Looking at the news currently, this may be hard to believe, but whether economic interests should come before environmental protection is not up to whoever has the most billionaires backing them. In law, we take a slightly more nuanced approach towards balancing competing interests.
How to balance competing interests?
Not uncommonly, legal protections compete in practice. For instance, it considers the communal interest in protecting the environment versus the need to keep proprietary information about how a company operates confidential, even when those operations impact the environment. This requires a weighing of environmental interests against competing economic or social interests. We can distinguish between two scenarios where these interests would need to be balanced:
Balancing test: This method weighs competing interest to ensures that protection of people or the environment doesn’t impose disproportionate costs or infringe upon other interests. The need to conduct a balancing test between the interests is sometimes foreseen in the law protecting the economic or social interests. In this case this law will prescribe the potential grounds and the applicable principles, e.g. proportionality, to balance the competing interests.
Information Disclosure: Balancing also occurs in the context of disclosing environmental information held by public authorities. This often happens under “freedom of information acts” or “transparency laws.”
Competing Interests in the Fisheries Industry
Let’s take the fisheries industry as an example. On one hand, there’s a strong interest in obtaining information on how and when fish is caught. On the other hand, there’s a commercial interest in keeping fishing grounds and techniques confidential. This is referred to as “trade secrecy,” which grants individuals and businesses the right to protect information they’ve obtained through their time and investment. The value of trade secrets lies in the unavailability of data to the public. This creates a direct conflict with sustainable fisheries management, which depends on some level of sharing fisheries data to understand and manage the environmental impact of those fisheries. We know several fishing nations do recognise the idea of fishing grounds and techniques as trade secret, so it is something the fishing sector must navigate.
The ability to invoke trade secrecy protection depends on its definition under intellectual property laws and the extent to which the people’s right to know about natural resource exploitation is recognised. While this is beyond our control, I always like to look for what we can do to prioritise environmental needs. Especially with so many countries electing leaders who take a less-than-ideal approach to environmental protection, I see it as more urgent than ever for us to do our homework. I expect the following may help:
- Defining Fisheries Transparency: Clearly defining what we mean by “fisheries transparency” and/or “fisheries data sharing.”
- Linking Data Sharing to Effective Management: Demonstrating the direct link between data sharing and effective fisheries management.
Clarifying “Fisheries Data Sharing”
When discussing “fisheries data sharing,” the economic stakes for vessel owners hinge on who gains access to their proprietary information. For those working with governments and owners to improve data sharing, the first step is to clarify what “data sharing” truly entails. Without a shared understanding of what data is being shared, with whom, and under what terms, it seems impossible to strike a balance between transparency and protecting economic interests. “Data sharing” is not a self-explanatory term, as it can include a number of scenarios:
- Satlink collects VMS data from Spanish-flagged vessels and shares it with the Spanish Ministry of Agriculture, Fisheries, and Food.
- The Kenyan Fisheries Monitoring Centre shares data with the Kenyan Coast Guard Service to support enforcement operations.
- Peruvian authorities inform Chilean SERNAPESCA (Servicio Nacional de Pesca y Acuicultura) about a suspicious foreign-flagged vessel moving from Peru’s EEZ to Chile’s EEZ.
- The Norwegian Fisheries Directorate publishes VMS data on its website.
As you can imagine, the risk of infringing upon trade secrecy varies greatly across these scenarios. It will depend on which data points you are sharing, as well as who you are sharing them with. Putting this back into the context of trade secrecy: some fisheries data elements may be protected under intellectual property laws, some will not. Moreover, whom you share data with and how you share it will affect the availability of information, which trade secrecy aims to protect.
Vessel owners logically have a right to know how their data is used, how it will be protected, and how any adverse impacts of data sharing will be mitigated. Additionally, those processing the data and/or the ministries of fisheries overseeing data collection often bear responsibility for the proper collection, storage, and sharing of the data. Knowing the scope and level of data sharing involved is crucial to securing buy-in from those collecting and storing the data, as only then can be understand the potential infringement upon economic interests.
Demonstrating the Link Between Data Sharing and Responsible Fisheries Management
On the second point, the need to demonstrate how data sharing contributes to more responsible fisheries management: Without clearly identifying which data elements are relevant, and backing this with evidence, it’s difficult to advocate for data sharing under environmental or freedom of information laws. Without this proof, you cannot establish how the sharing of data leads to adequate environmental protection or sustainable fisheries management, which are legally recognised goals and responsibilities. It is generally clear that some level of fisheries data sharing is essential for even the most basic level of fisheries management, considering we are talking about a transnational resource that is caught both within and beyond areas of national jurisdiction. However, it’s crucial to justify why the level of data sharing an organisation promotes is necessary. Without this, you may not claim a protection to put on the other side of the scale.
Paving the way for a fair balance
Balancing interests, both in international law and in many jurisdictions, will often rely on the doctrine of proportionality. This doctrine ensures that measures taken to achieve a goal do not disproportionately infringe upon other interests. In the context of economic interests vs environmental protection, proportionality requires that any restrictions on environmental protection must be justified by a legitimate aim, be suitable and necessary to achieve that aim, and not excessively infringe upon environmental rights.
By clearly demonstrating the causal relationship between fisheries data sharing and responsible fisheries management, we are essentially putting more weight on the scale on the side of environmental protection. And by only aiming for the relevant fisheries data points and the lowest possible level of data sharing, we are removing weight on the side of economic interests. In other words: by doing our part to work as diligently as possible, we can pave the way for a fair balance between interests.
There is much more I can say about the balancing test in the context of fisheries data sharing, and I will. For now, I hope this provided an initial introduction to some relevant legal concepts. Have you thought about the different sharing scenarios before? Any thoughts or questions? I’d love to hear them! Feel free to use the comment section below or send me an email at eva@naturaljustice.nl.
Disclaimer & references
The views and opinions expressed in this article are solely those of the author, Eva van Heukelom, and do not necessarily reflect the official policy or position of any affiliated organisations, institutions, or entities. The analysis and conclusions presented are based on the author’s independent research and interpretation. While every effort has been made to ensure the accuracy and reliability of the information provided, no guarantee is given regarding its completeness or applicability to any particular situation.
Beyond the sources explicitly cited in the footnotes, the author has also drawn inspiration from the following sources:
Madeeha Dean, ‘An Environmental FOIA: Balancing Trade Secrecy with the Public’s Right to Know’ (2021) 109 California Law Review 2423
Sara Orofino and others, ‘Opportunities and Challenges for Improving Fisheries Management through Greater Transparency in Vessel Tracking’ (2023) 80(4) ICES Journal of Marine Science 675.
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