95. The Second Conference (also referred to as the Technical Conference) for the adoption of a Draft Agreement for the Establishment of the Indian Ocean Tuna Commission was held in FAO Headquarters, Rome, from 22 to 26 June 1992. Twenty-eight Member Nations and one Member Organization who would be eligible to become Members of the Commission were represented at the Conference. In addition, four Member Nations and one Non-Member State attended the Conference as observers. UNDP participated in the Conference while ICCAT, the Indian Ocean Commission (IOC), and UN Division of Ocean Affairs and the Law of the Sea (UN/DOALOS) were represented as observers.
96. The Draft Agreement prepared by the Secretariat had taken into account all the amendments to the Basic Texts of the Organization, in particular, those relating to the Membership and the greater autonomy of Commissions established under Article XIV of the FAO Constitution. During the course of the meeting, a large number of changes were introduced into the Draft Agreement and a broad measure of agreement reached on the substantive provisions. There were a number of issues which caused considerable debate and led to a number of delegations indicating that they would need to reserve their position on certain provisions pending formal approval by their home authorities. Those reservations are summarized in the following paragraphs.
97. The text of the Draft Agreement dealing with membership allowed for States responsible for the International relations of territories situated wholly or partly within the Area to become Members of the Commission in respect of such territories. The delegation of one Member Nation wished to have these provisions deleted from the text while two other delegations had reservations regarding the wording in its present form. The delegation of another Member Nation reserved its position on this provision. The Conference seeking to maintain consensus on this point, recognized that the difference of opinion on this provision was essentially one of a political rather than a technical nature, and decided to request the Director-General to refer the matter to the FAO Council through the CCLM in November 1992.
98. The question of the implementation of conservation and management measures was also a cause of concern among some delegates. They specifically mentioned the provisions of Agenda 21 which had just been adopted by the United Nations Conference on Environment and Development (UNCED), and pressed strongly for the inclusion of measures that would clearly require the IOTC to introduce an effective system of inspection for reporting to the Commission on Compliance with Conservation and Management Measures in force. These delegates also supported a specific reference in the text of the Agreement for Cooperation in establishing a system observation in order to assist the Commission in gathering information for the purposes of the Agreement.
99. The issue of reservations to the Agreement was also the subject of considerable debate. The FAO Legal Counsel advised the Conference that the content of this provision was required by Resolution 46/57 of the FAO Conference as set out in Part R of the FAO Basic Texts. The Draft Agreement, taking into account the above resolution, stated that:
"Acceptance of this Agreement may be made subject to reservations which shall become effective only upon unanimous acceptance by the Members of the Commission. The Director-General shall notify forthwith all Members of the Commission of any reservation. Members of the Commission not having replied within three months from the date of the notification shall be deemed to have accepted the reservation. Failing such acceptance, the State or Organization making the reservation shall not become a party to this Agreement."
The Technical Conference strongly favoured the adoption of an Article on reservations which would take into account the Vienna Convention on the Law of Treaties concluded in 1969 and in force since 1980. The Conference recognized that such a text might be viewed as being inconsistent with FAO Resolution 46/57. Consequently, the Technical Conference requested the Director-General to bring this matter to the attention of the CCLM with a view to finding a way to meet the wishes of the Conference.
100. The Technical Conference, subject to the clarification of above issues, adopted the Draft Agreement on 26 June 1992, and recommended that the Draft Agreement be submitted to the One Hundred and Second Session of the FAO Council in November 1992 for its formal approval.
101. When the FAO Council met in November 1992, it noted that two major problems had remained in relation to the Draft Agreement as adopted by the Technical Conference. The first concerned the proposed Article on reservations which a number of Member Nations attending the Technical Conference had considered to be out of date because it did not reflect the current status of public international law. The second problem was of a political nature, arising out of the proposed participation in the new Commission of two Member States of the EC in respect of their overseas territories since the legal status of some of these territories was still a subject of dispute.
