Legal Reflections on the Small-Scale Fisheries Guidelines: Building a Global Safety Net for Small-Scale Fisheries

The Voluntary Guidelines for Securing Sustainable Small-Scale Fisheries in the Context of Food Security and Poverty Eradication, endorsed by the Committee on Fisheries of the Food and Agriculture Organization of the United Nations in 2014, heightened the recognition and protection of small-scale fisheries globally. The guidelines are voluntary and non-binding, but does this mean they have no normative significance or legal force? Based on international legal theories of soft law, this article explores the legal status of the guidelines and argues that the guidelines have normative significance and legal force for three main reasons: (i) the legitimate process of development and adoption of the guidelines; (ii) the normative content of the provisions; and (iii) their law-making effects at various levels of governance. The guidelines contribute to building a global safety net for small-scale fisheries, which should continue to improve and expand thus securing the sector’s sustainability worldwide.


Introduction1
The law of the sea regime, encompassing international fisheries law,2 has been for the most part silent with respect to artisanal or small-scale fisheries (SSF).3Within the fisheries sector, SSF are very diverse, with characteristics that vary from one context to another.4SSF generally carry out hand fishing and/or use small fishing vessels with low motor power and fishing capacity on both inland and marine waters.SSF play an essential role in the livelihoods of rural and coastal communities, but this fisheries subsector tends to lack adequate support from governments in developing countries5 and developed countries.6 According to the United Nations Convention on the Law of the Sea (LOSC),7 coastal States and archipelagic States exercise sovereignty over their internal waters, archipelagic waters, and territorial seas, whilst enjoying sovereign rights to explore, exploit, conserve and manage natural resources of their exclusive economic zones (EEZ).8Fishing activities operating in such zones are a matter for coastal States and archipelagic States to govern, regulate and control.This does not mean that SSF are of no interest to international law, or that treaties, international guidance and standards do not apply to SSF.On the contrary, as this article explains, various international instruments apply and are relevant to SSF.
International fisheries law has evolved in recent decades to meet the environmental, social and economic needs of the global community.9However, the LOSC does not explicitly mention SSF10 and has few articles relating to SSF.11The UN Fish Stocks Agreement (UNFSA),12 which elaborates on the LOSC's provisions relating to the conservation and management of straddling fish stocks and highly migratory fish stocks, includes the principle of 'taking into account the interests of artisanal and subsistence fishers' in guiding States Parties on their duty to cooperate under the Agreement.13Despite this provision of the UNFSA, most fisheries agreements do not address the social and cultural conditions within which fishing operates, as well as the conflicts between subsidised vessels and local SSF fleets unfairly competing for space and stocks.14The constitutive instruments of some regional fishery bodies, in turn, refer to SSF under principles or objectives,15 but do not require members to effectively 9 For an analysis of selected international fisheries law developments and evolution within the period 1994-2021, see J Nakamura, 'International fisheries law: Past to future' in A Hornidge, M Hadjimichael and S Partelow (eds), Ocean Governance.Past, Presents, Futures (Mare Series, Springer, in preparation 2022).10 Nor any of SSF terminologies, for example, artisanal, subsistence and aboriginal fisheries.11 These include provisions that are not directly relating to SSF but can be interpreted as relevant to SSF, as will be examined in the next subsection of this article.12 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea relating to the Such principles include taking into account potential or adverse impacts of conservation and management measures on SSF; access to fishery resources by small-scale fishers; recognising SSF's contribution to employment, income and food security; and improving their livelihoods.See Agreement for the establishment of a General Fisheries Commission for the Mediterranean (Rome, 6 November 1997, in force 29 April 2004), as amended by the General Fisheries Council for the Mediterranean at its first special session (May 1963), at its thirteenth session (July 1976) and at its twenty-second session (October 1997) and approved by the Food and Agriculture Organization of the United Nations (FAO)

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The International Journal of Marine and Coastal Law 37 (2022) 31-72 protect the rights of small-scale fishers from situations of unfair competition against foreign fishing fleets accessing coastal and archipelagic waters.Neither do these instruments require members to ensure participation of small-scale fishers and fishing communities' representatives in the decision-making processes of conservation and management measures affecting those fishers and communities.
In the past decades, SSF have received greater attention from the international community through important legal developments and initiatives.16A turning point was the endorsement of the Voluntary Guidelines for Securing Sustainable Small-Scale Fisheries in the Context of Food Security and Poverty Eradication (SSF Guidelines)17 by the Committee on Fisheries (COFI) of the Food and Agriculture Organization of the United Nations (FAO).18States and non-State actors took a step forward in agreeing on a broad set of nonexhaustive international recommendations devoted to the social, economic and environmental sustainability of inland and marine SSF.19 The SSF Guidelines broadly reflect contemporary social and environmental matters that would not have been considered had this instrument been created

b). 16
There is growing interest from transdisciplinary work, involving fisheries scientists and legal researchers, to better understand how SSF issues are addressed in laws and policies.
A recent study provides a 'step-zero' for how national laws and policies address key issues relevant for SSF based on international standards.See J Nakamura, R Chuenpagdee and M El Halimi, 'Unpacking legal and policy frameworks: A step ahead for implementing the Small-Scale Fisheries Guidelines' (2021) The SSF Guidelines are global in scope, apply to SSF in all contexts, in marine and inland waters, covering men and women involved in all activities, from preparation, capture fishing, to processing and trade.See SSF Guidelines (n 17), sections 2.1, 2.2.

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Legal Reflections on the Small-Scale Fisheries Guidelines The International Journal of Marine and Coastal Law 37 (2022) 31-72 some decades ago.20As such, it marks an evolutionary and forward-looking instrument in international fisheries law21 by following a human rights-based approach (HRBA)22 and an ecosystem approach to fisheries (EAF).23In contrast to the traditional focus on fisheries management that most international fisheries law instruments have, the SSF Guidelines are attentive to the need to recognise, protect and empower individuals, vulnerable groups, including children, women, indigenous peoples and migrants, across the entire SSF supply and value chains.The SSF Guidelines contribute to building a global safety net for SSF, strengthening the application of existing international obligations and guidance that support SSF sustainability.
The SSF Guidelines are voluntary and non-binding, but does this mean they have no normative significance or legal force?This article explores this question, reflecting on SSF from an international law standpoint.24It is structured in three main parts, following this introduction.The first part clarifies the reasons why SSF have been poorly addressed by international law, and the growing importance given to SSF by the international community until the adoption of the SSF Guidelines.The second part explores the legal status of the guidelines and argues, based on international legal theories of soft law, that the SSF Guidelines have normative significance and legal force for three main reasons: (i) the legitimate process of development and adoption of the guidelines, (ii) the normative content of the provisions, and (iii) their law-making 20 What if the SSF Guidelines had been developed at that time?Reflections and alternative approaches to thinking of potential different outcomes that historical momentum brings to an international fisheries law instrument has been stimulated by Barnes in his intriguing chapter.

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The International Journal of Marine and Coastal Law 37 (2022) 31-72 effect at international, regional and national levels of governance.The third part presents some conclusions, highlighting challenges in the SSF Guidelines' implementation and posing questions for future research.

Legal Reflections on Small-Scale Fisheries
At least two key points deserve special attention when reflecting on SSF from an international law perspective.The first concerns the reasons why the law of the sea regime, for so long, has had so little to say about SSF.The second point is how the contemporary law of the sea regime has evolved to accommodate the emerging needs of the international community in relation to SSF.The next subsections explore these two key points.

