2.8 Subsidiary bodies

Table 5 identifies those arrangements where subsidiary bodies exist (or if not existing, whether they are at least expressly provided for), and in turn identifies the bodies concerned. This section does not address subsidiary bodies established for dispute resolution processes. However, further details of these can be found in Annex II.

COMPARATIVE ANALYSIS

Twenty-three arrangements are not represented in the table. That is because the power or duty to create subsidiary bodies is not provided for in the arrangement and nor is the author aware of any such bodies having been created.

Regarding the cases in the table, the arrangement almost always provides a power or duty to the primary consultative mechanism to establish subsidiary bodies. However, in three arrangements there is no such provision, and yet subsidiary bodies nevertheless have been created [Argentina/UK Joint Statement; Norway/Russia 1975 Agreement; Halibut Convention].

There are two main types of subsidiary body. One type deals with administrative matters (e.g. NEAFC Convention: Finance and Administration Committee and Ad Hoc Working Group on Computerisation of the Secretariat); the other addresses substantive aspects of coordination on research, conservation and management or MCS. Bodies in the latter category are typically arranged in a hierarchical manner (e.g. Lake Victoria Convention: the Fisheries Management Committee reporting to the Executive Committee, in turn reporting to the Policy Steering Committee).

It is unusual for the arrangement itself to specify the names of the bodies to be created. There are two exceptions to this [Pacific Salmon Treaty; Lake Victoria Convention]. In all other cases, the names of the bodies do not derive from the arrangement itself.

There appears to be no relation between the number of subsidiary bodies established under an arrangement and the number of parties to that arrangement.

Table 5: Subsidiary bodies

COMMENTARY

The only reason in principle for an arrangement to have no subsidiary bodies is that it has no primary consultative mechanism. Of the 23 arrangements not included in the table, only seven have no such primary body [six of the seven Central American/Caribbean boundary arrangements; Loophole Agreement].

The remaining sixteen arrangements not included in the table directly or indirectly provide for a primary consultative mechanism. Six of these sixteen are the enforcement-only arrangements [Australia/Indonesia MOU; Canada/US Enforcement Agreement; Nauru Agreement; Niue Agreement; Micronesia Arrangement; SRFC Hot Pursuit Convention]. However, there is no reason that in principle why an enforcement-only arrangement should not have subsidiary bodies.

Four of the sixteen have consultations alone as their primary consultative mechanism [Australia/Indonesia MOU; Australia/Indonesia Agreement; Faroes/UK Agreement; Canada/US Enforcement Agreement]. However, again, there is no reason in principle why consultations should not be able to spawn subsidiary bodies; indeed the Australia/Indonesia Agreement provides for a form of subsidiary body. In general, then, it is hard to explain why in principle any of the sixteen arrangements should not either provide for or otherwise have subsidiary bodies.

The answer must lie partly in that the number and type of subsidiary bodies is dictated by the circumstances surrounding the consultative mechanism established. Of the arrangements that are in the table, some patterns can be seen.

Of the three arrangements with subsidiary bodies on administrative matters [NEAFC Convention; Baltic Sea Convention; Pacific Salmon Treaty], all have a secretariat. Secretariats create the need for administrative and financial oversight by the parties, and one means of exercising that oversight is for a subsidiary body with an administrative brief to be created. Secretariats may also need attention by the parties for other reasons associated with their function (e.g. NEAFC Convention: Ad Hoc Working Group on Computerisation of the Secretariat). However, of those arrangements in the table, some have a secretariat yet appear not to have a subsidiary body on administrative matters amongst their other bodies (e.g. Mediterranean Agreement; Halibut Convention) suggesting some other means for oversight of the secretariat may exist.

Regarding subsidiary bodies relating to substantive aspects of cooperation, the number needed by will be determined in part by the scope of the cooperation, the arrangement’s political or geographical complexity and the funding available. The Pacific Salmon Treaty is one of the most politically and geographically complex arrangements, and this complexity is reflected not only by the detail of the arrangement’s provisions but also its highly evolved system of subsidiary bodies. However, it is also relatively well funded.

The degree to which a subsidiary body with a stock assessment or science remit is required will depend in part on whether or not the arrangement uses the services of a science secretariat. For example, NEAFC uses the services of the International Council for the Exploration of the Sea (ICES). This is reflected by the fact that its complement of subsidiary bodies includes an informal group to prepare NEAFC’s request for scientific advice from ICES. The whole question of reliance on science secretariats as opposed to relying on the parties to the arrangement is addressed by Ward et al. and will not be further discussed here.

Subsidiary bodies may also be an effective means of integrating the fishing industry or environmental groups into the cooperative regime. In the case of the Halibut Convention, the Conference Board represents Canadian and US commercial and sport halibut fishermen, designated by union and vessel owner organisations. The Processor Advisory Group (“PAG”) represents halibut processors. At the Commission’s annual meetings, the Commission’s staff make presentations on stock status, seasons etc. to the Board and the PAG, plus the Commissioners. Each of the Board and the PAG then meets over several days and in turn delivers an independent report to the Commissioners on the staff’s presentations. The industry therefore has a strong and integrated role in the regime, through the means of subsidiary bodies.

Four of the arrangements [Torres Strait Treaty; NEAFC Convention; Norway/Russia 1975 Agreement; Baltic Sea Convention] have subsidiary bodies specializing in MCS issues. In general, the numbers of subsidiary bodies with an MCS specialization are likely to increase in response to increased awareness of illegal, unreported and unregulated (IUU) fishing and the growth of ideas for combating this threat.

The last point illustrates that subsidiary bodies provide one mechanism by which the arrangement may respond to current issues. Thus if, say, IUU fishing becomes a threat to the sustainability of the stock concerned, a subsidiary body may be convened to suggest solutions for the duration of the threat. If the threat disappears, the body may be disbanded. This need for responsiveness means that in cases where the arrangement itself specifies the names of the subsidiary bodies to be established [Pacific Salmon Treaty; Lake Victoria Convention], it is preferable not to overly limit the discretion of the primary consultative mechanism with regard to those other bodies that it may additionally create (or those which it may disband).

Finally, some of the issues already discussed above in section 2.7 for the primary consultative mechanism also apply to subsidiary bodies. Internal rules, meeting frequencies, special meetings, delegations (and decision-making) are all factors that need to be addressed regarding subsidiary bodies.