102. The Council agreed that the political problem which had arisen was not something that could or should be resolved within the framework of a technical organization such as FAO or within the context of a technical agreement but was more appropriate to the UN forum. It noted, however, that consultations were being held with the members directly concerned with a view to reaching agreement on a compromise formula. The Council also noted that the text of the Draft Agreement on reservation was in line with the precepts adopted by the FAO Conference in 1957 and set out in Paragraph 10 of Conference Resolution 46/57. That Paragraph required unanimous acceptance by all contracting parties in order that a proposed reservation take effect. The Council agreed that these precepts were no longer in line with the present practice under public international law. Consequently, the Council recommended that Paragraph 10 of the Conference Resolution 46/57 should be amended to reflect the current state of international law. The Council thus decided that the following procedure for further action on the Draft Agreement should be followed:
(a) consultations should continue between the Secretariat and the parties concerned on the question of participation in the proposed new Commission;
(b) subsequently, the text of the draft agreement as it may be revised, should be circulated to all Members represented at the Technical Conference, and informal consultations held with them to insure that there were no problems with the revised text of the Agreement;
(c) the outcome of both sets of consultations should be referred to the CCLM at its Sixtieth Session, scheduled for April 1993, and to the Hundred and Third Session of the Council in June 1993;
(d) consideration of the formal approval of the Agreement should be deferred until the Hundred and Third Session of the Council in June 1993;
(e) a draft amendment of paragraph 10 of the Appendix to Conference Resolution 46/57 (Part R of the Basic Texts) should be prepared by the CCLM at its Sixtieth Session for submission to the Council in June 1993, for transmittal to the Conference in November 1993 for adoption;
(f) a new clause on reservations should be included in the draft Agreement along the following lines;
"Acceptance of this Agreement may be made subject to reservations in accordance with the general rules of public international law as reflected in the provisions of Part II, Section 2 of the Vienna Convention on the Law of Treaties of 1969".
(g) the Council, at its Hundred and Third Session in June 1993, would consider approval of the draft Agreement as amended, subject to the amendment by the Conference at its Twenty-seventh Session in November 1993 of paragraph 10 of the Appendix to Conference Resolution 46/57 (Part R of the Basic Texts) regarding reservations.
103. At its Sixtieth Session in April 1993, the CCLM considered a revised text of the Draft Agreement, which incorporated certain changes on the question of membership of the Commission. The revised text intended to resolve the outstanding issue arising out of the proposed participation in the Commission of two Member States of the EC in respect of their overseas territories. When the Council met in early November 1993 (Hundred and Fourth Session, Rome 2-5 November 1993), it noted that extensive consultations had been held with the Governments of India, Mauritius, France and the United Kingdom, with a view to reaching an acceptable compromise on the question of participation in the proposed Commission. The consultations had been fruitful and a compromise formula had been proposed.
104. The Secretariat had also had informal consultations with other members represented at the Technical Conference to ensure that there were no other problems with the new text of the Draft Agreement. Written comments had been received from eight members of FAO on various aspects of the Draft Agreement. Some of the comments were of a drafting nature
but others were of a more substantive nature and related, inter alia to the following:
(a) two members had raised the issue of the status of participation in the proposed new Commission of the EC and its Member States;
(b) two members had commented on the question of reservations; and
(c) one member had commented on the issue of coastal States' rights.
The Council noted that a number of drafting suggestions submitted by FAO Members had been incorporated in the revised text. It agreed that further amendments on finances, membership, amendment and withdrawal be incorporated in the text. Finally, drafting proposals had been made in respect of "Coastal States' Rights" and it was agreed that the alternatives would be reflected in the text.
105. The Council noted that a decision to approve formally the Draft Agreement would be subject to the Conference approving the amendments to Paragraph 10 of the Conference Resolution 46/57. Also some issues requiring further bilateral negotiations were still outstanding. Thus the Council decided not to give its formal approval to the Draft Agreement at this Session but referred the Draft Agreement to the Twenty-seventh Conference Session itself for formal approval by that body.
106. At its Twenty-seventh Session, Rome, 6-24 November 1993, the FAO Conference noted the difficulties which had arisen over some provisions of the Draft Agreement. These concerned, in particular, the eligibility criteria for membership in the proposed Commission and that a series of intense negotiations had taken place over the preceding eighteen months in order to reach consensus on the wording of appropriate provisions on these matters. The bilateral discussions had subsequently progressed to the satisfaction of both parties and they were now both in a position to approve formally the Draft Agreement.
107. The Conference also noted that a number of countries had expressed concern in the Council over what they perceived to be a "double voice" for the EC and its Member States inherent in the wording of the Draft Agreement and that some countries had been reluctant to express formal approval on this issue at that time. The Conference noted, further, that the Council had considered that this was an issue that should be explored in its wider perspective in similar situations in the Organization as a whole and had decided, therefore, to refer this matter to the CCLM in order that it carry out a legal analysis of the issues involved and report to the Council at its Session in November 1994. The Conference further noted that the Council had failed to reach agreement on the wording of the Text concerning reservation at its Hundred and Fourth Session in November 1993, but that subsequent consultations with the parties most directly concerned had resulted in agreement on a compromise wording. The Conference also agreed that Article XVI of the Draft Agreement dealing with coastal States' rights should be amended to read as follows:
"This Agreement shall not prejudice the exercise of sovereign rights of a coastal State in accordance with the international law of the sea for the purposes of exploring and exploiting, conserving and managing the living resources, including the highly migratory species, within a zone of up to 200 nautical miles under its jurisdiction."