Small-Scale Fisheries in International Law
As SSF are a very diverse, dynamic and evolving fisheries subsector,25 States have not agreed on a single international definition of 'small-scale fisheries' .26International law has not established minimum criteria for what SSF entails as a concept,27 but for the purpose of the present analysis it is sufficient to understand SSF as generally characterised by the relevant literature.As such, The LOSC does not impose any specific requirement on the territorial seas, which is relevant to SSF,39 except in relation to fishery species that move across maritime zones, in and out the territorial seas, and that are multi-targeted by SSF and other fisheries subsectors.States Parties have the duty to cooperate for the conservation and management of these species.40Additionally, States have the general duty to protect the marine environment in any maritime zone, which contributes to the protection of fishery resources upon which SSF depend.41In turn, Article 51 requires archipelagic States to recognise 'traditional fishing rights' in certain areas falling within archipelagic waters.There is no definition of 'traditional fishing' under the LOSC, but international case law has interpreted this term to encompass artisanal fishing.42In addition to the LOSC, the human rights conventions limit the level of States discretion, as 35 LOSC (n 7), Article 61 (3).In this connection, it is important to note that, while the LOSC establishes TACs in the EEZ, the UNFSA provides for stock-specific reference points when applying the precautionary approach, which is applicable to areas under national jurisdiction, including the EEZ and the territorial sea.See UNFSA (n 12), Articles 3(1), 5(c), 6 Aside from a reluctance of States to accept restrictions on their authority, there is also a silo problem in international fisheries law, which has been historically disconnected from social issues45 and environmental concerns.46 The SSF Guidelines have helped to formally link these concerns, addressing the needs for environmental sustainability in fisheries, social development, protection of the rights of people dependent on fish for their livelihoods and food security, particularly their participation in co-managing resources.47Indeed, the SSF Guidelines cover a range of subjects other than fisheries management, shedding light on human rights, gender equity, sea safety, labour, trade, climate change, and sustainability.48This broad scope enables opportunities for a mutually supportive, coherent interpretation and application of multiple international law instruments relevant to SSF,49 while fostering stakeholders' collaboration in contributing to SSF sustainability.These measures include, for example, the full realisation of human rights of SSF people (social aspect);50 their contribution to sustainable use and conservation of fishery resources,

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The International Journal of Marine and Coastal Law 37 (2022) 31-72 benefits from ecosystem services (environmental aspect);51 and the allocation of subsidies to support SSF sustainable development and the equitable sharing of benefits from trade in SSF products (economic aspect).52 Developing the International Law on Small-Scale Fisheries International legal developments relating to SSF have been primarily facilitated and promoted by the FAO, which is regarded as a key institution for international fisheries law-making and development.53The FAO's institutional practice is grounded on a substantive mandate for normative activities54 provided by the FAO Constitution.55Fisheries are included among the topics subject to the FAO law-making.56In the case of the SSF Guidelines, the FAO has performed 'delegated law-making'57 as requested by the UN General Assembly (UNGA).58The FAO has also facilitated the adoption of legally binding instruments by State members.59SSF have been more intensively addressed by the FAO from the early 1980s onwards, when COFI members have brought attention to SSF's importance to food production and nutrition, as well as their social and economic needs.60  This will be detailed further below as it is one of the key points contributing to the legitimacy of the SSF Guidelines' process of development and adoption.59 In this respect, Johnstone sheds light on the fact that international organisations not only contribute to law-making through nonbinding instruments, but also through 'operational activities' , as will be discussed further below.This amounts to the subsequent work of FAO in implementing the SSF Guidelines through assistance to State members.tional collaboration through the International Conference of Fishworkers and their Supporters, and a programme of action for the development of SSF was adopted at the FAO World Fisheries Congress on Fisheries Management and Development.61This initiative influenced subsequent debates at COFI, which later emphasised the importance of integrated development programmes to enhance the quality of life of rural small-scale fishers62 and the need to protect and improve the socio-economic wellbeing of small-scale fishing communities affected by overfishing.63As a consequence of the growing significance of SSF, the 1995 Code of Conduct for Responsible Fisheries (CCRF)64 specifically provides for SSF's recognition, protection of small-scale fishers' rights to a secure and just livelihood, and SSF's preferential access to traditional fishing grounds.65 In turn, the 1995 UNFSA ascertained explicit consideration to artisanal and subsistence fishers in the Agreement's general principles and in respect of States Parties' duty to cooperate in establishing conservation and management measures for straddling and highly migratory fish stocks.66States Parties are also required to take into account the needs of fishing-dependent coastal communities when determining the nature and extent of participatory rights for new members of regional fisheries management organisations and/or arrangements (RFMO/As).67There are various other international legal developments relevant to SSF that occurred from 2000 onwards.SSF were explicitly mentioned in the UNGA resolutions on sustainable fisheries, which, for instance, encouraged States to consider SSF's special needs and include SSF stakeholders in the policy-making process.68Other guiding instruments relevant to SSF were adopted, notably on the progressive realisation of the right to Notwithstanding their non-binding and voluntary nature, soft law instruments may have normative significance and legal force.Proponents of soft law attribute various legal consequences to soft law instruments,80 often explaining these attributes in terms of the process of law creation, the substantive content of the provisions and its law-making effect.It is based on these three main attributes that the present article argues that the SSF Guidelines have normative significance and legal force.On international soft law more generally, Guzman and Meyer termed the concept of 'international common law' as non-binding rules and standards issued by non-State actors,81 through which States transfer soft law-making authority to non-State entities.82Soft law can also be used to interpret legally binding rules and shape States' expectations on compliant behaviour.83As will be demonstrated, the SSF Guidelines serve these purposes and, like other FAO non-binding instruments,84 have an under-recognised normative significance and legal force.The next subsections explain the legitimate process of the SSF Guidelines' development and adoption, the normative content of the provisions, and its law-making effect at various levels of governance.

