3. NORTHWEST AFRICA

3.1 Introduction

3.1.1 Overview

For the purposes of this section, Northwest Africa covers following states: Cape Verde, The Gambia, Guinea, Guinea-Bissau, Mauritania, Morocco and Senegal.

The objective of this section of the report is threefold: (a) to apply the headings in section 2 to specified existing multilateral arrangements covering the Northwest Africa region, (b) to identify those aspects of the analyses made in section 2 that would be appropriate for any cooperation arrangement being created from first principles in Northwest Africa and pertinent to the four states participating in the Nansen Programme namely: The Gambia, Mauritania, Senegal, Morocco and (c) to consider funding of management arrangements in Northwest Africa. However, the section starts by analysing the existing legal framework and establishing some assumptions about the fisheries for small pelagics.

3.1.2 The legal framework

The arrangements relating to fisheries management that are in place in the region and that the author has sighted are as follows:

- African Atlantic Convention 1991
- SRFC Convention 1985
- SRFC Access Conventions (1989 and 1993)
- SRFC Hot Pursuit Convention 1993 (and associated 1993 Protocol)
- Guinea-Bissau/Senegal Agreement and Protocol 1993
- Mauritania/Senegal Convention 1999
- FAO Fishery Committee for the Eastern Central Atlantic (CECAF)
- International Convention for the Conservation of Atlantic Tunas (ICCAT)

There are several additional bilateral arrangements referred to by Kelleher.^[20] These have not been sighted by the author and are not discussed further in this report. However, their details, taken from Kelleher, are provided in Table 7 for the sake of completeness.

3.1.3 African Atlantic Convention

The African Atlantic Convention was adopted in 1991. There are ten contracting parties, though in principle the convention applies to all African Atlantic coastal States. Guinea, Guinea-Bissau, Morocco and Senegal are among the contracting parties; the remaining States in question (Cape Verde, The Gambia and Mauritania) have only signed the convention. The objectives of the convention include inter alia to promote regional cooperation on fisheries management and to enhance, coordinate and harmonize the parties’ efforts and capabilities for the purpose of conserving and exploiting fishery resources (considering in particular fish stocks occurring within the waters of more than one party) (Art 2). The geographical area covered is assumed to be the waters under the sovereignty and jurisdiction of the contracting parties.

Table 7: Additional bilateral agreements referred to by Kelleher

The institutional framework comprises the Conference of Ministers, the Bureau and the Secretariat (Art 17(1)). Parties are to adopt protocols addressing measures, procedures and standards aimed at implementing the provisions of the Convention (Art 19). In 1999, the Conference adopted an institutional protocol and rules of procedure. The rules of procedure allow for the Conference to create working groups (rules of procedure, Art 20).

The Conference is the governing and decision-making body with respect to fisheries cooperation among the parties; it is to determine the general policy and work programme of the Conference, to formulate recommendations and to promote coordination of the parties’ positions (Art 17(1)(a); protocol, Art 2(1)). The Bureau is the coordinating organ of the Conference; one of its functions is to put relevant recommendations to the Conference (protocol, Art 3(1)(b)). The Secretariat is the executive organ (Art 17(1)(b) & (c)) and is located in Morocco (protocol, Art 4).

The Conference is to hold regular sessions once every two years and special sessions at the request of a majority of the parties (Art 17(1)(a)). Decision-making in the Conference, unless otherwise expressly provided for by the convention, is by majority-voting (Art 16, rules of procedure) though consensus is not excluded (rules of procedure, Art 17). The rules of procedure mention both “decisions” and “recommendations” of the conference; however, whether or not either category is binding on the parties is not clear.

The parties are to combine their efforts to ensure the conservation and rational management of their fishery resources and take concerted action for the assessment of fish stocks occurring within the waters under the sovereignty or jurisdiction of more than one Party (Art 3(1)). They are to exchange scientific information regarding fishery resources, statistics relating to catch and fishing effort and other data relevant to the conservation and management of fish stocks with the objective of achieving their optimum utilization (Art 3(3)) and are to endeavour to adopt harmonized policies concerning the conservation, management and exploitation of fishery resources, in particular with regard to the determination of catch quotas and, as appropriate, the adoption of joint regulation of fishing seasons (Art 3(4); see also Art 13).

Parties are to work and collaborate with all the means at their disposal (or which they may jointly acquire) to ensure the monitoring, control and surveillance, including technical control, of fishing vessels operating in the region (Art 5). With a view to promoting the dissemination of inter alia scientific data and information regarding the region’s fisheries, parties are to collaborate in the establishment and operation of a data and information bank, in cooperation with relevant subregional, regional and international organizations (Art 15). With a view to achieving the objectives of the convention, parties are also to cooperate inter alia with relevant subregional, regional and international organizations (Art 20).