108. The Conference further noted that the final obstacle to approving the Agreement had been removed with the amendment by the Conference earlier in its session of paragraph 10 of the Appendix to Conference Resolution 46/57 allowing for more flexibility in the type of reservations clause that can be included in agreements under Article XIV of the Constitution. It expressed its deep satisfaction that, thanks to the extensive efforts which had been deployed by the FAO Secretariat, consensus had now been reached on all aspects of the Agreement and, accordingly, referred the Resolution approving the Agreement for the Establishment of the Indian Ocean Tuna Commission (IOTC) to the Hundred and Fifth Session of the Council for its adoption.
109. At its Hundredth and ninth Session, held in Rome in October 1995, the Council adopted the following revised guidelines concerning participation in arrangements under Article XIV of the Constitution, as proposed by the CCLM:
a) In accordance with the provisions of Article XIV of the Constitution, each agreement should set its own criteria, and terms and conditions for participation by such Member States, bearing in mind the objectives and particular conditions of the agreement concerned.
b) For agreements declared as falling within the mixed competence of a Member Organization and its Member States, the normal rules governing participation in general meetings of the Organization would apply, which eliminate any possibility of a "double voice" for the Member Organization and its Member States.
c) For agreements declared as falling within the exclusive competence of the Member Organization, the issue of participation and voting rights should be decided upon in each individual agrement by the contracting parties concerned in the exercise of their sovereign rights, in accordance with the provisions of Article XIV of the Constitution. In so deciding, the contracting parties concerned shall exercise care to avoid any possibility of a double voice for the Member Organization and its Member States in any body set up under the agreement, whether from a legal or a practical point of view.
d) In cases where the contracting parties decide that the agreement concerned should be open to participation both by a Member Organization and by individual Member States of that Organization having territories lying outside the geographical scope of the transfer of competence by those Member States to the Member Organization, such participation should be limited to participation on behalf of those territories and representing only the interests of those territories.
110. At its Hundred and Fifth Session, held in Rome on 25 November 1993, the Council adopted unanimously the following resolution referred to it by the Twenty-seventh Session of the Conference, approving the Agreement for the Establishment of the Indian Ocean Tuna Commission.
AGREEMENT FOR THE ESTABLISHMENT OF THE
INDIAN OCEAN TUNA COMMISSION
Noting the urgent need for the establishment of appropriate machinery for the management of stocks of tuna and tuna-like species in the Indian Ocean.
Recalling that a draft Agreement for the Establishment of the Indian Ocean Tuna Commission was submitted to a technical conference which met in Rome in June 1992.
Taking note that the draft Agreement was further considered by the Committee on Constitutional and Legal Matters at its Fifty-ninth, Sixtieth and Sixty-first Sessions, held respectively in September 1992, April 1993 and October 1993.
Considering the Reports of the Hundred and Second and Hundred and Third Sessions of the Council, held respectively in November 1992 and June 1993.
Noting that, at its Hundred and Fourth Session held in November 1993, the Council recommended the approval by the Conference of the draft Agreement for the Establishment of the Indian Ocean Tuna Commission, and that the Conference, having ascertained with satisfaction that all the prerequisites for the approval of the draft Agreement were now met, had referred the draft Agreement back to Council for its formal approval,
Having examined the text of the draft Agreement for the Establishment of the Indian Ocean Tuna Commission as submitted to the Council by the Conference and having reached full accord on a final text:
Approves, in accordance with Article XIV-2 of the Constitution of FAO, the text of the Agreement for the Establishment of the Indian Ocean Tuna Commission reproduced as Appendix D to this Report for submission to Members with a view to their acceptance.
111. At its Tenth Session held in Mombasa, Kenya, in November 1994, the IOFC expressed its strong support for the establishment of the Indian Ocean Tuna Commission and several members announced that internal measures had already been taken or would be taken in the near future with a view to acceptance by their governments of the Agreement. The delegate of the Seychelles reiterated his Government's interest in hosting the new Commission. The Secretariat informed the meeting that similar expressions of interest had also been received from India and Sri Lanka. The Commission re-emphasized the considerable importance of the Agreement both for coastal countries and for distant-water fishing nations and underlined the necessity of bringing the Agreement into force as soon as possible. Consequently, the Commission urged its members to accept the Agreement with minimum delay.
112. Two categories of membership are listed in Article IV of the Agreement. The first consists of Members and Associate Members of FAO that are (ii) coastal States or Associate Members situated wholly or partly within the Area; (ii) States or Associate Members whose vessels engage in fishing in the Area for stocks covered by the Agreement; and (iii) regional economic integration organizations of which any State referred to in (i) or (ii) above is a member and to which that State has transferred competence over matters within the purview of this Agreement. Membership of the Commission of this category is only subject to the acceptance of the Agreement by them. Under Article XVII (i) "Acceptance of this Agreement by Member or Associate Member of FAO shall be effected by the deposit of an instrument of acceptance with the Director-General".