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The International Journal of Marine and Coastal Law 37 (2022) 31-72 Legitimate Process of International Law-making Legitimacy in international law-making processes can be explained on the basis of a long-established process led by a competent international actor and grounded on transparency, multi-stakeholderism, and a consensus-based outcome.85These elements were present in the process of development and adoption of the SSF Guidelines.In 2006, UNGA set out the mandate of the FAO to develop guidelines for enhancing SSF's contribution to poverty alleviation and food security.86The FAO executed this mandate by exercising its capacity to further develop the law within its own special field, in response to emerging needs and priorities.87In 2007, COFI's meeting agenda included a specific topic on social issues in SSF.88The debates on SSF intensified, leading to the first Global Conference on Small-Scale Fisheries in 2008.89COFI members expressed the need for developing guidelines for securing sustainable SSF in 2009,90 and then approved the development of the guidelines in 2011.91Subsequently, a broad consultative process took place through activities assisted by the FAO at international, regional and national levels, with a view to develop the expected instrument.92 Boyle and McCall-Smith note that, in general, international organisations 'value the sense of legitimacy that transparency may help to convey' (emphasis added).93The authors argue that participation, deliberation and accessibility of information bring transparency to international law-making processes.For them, a participatory process that involves States and non-State actors can foster effectiveness in multilateral negotiations and strengthen the role of international law-making institutions in global governance.94Deliberation, in turn, supports proceedings that allow participants to raise their opinions and actively contribute to the discussions.95Accessibility of information is embedded in the whole process, thus ensuring adequate information is made available and clear to stakeholders involved in the process.96Complementing these notions of a legitimate process of international law-making, Benedek explains that 'multi-stakeholderism' is part of 'innovative forms of governance' , which allow the decision-making process to benefit from and be founded on a wider knowledge base and expertise.97In Chinkin's words, the openness of governmental proceedings can also assure 'democratization of international law-making' .98All these elements of transparency, through participation, deliberation, accessibility of information, and multi-stakeholderism, were embedded in the process of making and adopting the SSF Guidelines.A transparent and legitimate process of developing the SSF Guidelines was strengthened because the process was largely driven by civil society organisations (CSOs) and included the participation of small-scale fishers' representatives.As SSF have been historically overlooked by governments, it would have been very difficult to develop an international instrument for SSF if it were to rely solely on States' will.99In contrast to the CCRF, as largely influenced by political objectives,100 the SSF Guidelines were the outcome of a multi-stakeholder process, which involved more than four thousand stakeholders overall, and which took special account of the needs and interests of small-scale fishers.101This multi-stakeholder Voluntary instruments of international organisations often have been the alternative adopted by States to 'transfer their sovereign powers to the international level' .See Friedrich (n 54), at p. 512. 100 Ibid., at p. 519.101 For a comparison between the participatory international law-making processes of the SSF Guidelines and the UNDROP, both of which characterises local communities' process led to the instrument's acceptance by States through consensus.The draft SSF Guidelines were analysed in a two-session consultation in 2013 and 2014102 by 87 FAO members and other stakeholders.103Following this, section 6.18 (on the protection of human rights in situations of armed conflict) was agreed upon with a footnote attached.104The SSF Guidelines were fully endorsed by consensus of 110 COFI members, representing all regions of the world, at the 31st Session of COFI in June 2014.105Boyle and Chinkin observe that 'where law is made through a longestablished process that gives effect to State consent there is less likelihood of it being deemed illegitimate' (emphasis added).106The consensus-based adoption of the SSF Guidelines means that no formal opposition by the FAO members was made to the adoption of this instrument.As such, like other FAO guidelines agreed by consensus, the SSF Guidelines carry substantial weight from international support given through FAO members.The larger consensus based on a multi-stakeholder process results, according to Benedek, 'increased legitimacy of the normative outcome and more effective implementation' (emphasis added).107Consensus therefore strengthened the SSF Guidelines' legitimacy and the international recognition of its authoritative status, on the basis of which subsequent State practice is more likely to be consistent, and States are less likely to object to the instrument's implementation.108Additionally, the benefits of a wider expertise and different world views in the guidelines' multi-stakeholder process have ascertained a broader support by diverse actors of the international community overall.
As such, the participatory, transparent, and inclusive process relating to the SSF Guidelines is a concrete example of how international law-making engagement in the development of an international instrument, see Morgera  processes can be expanded to benefit not only States, but also non-State actors, including local stakeholders.For Brunnée and Toope, law-making arising from a diversity of participants is grounded on an interactional theory of law, according to which '[w]hen norms [including soft law] are rooted in shared understandings and adhere to the conditions of legality, they generate fidelity' (emphasis added).109As a product of multi-stakeholderism, the SSF Guidelines are explicitly addressed to multi-stakeholders.In the SSF Guidelines, the emphasis is placed on SSF actors, described as 'fishers, fish workers, their communities, traditional and customary authorities, and related professional organizations and CSOs' .110The legitimate process of making the SSF Guidelines has, therefore, strengthened its normative significance and legal force, while propelling more fidelity and potentially more effectiveness in its application,111 enhancing its likelihood of being implemented by a wider range of stakeholders.Turning now to the substantive content of the SSF Guidelines, the next subsection explores the normativity in the SSF Guidelines' text.

Normative Content of the SSF Guidelines
The SSF Guidelines' text is essentially declaratory ('recognize'), hortatory ('encouraged') and programmatic ('should') in character, but this does not mean that the guiding-text carries no legal substance or lacks normative content.112It is worth noting the position of Cotula with respect to the FAO guidelines on responsible governance of tenure,113 who considered them as 'inherently normative' , 'not merely describ[ing] phenomena' , and as 'provid [ing]

