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2.1 Strengthening fisheries governance by RFBs

The strengthened conservation and management role of RFBs, foreshadowed by the post-UNCED instruments and accompanying public demands for accountability and transparency, brought with it the need for an effective decision-making process and authority. This was recognized by the FAO Committee on Fisheries (COFI) at its 1995 Session. Taking into account the limited advisory powers of FAO RFBs established under Article VI of the FAO Constitution, the meeting concluded that if effective regional fisheries conservation and management bodies are to be established within the constitutional framework of FAO, then agreements under Article XIV could provide for a more appropriate structure with the necessary decision-making powers and flexibility. This contributed to the basis for a subsequent review and reform of FAO RFBs.[52]

The 1996 FAO State of the World Fisheries and Aquaculture Report (SOFIA) noted that many of the resources classified as overexploited in 1992 had been showing decreasing yields for the last 20 years and were producing 6 million tonnes less than they did in 1985 and about the same as they produced in the mid-1960s, when the fishing effort was far less. This came in the aftermath of the identification by SOFIA in 1994 that around 70 percent of the world’s fishery resources were overexploited or in states of recovery or collapse. Considering the provisions in the post-UNCED instruments and their effect on fisheries management, SOFIA reported in 1996 that the international community expected RFBs to play a central role in ensuring that the provisions of the international instruments were implemented.[53]

An FAO High Level Panel of External Experts in Fisheries concluded in a 1998 Report that:[54]

RFBs (are) essential in reinforcing regional cooperation and that recent events concerning the conservation and management of fisheries require that these bodies be strengthened to cope with new and additional responsibilities, including the provisions of the UN Fish Stocks Agreement, and the Code.

The last 30 years were essential to collect information and gain experience on the functioning of RFBs and that the next ten years would be to implement and enforce decisions so that world fisheries resources could be exploited and utilized in a responsible manner.

It has been observed that RFBs are in general taking innovative and cooperative action to implement the post-UNCED international instruments, many in an effort to rebuild depleted stocks or prevent further decline. [55] Their stature in fisheries governance is growing steadily, as reflected, inter alia, in the expanding obligations on States to cooperate through RFBs, the number of new RFBs established in recent years and the institutional and constitutional reforms achieved by many RFBs to meet current and future needs. In addition, RFBs have made important contributions to governance in the following areas, inter alia:

However, while many RFBs have responded positively to their new roles and responsibilities, the strengthened governance role of RFBs does not always translate into more effective fisheries management. RFBs face a number of constraints, one of which has been identified, for some RFBs, as a lack of willingness by member States to delegate sufficient decision-making powers and responsibility to the regional bodies.[56] In fact, failure by one RFB to take a decision has led to dispute settlement in the International Tribunal for the Law of the Sea.[57]

This review recognizes, but does not analyse the correlation between strengthened governance and effective fisheries management for a number of reasons. First, decision-making is only one of many interrelated elements of governance by RFBs.[58] There are at least three main elements involved in taking decisions:

Second, RFBs have considered the concept of developing performance indicators for self-evaluation (which could conceivably include evaluation of the decision-making authority and process), but while supporting in principle the need to develop performance indicators and related guidelines, they have not taken such action due to constraints such as cost, time and other priorities.[59] Third, RFBs generally have not appeared to be concerned about reviewing the decision-making part of their mandate.[60] Some RFBs have expressed concern, however, that their existing decision-making structure is hampering activities with respect to certain aspects of governance, including conservation of resources, IUU fishing, and monitoring, control and surveillance.[61]

Information on decision-making in RFBs will therefore be presented objectively against the backdrop of the strengthened governance role of RFBs, taking into account applicable law and practice.

2.2 Decision-making objectives, features and processes in RFBs

RFBs are expanding their roles, strategies, programmes and planning to meet current challenges. As noted above, this has been done in some cases within their existing framework, in others their establishing instrument has been subject to review and reform,[62] and elsewhere new RFBs have been established. Their collective areas of competence cover all the oceans, but their mandates vary considerably. While some still fulfil advisory functions, the more recent trend is to establish bodies with regulatory functions, empowered to take binding decisions on conservation and management measures.[63]

Decision-making processes for both advisory and regulatory bodies cover many types of decisions. These would include matters such as membership, finance and administration, work programmes and priorities, establishment of working groups, committees or other subsidiary bodies, research priorities, liaison with other bodies, implementation of international instruments, attendance by observes at meetings, and, if mandated, dispute settlement. The institutional complexity of some RFBs - for example, those with five different kinds of working bodies - suggests the breadth of their work and probable activity in decision-making. For example, two RFBs in the current review have five or more different kinds of working bodies, such as a commission, a council, a scientific committee, standing committees, and working groups.[64] However, those RFBs with fewer subsidiary bodies may have an equally active agenda for decision-making.