113. The second category consists of States that are not Members of FAO, but are Members of the United Nations, or of any of its Specialized Agencies or of the International Atomic Energy Agency provided that they are (i) coastal States situated wholly or partly within the area; or (ii) States whose vessels engage in fishing in the area for stocks covered by this Agreement. The membership of States belonging to this category is subject to the approval by the Commission by a two-third majority of its Members (Article IV-2).
114. Under Article XVIII the Agreement enters into force as from the date of receipt by the Director-General of the tenth instrument of acceptance. Thereafter, with respect to each Member or Associate Member of FAO or States referred to in paragraph 2 of Article IV which subsequently deposits an instrument of acceptance, this Agreement will enter into force on the date on which such acceptance takes effect or become effective. The acceptance of the Agreement has been received by the Director-General from Sri Lanka (13 June 1994), Eritrea (19 August 1994), Mauritius (27 December 1994), India (13 March 1995), UK (31 March 1995), Pakistan (27 April 1995), Seychelles (19 July 1995), EC (27 October 1995), and Madagascar (10 January 1996). The Agreement entered into force upon the receipt of the Tenth instrument of acceptance from the Republic of Korea by the Director-General on 27 March 1996.
115. The most important development affecting the future role of fisheries management organizations dealing with tuna has been the conclusion of the UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks in December 1995. The Conference adopted the "Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks". The Agreement was opened for signature on 4 December 1995 and will remain open for one year. It will enter into force 30 days after the receipt of the thirtieth instrument of ratification or accession.
116. The provisions of Article 10 of the UN Agreement on "Functions of subregional and regional fisheries management organizations and arrangements" are of particular relevance to the future activities of IOTC:
In fulfilling their obligation to cooperate through subregional or regional fisheries management organizations or arrangements, States shall:
(a) agree on and comply with conservation and management measures to ensure the long-term sustainability of straddling fish stocks and highly migratory fish stocks;
(b) agree, as appropriate, on participatory rights such as allocations of allowable catch or levels of fishing effort;
(c) adopt and apply any generally recommended international minimum standards for the responsible conduct of fishing operations;
(d) obtain and evaluate scientific advice, review the status of the stocks and assess the impact of fishing on non-target and associated or dependent species;
(e) agree on standards for collection, reporting, verification and exchange of data on fisheries for the stocks;
(f) compile and disseminate accurate and complete statistical dat, as described in Annex I, to ensure that the best scientific evidence is available, while maintaining confidentiality where appropriate;
(g) promote and conduct scientific assessments of the stocks and relevant research and disseminate the results thereof;
(h) establish appropriate cooperative mechanisms for effective monitoring, control, surveillance and enforcement;
(i) agree on means by which the fishing interests of new members of, or participants in, the organization or arrangement will be accommodated;
(j) agree on decision-making which facilitate the adoption of conservation and management measures in a timely and effective manner;
(k) promote the peaceful settlement of disputes in accordance with Part VIII;
(l) ensure the full cooperation of their relevant national agencies and industries in implementing the recommendations and decisions of the subregional or regional fisheries management organization or arrangement; and
(m) give due publicity to the conservation and management measures established by the organization or arrangement.
117. Under Article 13, States are required to cooperate to strengthen existing subregional and regional fisheries management organizations and arrangements in order to improve their effectiveness in establishing and implementing conservation and management measures for straddling fish stocks and highly migratory fish stocks. The Agreement also provides detailed provision on Compliance and Enforcement (part VI) and Peaceful Settlement of Disputes (part VIII). In general, States parties to a subregional or regional fishery management organization or arrangement are obliged to enforce the conservation and management measures adopted by that body and the disputes arising from the adoption of such measures are to be settled by compulsory means should it become necessary. These provisions go beyond the present commitment by States in the work of FAO regional fishery bodies and beyond the mandates and functions of most existing fishery management organizations.
118. The requirements embodied in the Provisions of the UN Agreement have two immediate implications for existing regional or subregional fishery bodies. One is that the mandate of almost all existing fisheries organizations dealing with the conservation and management of high seas fisheries will have to be modified in order to include measures designed to improve their effectiveness. The second implication is that the existing bodies will need substantially increased budgets to implement the provisions of the UN Agreement. Thus, States are required to commit themselves both politically and financially to the work of the regional or subregional fishery bodies if the management of high seas resources is to be carried out effectively.
119. It is therefore imperative that IOTC members agree among themselves on a mechanism for the implementation of regulatory measures, monitoring, control and surveillance and enforcement, and the compulsory settlement of disputes as envisaged in the 1995 UN Agreement. Such mechanisms may eventually require further amendments to the IOTC Agreement in due course.