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1.1 The evolving role of RFBs

A clear shift in the role of RFBs has occurred over the past half-century, a trend which has intensified since the adoption of key international fisheries instruments after the United Nations Conference on Environment and Development (UNCED). In the first half of the 20th century, RFBs approached the process of fisheries management in a gradual and evolutionary manner.[1] Mandates and functions of RFBs rested comfortably on the centuries-old concept of freedom of the seas, and the resource seemed abundant. The focus for decision-making in most RFBs was how best to serve as a forum for fisheries management rather than as a fisheries management body.

At a time when a narrow band of up to twelve miles defined coastal States’ authority, the major functions of RFBs were cooperative research[2] and database development and analysis. As databases were developed, rudimentary management systems such as mesh size limits[3] and closed seasons were adopted.[4] The mid-century realization that some fish stocks were being fished to the maximum limit and possibly beyond prompted more intense management measures such as catch quotas[5] and joint inspection schemes.[6] But these measures only extended as far as the mandate of the relevant RFBs allowed, and the number of RFBs in existence was still growing: their combined areas of competence did not cover all oceans, as they do today.

Despite the intensification of management efforts, international conflicts - some assuming the proportion of “fish wars” - surpassed the ability of RFBs to prevent conflicts or catastrophic overfishing. A major reason for this is that the mandates of many RFBs identified their roles as research arm and advisor rather than decision-maker and enforcer.

1.2 The role of RFBs under the 1982 United Nations Convention on the Law of the Sea (1982 UN Convention)

The first watershed event - initiation of the process leading to the 1982 UN Convention - prompted a focus on the emerging role of RFBs. A suite of new activities was envisaged by the Convention, giving RFBs a greater role than their founders may have generally intended.[7] The RFBs would maintain their essential functions as: fora for international cooperation; vehicles for research, analysis, and data repository and exchange; and advisors on fisheries management, in accordance with their mandates. The new activities would include:

Identification of these activities in the 1982 UN Convention prompted RFBs to review and amend their conventions and opened the door to the establishment of new organizations with more modern mandates. Of over 30 marine RFBs currently in existence, almost half have been established since the Convention was adopted.[8] However, an impediment to exercising the new mandates in the most effective manner has been attributed to the fact that the Convention does not confer management authority on RFBs. One reason for this is that the Convention ushered in an era of newly declared sovereign rights over extended areas of ocean space, which became a paramount consideration for many coastal States. In addition, the general state of the world fishery resources did not appear to be particularly worrisome.

In the years to come, the absence of broad international agreement on the management authority of RFBs received increasing attention, fueled by a growing awareness of the scarcity of fishery resources. The need for strengthened fisheries governance through RFBs steadily emerged as a pressing issue. It was acknowledged that to be effective, RFBs would need a clear mandate to manage the fishery resources in full respect of international law.

1.3 The role of RFBs under the Post-UNCED international fisheries instruments

1.3.1 The Post-UNCED international fisheries instruments

The second watershed event filled this gap to some extent - adoption of the 1995 United Nations Fish Stocks Agreement (“Fish Stocks Agreement”).[9] It brought the role of RFBs into sharper focus and is enhanced by other post-UNCED international fisheries instruments, especially the 1993 FAO Compliance Agreement, (“Compliance Agreement”)[10] the 1995 FAO Code of Conduct for Responsible Fisheries (“Code of Conduct”) and its subsequent International Plans of Action (IPOAs).[11]

A summary of the key provisions relevant to RFBs in each of the three principal instruments and the IPOA to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUU) appears in Appendix 1.

The Compliance Agreement entered into force in April 2003, the date of receipt of the twenty-fifth Instrument of Acceptance.[12] It has some provisions similar to those of the Fish Stocks Agreement concerning high seas fishing. However, unlike the Fish Stocks Agreement, the Compliance Agreement assigns the primary role of international coordination to FAO rather than RFBs. The Compliance Agreement does, however, suggest potential roles of RFBs in relation to the scope of its application, international cooperation, exchange of information and cooperation with developing countries.[13] However, there are no provisions directly relating to decision-making in RFBs.

The development of the voluntary Code of Conduct occurred over the same general time period as that of the Fish Stocks Agreement, and closely tracks the latter’s provisions. The Code extends to all fisheries and to fisheries-related matters beyond those covered by the Fish Stocks Agreement. RFBs are among the agencies tasked to implement the Code.[14] All IPOAs concluded pursuant to the Code refer to the role of RFBs in respect of the relevant activity: in particular, the IPOA-IUU has a number of provisions to this effect.

