36. With the entry into force of the UNCLOS in November 1994, the Convention will have a marked impact on the practice of States, particularly those which are parties to it as well as on the activities of international organizations competent in the fields of fisheries. The Convention places a great emphasis (Articles 116 to 120) on the need and desirability of cooperation concerning the conservation and management of fisheries resources of the high seas. Together with the Provisions of the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels in the High Seas and those of the UN Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks, subregional and regional fisheries organizations are expected to play a more comprehensive, constructive, effective role in the conservation and management of the high seas resources.
37. With the exception of the Indian Ocean Tuna Commission which covers the tuna stocks of the Indian Ocean, all other FAO fishery bodies were set up before the new fisheries regime was incorporated in the 1982 Law of the Sea Convention. Each body was set up by FAO to address a wide range of fisheries needs of a region and its members and covered all marine living resources within its area of competence. The terms of reference of these bodies have been periodically reviewed and changed in order to make them more responsive to the needs of the regions for which they had been set up. The recent developments concerning the conservation and management of the high seas resources have underlined the shortcomings of the existing fisheries organizations, including those of the FAO fishery bodies, and require fundamental changes in the functions of these organizations.
38. The role of fisheries organizations on conservation and management issues is now expected to include effective implementation of the management measures they adopt through a series of mechanisms including monitoring, control, surveillance and enforcement as well as the compulsory settlement of disputes. FAO regional fishery bodies have always had an advisory role. Any management measures proposed by these bodies were recommendations which could not, if rejected, be imposed on member States. It is in this context that the future role of these bodies will have to be examined. As bodies established within the framework of FAO, their powers and functions are all subject to the Organization's Constitution.
39. Within the UN system, FAO has the mandate to collect, analyse, interpret and disseminate information relating to nutrition, food and agriculture (including fisheries and marine products). The Organization is entrusted to promote and where appropriate, recommend national and international action with respect to scientific, technological, social and economic research as well as the improvement of education and administration relating to nutrition, food and agriculture. It is also the function of the Organization to promote and, where appropriate, recommend national and international action with respect to inter alia the conservation of natural resources.
40. The role of FAO in relation to the natural resources is to recommend national and international action for their conservation. The degree of FAO involvement in the management of fishery resources was extensively discussed at the Sixth Session of COFI in 1971. The concept of management was recognized as being wider than concern with the stocks alone and included at least concern with fishery development. While the importance of COFI as a world body, responsible for reviewing the general progress in management, was emphasized, the Committee "pointed out that neither FAO nor its regional fishery bodies have powers to enforce regulations. For this reason, some delegations felt that effective management would in every instance require a treaty-based commission or other body". At its Ninth Session held in Rome in October 1974, the Committee on Fisheries emphasized the growing importance of regional fisheries bodies, and the need for increased support to them, and strongly urged FAO to give greater support to its regional bodies, and other regional activities. The Committee re-emphasized the role that it could play in discussing problems of management and development that were of common interest to many regions. It stressed the importance of having appropriate national or international machinery to ensure that management measures agreed upon were properly implemented and enforced. The 1984 FAO World Conference on Fisheries Management and Development acknowledged the political nature of the management of fisheries by outlining the role of the governments. Recognizing this fact, the FAO Technical Consultation on High Seas fishing, held in Rome in September 1992, emphasized that the effectiveness of regional fishery bodies and hence their ability to manage high seas fisheries on a sustainable basis was dependent upon inter alia the political will of the States concerned.
41. Under Article VI-1 of the FAO Constitution, the Conference may establish commissions or regional commissions "to advise on the formulation and implementation of policy and to coordinate the implementation of policy". The Indian Ocean Fishery Commission (IOFC), the Western Central Atlantic Fishery Commission (WECAFC) and the Regional Fishery Advisory Commission for the Southwest Atlantic (CARPAS), were all established under Article VI-1 of the FAO Constitution. None of these bodies can, under the FAO Constitution, perform direct management functions, but must rely on addressing recommendations on management measures to their members.
42. Article VI-2 of the FAO Constitution provides that the Conference, the Council, or the Director-General on the authority of the Conference or Council may establish committees and working parties to "Study and report on matters pertaining to the purpose of the Organization". The Fishery Committee for the Eastern Central Atlantic (CECAF) was established under Article VI-2 of the Constitution.
43. The FAO regional bodies established under Article VI of the Constitution are all dependent on the Organization for financial and secretariat support. None has an autonomous budget and their expenses are met by the Organization's Regular Programme and ad hoc voluntary contributions by member States. The terms of reference and reporting procedures of these bodies are determined by the Conference, the Council, or the Director-General on the authority of the Conference or Council. Within the specific mandates provided in Article VI of the Constitution, the commissions or committees established under this Article can only perform advisory functions.
