Management and governance conventions and protocols - SEAFC^[339], WCPFC and SADC^[340]

D.G.M. Miller^[341]

CCAMLR Secretariat, P.O. Box 213 North Hobart, Hobart, Tasmania, 7000, Australia
<[email protected]>
(Also: IASOS, University of Tasmania, Hobart, Tasmania Australia)

1. Introduction

The 1995 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 (United Nations Fish Stocks Agreement - UNFSA) (Anon. 1998a) aims to consolidate relevant provisions (particularly Articles 63, 64 and 116 to 120) of the 1982 United Nations Convention on the Law of the Sea (Law of the Sea Convention - LOSC)(Anon. 1983), which addresses conservation of such stocks. Together with the 1995 FAO Code of Conduct for Responsible Fisheries (Code of Conduct)(Anon. 1998b), UNFSA provides a framework for practical implementation of effective fisheries conservation and management measures. One of its main objectives is to progressively facilitate rational and long-term sustainable utilization of fisheries resources on both the high seas and in waters under national jurisdiction. It therefore places high priority on ensuring effective co-operation between coastal states and distant-water fishing states on a range of fundamental and technical issues pursuant to LOSC Articles 63 and 64.

This paper reviews two international fisheries agreements negotiated immediately prior to the entry into force of the UNFSA on 11 December 2001. These agreements seek to apply UNFSA provisions specifically to straddling fish stocks in the South-East Atlantic Ocean (Anon. 2001a) and to highly migratory fish stocks in the Western and Central Pacific Ocean (WCPFC) (Anon. 2000). More detailed emphasis is given to the former with the latter being included for comparative purposes. In conformity with the statement made by the UNFSA negotiation’s Chairman (Nandan 1995), the paper also illustrates how a regional economic and political alliance - the South African Development Community (SADC) - has recognized (through a specifically developed Protocol on Fisheries - Anon. 2001b) the importance of regional co-operation to ensuring consistent application of the UNFSA’s provisions in general, and of specific fisheries arrangements such as the South East Atlantic Fisheries Commission (SEAFC) in particular.

2. South east atlantic fisheries commission

2.1 Background

The regional fisheries management organization (RFMO) established under SEAFC Article 5 succeeds the International Commission for the Conservation of the Living Resources of the Southeast Atlantic (ICSEAF), established under the Convention of the same name, which entered into force on 23 October 1971 (ICSEAF 1969).

The evolution of SEAFC is closely associated with post-independence re-structuring of Namibia’s fishing industry. Prior to independence in 1990, ICSEAF strived to implement sustainable management of fisheries in the Southeast Atlantic in general, and in Namibian waters in particular. However, in practice, many of the 17 member states used ICSEAF as a way of legitimizing unsustainable exploitation of many target stocks concerned, despite South Africa’s attempt to regulate fishing off the Namibian coast through promulgation of a 200-mile Exclusive Economic Zone (EEZ) on 1 April 1981. This situation was largely attributable to the refusal of nations, whose flagged vessels were operating in Namibian waters, to recognize South Africa’s administrative powers granted under the League of Nations’ C-Class Mandate for the governance of South-West Africa in 1920. This Mandate was formally overturned by the United Nations General Assembly Resolution 2145 in 1961.

On independence, Namibia declined to become an ICSEAF Member and subsequently declared a 200-mile EEZ under the Territorial Sea and Exclusive Economic Zone of Namibia Act 1990. In combination with the 1992 Sea Fisheries Act, this legislation was directed at improving the management of targeted stocks and at developing Namibia’s own domestic fishing capacity. These actions were vindicated by a dramatic recovery of a large number of depleted resources within the Namibian EEZ, but necessitated terminating ICSEAF through a Protocol of Termination adopted in Madrid on 19 July 1990. Although the Protocol has not been ratified, it effectively ended ICSEAF.

During the 1990s, Namibia continued to consolidate its fisheries by implementing far-sighted management policies and through systematic commitment to both its national interests and its obligations under various international fisheries agreements. Clear demonstration of such commitment is apparent by the country’s signature and subsequent ratification (8 April 1998) of the UNFSA and its acceptance of the International Convention for the Conservation of Atlantic Tunas (ICCAT)(ICCAT 1966) in 1999. However, despite these developments, Namibia continued to express concern that certain and commercially valuable straddling stocks such as orange roughy (Hoplostethus atlanticus) required better protection to avoid compromizing their domestic potential as a result of unsustainable fishing practises on the adjacent high seas. Such concern was aggravated by prevailing uncertainty concerning the status of such stocks and about the actual levels of fishing targeting them^[342].

Namibia taking advantage of impetus provided by the UNFSA negotiations approached three neighbouring coastal states (Angola, South Africa and the United Kingdom, on behalf of its Dependencies of Ascension, St Helena and Tristan da Cunha) to establish a RFMO closely aligned with the UNFSA to manage fisheries resources on the high seas adjacent to their respective EEZs. During three meetings in 1997 (Table 1), the coastal states developed a draft convention which was presented to five other parties [the European Community (EC), Japan, Norway, Russian Federation and the United States], identified as having distant water fishing interests in the region. Other parties joining the negotiations included the Republic of Korea, Iceland, Poland and Ukraine. Negotiations continued over seven additional meetings and one technical consultation between 1997 and 2001 prior to the Convention’s signature on 20 April2001 by the four coastal states and by the EC, Iceland, the Republic of Korea, Norway, and the United States. Japan did not sign the Convention but indicated its support for it.

The various SEAFC drafts drew on a number of existing instruments to provide for the highest possible standards of fisheries management. Particular cognisance was taken of relevant provisions of the LOSC, UNFSA, Code of Conduct and the 1982 Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) (CCAMLR 2002). Although, the initial draft text was extensively modified during the various meetings, the core principles remain distinct in the final Convention text (see Section 2.2). However, it should be emphasized that the UNFSA constituted the basis for most of the discussions on the SEAFC text.

SEAFC was ratified by Namibia on 7 June 2002, approved by the EC on 8 August 2002 and ratified by Norway on 12 February 2003. The conditions for the Convention’s entry into force (three signatories, one being a coastal state) under Article 27 were therefore met on 13 April 2003, 60 days after the Norwegian ratification.

TABLE 1
SEAFC negotiating meetings

2.2 The Convention

2.2.1 Background

SEAFC’s primary objective (Article 2) is to "ensure long-term conservation and sustainable use of the fishery resources in the Convention Area". There was considerable debate as to whether the term "fishery resources" should be applied rather that the broader term "marine living resources". Partly in deference to the EC’s undisputed competency for fisheries matters, the current formulation was accepted. It therefore became necessary to clearly define "fishery resources" (see Section 2.2.2) as opposed to "marine living resources" in Article 1 to limit the Convention’s primary application to exploited species, unless otherwise indicated [e.g. in Article 10.(2).(c)] or expressly qualified by some direct effect of fishing activities on non-target species such as seabirds.

2.2.2 Area of application

The SEAFC Area roughly corresponds to FAO Statistical Area 47. It applies to waters beyond areas of national jurisdiction (SEAFC Article 4) and is bounded in the south, i.e. at 50^oS, by the northern CCAMLR boundary. The Area extends south-east of South Africa to 30^oE in the Indian Ocean in an attempt to account for hydrological and ecological commonalities between the Benguela and Agulhas Currents in the Atlantic and Indian Oceans respectively, particularly in the vicinity of the Agulhas Bank. In definitive terms (Figure 1), the SEAFC Area comprises all waters in an area bounded by a line joining the following points of latitude and meridians of longitude "beginning at the outer limit of waters under national jurisdiction at a point 6^o South, thence due west along the 6^o South parallel to the meridian 10^o West, thence due north along the 10^o West meridian to the equator, thence due west along the equator to the meridian 20^o West, thence due south along the 20^o West meridian to a parallel 50^o South, thence due east along the 50^o South parallel to the meridian 30^o East, thence due north along the 30^o East meridian to the coast of the African continent". There is a small deviation from Statistical Area 47 in the vicinity of Ascension Island so as to include the entire zone around the Island as well as the adjacent high seas (Jackson 2002).