3.1.4 The SRFC Convention

The SRFC Convention was adopted in 1985 and amended in 1993.^[21] The convention establishes the SRFC, whose members are Cape Verde, The Gambia, Guinea, Guinea-Bissau, Mauritania, and Senegal. The objectives of the SRFC include inter alia harmonizing over the long term the policies of the members regarding preservation, conservation and exploitation of their marine resources (Art 2). As such, it is assumed that the convention applies to the waters of the SRFC’s members and potentially applies to cooperation on any of research and stock assessment, conservation and management, and MCS. The SRFC’s organs consist of the Conference of Ministers, the Coordination Committee and a secretariat (Art 4). The secretariat is located in Senegal (Art 3).

The principal organ is the Conference of Ministers, with the objectives of defining the objectives on sub-regional cooperation and deciding on all matters relating to the preservation and exploitation of marine resources in the sub-region (Art 5). The Conference has regular meetings every two years, with scope for special meetings if requested by the president of the Conference or by the majority of the members (Art 7). Decision-making in the Conference is by consensus (Art 8). It is assumed that decisions by the Conference are binding on the parties.

The Coordination Committee has the function of inter alia making recommendations to the Conference on matters to be examined (Art 9). The Committee meets annually and otherwise when necessary (Art 11). The secretariat, with the approval of the Conference, is to organise technical meetings as necessary for the purpose of reviewing scientific, technical, legal and economic issues and other subjects relating to the cooperation programme adopted by the Conference (Art 14).

Of note, the secretariat may cooperate as much as necessary with national and international bodies to ensure collaboration and effective coordination of planned actions (Art 18). Members of the SRFC are to adopt additional protocols addressing measures, procedures and standards aimed at implementing the provisions of the Convention (Art 25). It is not known whether any rules of procedure have been drafted for the SRFC. However, the convention itself makes no express provision for the creation of subsidiary bodies other than those expressly mentioned as being the SRFC’s main organs.

The SRFC Convention provides the SRFC with legal personality (Art 1). However, it is questionable whether this personality extends to international legal personality and whether the SRFC has the power to enter into treaties with States or other international organisations. For the purposes of this report, it will be assumed that the SRFC does not have such power and lacks international legal personality.

3.1.5 CECAF

CECAF was established in 1967 under Article VI-2 of the FAO Constitution by Resolution 1/48 of the FAO Council. The current membership consists of 21 coastal States (including Northwest African States), 11 non-coastal States and the European Community. The area of competence coincides largely with FAO Statistical Area 34 and the Committee covers all marine fishery resources within this area.

The Committee is the decision-making body but is to report to the FAO Director-General (statute, Art 5). It may establish sub-committees or working parties on problems of major importance or of a specialized nature (statute, Art 4(i)). The Committee currently has only one subsidiary body, the Scientific Sub-Committee. The secretariat is provided by the FAO.

In 1992, the Committee’s Terms of Reference were amended. The 1992 Terms of Reference include inter alia:

to promote the collection, interchange, dissemination and analysis or study of statistical, socio-economic, biological and environmental data and other marine fishery information,

to establish the scientific basis for regulatory measures leading to the conservation and management of marine fishery resources; to formulate such measures through subsidiary bodies, as required, and to make appropriate recommendations for the adoption and implementation for these measures,

Thus CECAF has a role both in research and stock assessment and in conservation and management measures, though only in an advisory context. So far, the greatest strengths of CECAF have occurred in collection, collation and analysis of data (CECAF/XV/2000/6, para 31). Although CECAF has made a number of recommendations on fisheries management, implementation of these is on a voluntary basis and has been poor in a number of States (CECAF/XV/2000/6, paras 29 & 31 and footnotes 4 & 22). Transforming CECAF from a body established under Article VI of the FAO Constitution into a body established under Article XIV of the FAO Constitution has been mooted but not acted upon.

3.1.6 ICCAT

ICCAT^[22] covers the conservation of tunas and tuna-like species in the Atlantic Ocean and adjacent seas. Cape Verde, Guinea and Morocco are contracting parties. (Senegal was a contracting party until 1988.) About 30 species are of direct concern to ICCAT.^[23] Though the competence of ICCAT’s commission extends to the waters of the coastal State contracting parties, it will be assumed that none of the species of direct concern to ICCAT are relevant in the current analysis.

3.1.7 Assumptions about small pelagics in Northwest Africa

For the purposes of this chapter, it will be assumed that the small pelagics in question are neither highly migratory stocks nor straddling stocks. In other words, it will be assumed that the stocks concerned are migratory but remain within the confines of the waters of the coastal States of Northwest Africa.

Were such stocks to be straddling, the duty in Art 63(1) LOSC^[24] would apply. Were such stocks highly migratory, the 1982 Convention provision on highly migratory species (Art 64 LOSC)^[25] would however not apply, since none of the species concerned (those listed in Annex I of the 1982 Convention) are small pelagics. However, once the Fish Stocks Agreement enters into force, were the small pelagic stocks concerned to be either “highly migratory fish stocks” (and hence no longer restricted to the “highly migratory species” listed in Annex I of the 1982 Convention) or “straddling fish stocks”, the duties in that Agreement would apply to any of the States that were contracting parties.

