65. Taking into account the conclusions arrived at by the IOFC Tuna Committee at its Tenth Session (Moka, Mauritius, June/July 1988), FAO prepared a Draft Agreement for the Establishment of the Indian Ocean Tuna Commission. The Draft Agreement was prepared in accordance with the provisions of Article XIV of the FAO Constitution and other relevant provisions in the Basic Texts of the Organization. In November 1988, the Draft Agreement, together with a Circular State Letter from the Director-General of FAO, inviting comments on the Draft Agreement, was circulated to all IOFC Members as well as to the former Soviet Union, the European Community, the South Pacific Forum Fisheries Agency (FFA), the Inter-American Tropical Tuna Commission (I-ATTC), International Commission for the Conservation of Atlantic Tunas (ICCAT), and the South Pacific Commission (SPC).
66. In response to the Letter, replies were received from Australia, France, Kenya, the Maldives, Mozambique, New Zealand, Spain and UK as well as from the former Soviet Union and the European Community. Further comments were later received from Sri Lanka, Japan, Malaysia and Thailand. The text of the Draft Agreement was then revised, reflecting the views received.
67. The Conference was held at FAO Headquarters, Rome, from 3 to 7 April 1989. Twenty-five Member Nations who would be eligible to become Members of the Commission were represented at the Conference. In addition, six other Member Nations and one non-Member State attended the Conference as observers. The United Nations, the EC and UNDP also participated in the Conference. After adopting the Provisional Agenda and the Provisional Rules of Procedure, the Conference, after a preliminary discussion on how the work should proceed, agreed that the Conference examine the Draft Agreement Article by Article, with the exception of those provisions which concerned directly the legal framework of the Agreement. This issue and the Preamble were to be discussed after the deliberation on the Articles. The following discussions and conclusions were arrived at by the Conference.
Area of Competence
68. The Draft Agreement before the Conference provided alternative definitions of the area of competence, the first based on FAO fisheries statistical areas and the second on a more general definition referring to the Indian Ocean and adjacent seas. In general, countries favoured Alternative II because the migratory nature of tuna called for a definition which left a certain flexibility. One country indicated that it would not wish its exclusive economic zone to be included within the area of competence of the Commission.
69. An exchange of views took place on whether the species to be covered by the Agreement should be defined generally or specified in an Annex. There was general agreement that the list of species annexed to the Draft Agreement provided a good basis for the work of the Commission. Further, consideration might be required, however, regarding the inclusion of a few species of small coastal tuna. It was noted that the list was based on that set out in Annex I to the 1982 UN Convention on the Law of the Sea.
Objectives and Functions
70. In the course of discussion of this Article, four major issues were raised. The first issue turned on the meaning of the term "management". There was general agreement that, in the context of the present Agreement, the term signifies the means of achieving the objectives of conservation and optimum utilization of the stocks covered by the Agreement. The second issue was the importance of specifying that one of the objectives of the Commission should be to ensure that the interests of coastal States were protected. The third issue focused on the need for the Agreement to refer to the concepts embodied in Article 64 of the UN Convention on the Law of the Sea. The fourth issue was raised by a number of coastal States which underlined the need for the proposed Commission to promote the development of the fishing capacity of developing coastal States.
Draft Articles on: Procedures for recommendations concerning management measures; Implementation;and Subsidiary bodies
71. These Articles of the Draft Agreement raised the very important issue of the power of the Commission to adopt management measures which would be binding on members of the Commission. Almost all countries expressed strong support for the necessity that the Commission be granted such powers. One of the questions which remained to be settled, however, was the majority required for the adoption of such measures.
72. The provisions on implementation of binding decisions on management measures were recognized as an important element of the system. However, a number of countries expressed doubt as to the viability of an international enforcement system in respect of binding recommendations.
73. A closely related Article was that of the establishment of subsidiary bodies to deal with one or more of the stocks covered by the Agreement. It was emphasized that such a body was required at this time for the management of southern bluefin tuna. The membership, the degree of autonomy and the extent of the power which the Commission might delegate to such sub-commissions were, of course, matters of significant importance.
74. Several proposals for amendment were tabled, but the matter was not considered in depth at this stage.
75. These Articles all concerned procedural matters related to the Agreement. In the course of the discussions, a number of queries were raised, in particular on those provisions required by the Basic Texts for agreements concluded under Article XIV of the Constitution, in particular, those decisions which had to be referred to FAO governing bodies for approval.
76. The basic question was whether the body was to be established within the FAO framework under Article XIV of the FAO Constitution or as an independent body outside FAO. Establishing the body within FAO would allow it to have a certain degree of autonomy whilst, at the same time, giving it the advantage of technical and financial support from the Organization. Since FAO would then have a large degree of responsibility for the management and operation of the newly created body, it would follow that a number of matters would require the approval of either the Director-General or one of the governing bodies. On the other hand, if the new body were established outside FAO, it would have independence concerning its own administration and membership, but would not benefit from the same degree of support by FAO.