In the Final Minute^[343], and at Angola’s insistence, a resolution was attached to allow possible application of the SEAFC Area to include the small enclave known as Cabinda, which adjoins the Congo River on the borders of Angola and the Democratic Republic of the Congo (DRC). The result is a small discontinuous region in the Convention Area’s northern boundary. Given the prevailing uncertainty at the time concerning the legitimacy of the DRC government, this may have been aimed at underpinning the international legitimacy of Angola’s claim to oil-rich Cabinda rather than an expression of any particular fisheries interests. It remains to be seen how the boundary in the Cabinda region will be applied in practice. The resolution clearly indicates that the issue will be considered at the first full meeting of the SEAFO Commission.

It should also be noted that Japan in particular expressed reservation on whether the application of SEAFC to areas outside those under national jurisdiction alone was consistent with other agreements. While the reasons for this position are not clear, it may have been an attempt to enhance historic fishing performance under ICSEAF as a precedent for gaining access to Namibia and Angola’s comparatively rich fisheries resources. Alternatively, it could also have been in response to developments elsewhere, especially the parallel WCPFC negotiation process (Section 3).

2.2.3 Stocks covered

SEAFC Article 1.(l) identifies the fishery resources to be covered by the Convention as all resources of fish, molluscs, crustaceans and other sedentary species within the Convention Area, excluding:

• sedentary species subject to the fishery jurisdiction of coastal states pursuant to Article 77.(4) of the LOSC and

• highly migratory species listed in LOSC Annex I.

In excluding highly migratory species, SEAFC recognizes the competence of ICCAT. In this context, Article 18.(4) ensures that in applying SEAFC’s objectives (Article 2) and general principles (Article 3), co-operation is encouraged with other relevant fisheries management organizations, such as ICCAT and account is taken of their conservation and management measures for the region.

TABLE 2
Species covered by SEAFC listed in Section 5 of the Annex to the Convention

The stocks covered by SEAFC (Table 2) include those that straddle the Convention Area and adjacent waters under national jurisdiction as well as discrete high-seas stocks that do not occur during any part of their life cycle in waters under national jurisdiction. Jackson (2002) has indicated that this distinction is a legal one and does not necessarily conform to the biological distribution of individual stocks. This is an important distinction since the SEAFC negotiating process recognized that conservation and management of discrete stocks, notwithstanding their distribution exclusively in the high seas, would incorporate such stocks under the general obligation to co-operate in the development of suitable conservation measures outlined in LOSC Article 117. Equally, they would not be subject to specific requirements for regional co-operation contained in LOSC Articles 63 and 64 or throughout UNFSA.

Despite being limited to the high seas, SEAFC Article 19 provides for co-operation between coastal states and other SEAFC Parties to ensure compatibility between conservation and management measures for straddling stocks both in the Convention Area and in adjacent coastal waters under state jurisdiction.

2.2.4 Openness and transparency

Both the SEAFC negotiations and provisions covering ratification, approval (Article 25) and accession (Article 26) render the Convention open to all parties (including states and regional economic organizations) in accordance with their rights and obligations under LOSC Article 116 in particular. In addition, Article 22.(4) provides for the co-operation of fishing entities in meeting the Convention’s objectives. Such reference clearly draws on similar consideration outlined in UNFSA Article 1.(3). This particular provision anticipates that such entities, as well as other non-contracting parties, will enjoy benefits from participation commensurate with their commitment to SEAFC’s conservation and management measures. How such participation could be assessed was not addressed and remains moot. Nevertheless, the encouragement of openness assists in avoiding complicated assessments of the rights of new participants in terms of some of the considerations identified in UNFSA Article 11. Some of these, however, have taken into account in the procedures attached to the allocation of fishing opportunities (UNFSA Article 20 and Section 2.2.6) and the need to account for the special needs of developing states (SEAFC Article 21).

Another issue that remains unresolved is that of "real interest". After much debate, the SEAFC negotiators were not able to define this term in relation to the fisheries covered by the Convention^[344] despite an obvious desire to further the real interest eligibility provisions of UNFSA Article 8.3. Despite their failure, the Convention’s Preamble clearly indicates that the question of "real interest" remained in the minds of the negotiators as an important consideration for participation in meeting SEAFC’s objectives.

The Convention complements its attempts to promote openness by expressly recognizing the need to provide for transparency in its activities. Based on similar sentiments in UNFSA Article 12, SEAFC Article 8.(9) clearly urges the Commission to adopt rules of procedure, as a matter of urgency, to allow for transparency in its activities. It further emphasizes that these rules should not be unduly restrictive and should provide for timely access to SEAFO records and reports subject to any subsequent agreement on procedural rules.

2.2.5 Institutional aspects

SEAFC Article 5 establishes the "Organization" (i.e. SEAFO) responsible for carrying out the institutional functions underpinning the Convention’s successful implementation. This comprizes the Commission, the Scientific and Compliance Committees as subsidiary bodies and the Secretariat. The Commission is also empowered to establish subsidiary bodies as necessary. The functions of the Commission and its subsidiary bodies are detailed in Articles 6 (Commission), 9 (Compliance Committee), 10 (Scientific Committee) and 11 (Secretariat). In particular, the language of Articles 6, 10 and 11 draws heavily on similar CCAMLR Articles - namely IX, XV and XVII respectively (CCAMLR 2002).

Budgetary considerations are outlined in SEAFC Article 12 with Article 12.1 and clearly stress that the Organization be cost-effective. As a matter of principle, each contracting party is required to contribute to the budget [Article 12.(2)] an equal basic fee and a fee determined from the total catch of species covered by the Convention. Parties agreed during negotiations that every effort should be made to activate SEAFO in order to anticipate, and ameliorate, any potential problems likely to arise should fishing in the Convention Area suddenly increase. However, in budgetary terms, considerable uncertainty surrounds the economic value of both the current and future fishery in the Area. The Parties thus anticipated that SEAFO’s tasks would increase at a rate commensurate with the work required by the development of the fisheries concerned.

To assess both the urgency for SEAFO conservation measures and to provide some basis for budget estimates, the negotiating Parties attempted to share available catch data from the Convention Area. Initially, information was complied by the South African Government until 1999, when the Parties agreed at the Fifth Meeting (Table 1) that, to ensure the veracity and consistency of data, future attempts to monitor fishing in the Convention Area should await SEAFC’s entry into force when obligations to that effect could be created. Therefore, the Technical Consultation held in February 2000 (Table 1) drafted interim measures to ensure collection of relevant data by contracting party flag states immediately upon the Convention’s entry into force. These measures were annexed to the SEAFC.

Following a similar approach invoked by CCAMLR Article XIX.(3) and its attached financial regulations (CCAMLR 2002), SEAFC Article 12.(4) requires an equal contribution from each contracting party for the first three years after the Convention’s entry into force, or any shorter period as decided by the Commission. This was seen as a way to cover SEAFO’s initial establishment costs. Thereafter, it was agreed that the assessed proportionate contributions alluded to in Article 12.(2) would be applied in a manner that considered the economic status of each contracting party. The basis of how this status could be assessed has not been made clear although the final sentence of Article 12.(3) indicates that it should be the economic status of any territory which adjoins the Convention Area as opposed to that of the contracting party governing such territory. This provision was inserted at the request of the United Kingdom to account for the overseas territories (Ascension, St Helena and Trstan da Cunha) on whose behalf it was negotiating.

2.2.6 Decision-making

Contrary to many other RFMOs, the SEAFC negotiators recognized that there was merit in ensuring that once a decision is reached on any matter of substance (e.g. conservation measure) then every effort should be made to ensure that it is implemented by all contracting parties in a manner that does not require that it be revisited for any reason other than some "exceptional circumstance". Therefore, SEAFC Article 17 indicates that any SEAFO decisions on matters of substances will be by consensus. The wording of this particular article is similar to CCAMLR Article XII (CCAMLR 2002), which also provides for consensus-based decision-making.