The distribution of the various species of small pelagics will not be taken into account for the purposes of this analysis. It will be assumed that in general fisheries for small pelagics off Northwest Africa are multispecies and that small pelagics are shared between the relevant coastal States, whether by all States together or by only some of them. It will also be assumed that these small pelagics are fished not only by flag vessels of the States concerned, but also by foreign flagged vessels. With respect to both categories of vessel, it will be assumed that illegal fishing poses a threat to the sustainability of the stocks concerned, and that overcoming this threat therefore needs to be taken into account.

3.2 Nature of arrangement

In view of the existence of the African Atlantic Convention, the SRFC Convention and CECAF, the principal question must be whether any new instrument is indeed required for the purpose of cooperation over management of small pelagics in Northwest Africa.

3.2.1 Cooperation with the African Atlantic Convention

One function of the convention’s Bureau is to put relevant recommendations to the Conference. The Conference is in turn to formulate recommendations. In theory, this system of consultative mechanisms could be used to adopt research and stock assessment or conservation and management measures specific to small pelagics. Thus the Bureau could draft recommendations on these matters for the Conference, and the Conference could formulate them further and adopt them.

In practice, however, a primary consultative mechanism meeting only every two years is unlikely to be compatible with the management needs of fisheries for small pelagics, and delegations composed of ministers may be inappropriate for detailed decisions on a particular fishery. Thus if cooperation over the management of small pelagics between the convention parties were to be achieved, it would need to be through some amendment of the existing system of consultative mechanisms.

Furthermore, the scope and membership of the convention extends well beyond the coastal States of Northwest Africa. It is not known if there are any subsidiary bodies dealing with fisheries on a sub-regional basis. In any event, the maintenance or introduction, as appropriate, of institutional machinery enabling a focus on Northwest Africa would be helpful.

The fact that Cape Verde, The Gambia and Mauritania are not contracting parties to the convention is also relevant. If the convention is to be used as a forum for cooperation in Northwest Africa on small pelagics, the reason for the lack of accession by these three States to the convention could be investigated and perhaps resolved.

3.2.2 Cooperation within the SRFC

One function of the SRFC’s Coordination Committee is to make recommendations to the Conference of Ministers on matters to be examined. The Conference is in turn to decide on all matters relating to the preservation and exploitation of marine resources in the sub-region.

As with the African Atlantic Convention discussed in section 3.2.1 above, this system of consultative mechanisms could in theory be used to adopt research and stock assessment or conservation and management measures specific to small pelagics. Thus the Coordination Committee could make recommendations on this matter to the Conference, and the Conference could in turn adopt them. However, the same problems as outlined for the African Atlantic Convention apply to the SRFC: the primary consultative mechanism is a forum of ministers and it meets only every two years. An amendment of the system would therefore be needed.

The fact that Morocco is not a member of the SRFC is also relevant. If the objective is cooperation on small pelagics throughout Northwest Africa, some means would be needed of linking Morocco into the activities of the SRFC. Possibilities might include a MOU or joint statement between Morocco on the one hand and either Mauritania or all the members of the SRFC on the other.

3.2.3 Cooperation within CECAF

CECAF has been constrained by several factors including inter alia: lack of funding, a complacent attitude and lack of commitment to CECAF of some members; low participation and attendance at the sessions of the Committee and the meetings of its subsidiary bodies; inadequate implementation of its recommendations; problems of communication and inadequate secretariat work (CECAF/XV/2000/6; para 8).

As with the African Atlantic Convention, the membership of the Committee extends well beyond the coastal States of Northwest Africa and there are currently no CECAF subsidiary bodies dealing with fisheries on a sub-regional basis.

Though the body has the power to formulate conservation and management measures, it may only recommend their adoption and implementation. In general, the track record of CECAF in collection, collation and analysis of data has been stronger. The Committee might therefore provide an effective forum for cooperation on research and stock assessment and perhaps also conservation and management measures merely of an advisory nature.

However, the degree to which it performs either of these roles needs to be considered in light of the fact that two non-FAO sub-regional arrangements currently exist within the geographical area covered by CECAF: the SRFC and the Regional Fisheries Committee for the Gulf of Guinea (COREP). It could be argued that these non-FAO bodies themselves provide the sub-regional emphasis that is currently missing within CECAF, and as such would be the most appropriate vehicles for any cooperation on a sub-regional basis. The counter argument is that some States (notably Morocco in the case of Northwest Africa) are not parties to these non-FAO sub-regional arrangements.

More ambitiously, it has been suggested that CECAF “might provide... the necessary expertise for discussing common management problems and elaborate solutions for shared stocks and the framework within which the countries jointly or individually can decide on the appropriate actions for implementation” and also that “[t]he Committee might wish to include in the functions of the Commission wider scientific and technical tasks, performing a role similar to the International Council for the Exploration of the Sea” (CECAF/XV/2000/6, paras 32 and 34(c) respectively).

With regard to the first of these ideas, one possibility is that CECAF might provide a forum for consultation among the non-FAO sub-regional arrangements, especially if the coastal States in the sub-region between the SRFC and COREP sub-regions were also to form a non-FAO sub-regional arrangement. With regard to the second idea, a science secretariat role might indeed become appropriate if cooperation on conservation and management instead took place largely on a sub-regional basis.