The Fish Stocks Agreement entered into force on 11 December 2001 with ratification by the thirtieth State, and is the most comprehensive of the international instruments in defining the role of RFBs, including references to decision-making. It was signed by 59 States and entities, and the number of States that have deposited ratifications is growing.[15] There have been successive General Assembly Resolutions calling for the implementation of the Fish Stocks Agreement,[16] and the vital role of RFBs in implementing the Fish Stocks Agreement was recognized by all States Parties at the 2002 Informal Meeting of the States Parties to the Fish Stocks Agreement.[17]

However, a May, 2003 report on the status and implementation of the Fish Stocks Agreement, prepared in response to a request by the General Assembly,[18] provides an overview of the main trends in implementation and identifies one constraint as the fact that no RFB was composed exclusively of Parties to the Agreement at the time of writing.[19] It was therefore not possible to say that any RFB is bound by the Agreement. In addition, several important fishing States are not parties.

The report, which features findings from a survey of States and other stakeholders, also states that “Notwithstanding the constraints, practice since the adoption of the Agreement demonstrates that even before entry into force, provisions of the Agreement have been widely used as a benchmark for State practice.” Positive trends identified in the report are the wide application of the Fish Stocks Agreement, even by non-parties, and a high priority given to almost all of the general principles for conservation and management in Article 5.

Although the Fish Stocks Agreement applies primarily to the highly migratory and straddling fish stocks on the high seas,[20] its broad acceptance and application is evidenced by the reinforcement of other international instruments, implementation at the regional level, and to some extent by State practice within areas of national jurisdiction.

The 2001 IPOA-IUU is a voluntary instrument. However, it is prominently visible and the subject of ongoing high-level attention. The 2002 World Summit on Sustainable Development (WSSD) called for States to urgently develop and implement national and, where appropriate, regional plans of action, to put into effect the IPOA-IUU by 2004. Subsequently, two supportive General Assembly Resolutions were adopted in 2003: one urged States to take all necessary steps to implement the IPOA-IUU, including through relevant RFBs, [21] and another urged States to develop and implement national and, where appropriate regional plans of action, to put the IPOA-IUU into effect by 2004. [22]

In addition, the Twenty-fifth Session of the Committee on Fisheries (COFI) considered the IPOA-IUU in February 2003. References to the IPOA-IUU in the report of that Session[23] include the following, indicating activity at both national and regional levels.

The IPOA has been the subject of much attention by regional fishery bodies,[26] and contains an extensive part on the role of RFBs, including direct reference to decision-making. Because the Fish Stocks Agreement and the IPOA-IUU contain the most rigorous provisions relating to responsibilities of, and decision-making processes in RFBs, they are considered separately below, mindful of their reinforcement by other international and regional instruments.

1.3.2 The 1995 UN Fish Stocks Agreement

The Fish Stocks Agreement aims for a coherent conservation and management process. This is indicated by areas it addresses, including measures and principles for fisheries conservation and management, establishment and functions of regional fisheries organizations, and boarding and inspection. Its dependence on RFBs to achieve that process is brought out in the following features of the text:[27]

One feature of the Fish Stocks Agreement is its application to “regional fishery management organizations or arrangements” (RFMOs). It does not purport to apply to RFBs that do not have a management mandate, but in practice, those with advisory mandates apply its requirements as appropriate.[28] Therefore, although reference to “RFMOs” is technically correct in the context of the Fish Stocks Agreement, it does in part have a broader application to all RFBs as appropriate. [29]

Fundamental to the new role it creates for RFBs in general, the Fish Stocks Agreement sets out an extensive list of RFB functions in Article 10,[30] primary among which is that States, in fulfilling their obligation to cooperate through RFBs, must agree on and comply with conservation and management measures to ensure the long-term sustainability of the stocks. States are also charged with agreeing on participatory rights such as allocation of allowable catch or levels of fishing effort. These, and other requirements of Article 10, underline the emerging management role of RFBs and consequently the increasing importance to be attached to effective decision-making. The Fish Stocks Agreement also provides for the following:

With respect to the last point above, there is a comprehensive provision on non-member States, which are not discharged from the obligation to cooperate in the conservation of the fish stocks. [36] It indicates that RFBs’ conservation and management measures may be applied, de facto, to non-member flag States whose vessels are fishing in the area. It allows deterrent action, consistent with international law, by members against non-members that undermine the agreed conservation and management measures. Although this is consistent with the general provisions on duties and responsibilities of States for high seas fishing in the 1982 UN Convention,[37] its scope is considerably broader. Because non-members do not participate in the decision-making process, they have no opportunity to opt-out of the agreed measures but may suffer consequences should they undermine those measures. Inclusion of such a provision in the Fish Stocks Agreement is clearly indicative of the growing importance the international community attaches to management decisions of RFBs.