SEAFC Article 23 sets out how decisions will be implemented. As emphasized by Jackson (2002), and notwithstanding any compromises attached to the achievement of consensus, Article 17 provides for a contracting party to register its non-acceptance of such decisions and therefore not be bound by them. This is similar to the non-acceptance procedures outlined in CCAMLR Article IX.(6) (CCAMLR 2002) and in Article XII of the Convention on Future Multilateral Cooperation in Northwest Atlantic Fisheries (NAFO) (NAFO 1979).

Despite perceptions to the contrary, Article 23 attempts to make clear the exceptional nature of any application of SEAFC’s "non-acceptance" provisions. Consequently, this particular Article introduces a number of procedural checks to preserve the right of any SEAFC contracting party not to comply with a SEAFO decision. These checks include written detail of any alternative measures to be implemented by the party concerned, a clear explanation of why the party is unable to be bound by the decision, the opportunity for all Contracting Parties to review the matter at a special meeting and, on request, the establishment of an ad hoc expert panel to make recommendations on the matter.^[345] It is unclear how these provisions will work, however, it should be stressed that in CCAMLR’s some twenty-two year existence, its "non-acceptance" provisions have been activated once and then only for technical reason relating to data reporting requirements contained in CCAMLR Conservation Measure 37/X (CCAMLR 1991). The adoption of a new conservation measure (CCAMLR Conservation Measure 56/XI) the following year appeared to rectify the problem.

Finally, SEAFC does not provide a mechanism for specifically resolving potential deadlocks in decision-making. Consequently, it is implied that failure to resolve any deadlock would automatically result in a "dispute" being declared and the matter would become subject to the procedures of Article 24 (Section 2.2.8).

2.2.7 Fishing opportunities

The SEAFC article (Article 20) dealing with allocation of fishing opportunities was one of the last and most difficult to negotiate. Not only had equitable access to economic benefits to be addressed, consideration also had to be given to providing for a balance between the interests of distant-water fishing nations and those of developing coastal states eager to build their fishing industries. A key consideration was how historical fishing performance in the Convention Area should be weighted in providing access to resources for new entrants and in terms of providing equity of access to previously unregulated, or unexploited, resources. A clear illustration of the inherent complexity and difficulty of such debate was also manifest during ICCAT’s deliberations on quota allocation over the past few years.^[346]

In the first instance, all the SEAFC negotiating Parties agreed that the LOSC Article 116 should prevail and consequently all states have a legitimate right to engage in fishing subject to their LOSC obligations and the rights and duties of coastal states provided for, inter alia, in LOSC Article 63.(2) and Articles 64 to 67. While SEAFC does not provide a precise recipe for fisheries or quota allocations, Article 20 provides extensive guidance. In this context, it is worthwhile noting that the term "fishing opportunities" was developed at the Third Meeting of the Coastal Stares (Table 1) in an attempt to detract from negative connotations attached to the use of such phraseology as "quota allocation" and "fishing rights".^[347] Further, an original coastal states’ proposal to reserve a pre-determined, but unspecified, quota percentage for their use had fallen away by the Third Meeting (Table 1).

As noted, SEAFC Article 20 (Table 3) takes account of all the criteria set out in UNFSA Article 11. Noteworthy additions include the stage of fishery development [Article 20.(1).(c)] and contributions to new and exploratory fisheries subject to UNFSA Article 6.6 [SEAFC Article 20.(1).(f)]. Application of the various criteria in SEAFC Article 21.(1) is qualified for allocation of fishing opportunities insofar that the Commission takes into account information, advice and recommendations on the implementation of, and compliance with, conservation and management measures by the contracting party concerned.

TABLE 3
Factors to be taken into account by the SEAFC Commission in determining nature and extent of participatory rights in fishing opportunities under Article 20 (1)

Article 20 affords no priority weighting to any particular criteria nor does it indicate how they should be applied. It does attempt to recognize the diverse interests of SEAFO Parties in such a way that transparency is introduced to the way that decisions on allocation of fishing opportunities are taken. Also, while providing some guidance on allocation, possibly more than other regional Conventions that pre-date UNFSA (Jackson 2002), specific details have been left to the Commission to develop at a later stage.

2.2.8 Control measures

Considerable focus was given during the SEAFC negotiations to development of a robust SEAFO monitoring, control and surveillance (MCS) system. As emphasized by Jackson (2002), this system came to be based largely on flag state responsibilities and complementary measures.

Flag state measures

SEAFC Article 14 sets out the flag state responsibilities of SEAFC parties. These include the taking of necessary measures to ensure that the Convention is not undermined [Article 14.(1), 14.(2) and 14.(4)]. The type of measures envisaged are outlined in Article 14.(3)(Table 4) and it is apparent that some of these (e.g. dealing with bilateral exchange of observers and deployment of vessel monitoring systems) are cognisant of similar measures used by other RFMOs and by CCAMLR in particular. In addition, Article 14.(4) requires that SEAFO flag states ensure that their vessels operating in waters adjacent to the SEAFC Area do not fish in a way that undermines the Organization’s agreed measures. As a whole, SEAFC Article 14 draws heavily on UNFSA Articles 18 and 19.

The generalities outlined in SEAFC Article 14 are developed further in Article 16 in respect of observation, inspection, compliance and enforcement - the ‘MCS’ System. In particular, Article 16 establishes principles to underpin the System [Article 16.(2)] and introduces elements comprising control measures linked to flag state duties under Article 14 as well as at-sea and in-port inspection, at-sea observer programmes and procedures to follow-up on infringements [Article 16.(2)]. There was considerable debate on whether the System constituted an alternative mechanism for regional co-operation in enforcement, as in the UNFSA Article 21.(15), or not. The EC in particular believed that it did and therefore the detailed development of SEAFC MCS procedures should await the Convention’s entry into force, particularly in respect of reciprocal arrangements for boarding and inspection as outlined in the UNFSA Article 22.

Consequently, Article 16 leaves it to the SEAFO Commission to establish its own observation, inspection, compliance and enforcement system [Article 16.(1)]. However, it also emphasizes that the "major purpose" of such a system is "to ensure that contracting parties effectively discharge their obligations under this Convention and, where applicable under the 1995 Agreement [i.e. UNFSA], in order to ensure compliance with the conservation and management measures agreed by the Commission". Article 16.6 provides the additional caveat that after two years a special meeting may be convened at the request of any contracting party should the Commission not establish a satisfactory MCS system and to strengthen the effective discharge of contracting party obligations under both SEAFC and UNFSA. This compromise contrasts markedly with the mandatory institution of the procedures outlined in UNFSA Article 21 and 22 in the event that consensus cannot be reached on a suitable MCS system within the first two years after SEAFC’s entry into force (see Section 3.2.7). It also illustrates the difficulties faced by the SEAFC negotiators in developing the Convention before UNFSA’s entry into force, particularly when extending the former’s mandate to include discrete stocks on the high seas in the absence of a clear international precedent.

TABLE 4
Measures to be taken by SEAFC Parties under Article 14.(3) to ensure flagged vessels give effect to measures agreed by the Commission

Article 16 anticipates that there is probably little point in applying specific MCS procedures in the absence of information on the form, extent or direction of, as yet undeveloped, management measures. For this reason, Article 16.(5) anticipates the setting up of the Convention’s Annex (developed at the Technical Consultation in April 2000 - Table 1) to provide interim arrangements for flag state reporting as a pre-cursor to the MCS system. These interim arrangements will remain in force until the system is adopted or until the Commission decides otherwise.

Other measures

Other major measures aimed at ensuring compliance in the absence of effective flag state control include attempts to outline port state controls and to target individuals (i.e. "nationals") or national industries (i.e. "beneficial owners") as sources of non-compliance with SEAFO measures.

The SEAFC port state controls are relatively straightforward. Article 15 provides for in-port inspections and, where appropriate, prohibition of landings and transhipments. While the language of this particular Article is essentially similar to UNFSA Article 23, a major difference is that it mandates port state action.

In respect of nationals or national industries, the SEAFC negotiations again encountered difficulties in the absence of any clear international precedent. For this reason, the wording of SEAFC Article 13.(6).(a) is complex, convoluted and highly qualified:

"Without prejudice to the primacy of the responsibility of the flag state, each Contracting Party shall, to the greatest extent possible, take measures, or co-operate, to ensure that its nationals fishing in the Convention area and its industries comply with the provisions of the Convention. Each Contracting Party shall, on a regular basis, inform the Commission of such measures taken".

