinating contribution on regime collision to the Michigan Journal of International Law\u27s Symposium on a panel devoted to the Role of the State in International Law. Indeed, one could not imagine better devil\u27s advocates than Professor Teubner and Dr. Andreas Fischer-Lescano. They propose a radical break with a concept of international law and order based on the autonomous will of Nation-States. Accordingly, legal regulation does not only, if at all, emanate from Nation-States, but from a panoply of other public and, mostly, private actors. Thus, the authors dismiss all claims of an orgaizational or dogmatic unity of international law

Commentary to Andreas Fischer- Lescano & Gunther Teubner. The Legitimacy of International Law and the Role of the State

It will come as a surprise to many readers that Professor Teubner presented their fascinating contribution on regime collision to the Michigan Journal of International Law\u27s Symposium on a panel devoted to the Role of the State in International Law. Indeed, one could not imagine better devil\u27s advocates than Professor Teubner and Dr. Andreas Fischer-Lescano. They propose a radical break with a concept of international law and order based on the autonomous will of Nation-States. Accordingly, legal regulation does not only, if at all, emanate from Nation-States, but from a panoply of other public and, mostly, private actors. Thus, the authors dismiss all claims of an orgaizational or dogmatic unity of international law

Investigating the Misalignment in the Existing E-Legislation of South Africa

South Africa has recently enacted several e-legislation in order to address the escalating e-crime, the rise in electronic abuse and also the indifferences of the past. However, research shows that many organisations including public institutions do not understand these laws and thus, fail to comply with them. One major contributor to this are the inconsistencies found in the legislation. The National Development Plan and the Mid-term Strategic Framework recognise the complexity of laws, and thus endorse improvements in the removal of unnecessary obstacles and consistencies. Hence, the objectives of the present study are to examine the existing e-legislation in South Africa; identify areas of misalignment and investigate the factors that contribute to the misalignment. Ultimately researchers aim to develop a framework that can be used to guide the alignment e-legislation in South Africa. Extensive literature review was conducted to understand alignment of legislation. Firstly, all the e-legislation that was passed between the years 2000 and 2013 was retrieved and obtained from Sabinet database. This legislation was studied extensively and inconsistencies were identified. A conceptual framework which indicates contributing factors to misalignment and impact of misalignment to non-compliance, was developed and proposed to guide alignment of e-legislation. Based on the conceptual framework a questionnaire with open ended question was developed and tested in the Parliament of South Africa, since this institution champions the development and implementation of national laws such as the e- legislation. A total number of 50 respondents participated in the survey wherein the focus groups were people who are involved in the process of making/drafting laws, specifically ICT Laws. The influence of the factors on misalignment was measured and both qualitative and quantitative analysis confirmed these influences. The study reveals that lack of good industry standards has the greatest influence to the misalignment of e-legislation in South Africa. For instance lack of benchmarking, standardised procedures contribute the most to the misalignment of e-legislation, and that misalignment results into non-compliance. Therefore, in order to address these issues, South Africa must emphasize on benchmarking with good industry standards, and this can be achieved through harmonisation of e-legislation in the region and globally. It is also a major concern that some aspects of earlier e-legislation have not been repealed. Qualitative data also raises some issues relating to lack of ICT skills by legislators, political influences, lack of public participation, etc. Capacity/skills development issues e.g. legislative drafting and ICT technical skills for legislators must be addressed. Moreover, public involvement as a constitutional mandate must be strengthened in South Africa to ensure citizens are engaged and actively participate in the law-making process

Pancasila: Looking For the Ideal Format of State Philosophy Embodiment

Looking for the ideal format of the philosophy of Pancasila embodiment is a scientific article aimed at solving legal problems related to the position of Pancasila in legal construction in Indonesia. It happens because of the unconsistency in the Indonesian legal system. The purpose of this study is to find the most appropriate embodiment of the Pancasila philosophy in the Indonesian legal system. It is an effort in order that the Indonesian legal system has “tools” to ensure or “force” the consistency within Indonesian legal system itself. This study uses a conceptual approach and a legal history approach. The researcher finds that the use of Pancasila philosophy in the construction of the Indonesian legal system is inconsistent. The results of the study conclude that Pancasila needs to be embodied, in order that the law in Indonesia can be more consistent with the goals of the philosophy of the state. The results of this paper recommend that Pancasila, as a philosophy, is the domain of the institution holding the people's sovereignty; that is the House of Representatives and is not an executive domain with the HIP Bill or with the executive-made BPIP institution.Keywords: State Philosophy; Pancasila; Embodiment

Mind the Gap: Issues of Legality in the EU’s Conceptualisation of the Rule of Law in Its Enlargement Policy

The article critically examines the EU’s conceptualisation of the rule of law in its enlargement practice. Two main arguments will be advanced. First, it will be argued that legality is a core element of the rule of law, and adherence to it is a fundamental characteristic of any institutional order governed by the rule of law, as evidenced in the Treaty (Article 2 TEU) and as acknowledged in the jurisprudence of the Court of Justice. Secondly, it will be shown that the EU’s pre-accession process does not sufficiently address this rule of law element, to the extent that a) its main focus is alignment with the acquis, and b) changes made to domestic legislation are measured in terms of quantity and not quality. It will be demonstrated that this generates problems of legality in the candidate states, including legal inflation, instability, lack of generality of law and coherence, as well as problems of enforcement. It will be asserted that even though this is recognised by the Commission, over the years the EU has not amended its methodology, thereby failing to recognise that ensuring respect for the rule of law is not merely a process of adoption of a corpus of rules, but rather a complex process of adaptation to a particular value system. The article continues by arguing that the quality and complexity of the acquis leave considerable room for improvement, while at the same time raising questions as to its suitability as an instrument for development in the (potential) candidate countries. As a conclusion, some policy reflections will be offered on how these issues could be better addressed

Democracy and (the essential content of) fundamental rights: marching in line or precarious balancing act?

This article addresses the question of how democracy and fundamental rights interplay, and compares German and South African law for this purpose. The author argues that democracy requires and presupposes fundamental rights, but that these two values do not always align, and then deals with the question of how to reconcile democracy and fundamental rights in case of conflict. The potential conflict between the two values is sometimes reflected in the relationship between Parliaments as the embodiment of democracy and the Constitutional Courts as the embodiments of fundamental rights (the so- called “counter-majoritarian dilemma”). However, the author rejects the recent critique by some scholars that the German Federal Constitutional Court structurally exceeds its powers vis-à-vis the German Parliament and that there is a permanent judicial overreach. On the contrary, the author argues that Constitutional Courts do not have sufficient tools to counter a democratic backsliding, i.e. the incremental erosion of democracy. Since the author considers democratic backsliding to be a greater and more acute threat to democracy than judicial overreach, he presents the view that the guarantee of the essential content of a right delineates the minimum of a fundamental right in a democratic society. This view is explained using freedom of expression as example

The Coherence of Theories-Dependencies and Weights

One way to evaluate and compare rival but potentially incompatible theories that account for the same set of observations is coherence. In this paper we take the quantitative notion of theory coherence as proposed by [Kwok, et.al. 98] and broaden its foundations. The generalisation will give a measure of the efficacy of a sub–theory as against single theory components. This also gives rise to notions of dependencies and couplings to account for how theory components interact with each other. Secondly we wish to capture the fact that not all components within a theory are of equal importance. To do this we assign weights to theory components. This framework is applied to game theory and the performance of a coherentist player is investigated within the iterated Prisoner’s Dilemma