44. According to Article XIV of the FAO Constitution, the Council, under rules to be adopted by the Conference, may, by a vote concurred in by at least two thirds of the membership of the Council, approve and submit to Member Nations agreements concerning questions relating to food and agriculture which are of particular interest to Member Nations of geographical areas specified in such agreements and are designed to apply only to such areas. Article XIV agreements, though adopted within the framework of the FAO Constitution, have a legal life of their own. They can therefore provide for different and greater contractual obligations among the parties thereto that extend beyond the obligations already assumed under the FAO Constitution.
45. The Conference pointed out that:
"The procedure of multilateral agreements has been used on several occasions to establish commissions and committees entrusted with specific tasks which fall within the general terms of reference of the Organization.
Indeed the Conference has already pointed out that agreements concluded under Article XIV of the Constitution should only be used when the purpose is to provide for "financial or other obligations going beyond those already assumed under the Constitution of the Organization".
46. Bodies established under Article XIV of the Constitution fall into one of the three following categories:
(a) bodies entirely financed by the Organization;
(b) bodies that, in addition to being financed by the Organization, may undertake cooperative projects financed by members of the body;
(c) bodies that, in addition to being financed by the Organization, have autonomous budgets.
47. During the Twenty-six Session of the FAO Conference in November 1991, amendments were adopted to Part R of the Basic Texts of the FAO, which were intended to devolve more independence and autonomy on Commissions established by agreements concluded under Article XIV of the Constitution, and in particular, those with autonomous budgets. The amendments were intended to allow for more independent decision-making by such bodies in such matters as the adoption of management measures, the approval of autonomous budgets, amendments to the constitutive agreements, adoption of financial regulations and rules of procedure, and the selection and appointment of the secretary of the Commission concerned.
48. The fishery bodies established under Article VI of the Constitution have limited power in management of the resources of the high seas. They were set up as advisory bodies and in some cases have acquired a competent status as technical bodies capable of providing scientific advice necessary for conservation and management decisions. The Indian Ocean Fishery Commission (IOFC), the Western Central Atlantic Fishery Commission (WECAFC), the Fishery Committee for the Eastern Central Atlantic (CECAF), and the Regional Fisheries Advisory commission for the Southwest Atlantic (CARPAS) were all established under Article VI of the FAO Constitution. CECAF has undertaken some management initiatives but its role under the Organization's Constitution remains an advisory one. With the establishment of the Indian Ocean Tuna Commission (IOTC), the IOFC will need a more appropriate structure in order to address other fisheries problems of the region on a sub-regional basis. CARPAS has not been active since 1974.
49. The Asia-Pacific Fishery Commission (APFIC) and the General Fisheries Council for the Mediterranean (GFCM) were established by agreements concluded under Article XIV of the FAO Constitution. The Agreement for the Establishment of the Indian Ocean Tuna Commission (IOTC) adopted by the FAO Council in 1993, entered into force in March 1996.
50. Article IV of the Agreement establishing APFIC provides a broad mandate for the Commission in respect of the management of the fisheries. The purpose of the Commission includes the promotion and the full and proper utilization of living aquatic resources by the development and management of fishing and culture operations. Its functions in respect of management is to formulate and recommend measures and to initiate and carry out programmes or projects to conserve and manage resources.
51. Article III of the Agreement establishing GFCM defines the purpose of the Council as to promote the development, conservation, rational management and best utilization of living marine resources. The Council has the mandate to formulate and recommend measures for the conservation and management of living marine resources which could include regulating fishing methods and fishing gear, prescribing the minimum size for individuals of specified species, establishing open and closed fishing seasons and areas, regulating the amount of total catch and fishing effort and their allocation among Members. Such Recommendations should be adopted by a two-thirds majority of Members of the Council present and voting. The recommendations of the Council are subject to objection procedure and if objections are made by more than one-third of members of the Council, the recommendation does not become binding on any Member.
52. The Agreement establishing IOTC gives the Commission the power to adopt, by a two-third majority of the Members present and voting, regulatory measures. Subject to objection procedure, Members of the Commission must take action, under their national legislation, to make effective the provisions of the Agreement and to implement conservation and management measures which have become binding.
53. It is imperative that prior to any changes to the existing institutional arrangements of the FAO regional fishery bodies their members are convinced that such changes are necessary, justified and beneficial to them and the regions or the sub-regions. The implementation of the UN Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks should be considered when the management of such stocks is concerned. Thus there is no justification in restructuring the existing FAO regional fishery bodies in accordance with the provisions of the UN Agreement if such stocks are not present in the areas covered by these bodies or for which there are already independent fisheries management organizations dealing with them.
54. While it may thus not be appropriate to restructure all of FAO regional fishery bodies in order to bring them into line with UN Agreement it is, however, necessary that the role of FAO fishery bodies in relation to the conservation and management of the resources of the high seas is clearly determined and defined by their members and the Organization. Whether they are required to function as technical/scientific bodies or technical/scientific bodies with advisory roles on management issues or function as management bodies they must be given a clear mandate and support to discharge their duties. In this respect, the restructuring of these bodies should take note of the measures discussed (paras. 26-35) with a view of strengthening these bodies and making them more effective.