The difficulties appeared to diverge on a matter of principle. Essentially, this depended on whether the negotiating parties saw reference to nationals in LOSC Articles 116 to 118 as being perfunctory and, or, salutary as opposed to mandatory. Furthermore, the EC expressed some interpretational difficulties associated with the term "nationals", presumably based on complimentary status of people in respect of their sovereign birthright and their right to citizenship under the 1992 Maastricht Treaty (Anon. 1992).

In light of such divergence of opinion, and as for other parts of SEAFC, the compromise reached attempts to balance prevailing views. Therefore, as Jackson (2002) has emphasized, by according primacy to the flag state, along with recognition of exclusive jurisdiction of such states over their flagged vessels on the high seas^[348], the scope of Article 13.(6).(a) is limited to preventative measures before, or corrective measures after, nationals have fished in defiance of SEAFC measures. As a consequence, there is no suggestion that flag state jurisdiction aboard the vessel(s) concerned has been compromized in any way. Second, while the precise measures or type of co-operation are not spelt out, the obligation to act "to the greatest extent possible" is not insignificant.^[349]

Also, despite their complexity, the SEAFC provisions addressing control of nationals may be viewed as unique. While building on presumptive wording in UNFSA Article 10.(l), there is little doubt that they were also developed because of growing international concern over eliminating Illegal, Unreported and Unregulated (IUU)^[350] fishing, as well as a growing national practice aimed at addressing the problem^[351] by denying vessel operators the economic benefits of unregulated fishing.

While it should be recognized that effective action under SEAFC Article 13.(6).(a) may prove difficult for legal reasons (e.g. collection of evidence or attribution of responsibility), its inclusion does indicate recognition that action against nationals and, or, national industries may be required. Obviously, such action would only be taken in response to violation of SEAFO measures.

Finally, Article 13.(6).(b) attempts to require SEAFO Contracting Parties to exercize their fishing responsibilities subject to the vessels concerned flying their flags. As emphasized by Jackson (2002), this attempts to deal with the chartering of vessels and is different from the situation of NAFO (NAFO 1979) where one contracting party may charter a vessel from another without a change of flag.

2.2.9 Other provisions

General principles

Initially, the SEAFC’s Objective and attached General Principles formed part of a single article. However, by the Sixth Meeting, Article 2 had been agreed to in an attempt to provide the Convention with a more sharply focused objective. Nevertheless, there was general agreement that there would be efficacy in listing some key general principles associated with the SEAFC’s effective implementation in Article 3. In particular, two of the original objectives proposed by the coastal states were retained and these focused on the need to take account of the best scientific information available when adopting measures [Article 3.(a)] and to ensure minimal impacts by fishing practices and management measures on the marine ecosystem as a whole [Article 3.(e) and 3(f)]. The retention of these elements was an attempt to counter the rather narrow definition of the "target" resources contained in the Convention mentioned in Section 2.2. It was also deemed necessary in the light of similar attempts to manage fisheries from an ecosystem perspective as referenced in UNFSA Article 5 and practized by other regional RFMOs such as CCAMLR.

Application of the precautionary approach

In respect of applying the precautionary approach, SEAFC Article 7 went through a series of major modifications. In the initial coastal state draft, extensive cross-reference was made to UNFSA Article 6, even to the point of producing two annexes detailing the approach’s general implications [based on Section 7.5 of the 1995 FAO Code of Conduct for Responsible Fisheries and particularly Section 1.6 of the attached Technical Guidelines -FAO (1996)] and attempting to provide some guidelines for the application of precautionary reference points (UNFSA Annex. II). The abbreviated, and somewhat diluted, final version of Article 7 was thus probably a consequence of two factors. First, certain of the SEAFC negotiators (particularly Japan and the EC) were reluctant to agree to wording similar to that in UNFSA, in absence of their ratification and acceptance (see also Section 2.3). Second, the EC also appeared to have difficulty in addressing application of the precautionary approach, along with ecosystem concerns, most probably as a consequence of perceived limitations in its mandate to deal with such matters.

Co-operation and compatibility of management measures

SEAFC Articles 18 and 19 respectively deal with co-operation between SEAFO and other relevant organizations (principally the FAO) and with ensuring harmonization of measures for straddling stocks in the Convention Area and in areas under national jurisdiction. The negotiation of both Articles was relatively uncontroversial. However, it should be noted that Article 19 calls for compatibility of measures in a manner consistent with their establishment under LOSC Articles 61 and 119.

Special requirements of developing states

Much of the impetus to negotiate SEAFC was provided by developing states. This was clearly reflected in various provisions, particularly the Articles dealing with fishing opportunities (Article 20) and the budget (Article 12). In fact, the balance of interests between distant water fishing states and coastal developing states set out in Article 20 paved the way for Article 21 that explicitly recognizes the special needs of developing states in the SEAFC region. As such, SEAFC Article 20 draws heavily on UNFSA Articles 24 and 25. Emphasis is given to meeting the financial, technical and other needs of both present and future developing states in the region to provide for their improved conservation of, and sustainable access to, the resources covered by the Convention. Not only is recognition given to the general intent of LOSC Article 63.(2), the SEAFC drafters clearly strived to reflect the intention that SEAFO is open to all states in the region, as well as other distant-water fishing states, while bearing in mind a common benefit to the region as a whole.

Non-Parties

As for UNFSA Article 33, SEAFC Article 22 calls on Non-Parties to co-operate fully with SEAFO to ensure that its measures are not undermined [Article 22.(1)] and that appropriate steps are taken by contracting parties [Article 22.(3)] to deter inappropriate fishing activities by non-contracting parties which undermine SEAFO conservation measures. However, SEAFC Article 22 goes further than the UNFSA in specifically providing for the exchange of information on non-party fishing activities [Article 22.(2)] and in addressing the aspirations of fishing entities [Article 22.(4)] (See Section 2.2.3).

Dispute settlement

SEAFC Article 24 outlines procedures for settling disputes. To address issues likely to arise from both straddling and discrete stocks, the Article quite cleverly uses the dispute settlement procedure for the former contained in UNFSA Part VIII and for the latter in LOSC Part XV. As already emphasized in Section 2.2.5, provision is also made for the establishment of an ad hoc expert panel to address technical disputes similar to that established under UNFSA Article 29. Finally, the SEAFC procedures apply to all contracting parties whether or not they are parties to UNFSA and, or the LOSC.

Relation to other agreements

As already emphasized, SEAFC Article 30 does not release any contracting party from its obligations under the LOSC, or any other compatible agreement, nor does it erode its rights under any such agreement. Obviously, the question of compatibility of any agreement with the LOSC is open to some interpretation, but given the precedents of international law, this is unlikely to be a major shortcoming in the effective application of the Article.

Maritime claims

In light of the Angolan resolution attached to the final minute (see Section 2.2.1), a disclaimer on recognition, or otherwise, of claims, or positions, on the extent of waters or zones claimed by any contracting party was deemed necessary to avoid potential disputes in the future. Therefore, Article 31 specifically elaborated the attendant provisions necessary to protect SEAFO’s position and those of all contracting parties.

Finally, it should be emphasized that all the SEAFC negotiating parties felt that it was not necessary to develop specific provisions, such as those contained in UNFSA Articles 34 and 35, to address good faith and abuse of rights along with responsibility and liability respectively. In the case of the former, the sentiment was strongly expressed that finalization of SEAFC was in itself a clear indication of "good faith", but a reference to the need for each contracting party to fulfil its SEAFC obligations in good faith was made in Article 13.(8).