3.2.4 Conclusion

The institutional machinery of both the African Atlantic Convention and the SRFC is not geared to active management of small pelagics, either in terms of research and stock assessment or in terms of conservation and management measures. This is because the decision-making body in each case is a consultative mechanism consisting of ministers, who normally meet only once every two years. In each case, some amendment of the existing system of consultative mechanisms would be needed.

If the African Atlantic Convention were to be used in preference to the SRFC, the lack of accession by Cape Verde, The Gambia and Mauritania would need addressing. If the SRFC were to be used in preference to the African Atlantic Convention, some means of linking Morocco into the activities of the SRFC would be needed. Possibilities include a MOU or joint statement between Morocco on the one hand and either Mauritania or all members of the SRFC on the other.

CECAF may provide a suitable forum for limited forms of cooperation. Its strengths lie in collection, collation and analysis of data, but it has also made a number of recommendations on fisheries management. All of its work though is currently on an advisory basis. Though there is a Scientific Sub-Committee, there is no subsidiary body dealing only with Northwest Africa. Furthermore, the reported lack of support of CECAF, and the existence of non-FAO sub-regional arrangements in its geographical area do not promote confidence in CECAF as a suitable arrangement for cooperation.

Despite the shortfalls of all three arrangements, it would be logical in view of their pre-existence to solve these shortfalls rather than invent a new arrangement. A discussion of the likelihood of solving these shortfalls is beyond the scope of this report. However, any low likelihood of solving the shortfalls should not be seen as a barrier to cooperation. If none of the three arrangements can be used, the possibility remains of neighbouring States forming, say, bilateral or trilateral cooperation arrangements. In terms of cooperation, it’s important to mention the 14^th Ordinary Session of the Ministers Conference of the Sub-Regional Commission on Fisheries, which took place from 19 to 20 of September 2001, in Nouakchott, Mauritania. This Commission is considered as an important instrument of cooperation and economic integration for countries members. During this session, a delegation from Sierra Leone confirmed the will of the country to become member. The conference resulted in the adoption of a Declaration called “Nouakchott Declaration”on Illegal, Unreported and Unregulated fishing. In this Declaration, the states members expressed their will to prevent those illegal activities and their support to the international plan of action for the same purpose.

3.3 Scope

3.3.1 A scope beyond fisheries

A. Existing arrangements

In the case of the African Atlantic Convention, the SRFC Convention and CECAF, the scope in each case does not extend beyond fisheries.

B. Arrangements from first principles

The principal issue in this report is the cooperative management of small pelagics. Beyond that, the question is whether there are other issues that should be included in any arrangement. Though it is beyond the scope of this report to suggest such issues, it is reasonable to suggest at this stage that the question should be given some thought if the concept of a small pelagics arrangement develops.

3.3.2 References to “shared stocks”

A. Existing arrangements

Art 2(d) of the African Atlantic Convention states that: “The objectives of this Convention shall be to enable Parties... to enhance, coordinate and harmonize their efforts and capabilities for the purpose of conserving, exploiting, upgrading and marketing fishery resources, considering in particular fish stocks occurring within the waters under the sovereignty or jurisdiction of more than one Party” (emphasis added). However, neither the SRFC Convention nor the CECAF Statute or 1992 Terms of Reference refer to shared stocks.

B. Arrangements from first principles

In any arrangement focusing on management of small pelagics, it would be logical to refer to shared stocks in the preamble and, say, in the “objectives” section. One solution could be to use text from Art 63(1) LOSC [e.g. Australia/Indonesia Agreement and the African Atlantic Convention].

3.3.3 Provision for consultative mechanisms

The question of consultative mechanisms will be considered in section 3.7 below.

3.3.4 Species covered

A. Existing arrangements

The African Atlantic Convention covers fishery resources in general (Art 3). The SRFC Convention addresses marine resources in general (Art 2). The 1992 CECAF Terms of Reference refer to “marine fishery resources”.

B. Arrangements from first principles

Any cooperation arrangement need not be expressly restricted in title or purpose to small pelagics. For example, establishing a consultative mechanism that allowed for decisions to be made on fisheries management for shared stocks in general would avoid the need for duplication of mechanisms for the various different types of shared stocks. However, any general consultative mechanism would need to be sufficiently flexible and responsive to be effective with regard to small pelagics.

The scope of an arrangement in terms of species covered may be dictated by the political situation. For examples, States working together for the first time in the context of conservation and management measures may be unwilling to create a framework arrangement for management of shared stocks in general, but may be happy to start with an arrangement expressly limited to specified species (e.g. small pelagics, or even particular species of small pelagics). Satisfactory progress with regard to the particular species concerned might then lead to new arrangements for further species or to the drafting of a general framework arrangement.