A key objective of decision-making in those RFBs with advisory functions is to provide the best advice possible in the most timely and effective manner. For those RFBs with regulatory functions, a process to determine management measures could include the following objectives:

While the rules and processes in each RFB vary, there are some common features among them. Rules for decision-making by the principal body of the RFB, usually a Commission, are normally found in the Convention or Agreement setting up the body. Rules for some subsidiary bodies, when they exist, are often in Rules of Procedure.

Most RFBs in this review allow for objections to conservation and management measures, with the result that the objecting party is not bound by the decision. Requirements and processes vary, as described in section 3.2.5, below. One RFB that does not allow objections requires unanimous agreement among all members for its decisions, thereby preventing the occurrence of objections in that RFB. [65]

Most of the RFBs in this review have adopted rules for attendance by observers, described in detail in section 3.3, below.

The Fish Stocks Agreement calls for dispute prevention through efficient and expeditious decision-making procedures. Dispute prevention is partly catered for by an objection procedure, but in general failure to reach decisions could become the basis for a dispute. The Fish Stocks Agreement addresses disputes in Part VIII, based on the obligation to settle disputes by peaceful means. The seven RFBs in this review that do not have dispute settlement procedures[66] were all established prior to 1983; however, two RFBs in this review established during that period do have dispute settlement.[67] A further description of dispute settlement provisions is in section 3.4, below.

Finally, another feature of the decision-making process that some RFBs in this review share is a surge in decision-making activity. The websites of some RFBs indicate the number of regulations or conservation measures adopted each year, and one RFB shows an increase of about 300 percent from 1990[68] while another shows an increase of around 500 percent in a similar period.[69] Two other RFBs in this review show a definite upward trend in the number of resolutions adopted.[70] Other RFBs present their information in the form of allocations or total allowable catches (TAC), rather than resolutions, and for one such RFB the reasons for lower TACs for some species in 2003 include application of the precautionary approach and a long term strategy. While this trend in some RFBs does not indicate the effectiveness or subject-matter of the decisions or the efficiency of the decision-making procedures, it clearly shows increased activity for certain RFBs.

In future, decisions taken to implement the Fish Stocks Agreement and the IPOAs may encourage the trend to continue or even increase. On the other hand, there is a possibility that RFBs may take decisions that do not meet the standards of the Fish Stocks Agreement: as noted above, membership of RFBs is not totally comprised of parties to the Fish Stocks Agreement. The question would then arise as to how far a party to the Agreement might fail to meet its obligations by being party to such RFB decisions.

2.3 Basis for this review of decision-making in selected RFBs

The main features of decision-making, described above, will be reviewed in the context of the provisions on decision-making applicable to RFBs primarily in the Fish Stocks Agreement, and drawing on examples from selected RFBs.

There is no attempt to analyse or evaluate the effectiveness of the decision-making process in any RFB (including the use or design of an objection procedure) or the reason for the adoption by an RFB of any particular process or decisions. As indicated in section 2.1 above, this would best be achieved by development of an objective set of performance indicators and guidelines, a concept discussed at the Second Meeting of FAO and Non-FAO RFBs held in February 2001. Among other things, participants emphasized that, in view of the diverse nature (in terms of mandate, species coverage, economic situation of members, governance systems, etc.) of RFBs, it would be difficult to establish indicators which were generally applicable to all of RFBs.[71]

Eleven RFBs, identified below, have been selected for this review as representative of decision-making processes and authorities in RFBs. All of them have mandates involving regulatory activity; the area of competence for most of them extends to areas under national jurisdiction; and they are arranged in categories that reflect a spectrum of geographical and species mandates. Their combined membership and mandates evidence the growing stature of RFBs as they move towards centre stage in fisheries governance.


International Whaling Commission (IWC)


Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR)


General Fisheries Commission for the Mediterranean (GFCM)

International Baltic Sea Fisheries Commission (IBSFC)

Northwest Atlantic Fisheries Organization (NAFO)

North East Atlantic Fisheries Commission (NEAFC)

South East Atlantic Fisheries Organization (SEAFO)


Indian Ocean Tuna Commission (IOTC)

Inter-American Tropical Tuna Commission (IATTC)

International Convention for the Conservation of Atlantic Tunas (ICCAT)

North Atlantic Salmon Conservation Organization (NASCO)

Detailed information relating to each of the above RFBs selected for this review appears in Appendix 2. It was taken from publicly available sources, and is presented according to the following framework.