The Fish Stocks Agreement describes member States’ rights to enforce the RFBs’ conservation and management measures on the high seas against vessels of States party to the Agreement, whether or not they are members. For example:

The comprehensive functions and responsibilities of RFBs described in Article 10 of the Fish Stocks Agreement include specific reference to the decision-making functions and procedures. In addition, other Articles of the Agreement directly address decision-making by RFBs, or by implication States cooperating through RFBs. This is done in the contexts of the precautionary approach, functions of RFBs, transparency requirements and dispute prevention as noted below.

In implementing the precautionary approach, States must “improve decision-making for fishery resource conservation and management by obtaining and sharing the best scientific information available and implementing improved techniques for dealing with risk and uncertainty.”[41]

The functions of RFMOs include the requirement for States, in fulfilling their obligation to cooperate through subregional or regional fisheries management organizations or arrangements, to “agree on decision-making procedures which facilitate the adoption of conservation and management measures in a timely and effective manner.”[42]

States must provide for transparency in the decision-making process and other activities of subregional and regional fisheries management organizations and arrangements.[43]

States must cooperate in order to prevent disputes and to this end must agree on efficient and expeditious decision-making procedures within subregional and regional fisheries management organizations and arrangements and strengthen existing decision-making procedures as necessary.[44]

These four important areas indicate broad international agreement on issues and approaches relating to decision-making in RFBs. They form the framework for the review in section 3, below, of decision-making in selected RFBs.

1.3.3 The IPOA-IUU

The IPOA-IUU amplifies obligations in the other post-UNCED fisheries instruments, and contains several paragraphs directly relating to action that should be taken through regional fishery management organizations.[45] It also refers to the role of RFBs in the context of other areas of concern, such as port State measures. References to RFBs in the IPOA-IUU appear in detail in Appendix 1.

A focal paragraph in the IPOA-IUU for decision-making states that objectives of institutional and policy strengthening in RFBs in relation to IUU fishing should include enabling the RFBs to: [46]

The IPOA-IUU also reiterates that non-member States are not discharged from their obligations to cooperate, in accordance with their international obligations, with relevant regional fisheries management organizations.[47] Several RFBs have adopted measures on cooperation with non-members.[48]

Most of the other actions relating to RFBs described in the IPOA-IUU would benefit from effective decision-making procedures, and include measures to develop innovative ways to prevent, deter and eliminate IUU fishing,[49] encouraging non-parties to join or participate in the organization[50] and agreeing on procedures to adopt measures where a State fails to ensure that its vessels or nationals do not engage in IUU fishing.[51]