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The International Journal of Marine and Coastal Law 37 (2022) 31-72 soft law instruments.115 In other words, the form and title (voluntary, legally binding or not) of an international instrument may not necessarily reflect the normative character of its content.The SSF Guidelines' guiding text often assembles what has already been agreed to and adopted by States in existing legally binding instruments, as detailed further below.The difference is that the SSF Guidelines specify the applicability of those rules to the SSF context.Moreover, the SSF Guidelines complement the CCRF, which already reflects 'provisions that may be or have already been given binding effect by means of other obligatory legal instruments' .116By supporting national, regional and international initiatives on human rights, responsible fisheries and sustainable development,117 the SSF Guidelines can be considered as part of subsequent State practice following the LOSC, as alternatively performed by States in the place of cumbersome tasks of amending or modifying existing international legally binding instruments.118As such, the SSF Guidelines contribute to the evolution of the law of the sea regime.They function as soft law that guides States on their interpretation of international instruments,119 similar to the CCRF and the International Plan of Action (IPOA) on illegal, unreported and unregulated (IUU) fishing, which arguably cover lacunas in and strengthen the law of the sea regime overall.120 The explicit reference to hard law instruments,121 especially human rights treaties, strengthens the normative content of the SSF Guidelines by making the obligations of States Parties to the relevant treaties more apparent, restating and reinforcing such obligations in the SSF context.By recalling the need of States to comply with CEDAW, the SSF Guidelines reinforce the obligation of States Parties to that treaty to modify, in the SSF context, social and cultural patterns of conduct for eliminating prejudices and practices based on the idea of inferiority or superiority of either sex or stereotyped roles.135Applying this provision to SSF is a fundamental step for securing equal and fair participation of women in decision-making processes for SSF related policies.136 Another example is the right of the child to education, the recognition of which is part of the obligation of States Parties to the CRC.The CRC also requires States Parties to encourage regular attendance at school,137 similar to the SSF Guidelines recommendations,138 emphasising the protection of children's rights in SSF.Many other provisions of the ICESCR are also reflected in the SSF Guidelines,139 recalling provisions that recognise the human rights to just and favourable conditions of work, fair remuneration, safe and healthy working conditions,140 social security,141 adequate standard of living,142 education,143 and cultural rights.144 With respect to labour issues, the SSF Guidelines call upon States to eradicate forced labour, 145  despite its few ratifications,150 is also particularly relevant to workers in SSF, establishing duties on States Parties, fishing vessel owners and fishers to ensure occupational safety and health, which the SSF Guidelines call for.151Other two noteworthy ILO treaties concern migrants and indigenous peoples, groups to which the SSF Guidelines draw special attention.152The former group is subject to ILO Convention 97,153 which requires parties to, inter alia, apply adequate treatment to immigrants lawfully within its territory, including remuneration, accommodation and social security.154The latter group falls under the scope of ILO Convention 169,155 which recognises indigenous and tribal peoples' right to 'enjoy the full measure of human rights and fundamental freedoms without hindrance or discrimination ' .156Multiple States are parties to those treaties, which makes their influence almost global.At the time of writing, the status of the key agreements is as follows:157 LOSC (168 parties), ICESCR (171 parties), ILO Convention 105 (176 parties), ILO Convention 182 (187 parties), CEDAW (189 parties), CRC (196 parties), and UNFCCC (197 parties).The EU is not a party to the ICESCR, ILO Conventions 105 and 182, CEDAW and CRC, but all EU Member States are parties.158Yet, there remain a few States non-parties to those treaties.The classic example is the United States (US), which is not a party to the LOSC, ICESCR, CEDAW and CRC (the last three having been only a signatory).Certain coastal developing countries also raise concern in being non-parties to treaties that the SSF Guidelines refer.Colombia, El Salvador, Eritrea, Israel, Peru, Turkey and 150 Among the 18 countries that have ratified this treaty are some coastal developing countries, namely, Angola, Argentina, Congo, Morocco, Namibia, Senegal, South Africa and Thailand.151 SSF Guidelines (n 17), section 6.12.152 Ibid., sections 3(3.1)(1)(2)(3), 5.For all those coastal developing countries, the SSF Guidelines arguably play a standard-setting role, representing key international standards for SSF's sustainability, human rights and gender equality in small-scale fishing communities.159As such, the SSF Guidelines have more than a complementary role (to the CCRF and other existing international fisheries law instruments); they may be the primary guiding instrument from which subsequent State commitments can emerge.Where, by consent, some States have endorsed the SSF Guidelines as COFI members, they have arguably confirmed their political commitment, at least indirectly, in sustainably managing fisheries, protecting economic, social and cultural rights, women's rights and prohibiting forced labour in the SSF context.160As such, those States could still implement the SSF Guidelines and address those matters independent of being non-parties to the LOSC, ICESCR, CEDAW and ILO Convention 105.Reaching consensus on adopting a non-binding instrument is indeed less difficult as monitoring and enforcing States' compliance are less stringent, if at all in place.161As mentioned, consensus elevates the degree of legitimacy and validity of soft law instruments.Therefore, the parts of the SSF Guidelines concerning human rights, labour rights and gender equality are, in fact, the international standard of reference for States which are non-parties to those relevant treaties, but which have supported, at least through a political commitment as COFI members, the endorsement of the SSF Guidelines.These States include the Cook 159 Here it is worth noting Guzman and Meyer's theory of 'international common law' , which argues that soft law would in this case allow States, favouring greater specificity in rules, to bind even those States not engaging with the international institution.See Guzman and Meyer (n 80), at p. 204.160 This is, of course, to the extent that SSF issues are concerned and as addressed in the SSF Guidelines.There remains the gap of being a party to the relevant treaty, which applies to a much broader community and not only to the SSF context.161 For this reason, States are more willing to accept such instruments and agree on more detailed and precise provisions, as noted in Boyle and Chinkin (n 80), at pp. 214-216.See also the 'loss avoidance theory' , where the authors explore compliance in soft law and understand that the reduced losses from non-compliance to soft law instruments can actually make them realise added value to their commitments.See Guzman and Meyer (n 80), at pp. [192][193][194][195][196][197].

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The International Journal of Marine and Coastal Law 37 (2022) 31-72 been by technical documents and supplementary materials.169 The SSF Guidelines have, in turn, the unique characteristic of being a fisheries instrument embedded in a HRBA.170This approach sheds light on the importance of applying the international human rights regime to SSF and fosters the connection between international fisheries law instruments and human rights law.Opportunities for collaboration in the implementation of international law instruments relevant to sustainable SSF may therefore involve the FAO with the UN Office of the High Commissioner for Human Rights (OHCHR),171 as well as with other institutions such as the ILO, International Maritime Organization, World Trade Organization, and UNFCCC, which are referred to in the SSF Guidelines.
With respect to constraints in the text of the SSF Guidelines, there is limited coverage of conservation and environmental issues, which are dealt with from a duty-bearers perspective.That is, focusing on small-scale fishers' responsibilities to avoid environmental impacts by harmful, illegal and irresponsible fishing practices,172 rather than explicitly referring to small-scale fishers' right to a clean, sustainable, and healthy environment, as recently recognised as a human right by the UN Human Rights Council (UNHRC).173The SSF Guidelines also lack reference to the Convention on Biological Diversity (CBD) and 170 This is reflected in emphasizing small-scale fishers as 'benefit-holders of the social development, security and safety, which is the State's responsibility to deliver' .Additionally, the SSF Guidelines help to translate international human rights obligations into 'actionpoints that specialised managers and decision-makers are expected to implement' .decisions of its bodies,174 the definition of an EAF provided by the FAO,175 and clear guidance on careful engagement with traditional knowledge holders.176Another limitation in the SSF Guidelines is the inconsistent use of terms that are not fully aligned with international human rights standards, as suggested by De Schutter,177 particularly with respect to free, prior and informed consent (FPIC).However, while FPIC would have set out a higher standard for the SSF Guidelines,178 the reference to 'equity' (in addition to 'equality') therein brings value to its text, linking the HRBA with the 'equity' dimension of an ecosystem approach.179Equity is part of the EAF, which recognises the importance of

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The International Journal of Marine and Coastal Law 37 (2022) 31-72 balancing goals and addressing the human element through participatory and equitable processes.180Based on the legitimate process of development and adoption of the SSF Guidelines and its normative content, the SSF Guidelines arguably purport a hybrid legal nature.While it stands as a 'formally non-binding instrument' , due to the formal multi-stakeholder process of law-making, it can also be interpreted as being 'non-formally binding' as it reinforces existing international obligations and their applicability to the SSF context.As such, States may not be formally bound by the SSF Guidelines, but they are bound by the treaties they are parties to and have an obligation to apply them in the SSF context.The third reason grounding the SSF Guidelines' normative significance and legal force is the ability of this instrument to generate law-making effects, influencing legal and policy developments at international, regional and national levels, as examined next.

Law-making Effects at Various Levels of Governance
Soft law instruments, like treaties, may influence State practice and mobilise States' consistent and general response.181 Druzin argues that the compliance pull of soft law instruments may stem from 'network effects' pushing actors towards a single standard.182As such, soft law can 'exert significant adoption and compliance pressure' when underpinned by these network effects.183 The more a legal standard is applied, the higher its inherent value becomes.For Druzin, a significant degree of power of soft law instruments derives from their potential in allowing actors to coordinate around common unified standards, bring clarity,184 and that robust network-effect pressures can elicit continued adoption.185This understanding resonates with Brunée and Toope's interactional theory, according to which '[t]he hard work of building obligation begins at law-making stage, as do the foundations for compliance' .186Law-making and compliance questions are 'best seen as located on a continuum' ,187 which begins 57 Legal Reflections on the Small-Scale Fisheries Guidelines International Journal of Marine and Coastal Law 37 (2022) 31-72 with a legitimate law-making process grounding the legal compliance pull and then continues to be grown and maintained.This continuity was identified in the participatory and multi-stakeholder process driving the development and adoption of the SSF Guidelines as well as the Guidelines' subsequent and ongoing implementation.Additionally, the SSF Guidelines call upon States to establish and promote local, national, regional, and global institutional structures, linkages and networks for achieving policy coherence and cross-sectoral collaboration.188SSF stakeholders are called upon to promote collaboration among their professional associations and to establish networks and platforms for exchange of knowledge and experiences.189Legitimate representatives of small-scale fishing communities are to be involved in the development and application of implementation strategies for the SSF Guidelines.190As such, the SSF Guidelines foster continuous network effects, as reflected in various initiatives taken worldwide, corresponding to good practices for securing sustainable SSF.191 Similar law-making effects can be observed in other FAO voluntary instruments.On the FAO International Guidelines for the Management of Deep-Sea Fisheries in the High Seas,192 Korseberg argued that 'the law-making effect of these guidelines stems from their identification of the typical sets of measures that States are expected to take when engaging in fishing activities in the deep seas ' .193This law-making effect has improved the degree of clarity and predictability of States obligations whilst also limiting the discretion of States with respect to their deep-sea fishing duties.This has informed the content of the due diligence obligation relating to deep-sea fisheries on the high seas.194Lugten, in turn, submitted that the four FAO IPOAs respectively on sharks,

