title: The precautionary principle in fisheries management : a differentiated approach to implementation
Creators: name: Cortés Rueda, LP
Publisher: name: University of Tasmania
Year: 2021

description: The thesis develops a framework for differentiated implementation of the precautionary principle in fisheries management. Marine fisheries contribute significantly to the livelihood of coastal communities in many developing countries, through subsistence, artisanal and commercial operations. The sustainability of marine resources is threatened by overexploitation as well as other threats, like climate change. These threats must be managed to ensure the availability of marine fisheries for future generations. However, management is difficult for many developing country coastal states, owing to the complexity of the marine environment and limited resources. The precautionary principle has long been recognised in international law as a guiding principle for fisheries governance to ensure the sustainable use of marine resources under uncertainty. Most countries have explicitly or implicitly committed to managing their fisheries in a precautionary manner, in line with international demands. Yet the implementation of precaution in domestic law and policy remains fraught. In particular, developing countries have limited legal and institutional capacity and struggle with the cost of the scientific and institutional inputs required to implement approaches favoured by wealthier countries. This thesis shows how developing countries can operationalize the precautionary principle in fisheries management regimes in a way that addresses their differentiated abilities. It first examines the content of the precautionary principle in general, the principle of common-but differentiated responsibilities, and the use of the precautionary approach in fisheries management to identify how these principles can be interconnected to address the needs of developing countries. Three propositions are advanced that address the legal, technical and administrative capacity constraints of developing countries: 1) the precautionary principle should be explicitly adopted and enshrined in law; 2) the precautionary decision-making requires local knowledge and participation, and 3) the precautionary principle should be implemented incrementally. The implementation of these propositions is context-dependent, so the thesis then performs a cross-country analysis of the adoption and operationalisation of the precautionary principle in three countries representing different levels of fisheries management capacity: Australia, Chile and Colombia. Through a combination of desktop legal analysis and semi-structured interviews with stakeholders and government agencies in each country, the comparative study tests these three propositions and examines how they are met in the fisheries regimes of each country. The cross-country comparison concludes that countries can continuously learn and improve their implementation of precautionary approaches, as they enhance their capacity and resources and shows how legal frameworks can support this process. The novel theoretical and empirical analysis performed in this thesis provides lessons for the operationalisation of the principles of precaution and common-but-differentiated responsibilities in other natural resource management frameworks. The thesis therefore makes an important contribution to scholarship on the implementation of fisheries management law, as well as to international environmental legal scholarship on the interplay between precaution and differentiation more broadly.