3.3.5 Access rights

A. Existing arrangements

In the case of the African Atlantic Convention, the SRFC Convention and CECAF, there is no express provision for (a) reciprocal or one-way access among the parties or (b) agreement between the parties on an access regime for foreign flagged vessels. However, the SRFC Access Convention establishes a legal framework regarding access by vessels to a party’s waters, and the SRFC Hot Pursuit Convention establishes principles regarding the exercise of the right of hot pursuit in respect of the parties’ flag vessels and vessels of other flag States. Furthermore, Kelleher has recently produced a report on access regimes for foreign-flagged vessels for the SRFC.

B. Arrangements from first principles

If the politics permit, there may be scope for reciprocal or one-way access among the States involved in any cooperation arrangement. However, if access is to be an element in cooperation over shared stocks, rather than simply a tool for political cooperation or raising of funds, it should be carefully integrated into any cooperation arrangement. The details of integration will of course depend on what degree of cooperation the States have in mind.

Suppose that State A and State B are neighbouring coastal States in Northwest Africa, and that A allows fishing access to its waters by B to fish for a shared stock. As a starting point, one would expect the agreement to require that B’s vessels are bound by the conservation and management regime applicable in A’s waters. However, this regime might already have been agreed jointly between A and B (and be equally applicable in B’s waters). The degree to which A and B then cooperate on MCS to ensure that B’s vessels meet the regime in A’s waters is for A and B to decide between themselves.

Section 2.12 above contains a wide array of examples of MCS cooperation. For example, A could require that all landings by B’s vessels in B’s ports are notified to A. A and B could enter into a reciprocal enforcement agreement [e.g. Canada/US Enforcement Agreement] whereby each makes it an offence to breach the other’s regime. A and B could then establish an accompanying procedure by which in the event of one of B’s vessels offending and then fleeing from A’s waters back to B, A could notify B and expect certain follow-up. If A and B had previously agreed a total allowable catch for the species concerned, and allocated this between them, one would also expect agreement on whether the catch by B’s vessels in A’s waters should be deducted from A’s allocation or B’s allocation (as appropriate).

The purpose of this example is not to define how access should be integrated into a cooperation arrangement between two or more States. It is simply to make the point that there is scope for allowing access and yet also making it part of the cooperation, indeed perhaps even adding some cooperation provisions specific to the matter of access.

Beyond reciprocal or one-way access by vessels flying the flag of a party to a cooperation arrangement, there is also the question of access by vessels of third-parties. Vessels flagged to States outside the region play a very important part in the harvesting of small pelagics in Northwest Africa. For example, Kelleher states that “[t]he industrial fleets fishing for small pelagics [within the SRFC members’ waters]... are comprised almost entirely of distant-water vessels”.

Once again, suppose that State A and State B are neighbouring coastal States in Northwest Africa and have agreed to cooperate over a shared stock. Suppose that a third-party vessel has been licensed to fish in A’s waters for that stock. A seeks B permission for this third-party vessel to fish in B’s waters. In those circumstances, B would not necessarily be interested in agreeing to this request since B might stand to gain more financially be negotiating directly with the third-party vessel itself.

However, if A and B are truly interested in cooperating over the shared stock, there may be scope for agreeing between themselves an access regime for foreign flagged vessels. Examples from the South Pacific are already available for scrutiny [e.g. Nauru Agreement; Niue Agreement; Micronesia Arrangement]. Furthermore, as stated above, Kelleher has recent produced a report on this subject for the SRFC.

The options for an agreed access regime for foreign flagged vessels will not be elaborated here. The point is simply made that just as for access regarding a neighbour’s vessels, there is scope for integrating third-party access into cooperation arrangements for shared stocks, at the levels of inter alia conservation and management and MCS.

3.3.6 Arrangements dealing only with MCS or only with conservation and management

A. Existing arrangements

The African Atlantic Convention has provisions both on conservation and management and on MCS. On conservation and management, the parties are to endeavour to adopt harmonized policies concerning the conservation, management and exploitation of fishery resources, in particular with regard to the determination of catch quotas and, as appropriate, the adoption of joint regulation of fishing seasons (Art 3(4)). On MCS, the parties are to work and collaborate with all the means at their disposal, or which they may jointly acquire to ensure the monitoring, surveillance and control, including technical control, of fishing vessels operating in the region (Art 5).

CECAF too potentially makes provision for both conservation and management and MCS. Thus the 1992 CECAF Terms of Reference provide for making “appropriate recommendations for the adoption and implementation for [conservation and management] measures” (emphasis added).

In the SRFC Convention, the mandate of the Conference of Ministers is put very broadly, to include inter alia deliberating on any issue regarding the preservation and exploitation of the sub-region’s marine resources. That this applies to both conservation and management and MCS is corroborated by the SRFC Access Convention (on conservation and management) and the SRFC Hot Pursuit Convention and 1993 Protocol (on MCS).

The SRFC Hot Pursuit Convention and 1993 Protocol are not specific to any particular stock; they apply to fisheries in general. Thus, were a new arrangement on management of small pelagics to be adopted within the SRFC, there are at least two possibilities regarding MCS. One would be to avoid provision for MCS in that arrangement, instead developing further the general system of MCS cooperation provided for by the SRFC Hot Pursuit Convention and 1993 Protocol (e.g. through further protocols). The other would be to include MCS cooperation with the new arrangement on small pelagics.