55. FAO regional fishery bodies and in particular those established under Article VI of the Constitution, are essentially non-political entities which operate within the framework of the Organization and its overall objectives. This characteristic has ensured the impartiality of these bodies in respect of their objectives, functions and activities. The establishment of the IPFC (now APFIC) in 1948 and the GFCM in 1949 preceded even the first codification of the law of the sea by the UN in 1958. Other FAO fishery bodies with a mandate for high seas fisheries were established long before the adoption of UNCLOS in 1982. The main activities of these bodies have been helping their members in educational, technological, scientific, and research programmes related to fisheries.
56. The management of the resources, especially when it involves the allocations of allowable catch, levels of fishing effort and monitoring, control, surveillance and enforcement are highly political. Such functions can only be undertaken properly by bodies established by separate agreements under Article XIV of the Constitution or alternatively outside the framework of FAO entirely.
57. The FAO regional fishery bodies are for the most part dependent on the Organization for financial and secretariat support, and their expenses are met by the Organization's Regular Programme and ad hoc contributions by member States. In this context, the implementation of the recommendations of the regional fishery bodies and their subsidiaries concerning their work and even their regular sessions may be and indeed have been delayed or cancelled due to the financial constraints on the Organization. In addition, many projects which were funded by external budgets have been instrumental in the progress and achievements of these bodies. Support from donors has been declining in recent years and many projects have been phased out or terminated. Only the newly established Indian Ocean Tuna Commission has an autonomous budget.
58. At its Twenty-eighth Session (Rome, 20 October - 2 November 1995), the FAO Conference adopted the Code of Conduct for Responsible Fisheries. In doing so, the Conference urged FAO to strengthen Regional Fisheries Bodies in order to deal more effectively with fisheries conservation and management issues in support of subregional, regional and global cooperation and coordination in fisheries.
59. The future role of FAO Regional Fishery Bodies in the Conservation and management of the high seas fisheries, as well as their role in providing advice to developing countries on the implementation of the Code, can only be effected if necessary funds to meet these obligations are made available.
60. The financial implications of strengthening FAO Regional Fishery Bodies, as urged by the Conference, are very significant. The non-FAO fisheries organizations operate on annual budgets ranging from U$ 500,000 to over U$ 1,000,000 paid by members' contributions. The restructuring of these bodies, with a view to strengthening them, provide an excellent opportunity for the FAO and the members of these bodies to agree on viable solutions for their future. There are three ways by which the existing FAO regional fishery bodies can be strengthened in order to perform management functions.
i) Independent Bodies
61. Members of the existing FAO fishery bodies may wish to establish independent fishery bodies under international agreements to replace the existing ones. In this case, the agreements will provide provisions relating to the budgets and funding of the new bodies (e.g., ICCAT). Like all independent fishery organizations, the expenses of the new bodies will be met by members' contributions. These bodies can be given full powers to adopt regulatory measures (total allowable catch and allocations) , as well as implementing all the measures relating to monitoring, control and surveillance, and enforcement and settlement of all disputes.
ii) Bodies Within the Framework of FAO
62. Some of the existing FAO regional fishery bodies could become independent bodies operating under Article XIV of the FAO Constitution. As bodies operating within the framework of FAO, they can have autonomous budgets and administrative independence. Financial commitment towards their budgets by their members is an integral part of this process. These bodies can have management powers to adopt regulatory measures, although it may not be thought appropriate for them, as they operate within the framework of the Organization, to get involved in matters relating, for example, to enforcement.
iii) Bilateral or Multilateral Agreements
63. In restructuring the existing FAO regional fishery bodies, the fisheries resources of some smaller areas currently covered by IOFC, WECAFC and APFIC can be more effectively managed through bilateral, trilateral or multilateral agreements or arrangements. Member States can agree among themselves to establish the most suitable institutional arrangements for the management of the resources concerned.
64. Under Article 117 of UNCLOS "All States have the duty to take, or to cooperate with other States in taking, such measures for their respective national as may be necessary for the conservation of the living resources of the high seas". The need for cooperation between States on conservation and management of the living resources of the high seas is further emphasized in Article 118 of the Convention.
65. The UN Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks requires States to cooperate through sub-regional or regional fisheries management organizations or arrangements for the conservation and management of such stocks. Article 1 of the Agreement defines the term "arrangement" as "a cooperative mechanism established in accordance with the Convention and this Agreement by two or more States for the purpose, inter alia, of establishing conservation and management measures in a subregion or region...".
66. The conservation and management of some fisheries resources and in some areas, particularly at sub-regional levels, may be carried out more effectively by cooperation between two or more States through agreements without having to formally establish fishery management organizations. In addition, many fisheries management organizations don not have the power to implement the regulatory measures (monitoring, control surveillance and enforcement as well as settlement of disputes). It may be both necessary and desirable that members of these organizations use the term "arrangement" for establishing a mechanism through which the regulatory measures adopted by their Commissions are effectively implemented.