2.3 Relationship with the UNFSA and other instruments

Discussion thus far has identified various links between SEAFC and UNFSA. However, some of these are worth re-emphasizing together with other considerations. In the first instance, it is notable that the FAO was only an observer during the SEAFC negotiation process and that no non-governmental organizations (NGOs) attended any of the sessions. This situation prevailed despite the negotiators obvious acceptance that SEAFO should ultimately be an "open" organization (see Section 2.2.3). Non-participation by such organizations was seen by many of the negotiating parties, particularly the coastal states, as a way of ensuring that the interests of these parties were not compromized by any extraneous influences. A similar situation prevailed in the MHLC negotiations [Section 3.1]. Nevertheless, and despite limited involvement, FAO provided useful technical input into the SEAFC negotiations.

Second, the use of the UNFSA as a basis for much of the SEAFC negotiations resulted in some uncertainty as the UNFSA was not in force. This was complicated by the fact that some SEAFO negotiating parties (e.g. South Africa) were not yet UNFSA signatories and it was unclear whether all future SEAFC Parties would be bound by the Agreement. Japan, in particular, appeared wary of legitimizing the UNFSA through "inappropriate" or "subversive" cross-referencing (Jackson 2000).

However, together with SEAFC’s application to discrete high-seas stocks, such considerations raise various questions on the extent of the relationship between SEAFC and UNFSA. One obvious question is whether SEAFC’s application to discrete stocks implies any extension of UNFSA’s mandate to all fishing on the high seas.

Prior to negotiating SEAFC, only LOSC Article 117 provided the general international legal framework whereby states are obliged to co-operate to ensure conservation of living resources on the high seas (Jackson 2002). With the exception of the dispute settlement procedures in SEAFC’s Article 24, that Convention’s provisions apply equally to both straddling stocks and high-seas stocks. It would therefore be reasonable to assume that at least the SEAFO Parties have indicated their willingness to apply UNFSA provisions to discrete high-seas stocks. Whether this will set a legal precedent remains to be seen. Pursuant to this, in considering control measures, there was no general unanimity among the SEAFC negotiators as to how far UNFSA provisions could be transposed into the Convention text. This consideration was put off until such time as the Commission can agree on the MCS system it wishes to support.

Apart from consideration of discrete stocks, the extensive use of UNFSA by the SEAFC negotiators illustrates some of the Agreement’s strengths. The SEAFC experience shows that much of UNFSA’s language can be tailored to fit a more focused regional agreement. Contrary to Jackson’s (2002) suggestion, this may not mean that UNFSA offers a rigid framework on which to base the drafting of such agreements, but it will facilitate negotiation. To emphasize the point further, the SEAFC and WCPFC (see Section 3.3) processes clearly illustrate how easily UNFSA lends itself to different regional contexts.

It was always intended that SEAFO should have a strong regional character. This was catered for in the SEAFC articles dealing with the budget (Article 12), MCS (Articles 14-16) and the special needs of developing states (Article 21). Cost-efficiency is emphasized with particular allowance made for the Commission to develop its own MCS System [Article 16.(5) and the Convention Annex].

The UNFSA also remains flexible enough to provide for parties that may not be parties to the Agreement. However, this may give rise to apprehension that selective use of UNFSA language may directly, and possibly prejudicially, affect the obligations to which particular SEAFC Contracting Parties become bound in a regional sense and this could prejudice the interest(s) of such parties elsewhere. However, as Rayfuse (2000) has emphasized, reiterating a quotation in reference to the Antarctic Treaty, the UNFSA may have been "intended to create a regime which could be become universally accepted. But there [was] no intention of imposing that regime; any attempt to do so would have been illegal". This situation could apply to the SEAFC.

Jackson (2002) indicated that circumstances where a contracting party must deal with similar subject matters in different agreements is not new, neither to fisheries nor to international law under the Vienna Convention.^[352] However, it could become more common, not only in the case of SEAFC but also for other fisheries agreements adopted after UNFSA’s entry into force. For example, the International Tribunal for the Law of the Sea (ITLOS) rulings in 2000 on disputes between Australia and New Zealand on one hand, and Japan on the other under the 1993 Convention for the Conservation of Southern Bluefin Tuna (CCSBT) (CCSBT 1993) clearly do not exclude the right of any party to such a dispute to invoke specific LOSC provisions.^[353]

In the case of SEAFO, application could be further complicated by one difference between the LOSC dispute settlement procedures and those of UNFSA, particularly if not all SEAFC Parties are parties to the UNFSA. The UNFSA Article 30.(5) requires application by a court or tribunal of relevant LOSC, as well as UNFSA, provisions along with those of any relevant regional or global fisheries agreement "as well as generally accepted standards for the conservation and management of living marine resources and other rules of international law not incompatible with LOSC". SEAFC Article 24 applies to all contracting parties whether or not they are parties to UNFSA. The question of potential conflicts between the dispute resolution procedures of other regional fisheries arrangements and those under the LOSC in relation to the SADC Fisheries Protocol are discussed in Section 4.2.9.

It is also notable that SEAFC drew on the experiences of other RFMOs. In particular, its articles on the functions of the Commission and Scientific Committee (Articles 8 and 10 respectively), decision making (Article 17) and implementation (Article 23) have much in common with similar CCAMLR articles [Articles IX, XV, XII and IX.(6)]. However, despite considerable agreement between the coastal states some of CCAMLR’s specific provisions outlining application of the precautionary approach or addressing ecosystem management (CCAMLR Article II) did not find favour in the final SEAFC draft. The exact reasons for this are not clear. One explanation might be that international debate on these topics remains inconclusive and protracted. The complexity of the principles to be addressed was thus probably the prima facie reason for reluctance to subsume CCAMLR provisions rather than intransigence.

3. Western central pacific fisheries commission

3.1 Background

The Western Central Pacific fishery is responsible for approximately 60 percent of the world’s tuna catch and far exceeds catches taken in the Indian, Atlantic and Eastern Pacific Oceans (Aqorau 2001; FAO 2002). Annual catches are valued at between US$1.5 and 2.0 thousand million and represent the single most important element in the economies of the Pacific Island states (Murphy 2001). While stocks were not generally under threat, in the late 1980s growing distant-water fishing capacity coupled with an increased likelihood of over-fishing, along with possible detrimental consequences to the economies of the Pacific Island states, raised concern on the future sustainability of such stocks. As a consequence, steps were initiated to protect these resources and ensure that a sound institutional framework was in place prior to the need for management measures^[354] to restrict catches or fishing effort.

Negotiations for an international arrangement for the management of highly migratory stocks in the Western Central Pacific have lasted for over a decade. One early initiative to negotiate such an agreement for the southern albacore fishery broke down in 1991 due to a dispute over the proposed arrangement’s scope between the major protagonists - the Pacific Island states on one hand, and the distant-water fishing states on the other (Aqorau and Bergin 1998). In 1993, this initiative was revived (Doulman 1999), spurred on by the UNFSA negotiations, and the Western and Central Pacific Ocean was the only area without an international agreement for managing highly migratory species. The South Pacific Forum Fisheries Agency (FFA) convened the first Multilateral High Level Conference (MHLC) in 1994 to commence negotiation of a comprehensive agreement for the region.

The Conference met on seven occasions over the next three years. Its sessions became increasingly discordant with the Conference Chair in particular being criticized for favoring Pacific Island states at the expense of other fishing states’ interests. Among other criticisms, the Chair was accused of refusing to admit the EC as a participant, relying too heavily on UNFSA text^[355] and trying to influence the negotiations’ outcome by confining discussion to his own draft negotiating text. In the end, the final WCFC text was adopted by vote on 5 September 2000. Nineteen states voted in favour of the text with two (Japan and Korea) voting against it. China, France and Tonga abstained (MHLC 2000).^[356] A resolution was also adopted to set up a Preparatory Conference (PrepCon) to establish the WCPFC Commission. The PrepCon has met three times since the Convention’s adoption and has completed work on a number of issues. The EC and Russia were admitted as participants at PrepCon 2 in early 2002, and Japan returned to participate later that year in PrepCon 3.