B. Arrangements from first principles

An arrangement dealing with MCS only might well be appropriate if an arrangement on conservation and management proved to be a political step too far. As has been illustrated in section 2.12 above, there are degrees of cooperation on MCS. The amount of cooperation can be chosen to match the amount of political will that exists. Furthermore, since MCS cooperation is indeed such a flexible concept, it would be disappointing if any arrangement that did address conservation and management cooperation did not also provide for some form of MCS cooperation.

3.4 Provision for harmonization

A. Existing arrangements

The African Atlantic Convention contains many direct or implied references to harmonization of conservation and management measures (e.g. preamble, Arts 2(d), 3(4), 4 and 13). The SRFC Convention also refers directly to harmonization of such measures (preamble, Art 2, Art 5). However, in both cases the references in effect go no further than pronouncing harmonization merely as an aspiration. The 1992 CECAF Terms of Reference make no direct or implied references to harmonization of conservation and management measures.

B. Arrangements from first principles

Harmonization of conservation and management measures, in the sense defined in section 2.4 above, is a sensible goal for any arrangement aiming to achieve cooperation in conservation and management. As a minimum, it could be provided for in an arrangement on small pelagics in terms of an aspiration, e.g. “the parties shall endeavour to harmonize their respective conservation and management measures”. Thus the duty is to try to harmonize, rather than to actually harmonize.

Such wording may be more acceptable to States that may feel uneasy with the whole notion of cooperation on conservation and management measures.

To take a step further than simply creating a duty to try to harmonize, there are three main possibilities: (a) to provide for a primary consultative mechanism that can in turn make binding decisions; (b) to provide for quantitative technical measures in the arrangement; or (c) to provide for percentage or tonnage allocations in the arrangement. All of these require substantial political will.

In a multilateral situation, option “(a)” above may be acceptable if there is a suitable objection procedure. This is discussed further in section 3.7 below. Option “(b)” may create inflexibility. For example, the SRFC Access Convention 1993 establishes a minimum mesh size for pelagic trawlers of 40mm (see Art 5 and Annex II) across all SRFC members. To change this figure would require an amendment to the convention. For improved flexibility, it might be more appropriate for matters such as mesh size to be established and amended instead by appropriate consultative mechanisms.

Option “(c)” is a particularly tough political hurdle to cross. In general, allocation is made on the basis of specified criteria. Examples of such criteria include zonal attachment, historical catch records and conservation efforts. However, States may be reluctant to lock themselves into a formula that (a) may be based on unreliable statistics or (b) may prove difficult to alter if the circumstances change (e.g. small pelagics changing their distribution according to changes in climate).

Admittedly, agreement over a total catch or effort and allocation of this total among the States is a very useful foundation for cooperation. But cooperation is not impossible without it. In view of the potential difficulties in agreeing allocation, failure to provide for quantified allocations in an arrangement should not be seen as a reason for not proceeding with cooperation in conservation and management in other directions.

3.5 Arrangements with some maritime boundary delimitation aspect

All seven States in question in this section have established exclusive economic zones or exclusive fishing zones.^[26] With the exception of boundaries in relation to Cape Verde, the only maritime boundary that remains undelimited between the States in question is that between Mauritania and Senegal. The effectiveness of the maritime boundary delimited between Mauritania and Morocco in 1976 appear to be in doubt^[27] and as far as Cape Verde is concerned, only its maritime boundary with Senegal has been delimited.

The lack of certainty in relation to some maritime boundaries among the States concerned may have implications for the management regimes for shared stocks. If two neighbouring States wish to commence cooperation over their shared small pelagics, those States may need to pay more attention to boundary regions that may previously have been “ignored” from the point of view of research and stock assessment, conservation and management, or MCS.

To facilitate this, the uncertain status of these waters can either be clarified by the delimitation of a boundary (whether permanent or provisional [e.g.Australia/Indonesia MOU]) or at least acknowledged by the establishment of a special zone in which a specified fisheries regime can in turn be applied as part of the overall cooperation effort.

Several of the arrangements considered in section 2.5 above provide examples of the latter [Faroes/UK Agreement; Colombia/Jamaica Agreement; Argentina/UK Joint Statement; Japan/China Agreement; Norway/Russia 1978 Agreement; Halibut Convention; Trinidad and Tobago/Venezuela Agreement]. Furthermore, in Northwest Africa itself, Guinea-Bissau and Senegal are parties to a 1993 agreement^[28] establishing a “joint exploitation zone” in the vicinity of their maritime boundary.^[29] However, it is important to point out that this zone is not part of an overall arrangement between the two States to manage shared stocks throughout their respective waters. Instead, it is a specific, negotiated response to concerns by Guinea-Bissau over the validity of the maritime boundary originally delimited in 1960.^[30]

Nevertheless, the concept of the joint exploitation zone, or of the zones established by the other arrangements mentioned above, is something that might find application in relation to the waters off Northwest Africa in the event that any maritime boundaries in the region prove difficult to delimit.