[1] See Applebaum B. and Donohue A., “The Role of Regional Fisheries Management Organizations”, Developments in International Fisheries Law, Hey, E., ed., Kluwer Law International, the Netherlands, 1999.
[2] The International Council for the Exploration of the Sea was established in 1902 with a mandate to promote and encourage research and investigation on the seas, particularly those related to the living resources, to draw up programmes required for this purpose and to publish or otherwise disseminate the result of research and investigation. The first initiative on international cooperative research in marine fisheries in the Northwest Atlantic was the establishment of the North American Council on Fishery Investigations in 1921, by Canada, Newfoundland and the USA. France joined in 1922. It was discontinued in 1938.
[3] Such as the 1937 International Convention for the Regulation of the Meshes of Fishing Nets and Size of Fish for the Northwest Atlantic fisheries.
[4] Such as the 1950 International Convention for Northwest Atlantic Fisheries (ICNAF), which had the objectives of investigation, protection and conservation of fish. For many years, it recommended open and closed seasons, closed areas, size limits, gear prohibitions and overall catch limits. ICNAF is the precursor to NAFO. For a history of ICNAF, see Anderson, E.D., “The ICNAF History from 1945 to 1997”,
[5] In 1964 ICNAF established separate catch quotas, noting the necessity of some direct control of the amount of fishing, and in 1969 it adopted a Protocol allowing allocations.
[6] In 1970 ICNAF, recognizing the difficulty of enforcing its decisions, adopted a Joint Inspection Scheme.
[7] See Applebaum B. and Donohue A., note 1, supra, where articles of the 1982 UN Convention relating to the role of RFBs are analysed.
[8] These are: Comité régional des pêches du Golfe de Guinée (COREP) 1984; North Atlantic Salmon Conservation Organization (NASCO) l982; South East Atlantic Fisheries Organization (SEAFO) 2001; Commission sous-régionale des pêches (SRCF/CSRP) 1985; Indian Ocean Tuna Commission (IOTC) 1993; Regional Commission for Fisheries (RECOFI) 1999; Western Indian Ocean Tuna Organization (WIOTO) 1991; North Pacific Anadromous Fish Commission (NPAFC); 1993; Pacific Salmon Commission (PSC) 1985; Commission for the Conservation of Southern Bluefin Tuna (CCSBT) 1994; Latin American Organization for the Development of Fisheries (OLDEPESCA) 1984; North Atlantic Marine Mammal Commission (NAMMCO) 1992; North Pacific Marine Science Organization (PICES) 1992. The Convention establishing a Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Western Central Pacific Fisheries Organization), in 2000, had not yet entered into force at the time of writing.
[9] The 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 entered into force on 11 December 2001.
[10] Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High seas. Part of the Code of Conduct, the 1993 FAO Compliance Agreement entered into force on 24 April 2003.
[11] The IPOAs are: Incidental catch of seabirds in longline fisheries (1999); Conservation and management of sharks (1999); Management of fishing capacity (l999); and Prevention, deterrence and elimination of illegal unreported and unregulated (IUU) fishing (2001). In particular, the role of RFBs identified in the IPOA to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA – IUU) is extensively defined.
[12] As at July 2003, twenty-seven States had accepted the Compliance Agreement.
[13] For further analysis, see Applebaum B. and Donohue A., note 1, supra, also see provisions in Appendix 1.
[14] Articles 1.2 and 4.1, Code of Conduct for Responsible Fisheries. Also see Appendix 1.
[15] As at July 2003, thirty-four States had ratified the Fish Stocks Agreement. Importantly, of these, only ten have accepted the 1993 FAO Compliance Agreement.
[16] Most recently General Assembly Resolution 57/143. See also the 2002 Report of the Informal Consultative Process, paragraph 41, document 57/80.
[18] See Report of the Secretary General, distribution 30 May 2003, advance, unedited text. The status and implementation of the Agreement for the Implementation of the Provisions of the United Nations Convention for the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (Fish Stocks Agreement) and its impact on related or proposed instruments throughout the UN system, with special reference to implementation of Part VII of the Fish Stocks Agreement, dealing with the requirements of developing States.
[19] At the time of writing this document, the EC is expected to ratify the Fish Stocks Agreement. When this happens, and with current membership, SEAFO will become the first RFB in which all members are parties to the Fish Stocks Agreement.
[20] Provisions on the precautionary approach and compatibility of conservation and management measures may apply within areas of national jurisdiction: Fish Stocks Agreement, Article 3. Also note the Convention of one RFB implements the Fish Stocks Agreement for all stocks on the high seas, and is not limited to straddling and highly migratory fish stocks: see the description of the South-East Atlantic Fisheries Organization, in Appendix 2.
[21] A/Res/57/141. Oceans and Law of the Sea.
[22] A/Res/57/142. Large-scale pelagic drift-net fishing, unauthorized fishing in zones of national jurisdiction and on the high seas/illegal, unreported and unregulated fishing, fisheries by-catch and discards, and other developments.
[23] Report of the Twenty-fifth Session of the Committee on fisheries, Rome, 24-28 February 2003. CL124/7.
[24] Paragraph 18.
[25] Paragraph 22.
[26] A report prepared by FAO for the Twenty-fifth session of COFI in 2003 (COFI/2003/3Rev.1) titled “Progress in the Implementation of the Code of Conduct for Responsible Fisheries and related International Plans of Action” states that more than half of RFBs have addressed IPOA-IUU. In particular, RFBs dealing with specific species such as tunas (IATTC and ICCAT) and salmon (NASCO and NPAFC) showed more positive approach to implementation of IPOA-IUU. IATTC created a Permanent Working Group on Fishing by Non-Parties to address IUU fishing. IATTC also agreed to establish a regional register of vessels authorized to fish in its competent area and measures to discourage landings and trade of fish caught by IUU fishing. ICCAT indicated that many of its measures were stricter than those of IPOA-IUU. ICCAT also held a special meeting on ways to combat IUU fishing in May 2002. The Council of NASCO adopted a Protocol for States not Party to the Convention for the Conservation of Salmon in the North Atlantic Ocean, calling for each Party to the Protocol to prohibit fishing for salmon beyond areas of fisheries jurisdiction. The organization also promoted exchange of information and coordinated surveillance activities. The Committee on Enforcement of NPAFC coordinated enforcement activities by its Contracting Parties for eliminating IUU fishing in its competent area. APFIC and CECAF distributed all IPOAs to member States.
[27] For an analysis of the text, leading to this conclusion, see Applebaum B. and Donohue A., note 1, supra., and see also Appendix 1 for details of the provisions.
[28] For example, the Secretariat of the Pacific Community and the International Council for the Exploration of the Seas. They each take into account the principles in Article V when giving advice, such as the precautionary approach.
[29] For purposes of consistency and general application, this document will refer to RFBs while acknowledging that the Fish Stocks Agreement refers specifically to regional fishery management organizations or arrangements.
[30] Article 10, Functions of subregional and regional fisheries management organizations and arrangements:

“In fulfilling their obligation to cooperate through subregional or regional fisheries management organizations or arrangements, States shall:

(a) agree on and comply with conservation and management measures to ensure the long-term sustainability of straddling fish stocks and highly migratory fish stocks;

(b) agree, as appropriate, on participatory rights such as allocations of allowable catch or levels of fishing effort;

(c) adopt and apply any generally recommended international minimum standards for the responsible conduct of fishing operations;

(d) obtain and evaluate scientific advice, review the status of the stocks and assess the impact of fishing on non-target and associated or dependent species;

(e) agree on standards for collection, reporting, verification and exchange of data on fisheries for the stocks;

(f) compile and disseminate accurate and complete statistical data, as described in Annex I, to ensure that the best scientific evidence is available, while maintaining confidentiality where appropriate;

(g) promote and conduct scientific assessments of the stocks and relevant research and disseminate the results thereof;

(h) establish appropriate cooperative mechanisms for effective monitoring, control, surveillance and enforcement;

(i) agree on means by which the fishing interests of new members of the organization or new participants in the arrangement will be accommodated;

(j) agree on decision-making procedures which facilitate the adoption of conservation and management measures in a timely and effective manner;

(k) promote the peaceful settlement of disputes in accordance with Part VIII;

(l) ensure the full cooperation of their relevant national agencies and industries in implementing the recommendations and decisions of the organization or arrangement; and

(m) give due publicity to the conservation and management measures established by the organization or arrangement.”

[31] Article 11.
[32] Article 12.
[33] Article 13.
[34] Article 14.
[35] Article 17(4) and 33(2).
[36] Article 17.
[37] Articles 116-119.
[38] Article 21(2).
[39] Article 21(11)(i). Reference is made to Article 8 enforcement measures.
[40] Article 21(15), with the effect that, if an alternative mechanism is established, any member States may agree as between themselves to limit the enforcement mechanism established under Article 21(1).
[41] Article 6(3)(a).
[42] Article 10(j).
[43] Article 12(1).
[44] Article 28.
[45] The “RFMO” reference follows that of the Fish Stocks Agreement, rather than “RFB”, which would include bodies with advisory capacity. However, in some matters covered by the IPOA-IUU, such as policy, the bodies with an advisory mandate might also be guided. For consistency with the text and general application the term RFB is used in this document.
[46] Paragraph 82.
[47] Paragraph 79.
[48] For example, CCAMLR, CCSBT, GFCM, IATTC, ICCAT, IOTC, NAFO, NASCO, NPAFC. See Swan, J., “The Role of National Fisheries Administrations and Regional Fishery Bodies in Adopting and Implementing Measures to Combat IUU Fishing”, prepared for the Expert Consultation on Illegal, Unreported and Unregulated Fishing organized by the Government of Australia in Cooperation with FAO, Sydney, Australia, 15-19 May 2000.
[49] Paragraph 80.
[50] Paragraph 83.
[51] Paragraph 84.

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