3.1. Membership
3.2. The Commission, subsidiary bodies
3.3. Administration and Finance
3.4. Observers


4.1. Decisions of the Commission
4.2. Objection Procedure
4.3. Other decision mechanisms


A table titled “Summary Information Relating to Decision-making in some RFBs” appears in Appendix 3. It summarizes key points in Appendix 2 for easy reference, and sets out the following information on the RFBs in this review:

[52] See Swan, J. Regional fishery bodies and governance: issues, actions and future directions. FAO Fisheries Circular No. 959, Rome, FAO. 2000. 46p.
[53] In 2002, SOFIA reiterated that RFBs are needed to facilitate and reinforce regional cooperation and will face the challenge of implementing parts of the post-UNCED instruments over the next decade..
[54] Report of the High-Level Panel of External Experts in Fisheries. 26-27 January 1998. Rome, Italy. COFI 99/Inf.11.
[55] See Swan, J. “Summary Information on the Role of International Fishery Organizations or Arrangements and other Bodies Concerned with the Conservation and Management of Living Aquatic Resources”, FAO Fisheries Circular No. 985, FIPL/C985, Rome, 2003 for information indicating implementation of the post-UNCED fishery instruments by each RFB.
[56] See Report of the High-Level Panel of External Experts in Fisheries held in Rome, Italy, 26-27 January 1998, Committee on Fisheries document COFI/99/Inf.11, para. 28.
[57] Southern Bluefin Tuna Cases, New Zealand v. Japan, Australia v. Japan, 1999. Australia, Japan and New Zealand are all members of Commission for the Conservation of Southern Bluefin Tuna, which decides a total allowable catch (TAC) and distribution among the member States. Japan proposed an increased in the TAC starting in 1995, but no agreement was reached and the TAC remained unchanged until 1998. At that time Japan undertook what it describes as experimental fishing. In their requests to ITLOS, Australia and Japan claim this is essentially for Japanese commercial purposes, increasing the risk to the Southern Bluefin Tuna stock. ITLOS prescribed five provisional measures in 1999, including keeping catches to levels last agreed and refraining from conducting an experimental fishing programme.
[58] Others include institutional arrangements, mandate and functions, membership, members’ data provision, budget and finance, capacity, enforcement mechanisms, non-parties undermining measures, cooperative management, partnership/ stakeholder participation, collaboration with other RFBs, political will to implement decisions, acceptance of international instruments, dispute settlement mechanisms.
[59] See Report of the Second Meeting of FAO and non-FAO Regional Fishery Bodies or Arrangements. Rome, 20-21 February 2001. FAO Fisheries Report. No. 645. Rome, FAO. 2001. 26p. “While supporting in principle the need to develop performance indicators and related guidelines, participants emphasized that, in view of the diverse nature (in terms of mandate, species coverage, economic situation of members, governance systems, etc.) of RFBs, it was difficult to establish indicators which were generally applicable to all of RFBs. It was also pointed out that the costs of some evaluation methods such as external audits or formal quality control systems could prove onerous.”
[60] See Swan, J. “Regional Fishery Bodies and Governance: Issues, Actions and Future Directions” FAO Fisheries Circular No. 959, FIPL/C959, Rome, 2000.
[61] Ibid.
[62] For example, Inter-American Tropical Tuna Commission, General Fisheries Commission for the Mediterranean.
[63] For example, WCPFC (2000), SEAFO (2001), CCSBT (1994), IOTC (1993).
[64] NAFO and ICCAT. See Appendix 3, under “organization”. Details for the organization of each RFB are in Appendix 2.
[65] IATTC.
[66] IWC, IBSFC, NAFO, NEAFC (the issue is under review), IATTC, ICCAT and NASCO.
[67] CCAMLR and GFCM.
[68] CCAMLR’s conservation measures grew from around 20 to 60.
[69] ICCAT shows less than five regulations in the early 1990s, with about 30 regulations.
[70] IATTC shows eleven IATTC and AIDCP Resolutions for the June 2003 session, compared with five the previous year, seven for 2001 and one for 2000. IOTC shows nine for its seventh session in 2002, an increase of two from the previous year, but its fifth session in 2000 adopted only two resolutions.
[71] It was also pointed out that the costs of some evaluation methods such as external audits or formal quality control systems could prove onerous. FAO. Report of the Second Meeting of FAO and non-FAO Regional Fishery Bodies or Arrangements. Rome, 20-21 February 2001. FAO Fisheries Report. No. 645. Rome, FAO. 2001. 26p.

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