3.2 The Convention

3.2.1 General

The WCPFC was technically the first agreement concluded post-UNFSA as it was finalized slightly before SEAFC, although the latter has already entered into force (Section 2.1). The WCPFC will enter into force on ratification by three states north of 20^oN and seven states south of 20^oN. Alternatively, it will enter into force if ratified by 13 states after September 2003 (WCPFC Article 36). As of 4 November 2002, only four instruments of ratification had been filed, all by states south of 20^oN.^[357]

The Convention’s objective is to ensure effective management, long-term conservation and sustainable use of highly migratory stocks in the Western and Central Pacific Ocean, in a manner compatible with both the LOSC and the UNFSA (WCPFC Article 2). When it enters into force, the WCPFC (Article 9) will establish a Commission charged with various functions. The modalities of the Commission and its functions are at the top of the PrepCon agendas. To date, the Commission is charged with determining total allowable catches (TACs), adopting conservation and management measures for target as well as non-target species, compiling and analyzing statistical and scientific data, adopting generally recommended international minimum standards for responsible conduct of fishing operations and establishing cooperative mechanisms for effective MCS and enforcement (WCPFC Articles 9 and 10). The Commission will rely on advice from a scientific committee as well as a technical and compliance committee (Articles 11-14). The latter will be responsible for reviewing compliance and making recommendations to the Commission. It is also charged with reviewing the implementation of MCS and developing enforcement measures. There are obviously many similarities between the WCPFC and SEAFC in respect of these particular provisions (see Section 2.2).

3.2.2 Area of application

As outlined in Article 3, the WCPFC applies to all areas, including the high seas and EEZs, in the Western and Central Pacific (Figure 2). The Convention Area encompasses all waters from south of Australia to north of Japan, including the EEZs of all the Pacific Island states. The Area’s boundary abuts the Indian Ocean Tuna Commission boundary in the west and overlaps with the 1949 Convention for the Establishment of an Inter-American Tropical Tuna Commission (IATTC) Area^[358] in the east. Both these factors were points of contention during the WCPFC negotiations. The Area’s northern boundary is effectively 4^oS, although the northern extremity is not bounded by the 150^o W meridian.

3.2.3 Stocks covered

Subject to the species listed in LOSC Annex I, but excluding suaries and such other species as the Commission may determine, the WCPFC applies to all highly migratory fish stocks found in the Convention Area [WCPFC Articles 1 and 3.(3)]. Conservation and management measures to be adopted by the Commission thus apply either throughout the entire migratory range of the stocks or to specific areas as determined by the Commission (WCPFC Article 3). This is significantly different to the SEAFO Commission that cannot adopt measures for waters under national jurisdiction. However, as for SEAFO Article 19, high seas and EEZ measures should be compatible. All measures adopted by the WCPFC Commission and the coastal states should be in accordance with UNFSA principles. Consequently, WCPFC Articles 5 to 8 repeat many similar UNFSA provisions including use of the best available scientific advice and taking into account the precautionary approach and ecosystem concerns (UNFSA Articles 5 and 6).

3.2.4 Openness and transparency

WCPFC Articles 21 and 22 clearly indicate recognition for the need for openness and transparency in the Commission’s work. The elements are similar to those in SEAFC Articles 8, 18 and 22. However, in contrast to SEAFC, the WCPFC conditions for accession [Article 35.(2)] are more restrictive and require a specific invitation (based on consensus of all WCPFC Commission Members) for any party to join the Commission after the Convention’s entry into force.

3.2.5 Decision-making

As for SEAFC, and as a general principle, all WCPFC decisions are to be taken by consensus [Article 20.(1)], particularly when these relate to the setting of TACs or levels of total fishing effort. Consensus-based decision-making applies to measures that exclude particular vessels. Except where the Convention requires a decision to be taken by consensus, in the event of failure to secure consensus, decisions may be taken following the voting procedure set out in Articles 20.(2) and (3). Under these circumstances, substantive decisions are to be taken by a double three-quarters majority.^[359] However, under Article 20.(4), the Chairman has power to appoint a conciliator to reconcile any differences blocking attainment of consensus when the Commission requires that any decision should be consensus-based.

Again, as for SEAFC Article 23, WCPFC Articles 20.(6) to 20.(9) provide for an objection procedure to decisions and the institution of an attached review procedure including the appointment of a review panel in accordance with conditions set out in Annex II. This complicated decision-making mechanism, while not too dissimilar to that of SEAFC, is designed to ensure that no one party, or block of parties, unduly influences the WCPFC Commission’s work. Whether it will work in practice or whether it will result in deadlock and endless submission to the review procedures, remains to be seen. At least, and unlike SEAFC, such review constitutes an intermediary step between deadlock and dispute. This is likely to be simpler to apply than a full dispute resolution procedure.

3.2.6 Contracting party obligations

Commission members (i.e. "Contracting Parties") are obliged to enforce WCPFC provisions and any related conservation or management measures adopted by the Commission under both Articles 23 and 25. Similar to SEAFC Article 6, WCPFC Article 23 provides for the provision of specific information [Article 23.(2)], some control over nationals and for the gathering of information on fishing activities [Article 23.(5)]. Under the latter provision, and at the request of any contracting party, or when supplied with relevant information, contracting parties must fully investigate any alleged violation and report on the conduct of such investigation, including any action taken or proposed to be taken. Such a report is to be made to the requesting contracting party and to the Commission within two months of the date of request. The outcome of any investigation must also be reported when completed.

Under Article 25, and if satisfied that there is sufficient evidence of an alleged violation by one of its vessels, a flag state is required to refer the case to its authorities to institute legal proceedings and, where appropriate, detain the vessel. Where a serious violation of the WCPFC, or its conservation and management measures has occurred, flag states must also ensure that the vessel involved ceases its activities [Article 25.(4)] and does not resume fishing in the Convention Area until such time that there has been compliance with any outstanding sanctions imposed by the flag state under Article 25.(7).

To facilitate legal proceedings, all Contracting Parties are obliged, to the extent permitted by their national laws, to establish arrangements for making evidence available to the prosecuting authorities of other WCPFC Contracting Parties [Article 25.(5)] Therefore, investigations and judicial proceedings are to be carried out expeditiously and the sanctions imposed should be sufficiently severe to secure compliance and to discourage future violations [Article 25.(7)]. Further, such sanctions should be aimed at depriving the offenders of the benefits accruing from their illegal activities. Action may also be taken against offending fishing vessel masters or officers. This may result in withdrawal of fishing permits and, or, suspension of fishing authorization. Annual reports to the Commission on compliance and imposition of sanctions for any violation are to be provided [Article 25.(8)].

Other provisions of the WCPFC [Article 25.(11)] urge contracting parties to take action, consistent with international law to deter fishing vessels from fishing in the Convention Area when such vessels have operated in violation of WCPFC measures and until such time as action is taken by the flag state concerned. They also provide [Article 25.(12)] for the development of non-discriminatory trade measures to be applied to parties, or entities, which undermine conservation and management measures adopted by the Commission.

A major difference between the WCPFC and SEAFC is that the latter is less specific on the details of compliance measures (SEAFC Article 16) and does not mix these with contracting party obligations (SEAFC Article 13). Further, SEAFC Article 6 states that all contracting parties are commission members. This qualification is not made in WCPFC Article 9, and the inter-changeable use of the terms "Contracting Parties" and "Commission Members" in the operative paragraphs of the various Articles discussed in this Section could lead to confusion.

3.2.7 Control measures

Flag state measures

The WCPFC outlines detailed flag state duties (Article 24) and steps to ensure compliance and enforcement (Article 25). In contrast to the minimalist approach adopted by SEAFC (Section 2.2.7), the WCPFC provides considerably more detail on such matters as a regional observer programme (Article 28), the conduct of transshipping (Article 29) and at-sea boarding and inspection procedures (Article 25). Indeed, a primary objection by Japan, Korea and others to the draft convention was that it "contained too many words"^[360] and over-specified contracting party obligations better left to the discretion of the Commission once it is established. By implication, it would appear that the SEAFC negotiators were more open to such views and so developed the rather less detailed enforcement and compliance regime discussed in Section 2.2.7.

Much of the substance of the WCPFC articles highlighted in the previous paragraph deal with enforcement-related matters and repeat, or otherwise incorporate, UNFSA provisions. With many of Japan’s proposals for revision being all but ignored, tensions were heightened, which probably resulted in Japan refusing to participate in a number of key small drafting groups, ultimately voting against the text and not signing the final Act (MHLC 2000).