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The International Journal of Marine and Coastal Law 37 (2022) 31-72 fishing seabirds and IUU fishing are soft law 'with hidden teeth' , given that many elements of marine sustainability enshrined therein have been implemented by States through customary law practice.195For Erikstein and Swan, the FAO Voluntary Guidelines for Flag States Performance could be used 'as a basis for setting binding requirements in national law or guiding procedures at national and regional levels' (emphasis added).196Kuemlangan et al. analysed the UNFSA and the CCRF, demonstrating how the 'provisions of two high-level instruments trickle down into management approaches and tools' , including fisheries controls on catch, gears, targeted species, fishing areas and financial incentives.197There is nothing to prevent the SSF Guidelines generating similar effects as well.The SSF Guidelines can promote change in the behaviour of States and non-State actors, potentially leading to the practical implementation of the SSF Guidelines' provisions at the national level.Its trickling down effect may be reflected not only in fisheries management approaches and tools, but also in policy and legal instruments on other subjects (i.e., human rights, environmental conservation, labour), which the SSF Guidelines cover.
Work led by the FAO in implementing the SSF Guidelines represents concrete evidence of what Johnstone referred to as 'hardening of soft law through operational activities' (emphasis added).198These activities may trigger 'reactions from affected governments' followed by discourses that 'can cause soft law to harden' .199As such, one of the consequences of involving States and non-State actors in the law-making process and implementation of the SSF Guidelines200 is that these activities have the potential to influence governments in better dealing with SSF issues.This can serve to 'harden' the SSF Guidelines.The FAO has been supporting the implementation of the SSF Guidelines through a programme and a strategic framework,201 and reporting on the progress achieved at subsequently held COFI sessions.In 2020, the FAO showcased several activities that have contributed to raising awareness on the SSF Guidelines, strengthening the science-policy interface, empowering stakeholders, and supporting the Guidelines' implementation around the world.202SSF were also taken into account in legal guidance developed for an EAF,203 supplementary guidelines to the CCRF,204 and legal guidance specifically on how to legislate for sustainable SSF.205More recently, COFI endorsed a declaration that promotes policies supporting and recognising the contribution of SSF to food security, employment and income, improving SSF data collection systems, and supporting the SSF access to multi-scale markets, including through the SSF Guidelines' implementation.206 The influence of the SSF Guidelines in the years following their adoption can be seen in the UNGA Resolution A/RES/70/1 on the 2030 Sustainable Development Agenda, which addresses SSF among its 17 Sustainable Development Goals (SDGs).Specifically, SDG 2.3 aims to 'double the agricultural productivity and incomes of small-scale food producers, in particular women, indigenous peoples, family farmers, pastoralists and fishers' and SDG 14b refers to providing 'access for small-scale artisanal fishers to marine