77. In the course of the discussion which followed, serious consideration was given to the consequences which would flow from the choice of the legal framework of the new body. The two major consequences were: (i) the extent of financial support and technical backstopping which would be available from FAO, and (ii) membership. On the question of membership this obviously concerned both non-Member States which would be eligible to become members of the Commission and Organizations, in particular the EC, to which exclusive competence had been transferred by its Member States with respect to the management of fisheries.
78. Having reviewed the problems to which this matter gave rise as well as the consequences thereof, it was clear that the question could not be resolved immediately and deserved further in-depth study. At the same time, however, many countries appealed to those concerned to make every effort to find an arrangement or a mechanism which would allow for the technical support of FAO to be made available, while at the same time enabling participation by the EC in the proposed Commission.
79. The Conference agreed that there was need for further consultation before the Draft Agreement for the Establishment of the Indian Ocean Tuna Commission could be adopted. The Secretariat was requested to prepare a revised Draft of the Agreement annotated to reflect the comments made during the course of the Conference. This revised Draft would be circulated as soon as possible together with an analysis of the experience of other tuna management bodies and other necessary background documents. A further Conference should be convened later in the year to consider, and if possible, to adopt a draft agreement.
80. At its Ninth Session held in Mahé, Seychelles in October 1989, IOFC reviewed the outcome of the Conference and the progress made in relation to the future management of India Ocean Tuna. It stressed that the present arrangement could not be considered as a satisfactory solution and that the strong need for the establishment of a powerful management body remained. The Commission pointed out that the activities of IPTP should remain of primary importance and urged all its members to meet their commitments for the continuation of the project.
81. When the IOFC Tuna Committee met in July 1990 (Eleventh Session, Bangkok, Thailand), it noted that divergencies had arisen on a number of issues which had prevented the Conference from adopting the agreement. The Committee pointed that the principal matters which required further consultation were the legal framework of the new commission and the degree of autonomy which should be granted to that commission if the Agreement were concluded under Article XIV of the FAO Constitution.
82. The Committee noted that in June 1989, the EC had made a formal request to the Director-General of FAO that the question of a possible form of membership of EC in FAO be placed before the FAO Council so that the Director-General might be given a mandate to hold discussions with the EC with a view to devising a membership status that would be commensurate with the present competence of the EC. The matter was being pursued by the Director-General and would be considered by the FAO Council in 1990. The Committee, therefore, decided that while deliberation on various issues of the Draft Agreement should continue, a new Conference for the Adoption of the Draft Agreement should be convened after the outcome of the FAO Council's decision on the membership of the EC in the Organization.
83. The degree of autonomy to be given to the proposed Commission was also discussed by the Committee. It decided that a wide degree of autonomy was required particularly in relation to:
- the adoption of its own rules of procedures;
- the appointment of its Secretary and other staff;
- the adoption of its own financial regulations;
- the adoption of management measures;
- relations with other international organizations; and
- the adoption of amendments to the agreement establishing the Commission.
In order to meet the above requirements, FAO Conference Resolution 46/57 concerning the Principles and Rules Governing Agreements concluded under Article XIV of the FAO Constitution would have to be amended. Thus the two outstanding issues blocking the progress of adopting the Draft Agreement, i.e., the membership and the degree of autonomy of the new Commission, were constitutional matters which had to be resolved before any further progress was made.
a) Western Indian Ocean Tuna Organization (WIOTO)
84. In November 1989, a Consultative Meeting on Tuna Management and Development Strategies for Western Indian Ocean Coastal States was held in the Seychelles. Representatives from India, Kenya, Madagascar, Mauritius, Mozambique, the Seychelles and Tanzania attended the meeting. The meeting concluded that there was a need for further cooperation in tuna fisheries management between coastal States in the region. It also noted that the existing activities were mainly involved with stock assessment and biological research while there were no arrangements for the developing coastal States to maximize the economic benefits they received or could be receiving from the tuna resources in the region. A second Consultative meeting was held in May 1990 during which a draft convention, prepared by the Seychelles, was discussed as a working paper. The meeting agreed on the proposed draft Convention which was finalized and agreed upon at its third meeting held in the Seychelles in June 1991. The Convention was signed by Comoros, Madagascar, Mozambique and the Seychelles and initialled by delegations of India, Kenya, the Maldives and Mauritius. It entered into force in 1994 upon ratifications by the Seychelles, Mauritius, Comoros and India. The first Ministerial meeting of WIOTO was held in August 1994 in the Seychelles and discussed the administrative structure of the Organization. The Organization has no permanent staff and is not yet operational.
85. The area covered is detailed in Annex II of the Convention and is basically FAO Statistical Area 51 with the exception of the northeastern point is 11oN latitude, 85oE longitude. The membership of the Organization is open to the founding States (Comoros, India, Kenya, Madagascar, the Maldives, Mauritius, Mozambique, the Seychelles, Sri Lanka and Tanzania). Any independent coastal State bordering the western Indian Ocean whose territory is situated principally in the western Indian Ocean region may also be admitted by unanimous approval of the parties to the Convention. The species covered by the Convention are the tuna and tuna-like species listed in Annex II. These are yellowfin tuna, skipjack tuna, bigeye tuna, albacore, southern bluefin, longtail, frigate, bullet tuna, kawa kawa, narrow-barred Spanish mackerel, Indo-Pacific king.
