Regime fragmentation and interaction : a case study of Kenya's marine fisheries regulation

Abstract

The discussion on regime fragmentation and interaction has traditionally occurred within the context of international law with its latest manifestation being the quest for a fisheries subsidies discipline in the World Trade Organisation (WTO). However, with deepening poverty and regulatory challenges especially in many economically less advanced countries, it is important to examine how their domestic regimes interact to address perennial sustainable development challenges. Using the case study of Kenya’s marine fisheries, the thesis therefore examines fragmentation in its regime and existing, if any, mechanisms for regulatory interaction. The thesis uses triangulated methodology by relying on doctrinal research, case studies, field interviews and observations, and on-site study to test the hypothesis. Moreover, further review of literature is undertaken in different chapters of the thesis due to the conceptual nature of some of the issues raised therein.

The thesis hypothesises that although there are indisputable multilateral aspects to Kenya’s marine fisheries, it is the country’s fragmented regime characterised by chaotic legal and institutional duplicity that has mostly limited interaction within its regime thereby leading to ineffective regulatory intervention in the sector.

The thesis extensively relies on Margaret Young’s formulation of regime fragmentation in international fisheries law to examine domestic fragmentation in Kenya’s marine fisheries. Young argued that fragmentation in international fisheries law is characterised by three normative tendencies of regulatory exclusivity, hierarchical bias and forum shopping that have particularly impeded inter-regime interaction. This has eventually contributed to the failure to effectively discipline global marine fisheries resources. It is the thesis’ finding that although fragmentation in Kenya’s marine fisheries regime has somewhat exhibited these three normative elements or tendencies, it is the continued emergence of disparate regulatory practices anchored on formal and informal instruments of the regime that has been more pronounced. Accordingly, the thesis proposes alternative and further measures for regime interaction and coherence towards effective and optimal regulation of the country’s marine fisheries resources. The significance of the thesis lies in its contribution to further contextual understanding of regime fragmentation in domestic settings, especially in the regulation of the commons in developing countries.

To test the hypothesis, the thesis is guided by two inter-related research questions namely:

(i) To what extent, if any, does regime fragmentation bearing in mind Young’s three normative claims, explain ineffective regulation of the marine fisheries sector in Kenya? (ii) What legal, institutional and policy measures would be necessary in the sector to enhance greater regime interaction and effectively regulate the country’s marine fisheries?