Under the WCPFC, flag states are obliged to ensure that their vessels comply with Commission measures and do not engage in activities to the contrary. The details set out in Article 24 largely mimic those of SEAFC Article 14, in respect of the need for vessels to be authorized to fish only when the flag state is able to effectively control them. National registers of authorized vessels are to be compiled and provided to the Commission. They should be updated expeditiously when necessary [Article 24.(4) and (5)].

When operating on the high seas, vessels are required to follow the terms and conditions for fishing laid out in WCPFC Annex III. These address conditions attached to compliance with national laws, obligations with respect to observers, regulation of transshipments, reporting requirements and enforcement measures (e.g. marking of vessels). In this regard, flag states are required to use satellite VMS systems on their vessels fishing in the WCPFC area [Article 24.(8)]. These systems will transmit simultaneously to the Commission and the flag state, a requirement that is more advanced than the dual VMS reporting system operating in the North-East Atlantic Fisheries Commission (NEAFC) (NEAFC 1980) and the NAFO area (NAFO 1979). It is a centralized system. As far as possible, and under Article 29, transshipments by contracting party vessels are to be conducted in port. Transshipments at sea [Article 29.(4)] are only permitted in accordance with Article 4 of WCPFC Annex III. Transshipment from purse-seine vessels is prohibited [Article 29.(5)]. Again, these requirements go beyond those of the SEAFC.

Finally, WPCFC Annex III clearly sets out the conditions for fishing. These include compliance with respect to international laws (Article 3), obligations with respect to observers (Article 4), regulation of transshipments (Article 4), reporting requirements as per UNFSA Annex I and other general matters relating to enforcement (such as complying with lawful instructions from an identified Commission Member, vessel identification, communication procedures and stowing and securing of gear when passing through national waters) (Article 6). This particular Annex gives effect to the various considerations associated with establishing a "probable cause" to be pursued in the assumption of enforcement action

At-sea boarding and inspection

WCPFC Article 26 specifically requires the Commission to establish procedures for boarding and inspection of fishing vessels in the Convention Area including on the high seas. All vessels used for such boarding and inspection are to be clearly marked and identifiable as being authorized to undertake these activities [Article 26.(1)]. In early drafting, the negotiating text simply subsumed UNFSA (Article 22 of the Agreement) boarding and inspection provisions into the WCPFC.^[361]

As observed in the SEAFC negotiations (Section 2.3), such cross-referencing was considered unacceptable by some parties, most notably Japan and Korea. In the end the wording was diluted to provide a specific cross-reference to UNFSA Article 21 and 22 as a fallback provision. In the event that the WCPFC Commission is unable to agree on boarding and inspection procedures or on suitable, equivalent measures within two years of the Convention’s entry into force, UNFSA Articles 21 and 22 are to be applied as part of the WCPFC. In these circumstances, boarding and inspection, and any subsequent enforcement action, will be conducted in accordance with UNFSA procedures and, or, any such additional procedures that the Commission may agree upon. Whichever scheme is applied, contracting parties are required to ensure that their vessels accept boarding by authorized inspectors according to the WCPFC procedures and that inspectors comply with such procedures. Put simply, the Commission is obliged to adopt a non-flag based boarding and inspection scheme. Should it fail in this task, UNFSA provisions will apply.

As the WCPFC is not yet in force, the PrepCon Meetings are being used to elaborate the boarding and inspection scheme further. PrepCon 2 established a working group to deal with MCS issues in general.^[362] During PrepCon 3, the working group adopted a list of principle elements to be included in a WCPFC boarding and inspection scheme. These included details such as the scheme’s definition, scope and objectives, vessels and personnel authorized to conduct boarding and inspection activities on the high seas in the Convention Area, standardized training for enforcement personnel, guidelines governing boarding and inspection procedures and guidelines governing the use of force. Mechanisms are also being developed to co-ordinate Secretariat actions with those of contracting party and flag state enforcement authorities and particularly between the latter.^[363] Undoubtedly, the inspection and boarding scheme outlined above should be linked to the WCPFC’s broader enforcement and compliance provisions. As the scheme is only part of a more comprehensive compliance and enforcement regime, this may diminish its priority.

There appears to have been a general feeling during the WCPFC negotiations that the use of force should be limited to situations when the safety of life (e.g. of members of a boarding and inspection party) and, or, property (e.g. the vessels involved) is threatened. In addition, UNFSA Article 21.(18) needed to be taken into account since this extends liability to states for damage or loss attributable to unlawful, or unreasonably excessive, actions during boarding and inspection. Such consideration reflect developments in NAFO where Canadian inspectors are being, or have been, charged or sued in Spanish courts over events occurring during at-sea inspections (Caldwell 2002, McDorman 1994). Despite these contentious issues, the working group appears to have gone some way in elaborating a WCPFC boarding and inspection scheme at PrepCon 4.

Port state measures

As in SEAFC Article 15, port state measures are specifically included in the WCPFC (Article 27). In the case of the WCPFC, these were particularly contentious with Japan, Korea and others arguing that the exercise of port state jurisdiction in relation to high-seas fisheries is not consistent with the LOSC. However, such arguments were not accepted and the WCPFC provisions (Article 27) are identical to those in UNFSA. As such, SEAFC Article 15.(1) and WCPFC Article 27.(1) are similar and confirm a port state’s right to take measures to promote the effectiveness of sub-regional, regional and global conservation and management measures. Specifically, in the WCPFC’s case [Article 27.(1)], there is the additional caveat that in taking such measures, no fishing vessels of any state should be discriminated against. By implication, and in combination with Article 27.(2), this would allow WCPFC parties to inspect both contracting and non-contracting party fishing vessels when these are voluntarily in the former’s ports. Such inspections may focus on, inter alia, documents, fishing gear and catch on board. Article 27.(3) then allows WCPFC contracting parties to adopt regulations prohibiting landings and transshipments when it has been established that the catch has been taken in a manner undermining the effectiveness of the Commission’s conservation and management measures. Finally, and akin to SEAFC Article 15, nothing in WCPFC Article 27 affects the exercise of sovereignty by any WCPFC contracting party over their ports consistent with international law. If international law allows port states to apply stronger measures they may do so, if not, then such measures should be based on, and limited to, WCPFC provisions.

Non-flag state enforcement

While responsibility for WCPFC enforcement clearly rests with the flag state, the Convention provides other mechanisms to augment its execution. The most interesting and revolutionary of these establishes a regional observer programme (WCPFC Article 28) and outlines its various elements. Unlike other RFMO observer programmes (e.g. in NAFO and CCAMLR), the WCPFC programme is co-ordinated [Article 28.(2)] by the Secretariat (established under Article 15). In addition, it is envisioned [Article 28.(3)] that observers are independent and impartial, i.e. not appointed by, or answerable to, a particular flag state, although the nationals of each contracting party are entitled to be included in the programme [Article 28.(6).(a)]. Observers are authorized, trained and certified in accordance with procedures agreed to by the Commission [Article 28.(6).(c)], which may enter into contracts for the provision of observer services [Article 28.(2)].

Essentially, the WCPFC observers are to be truly international and impartial, along the lines of the programme run by the IATTC^[364] but may go farther as the number of observers supplied by the Secretariat is not limited to 50 percent of the total. Nevertheless, the WCPFC programme remains subject to later decision(s) by the Commission on its applicability and extent [Article 15.(7)].

Unlike the CCAMLR Scheme of International Scientific Observation (CCAMLR 2002), which expressly avoids any application of enforcement, the WCPFC programme empowers observers to monitor implementation of conservation and management measure, including the reporting of any findings to the Commission in this regard [Article 15.(6).(e)]. Contracting parties are required to ensure that all their vessels operating outside areas under the national jurisdiction of a single contracting party (i.e. on the high seas or in areas under the jurisdiction of more than one contracting party) are prepared to accept an observer if required by the Commission [Article 28.(4)].