3.6 Geographical scope

A. Existing arrangements

In the case of the African Atlantic Convention and the SRFC Convention, it is assumed that the geographical area covered is the waters under the sovereignty and jurisdiction of the contracting parties. The African Atlantic Convention uses the term “the Region” and defines this as “the area comprising the above-mentioned States” (Art 1(2)(a) (the latter being the African States bordering the Atlantic). The SRFC Convention refers to “the sub-region’s marine resources” (Art 5). In contrast, the Statute of CECAF refers to “the marine fishery resources of the area defined under 1 above”, “1” defining an area in terms of geographical features, coordinates and lines of latitude and longitude.

B. Arrangements from first principles

As mentioned in section 3.1.7 above, for the purposes of this section it will be assumed that the small pelagic stocks concerned are migratory but remain within the confines of the waters of the Northwest African coastal States concerned. As such, there would be no legal imperative under the Law of the Sea Convention or the Fish Stocks Agreement to include a high seas element to the arrangement.

If a cooperation arrangement is addressing a stock shared between, say, two States and that stock potentially ranged widely throughout those States’ waters, it would be logical for the geographical scope to be defined in a way that covered all the waters of those States. Any exceptions (e.g. internal waters, protected areas) could then be provided for later. As mentioned in section 2.6, there are two broad approaches to defining such an area. One is to refer to geographic features, coordinates or lines of latitude/longitude. The other is to refer to zones of jurisdiction. The latter approach would be appropriate in this case.

In the case of Northwest Africa, the latter approach is facilitated by the fact that many of the maritime boundaries between the States are delimited. However, some boundaries are not delimited, another is in doubt and one has a joint exploitation zone associated with it. In an arrangement involving an undelimited boundary or a boundary that is in doubt, there are two broad options. One is to overlook the uncertainty and carry on regardless. This may be a simpler drafting solution but may well present problems of interpretation at a later point. The other is to somehow accommodate that uncertainty expressly in the drafting.

There are in turn two further broad options. One is use the approach taken in the Argentina/UK Joint Statement, concluded in the light of a fundamental disagreement between the parties over sovereignty in relation to the Falkland Islands/Malvinas. The Joint Statement refers inter alia to “fish stocks in the South Atlantic” and to “waters between latitude 45^oS and latitude 60^oS”, rather than referring to the two parties’ waters.

The other option is to comprehensively identify a specific zone in relation to that boundary (see section 3.5 above). This is a politically more challenging solution, but one that may help to avoid future interpretation difficulties. If a zone were to be created, it would obviously be prudent to define its geographical extent in the arrangement. Such a definition would probably be most appropriately done by reference to geographical features, coordinates or lines of latitude/longitude.

3.7 Consultative mechanism in relation to fisheries aspects

A. Existing arrangements

The consultative mechanisms of the African Atlantic Convention, the SRFC Convention and CECAF have already been discussed in sections 3.1.3 to 3.1.5 above.

B. Arrangements from first principles

A multilateral consultative mechanism established to manage shared small pelagics could of course take many forms. This is illustrated by the wide variety of mechanisms illustrated in Table 4 and analysed in section 2.7 above. However, drawing on that variety and analysis, one possible form is as follows:

1. a consultative mechanism dedicated to operational fisheries management for shared stocks (including small pelagics), with a mandate to decide inter alia conservation and management measures and accompanying MCS measures;
2. receiving administrative support from a secretariat;
3. informed by a subsidiary body dedicated to the provision of scientific advice on fish stocks;
4. meeting annually, with scope for special meetings at lesser intervals subject to approval by a qualified majority;
5. with delegations composed of government officials, but also providing the opportunity for participation by relevant interest groups;
6. having the power to draft its own rules of procedure (and financial rules, if appropriate) but potentially subject to approval by the parties;
7. having the power to adopt decisions by qualified majority voting (with an objection procedure), such decisions being binding on the parties.

The basis for these elements is as follows (working backwards, from “(g)” to “(a)”). In a multilateral forum, qualified majority voting allows progress that a need for consensuality might inhibit. Yet provision for an objection procedure by individual States avoids threats to State sovereignty. With an objection procedure in place, a power to adopt binding decisions becomes more acceptable and avoids the need for a further, time-consuming, round of approval-seeking from governments by each of the delegations. A consultative mechanism of the type envisaged would need rules of procedure even if the key principles (such as voting and the binding nature of decisions) were laid down in any, say, treaty text. The rules would need to cover issues such as size and nature of delegations, triggers for special meetings, provision for a scientific advice body, links with any secretariat and substantive mandate of the consultative mechanism itself.

Having delegations composed of officials rather than ministers is probably appropriate for operational decisions on conservation and management measures (and associated MCS measures). However, the officials should obviously be empowered to act with due authority and bring a robust negotiating brief to the table. If delegations include representatives from, say, industry and environment groups, the credibility of their decisions is likely to be enhanced in the eyes of those groups. Regular meetings are desirable for fisheries management, but annual meetings may be too infrequent for small pelagics. However, element “(a)” of the scheme proposes that the consultative mechanism be established for conservation and management of shared stocks in general. If small pelagics demand more frequent meetings, these can be arranged. However, the cost of special meetings does need to be borne in mind. Annual meetings could be timed to match those of other relevant forums (subject to the timing of any fishing seasons).