Nakamura
The International Journal of Marine Coastal Law 37 (2022) 31-72 and markets' .207Other UNGA Resolutions on Sustainable Fisheries also explicitly mention SSF, as I have described in another publication.208 In 2017, the UNGA proclaimed 2022 as the International Year of Artisanal Fisheries and Aquaculture (IYAFA),209 for which the FAO has been serving as lead agency.The FAO developed a Global Action Plan of IYAFA to guide activities and expected outcomes for 2022.210Another international legal development relevant to SSF was the adoption, in 2018, of the UN Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP).211This Declaration recalls the extensive work of the FAO on the right to food, tenure rights, access to natural resources and other peasants' rights, explicitly mentioning the SSF Guidelines.212The UNDROP clearly applies to any person engaged in artisanal or small-scale agriculture, fishing, hunting or gathering, and handicrafts related to agriculture or a related occupation in a rural area.213 As such, it affirms the recognition and protection of human rights of small-scale fishers and fish workers in the context of peasants, including their legitimate customary tenure rights to fishing grounds in inland waters, marine waters and adjacent land.214 The UNDROP complements and strengthens the SSF Guidelines with respect to human rights and environmental safeguards in SSF.215 Another important international initiative for SSF was the 2019 Plan of Action adopted by members of parliament from 50 countries216 promoting the adoption of legislation that recognises, protects, sustains and empowers SSF, as well as the implementation of the SSF Guidelines.217At the regional level, numerous examples illustrate the influence of the SSF Guidelines in policy-and law-making.These examples include the 2015 Noumea Strategy adopted by the members of the Secretariat of the Pacific Community;218 the 2015-2025 Integration Policy of Fisheries and Aquaculture adopted by the Central American Fisheries and Aquaculture Organization,219 which informs that the SSF Guidelines will be taken into account in SSF planning of all countries of the Central American Integration System;220 the Model Law for Artisanal or Small-Scale Fishing agreed upon in 2016 by the Latin American and Caribbean Parliament;221 the 2017 Regional Plan of Action for the Management of Fishing Capacity of the Association of the Southeast Asian Nations,222 which included, amid the measures to address overcapacity, the application of areas reserved for traditional and SSF supported by comanagement arrangements;223 the 2017 Jakarta Declaration on Blue Economy adopted by the Indian Ocean Rim Association member States, which reinforces Nakamura The International Journal of Marine Coastal Law 37 31-72 SDG14.b as well as the encouragement of women and youth to support SSF;224 the 2018 Regional Plan of Action for SSF in the Mediterranean and the Black Sea225 adopted by various countries and the EU,226 comprising most of the membership of the General Fisheries Commission for the Mediterranean; the 2018 Protocol on Securing Sustainable Small-Scale Fisheries under the Caribbean Community Common Fisheries Policy227 endorsed by the Ministerial Council of the Caribbean Regional Fisheries Mechanism; and the 2019 Regional Fisheries Management Plan of the Fisheries Committee for the West Central Gulf of Guinea, which included the SSF Guidelines within its guiding framework.228These regional legal developments are significant for SSF, because regional fishery bodies govern and provide advice (while RFMO/ As decide) on the conservation and management of straddling fish stocks (e.g., salmon) and highly migratory fish stocks (e.g., species of sharks), which are simultaneously targeted by SSF and large-scale fisheries.If SSF are not adequately considered in these regional forums, the conservation and management measures of RFMO/As can have a negative impact on SSF that highly depend on the stocks concerned.
At the national level, the general and detailed regulation of marine capture SSF is a matter of coastal States and archipelagic States' discretion and relies on such States' willingness to develop adequate rules and legislation for SSF.National implementation of the SSF Guidelines is nevertheless fundamental SSF.241It is therefore crucial that people working in and with SSF know the laws applying to SSF in a country and understand how the SSF Guidelines can be useful and applied nationally.The national law-making process deriving from an international law instrument differs depending on the country's legal, political and institutional system and how the government implements these instruments.Law-making within countries is complex, a context-based matter to analyse on a case-bycase basis.242 Chuenpagdee and Jentoft examined several case studies from a transformative governance perspective and identified how the SSF Guidelines are not 'necessarily breaking new ground' , but rather providing 'normative support to governance transformations that are already underway in many countries around the world' (emphasis added).243A country's legal framework may already be sufficient for implementing the key recommendations of the SSF Guidelines.The recognition and protection of human rights, including special protection of women, are anchored in national constitutions,244 and other matters dealing with environmental protection, climate change and gender would be usually addressed in sectoral legislation.The question, however, is whether States have improved their normative legal and policy frameworks in reaction to the SSF Guidelines.In this respect, the scope of the present article and the limited space herein do not afford a detailed assessment of multiple countries.Highlighting some examples nevertheless contributes to understanding the law-making effects of the SSF Guidelines at the national level.
Costa Rica is known for being a 'champion' of the SSF Guidelines,245 having enacted a specific decree implementing the SSF Guidelines.246The enactment of a national law endorsing the SSF Guidelines is concrete evidence of a country's commitment to applying this soft law instrument, which then becomes 66 Nakamura The International Journal of Marine Coastal Law 37 (2022) 31-72 hard law at the national level.The extent to which the national law reflects all the recommendations of the SSF Guidelines requires analysis in further detail.The national law may not have the same normative content of the SSF Guidelines, but may provide an enabling legal framework, which facilitates the SSF Guidelines implementation in a country.As such, the Costa Rican decree sets out the institutional arrangements for the implementation of the SSF Guidelines.It identifies the ministries in charge of implementing them,247 the duty of the competent authorities and institutions to incorporate the SSF Guidelines into the institutional operative plans and to allocate the necessary financial resources for the realisation of such activities,248 and promotes the SSF Guidelines' dissemination through websites of national authorities and institutions.249Whether other national legislation in Costa Rica provides for the human rights of small-scale fishers, their conservation and management duties, and the duties of authorities and others to respect and protect smallscale fishers' rights, it is subject to further exploration.
Cabo Verde has recently enacted a legislative decree that explicitly provides that the fisheries management plan promotes and supports the SSF Guidelines.This decree acknowledges the important social, economic and professional role of SSF, particularly in more vulnerable fishing communities and in the economy of the country.250 The decree allows the fisheries management plan to provide for the delegation of shared management responsibilities to any local authority, including fishing communities for the management of artisanal fisheries.251Further, it reserves to artisanal and semi-industrial fishing vessels access to fishing in internal waters, archipelagic waters and territorial sea.252 The decree also exempts subsistence fishing from licensing without prejudice to other forms of control, monitoring and access that may be in place for such types of fishing, in accordance with local customary or internal rules of operation and management of fisheries and their associations.253Human rights and other social development considerations, however, are not addressed by the decree, but may be found in the country's constitution and other legislation.
It is worth noting that countries with fisheries legislation enacted after the endorsement of the SSF Guidelines in 2014 do not necessarily have a better degree of conformity with them in substance.254 The 2016 Indonesian law for the 'protection and empowerment of fishermen, fish raisers and salt farmers'255 offers an interesting illustration.This law provides rules for a protection policy (through provisions for, e.g., security and safety guarantee, legal facility and aid)256 and for an empowerment policy (through provisions for, e.g., education and training, easy access to science, technology and information).257However, other matters relevant to SSF (e.g., climate change and gender) may be regulated by other legislation through an EAF.258This example signals how rich and vast the analysis of relevant legislation can be if all the social, economic and environmental aspects of sustainability in SSF are taken into account.In a different manner, the 2015 Marine Fisheries Code of Guinea does not explicitly mention the SSF Guidelines, but it provides that the Code is to be interpreted according with the applicable rules of international law, including those reflected in the LOSC.It also refers to the CCRF and the Port State Measures Agreement.259Chile enacted a law in 2018 consistent with specific recommendations of the SSF Guidelines, creating a national institute dedicated to the sustainable development of artisanal fisheries and small-scale aquaculture.260Chile has also recently modified the country's general fisheries and aquaculture law to include provisions promoting gender equality in the sector and a gender quota system to ensure adequate representation of women in the mentioned national institute.261 The SSF Guidelines can also be implemented through national fisheries policies, plans and strategies, prior to or after amendment and legislative processes.262As part of the activities supported by FAO, certain countries have 68 Nakamura The International Journal of Marine Coastal Law 37 (2022) 31-72 been developing national plans of actions to implement the SSF Guidelines.263Additionally, the SSF Guidelines have been explicitly mentioned in at least seven national fisheries policies.Liberia's Fisheries and Aquaculture Policy and Strategy of 2014 includes the principle of securing SSF access, referring to the SSF Guidelines as the basis for consultation for securing SSF access to resources and giving the resources stewardship responsibilities.264Cambodia's Strategic Planning Framework for Fisheries (2015-2024) places the government's focus on supporting the practical and legal establishment of community fisheries as complementing the government's commitment to implement the SSF Guidelines, which is also reflected in the Cambodian Code of Conduct for Responsible Fisheries.265 The Cabo Verde's Blue Growth Letter of 2015 was developed according to the SSF Guidelines,266 and is aimed at fostering participatory governance,267 recognising the fisheries sector as pivotal to jobs, wealth creation, and the promotion of fishing communities' development.268Malawi's National Fisheries and Aquaculture Policy supports the obligations of Malawi in relation to the SSF Guidelines.269Uganda's National Fisheries and Aquaculture Policy of 2017 stresses that Uganda upholds the SSF Guidelines and supports the strengthening and facilitation of co-management institutions with clearly identified roles and responsibilities.270 The Seychelles' Fisheries Sector Policy and Strategy of 2019 includes the SSF Guidelines among the international instruments on which the fisheries and aquaculture sector should be developed.271Finally, the draft of India's National Fisheries Policy of 2020272 states the governments' commitment to make all efforts to implement the SSF Guidelines, taking into account the complexities and divisions within SSF, particularly subsistence fisheries.273 Indeed, the flexible nature of a soft law instrument such as the SSF Guidelines leaves States with a large margin of discretion to decide upon the best way to 'fit' the guidelines into their legal and policy frameworks.This characteristic of soft law instruments facilitates their adoption by States and implementation at national level.As seen above, some States have already taken action to reflect the SSF Guidelines in their national legislation and policies.The examples highlighted represent concrete evidence of State practice on law-and policy-making influenced by the SSF Guidelines, while being useful to other States in adequately reflecting the guidelines in their national legislation and/or policy.The variety of ways through which some States have done so offers options, based on which other States may take the most appropriate action (e.g., legislative and/or policy review and reform) pursuant to their particular national contexts.