86. The main objectives of WIOTO are to "promote cooperation and coordination among its member countries in respect of inter alia: (i) harmonization of policies with respect to fisheries; (ii) relation with distant-water fishing nations; (iii) fisheries surveillance and enforcement...; (iv) fisheries development, in particular, development of fishing capacity of members and fish technology, processing and marketing; and (v) access to exclusive economic zones of members." The structure of the Organization consists of a Board, a Committee and a Secretariat.
b) Convention for the Conservation of Southern Bluefin Tuna (SBT)
87. Southern Bluefin Tuna constitutes a stock fished in the Indian Ocean, the South Atlantic and the South Pacific. Spawning takes place south of Java, Indonesia, from where juveniles migrate eastward through the Southern part of the Australian Fishing Zone towards New Zealand. Some other juveniles from the same spawning ground migrate West through the Indian Ocean towards South Africa. Traditionally, SBT are fished by Australia and Japan. More recently, Indonesia, New Zealand, the Republic of Korea, South Africa and Taiwan (Province of China) have also been exploiting Southern bluefin tuna.
88. The total catch of Southern Bluefin Tuna of 82 000 t in 1961 fell to 45 000 t in 1980 and again to 14 000 t in 1990. Serious concern about parent stock size led to the first scientific and management meeting of scientists from Australia, Japan and New Zealand in Wellington, New Zealand, in December 1982. Since then a scientific meeting and a subsequent management meeting have been held each year to consider the SBT stock condition and discuss conservation and management measures necessary to improve the stock condition. Since 1985, total catch limit and national quota allocation, based on the recommendations of the scientific meetings, have been agreed.
89. The cooperative arrangement between the three countries led to the adoption of the Convention for the Conservation of Southern Bluefin Tuna, signed by Australia, Japan and New Zealand in May 1993. The Convention entered into force on May 20, 1994. Under Article 6 of the Convention, the Commission for the Conservation of Southern Bluefin Tuna (CCSBT) was established which held its First Meeting in Wellington, New Zealand in May 1994. The objective of the Convention (Article 3) is to ensure, through appropriate management, the conservation and optimum utilization of Southern Bluefin Tuna. The Convention covers southern bluefin tuna (Thunnus maccoyii). The membership of the Commission is not automatically open to other states. The parties to the Convention are to cooperate with each other to encourage accession by any state to the Convention where the Commission considers this to be desirable.
90. The CCSBT is empowered to decide upon the total allowable catch and its allocation as well as any other additional conservation measures. Article 16 and Annex I of the Convention contains provisions concerning the settlement of disputes between two or more parties concerning the interpretation or implementation of the Convention. Under Article 12, the Commission is required to collaborate with other inter-governmental organizations which have related objectives, inter alia to obtain the best available information including scientific information to further the attainment of the objective of the convention and avoid duplication with respect to their work.
91. At its Ninety-fifth Session in June 1989, the FAO Council invited the Director-General to explore the options for a form of membership of FAO for regional economic integration organizations for which their Member States had transferred competence in some fields of activity of FAO, along with the full constitutional, legal, financial and other implications for the Organization of such options and to report thereon to the Ninety-eighth Session of the Council in November 1990.
92. A series of consultations took place between FAO and the Commission of the European Community. The form of membership for regional economic integration organizations, eventually agreed upon, was based on the concept of the alternative exercise of membership rights. This meant that the bundle of memberships rights exercised by the Member States of a regional economic integration organization admitted to membership of FAO, should be exercised either by the member organization or its member states depending on who had competence over the matter concerned. For Article XIV agreements, where a member organization had exclusive competence over the subject matter of the agreement, and thus joined on its own without its member states, the member organization would exercise only one vote in any body established by the agreement, but would enjoy equal rights of participation with Member Nations parties to such agreement.
93. At its Hundredth Session, Rome, November 1991. the FAO Council decided on a text regarding the amendment of the FAO Constitution on membership of the regional economic integration organizations. It further discussed the desirability and the need to amend Conference Resolution 46/57 and the Appendix thereto bearing in mind a number of developments which had taken place both in the Organization and on the world scene which called for a review of the Provisions of Part R of the Basic Texts "Principles and Procedures which should govern Conventions and Agreements concluded under Articles XIV and XV of the Constitution...." with the aim of introducing greater flexibility. Among these was the establishment of Article XIV Commissions with independent budgets financed directly by the parties to the agreement, outside the framework of the Regular Programme of the Organization. Such Commissions were to be granted a broader range of responsibility and increased authority. The council thus submitted its proposed amendments to the Conference for its decision.
94. In November 1991, the FAO Conference (Twenty-sixth Session) by Resolution 7/91, adopted the proposed amendments to the Constitution to allow for the membership of FAO by Regional Economic Integration Organizations. The Conference, also by Resolution 8/91, revised Resolution 46/57 granting more autonomy and responsibility to Commissions established under Article XIV. The amendments affected Articles II, XIV, XV and XVIII as well as some of the General Rules of the Organization. The EC (then termed the European Economic Community) was admitted to membership of FAO as its first member organization in November 1991.