Conservation and management measures should be based as much as possible on scientific advice. Once again, costs become relevant here. For the provision of scientific advice, there are two broad options: use of a science secretariat or use of a subsidiary body composed of the parties’ national researchers. These two approaches have recently been compared in detail by Ward et al. and will not be further discussed here. Administrative support from a secretariat is also potentially a costly affair. However, in the case of the SRFC, advantage could be taken of the existing secretariat (though this would still have cost implications). Finally, the consultative mechanism should have a mandate not just to take conservation and management measures but also relevant MCS measures. A conservation and management remit broader than just small pelagics would avoid duplication of schemes for different types of shared stocks.

3.8 Approaches to cooperation

This section does not seek to prescribe the detailed measures on small pelagics that parties to any cooperation arrangement should take through a consultative mechanism or otherwise. However, having in section 2 analysed the types of measure taken by the 39 arrangements under consideration there, it may still be useful to provide some examples, based on that analysis, of what cooperation measures for small pelagics might look like. This have been done below for each of research and stock assessment, conservation and management and MCS. In each case, it is assumed that a consultative mechanism of the type proposed in section 3.7 above has been adopted.

3.8.1 Research and stock assessment

The functions of the consultative mechanism could include the following:

If a subsidiary body were to be established to provide scientific advice on fish stocks, some of these functions (e.g. analysis of data and information) could be allocated to that body.

3.8.2 Conservation and management

The functions of the consultative mechanism could include the following:

Any failure by the States concerned to agree on allocation need not mean that further conservation and management cooperation agreement is then impossible. For example, harmonized technical measures may still be relevant and useful even in the absence of any agreement on total allowable catch or allocation.

If a particular species of small pelagic demanded special attention, a subsidiary body (e.g. a working group) could be established to address that species.

3.8.3 Monitoring, control and surveillance

The functions of the consultative mechanism could include adoption of MCS measures. MCS measures could be adopted individually; alternatively a coherent scheme could be drawn up and adopted. The array of MCS measures summarized in section 2.12 above is very broad. Indeed, comparison of section 2.12 with sections 2.10 and 2.11 demonstrates that the variety of MCS measures that has evolved is much greater than the corresponding variety of research and stock assessment measures or conservation and management measures.

Elements of a MCS scheme relevant to small pelagics could include the following:

The tasks of drafting the scheme could be allocated to a subsidiary body (e.g. an MCS working group). The elements “(a)” to “(j)” above all involve the MCS resources of one State remaining within that State’s waters or land territory. However, there is also scope for adoption of measures or a scheme relating to inter alia: hot pursuit; pooled MCS activities; exchange of MCS resources (including personnel); and enforcement by a party against its vessels irrespective of their location. Furthermore, with regard to third-party vessels, there is scope for standardisation in the fields of licensing and access conditions and for regional registers.

3.9 Funding

The issue of funding of management arrangements may be divided into funding of the administrative budget and the funding for participation by parties at meetings.

Regarding the administrative budget, the approach adopted by the Indian Ocean Tuna Commission (IOTC) may be helpful in the context of an arrangement for Northwest Africa (acknowledging that item “(b)” below is not relevant since all the State parties to any arrangement for Northwest Africa are likely to be parties with fishing operations). The IOTC approach has been designed to cater for differences among the parties in terms of inter alia GNP and average catches. It is not unique; other arrangements also take into account average catch per party and some index of economic status (e.g. NEAFC Convention [Art 17(4)]; Convention on the Conservation and Management of Fishery Resources in the South-east Atlantic Ocean [Art 12(3)]; Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Art 18(2)).

The budget of the IOTC is divided among the contracting parties to the underlying convention. The formula for calculating the parties’ contributions is based on four elements: (a) 10% of the budget to be divided equally among the parties; (b) 10% to be divided equally among the parties with fishing operations; (c) 40% to be divided among the parties on the basis of per capita GNP, weighted according to the economic status of the parties in accordance with the World Bank classification; and (d) 40% to be divided among the parties in proportion to their average catch, weighted by a coefficient reflecting their development status.

An alternative approach is to ignore differences of economic status and average catches between the parties. This approach has been taken for example by the parties to the Lake Victoria Convention; Art 4 provides that once donations have been taken into account, the remainder of the administrative budget is to be met by equal contributions from the three parties. (See also, for example, Halibut Convention, Art III(1).) Obviously, the approach of ignoring differences of economic status and average catches may be more appropriate where such differences are minimal.

Regarding attendance at meetings, the standard approach adopted by management arrangements is for the individual parties to fund their own attendance. Obviously, though, there is scope for minimising the number of meetings and for timing such meetings to coincide with others. In cases where a State (rather than the secretariat) hosts the meeting, one approach could be for the hosting State to cover the hosting costs (and for such meetings to be rotated among the parties) while an alternative could be for some or all of those costs to be met out of the administrative budget.