Discussion and Conclusions
The legal force and normative significance of the SSF Guidelines cannot be understated.274The SSF Guidelines contribute to the empowerment of a fisheries occupation and way of living, which sustain millions of livelihoods around the world.Moreover, the SSF Guidelines spur the awareness of the global community and the fisheries sector to observe and implement the HRBA and an EAF in securing sustainable SSF.The SSF Guidelines, despite being voluntary and non-binding, have legal force and normative significance for three main reasons: (i) the legitimate, participatory, transparent and multi-stakeholder process of development and adoption of the guidelines; (ii) the normative content of the Guidelines, reinforcing existing international obligations and their applicability in the SSF context; and (iii) the Guidelines' law-making effects, having influenced policy and legal developments at international, regional, and national levels.
The limitations identified in the final text of the SSF Guidelines pointed to the need for continuous work in building and strengthening the global safety guidelines,280 and their reluctance in accepting this guidance as more than best practices,281 one should not expect States to act in a manner inconsistent with or against the opinions they take and hold in international negotiations that lead to the adoption of decisions by consensus.282A similar lesson can be applied to the SSF Guidelines.As the result of a multi-stakeholder collective effort, the SSF Guidelines are expected to be observed and implemented by at least the FAO COFI members that have endorsed them by consensus.The operational activities should also rely on multi-stakeholder collaboration through the FAO and other UN agencies and forums, as Morgera and Nakamura suggested with respect to UN human rights bodies.283 The main challenge faced in implementing the SSF Guidelines, as Jentoft highlighted, is the open-ended language of the text, which leads to broad, flexible and changing interpretation by users, as well as reliance on governments' will, susceptibility to power struggles, and dependence on effective interactive governance to facilitate stakeholder participation in implementing the instrument.284 The translation of the HRBA into practice is another underlying difficulty with the SSF Guidelines that Song and Soliman pointed out when clarifying the reciprocal relationship between fishing rights and human rights, which should be coherently respected in support of SSF sustainability.285 Understanding the extent to which national legal and policy frameworks can contribute to the implementation of the SSF Guidelines adds another layer of complexity.286 The identification of the relevant policy and legal instruments, their interpretation and analysis touch upon a broad range of subjects (e.g., human rights, environmental conservation, women protection) that the SSF Guidelines comprise, hence inter-sectoral collaboration is fundamental.However, as Chuenpagdee and Jentoft have noted, the 'often complex, multilevel, and fragmented nature of the governing system poses difficulties for their coordination, integration, and formulation of a holistic and inclusive policy agenda' , as well as the asymmetrical power relations that hinder their meaningful interactions.287For these authors, it is crucial to have coherence Conference at its twelfth session (December 1963) and by the FAO Council at its seventieth session (December 1976) and at its hundred and thirteenth session (November 1997) 2275 UNTS 157, Article 5(a); Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean (Auckland, 14 November 2009, in force 24 August 2012) 2899 UNTS 211, Article 19(2)(b); Convention on the Conservation and Management of Fishery Resources in the South East Atlantic Ocean (Windhoek, 20 April 2001, in force 13 April 2003) 2221 UNTS 189, Article 21(2)(b); Agreement establishing the Caribbean Regional Fisheries Mechanism (Belize, 2 February 2002, in force 4 February 2002) 2242 UNTS 271, Article 5(e); Convention for the Establishment of the Fishery Committee for the West Central Gulf of Guinea (Cotonou, 7 November 2007), Article 5(2)( 122 As Boyle argues, Nakamura The International Journal of Marine and Coastal Law 37 (2022) 31-72 Child Labour Convention (ILO Convention 182),133 and the Work in Fishing Convention (ILO Convention 188).134 the suppression of which the parties to ILO Convention 105 are obliged to undertake.146The elimination of forced labour for children and ensuring decent employment of youth, as stated in the SSF Guidelines,147 recall obligations of States Parties to ILO Convention 182.148ILO Convention 188,149 51 Legal Reflections on the Small-Scale Fisheries Guidelines The International Journal of Marine and Coastal Law 37 (2022) 31-72 evictions (Article 11(1)) of the Committee on Economic, Social and Cultural Rights (UN Doc E/1998/22, Annex IV); and the Basic Principles and Guidelines on Development-Based Evictions and Displacement (UN Doc A/HRC/4/18, Annex 1).169 Harrison (n 53), at p. 214.
Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (New York, 4 December 1995, in force 11 December 2001) 2167 UNTS 3 [UNFSA].13 Ibid., Article 5(i).More detailed analysis of the UNFSA's provisions relevant to SSF is given further below.14 A Gagern and J van den Bergh, 'A critical review of fishing agreements with tropical developing countries' (2013) 38 Marine Policy 375-386; A Antonova, 'The rhetoric of "responsible fishing": Notions of human rights and sustainability in the European Union's bilateral fishing agreements with developing states' (2016) 70 Marine Policy 77-84.15 Report of the Thirty-first Session of the Committee on Fisheries (FAO Fisheries and Aquaculture Report No. 1101, Rome, 2014).19 are considered vulnerable, marginalised by governments and societies, whilst fundamental to coastal and rural communities as contributors to food security and nutrition, jobs creation, cultural practices, traditional and local knowledge, and livelihoods, in both developing and developed countries.
25Scientific literature has been contributing to clarifying the meaning of SSF and outlines the importance of a flexible and open-ended definition that is not stringent to fixed and objective parameters such as the size of the boat, gross tonnage capacity, etc. See H Smith and X Basurto, 'Defining small-scale fisheries and examining the role of science in shaping perceptions of who and what counts: A systematic review' (2019) 6 Frontiers in Marine Science 1; Y Rosseau et al., 'Defining global artisanal fisheries' (2019) 108 Marine Policy 103634.26 Due to the peculiar characteristics of SSF and the multiple diverse legal definitions provided by countries, no single universal definition has been set out by international law yet.See SSF Guidelines (n 17), section 2.4.27 Morgera and Nakamura contributed to this by identifying, within the definition of 'peasants' (which include persons engaged in artisanal and small-scale fishing) as established by the UN Declaration on the Rights of Peasants and Other People Working in Rural Areas, two parameters, namely, 'reliance on family labour or other non-monetized way of organizing labour' and 'special dependency on and attachment to the land' .They also emphasize the similar considerations that can be depicted from the criteria used for definition of 'indigenous peoples' , 'traditional communities' and 'local communities' in so far as small-scale fishing communities self-identify with these concepts.See E Morgera and J Nakamura, 'Shedding a light on the human rights of small-scale fishers: Complementarities and contrasts between the UNDROP and the Small-Scale Fisheries Guidelines' in M Alabrese et al. (eds), The United Nations' Declaration on Peasants' Rights (Routledge, London, 2022), available at https://ssrn.com/abstract=3850133;accessed 10 December 2021.SSF