In addition to monitoring the implementation of conservation and management measures, WCPFC observers are required to monitor catch and scientific data as well as report the results of such observations [Article 15.(6).(e)]. However, they should not unduly interfere with the lawful operations of the vessel and should carry out their activities with due regard to the vessel’s operational requirements, communicating regularly with the master to this end [Article 15.(6).(d)]. Obviously, this raises some questions as to what an observer is expected to do when an operation is deemed to be "unlawful". To avoid potential conflict, WCPFC observers are not allowed to undertake any of the observations or actions specified above when a vessel is within the EEZ of its flag state, unless the flag state agrees [Article 15.(5)].

Other non-flag state based measures comprise actions taken jointly by contracting parties [e.g. under Article 23.(5)] or those against non-contracting parties (Article 32) where the WCPFC allows contracting parties to take measures to deter the activities of non-contacting party vessels undermining the effectiveness of measures adopted by the Commission [Article 32.(1)].

WCPFC contracting parties are mandated to exchange information on activities of non-contracting party vessels fishing in the Convention Area [Article 32.(1)]. In addition, the Commission can draw the attention of any flag state whose vessels, or nationals, are (in the Commission’s opinion) affecting the WCPFC’s implementation [Article 32.(3)]. Commission members, either individually or jointly, may request non-parties to ensure that their vessels cooperate fully in implementation of the Commission’s measures. As in SEAFC Article 19, co-operating non-contracting parties are eligible to enjoy the benefits of participating in the fishery commensurate with their commitment to comply, along with their record of compliance, with Commission measures for relevant stocks [Article 32.(4)]. However, as with SEAFC, this particular provision remains silent on how such commitment would be assessed and by whom. Nevertheless, WCPFC Article 32 has much in common with UNFSA Article 17.

WCPFC Article 25.(10) provides for any contracting party to draw such activity to the attention of the flag state concerned and, as appropriate, to the Commission as well, when there are reasonable grounds to believe that a fishing vessel flying the flag of any state has undermined the effectiveness of Commission measures,. To the extent permissible under national law, the reporting contracting party may then supply the flag state with supporting evidence. It may also provide a summary of such evidence to the Commission. The Commission cannot circulate the attached information until the flag state has had reasonable time to comment on the allegation and submitted evidence, or object to it as the case may be. Contracting parties may also take action in accordance with UNFSA and international law to deter fishing vessels from fishing in the Convention Area, until such time as appropriate action is taken by the flag state [Article 25.(11)] when such vessels have engaged in activities that undermine the effectiveness of, or otherwise violate, Commission measures

3.2.8 Other provisions

Other WCPFC provisions deal with various institutional matters. As with SEAFC Article 30, WCPFC Article 4 addresses the non-prejudicial relationship with LOSC. WCPFC Articles 5 and 6 deal with principles for conservation and management and application of the precautionary approach respectively. These particular Articles follow those of UNFSA more closely than the comparable SEAFC Articles.

The WCPFC Article 6.(1).(a) specifically sets out the requirement for contracting parties to apply stock-specific reference points from UNFSA Annex. II. In this Article it is also states that UNFSA Annex. II forms an integral part of the WCPFC - a far more specific cross-reference than any in SEAFC. WCPFC Article 7 sets out that the conservation and management principles in Article 5 should also be applied to areas under national jurisdiction within the Convention Area where highly migratory stocks may be found. Similar considerations occur in Article 8 on the compatibility of measures on the high seas and in areas under national jurisdiction.

WCPFC Articles 9 to 16 address institutional matters attached to the work of the Commission and its subsidiary bodies, including the Secretariat. Financial arrangements are detailed in Articles 17 to 19. As with SEAFO [see Section 2.2.4 and SEAFC Article 12.(1)] the principle of cost-effectiveness is applied [Article 9.(5)]; unlike SEAFO, any arrears of more than two years in a party’s financial contributions attracts interest on outstanding monies and disqualifies the party concerned from participating in decision-making until all arrears are paid. [Article 18.(3)]. The latter provision is similar to that of CCAMLR’s Article XIX.(6). While similar conditions concerning non-payment were raised during the SEAFC negotiations, there was general agreement that they were discriminatory and not appropriate. It was also felt that they ran contrary to the strong recognition by the SEAFC negotiators that the organization was to be an "open" one.

Other WCPFC articles recognize the special requirements of developing states (Article 30), procedures for dispute settlement (Article 31) and good faith (Article 33). In respect of Article 31, the provisions set out in UNFSA Part VIII are applied mutatis mutandis. Both Articles 30 and 33 replicate much of what is contained in UNFSA Articles 24 to 26 and 34 respectively. In the former case there are obvious similarities with SEAFC Article 21 with the major exception that WPCFC Article 30.(3) provides for establishing a special fund to facilitate participation by developing states, especially small island developing states.

3.3 Relationship with UNFSA and other instruments

The SEAFC and WCPFC have much in common with UNFSA, however in both, detailed cross-referencing to UNFSA appeared to obstruct negotiations. Despite Japanese objections in both forums, cross-referencing to UNFSA in the WCPFC text is far more extensive, detailed and specific than in SEAFC - particularly in respect of compliance and enforcement (WCPFC Article 26). The reasons for this are not readily apparent. A contributory factor could be that more Pacific Island Pacific states were UNFSA signatories compared to SEAFC coastal states. While both state categories probably had more to lose by not applying UNFSA provisions in detail, in the former case the weight of numbers was sufficient to counter the interests of distant-water fishing states. Despite this, cross-referencing to UNFSA remains patchy in both the WCPFC and SEAFC texts.

A particular difference between the SEAFC and WCPFC is the way of dealing with dispute resolution. SEAFC’s dispute resolution provisions (SEAFC Article 24) attempt to address both straddling and discrete high-seas stocks. This requires explicit cross-referencing to both the LOSC and UNFSA. It also intimates that UNFSA provisions apply whether SEAFC parties are party to the Agreement or not. On the other hand, such complications do not prevail for the WCPFC and the dispute resolution provisions are applied only in respect of UNFSA Part VIII, although express application to non-UNSFA Parties is also applied.

Unlike SEAFC, and in deference to the nature of the stocks concerned (migratory as opposed to straddling and discrete), the WCPFC Area also includes areas under national jurisdiction. This difference may have as much to do with history and politics as with geography or the biology of the stocks concerned. All three instruments (SEAFC, WCPFC and UNFSA) deal in detail with the special needs of developing states. However, the most obvious and probably most telling difference with SEAFC is that WCPFC makes no attempt to address the question of fishing opportunities. As a consequence, SEAFC Article 20 goes far to give effect to UNFSA Article 10 to 12. A reason for this divergence could be the perceived value of the target species.

Doubtless, the WCPFC negotiations on allocation became complicated by the contradictory needs of the negotiating parties, including differences in expectation and influence between the coastal states and those of the distant-water fishing fleets. (Incidentally, the latter possessed both the means and historic precedent to fish in the region.) In both the SEAFC and WCPFC negotiations over allocation, the arguments were essentially the same. Coastal states maintained that the respective Commissions should only allocate high-seas quotas (i.e. fishing opportunities), leaving these states with the sovereign rights to set national quotas and determine EEZ access conditions. Most of the distant-water fleets, those from Japan in particular, favored both in-zone and high-seas allocation procedures based on historic fishing levels, a factor favoring distant-water fleets. The situation has been mirrored by heated debate on the same issues in ICCAT years (Jackson 2002). By removing their EEZs from the equation, and by exhibiting political accommodation, the SEAFC negotiators were able to finalize the allocation of fishing opportunities and set some guiding principles.

Two factors may have contributed to SEAFC’s success in this regard. First, the ICSEAF experiences of the three African coastal states undoubtedly increased their political resolve to counter distant-water fleet interests. Second, the perceived value of the straddling stocks likely to be concerned was both unknown, but probably not high. This reduced the distant-water states’ perceptions of what they had to lose. Finally, and perhaps cynically, the less politically-charged, SEAFC negotiations may not have been of such intensity so that a specific provision on abuse of rights was seen as unnecessary. This did not appear to be the case in the WCPFC negotiations when all parties seemed to feel that a restatement of UNFSA Article 34 was in their collective interest.