Status of the Small-Scale Fisheries Guidelines The
,69 safety in decked fishing vessels of less than 12 metres length and undecked fishing vessels,70 responsible governance of tenure,71 and finally the SSF Guidelines, on which the next part of this article is focused.SSF Guidelines are 'voluntary in nature' and considered soft law.72 States are not obliged a priori to implement the SSF Guidelines, and no State responsibility arises from non-compliance with this instrument.In principle, FAO members are morally obliged to implement the SSF Guidelines.73Many recommendations of the SSF Guidelines are qualified by the phrase 'in accordance with national legislation' .74This means that national legislation prevails over the SSF Guidelines' recommendations, unless stated otherwise in the legislation.FAO members are encouraged to align their national legislation and policies with the SSF Guidelines,75 which may result in two main activities.One is assessing the alignment of existing national legislation with the recommendations of the SSF Guidelines,76 potentially leading to legislative .77Another is drafting and adopting new national legislation that specifically reflects the recommendations of the SSF Guidelines.78 Executing such activities largely depends on States' will, their financial and technical capacity, resulting in different forms of the SSF Guidelines' implementation, as detailed below.79 61 FAO, Report of the Sixteenth Session of the Committee on Fisheries (FAO Fisheries Report No. 339, Rome, 22-26 April 1985).62 FAO, Report of the Seventeenth Session of the Committee on Fisheries (FAO Fisheries Report No. 387, Rome, 18-22 May 1987), para 61.63 FAO, Report of the Nineteenth Session of the Committee on Fisheries (FAO Fisheries Report No. 459, Rome, 8-12 April 1991); FAO, Report of the First Session of the Advisory Committee on Fisheries Research (FAO Fisheries Report No. 66 See (n 13); and UNFSA (n 12), Articles 5(i), 24(2)(b).67 UNFSA (n 12), Article 11(d).68 These developments in international fisheries law with respect to SSF were noted elsewhere.See Nakamura (n 9).Nakamura The International Journal of Marine and Coastal Law 37 (2022) 31-72 adequate foodin such evaluation.For examples of studies that have conducted such assessment, see Nakamura and Hazin (n 21); Nakamura, Chuenpagdee and El Halimi (n 16); M Ariadno and F Amlina, 'An evaluation of the Indonesia law and policy on small-scale fisheries' (2016) 7 Journal of Sustainable Development Law and Policy 48-64.Legal Reflections on the Small-Scale Fisheries Guidelines The International Journal of Marine and Coastal Law 37 (2022) 31-72 reform December 2006) Sustainable fisheries, including through the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, and related instruments, UN Doc A/RES/61/105, paras 12, 97.87 Boyle and Chinkin (n 80), at p. 127.88 COFI members also welcomed the proposal of Norway for a broad-based international conference devoted to SSF.See FAO, Report of the Twenty-Seventh Session of the Committee on Fisheries (FAO Fisheries Report No. 830, Rome, 2007).89 FAO, Report of the Global Conference on Small-Scale Fisheries -Securing Sustainable Small- 85ABoyleand K McCall-Smith, 'Transparency in international law-making' in A Peters and A Bianchi (eds), Transparency in International Law (Cambridge University Press, Cambridge, 2010) 419-435; W Benedek, 'Multi-stakeholderism in the development of international law' in U Fastenrath et al. (eds), From Bilateralism to Community Interest: Essays in Honour of Bruno Simma (Oxford University Press, Oxford, 2011) 201-210.86 UNGA, Res 61/105 (8 92 FAO, Update on the Development of International Guidelines for Securing Sustainable Small-Scale Fisheries, FAO Doc COFI/2012/7 (2012), paras 8-23.
and Nakamura (n 27).102 FAO, Chairperson's Report of the Technical Consultation on International Guidelines for Securing Sustainable Small-Scale Fisheries (Thirty-first Session of Committee on Fisheries, FAO Doc COFI/2014/Inf.10 (2014), para 1. 103 Ibid., paras 2-4.104 It deals with the protection of human rights and dignity of SSF stakeholders in situations of armed conflict and their participation in decision-making on related matters that affect them.105 See FAO (n 18).106 Boyle and Chinkin (n 80), at p. 25. 107 Benedek (n 85), at p. 202.108 Boyle and Chinkin (n 80), at p. 160.Chinkin also noted the significant factor of non-State actors' participation in international negotiations, which can keep 'informed pressure upon governments to comply with the expectations articulated, thus ensuring greater weight for the agreed statements' .See Chinkin (n 98), at pp. 28-29.
pointers on what states and/or non-state actors should do' .114Also, accepting a wider normative authority for soft law instruments, Redgwell observes that the degrees of 'compliance pull and relative normativity' are common to both hard law and 114 L Cotula, 'International soft-law instruments and global resource governance: Reflections on the Voluntary Guidelines on the Responsible Governance of Tenure' (2017) 13 Law Environment and Development Journal 115-133, at p. 124.
Venezuela, for instance, are not parties to the LOSC.Non-parties to the ICESCR include Malaysia, Mozambique, Saudi Arabia and some of the so-called smallisland or big-ocean States: Comoros, Cook Islands, Cuba, Kiribati, Micronesia, Nauru, Niue, Palau, Samoa, Singapore, St. Kitts and Nevis, St. Lucia, Tonga, Tuvalu and Vanuatu.Additionally, Niue and Palau are not parties to CEDAW and ILO Convention 105.Non-parties to ILO Convention 105 also include Marshall Islands, Micronesia, Myanmar, Nauru, Tonga, Tuvalu and Viet Nam.
national human rights law] obligations common to all EU member states would signal a firmer commitment to comply' .See T Ahmed and I de Jesús Butler, 'The European Union and human rights: An international law perspective' (2006) 17(4) European Journal of International Law 771-801, at pp. 911-915.NakamuraThe International Journal of Marine Coastal Law 37 (2022) 31-72 See Morgera and Nakamura (n 27).171 The OHCHR and FAO have already been working together on the implementation of the SSF Guidelines.See FAO, Introducing the Advisory Group of the Global Strategic Framework in support of the implementation of the Voluntary Guidelines for Securing Sustainable Small-Scale Fisheries in the Context of Food Security and Poverty Eradication Framework Principles on Human Rights and the Environment, presented by Special Rapporteur John H. Knox, UNGA, Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment: Note by the Secretariat, UN Doc A/HRC/37/59, 24 January 2018.
A Diagnostic Tool for Implementing an Ecosystem Approach to Fisheries through Policy and Legal Frameworks (FAO, Rome, 2021).204 These include, for example, the 2017 Voluntary Guidelines for Catch Documentation Scheme, which highlight the needs and special requirements of SSF under catch documentation schemes, and the 2019 Voluntary Guidelines on the Marking of Fishing Gear, which provide more detailed information on how such markings should be made suitable to SSF, stressing the special requirements of SSF in implementing a system of gear marking consistent with the guidelines, including the 'assessment of risk and feasibility' .See 224 Indian Ocean Rim Association (IORA), Declaration of the Indian Ocean Rim Association on the Blue Economy in the Indian Ocean Region (Jakarta, Second IORA Ministerial Blue Economy Conference, 10 May 2017), paras 19, 20.225 General Fisheries Commission for the Mediterranean, Ministerial Declaration on a Regional Plan of Action for Small-Scale Fisheries in the Mediterranean and the Black Sea (Malta, 26 September 2018).226 Also in 2018, the European Commission issued a proposal to amend an EU regulation on the European Maritime and Fisheries Fund, which includes an entire section on 'smallscale coastal fishing' and an action plan for the development of profitable and sustainable small-scale coastal fishing, taking into account the SSF Guidelines.See European Commission, Proposal for a Regulation of the European Parliament and of the Council on the European Maritime and Fisheries Fund and repealing Regulation (EU) No 508/2014 of the European Parliament and of the Council, COM(2018) 390 final (Strasbourg, 12 June 2018).227 Ministerial Council of the Caribbean Regional Fisheries Mechanism, Protocol on Securing Sustainable Small-Scale Fisheries (Montserrat, 12th Regular Meeting of the Ministerial Council of the Caribbean Regional Fisheries Mechanism, 18 May 2018).228 Fisheries Committee for the West Central Gulf of Guinea, Fisheries Committee for the West Central Gulf's Regional Fisheries Management Plan (May 2018).