2.2 Nature of arrangement

COMPARATIVE ANALYSIS

With three exceptions, each of the arrangements is a treaty. The three exceptions are:

(a) Argentina/UK Joint Statement
(b) Australia/Indonesia MOU
(c) the Agreed Records of the Mackerel System

COMMENTARY

2.2.1 Joint statements

Joint statements may be helpful in cases of political sensitivity, where a treaty would be seen as politically unacceptable by one or more parties. (Indeed, the Argentina/UK Joint Statement is not signed.) They can provide a political impetus yet be abandoned at short notice. The inherent transient nature of management regimes under joint statements may not inspire confidence in fishery managers. However, this impact can be mitigated by a track record of meetings and collaboration under the joint statement. (For example, since 1990 there have been eighteen regular meetings and at least one ad hoc meeting under the Argentina/UK Joint Statement.)

Table 1: The 39 arrangements under consideration

	Arrangement full name	Short name (for this use in this report)
1	Joint Statement on the Conservation of Fisheries, 1990 (Argentina, United Kingdom)	Argentina/UK Joint Statement
2	Agreement between Argentina and Uruguay for Purposes of Regulating Jurisdiction in the River Plate and Ocean Areas Adjacent and Beyond this River, 1973	River Plate Treaty
3	Memorandum of Understanding between the Government of the Republic of Indonesia and the Government of Australia Concerning the Implementation of a Provisional Fisheries Surveillance and Enforcement Arrangement, 1981	Australia/Indonesia MOU
4	Agreement Relating to Cooperation in Fisheries, 1992 (Australia, Indonesia)	Australia/Indonesia Agreement
5	Treaty concerning Sovereignty and Maritime Boundaries in the area between the two Countries, including the area known as Torres Strait, and Related Matters, 1978 (Australia, Papua New Guinea)	Torres Strait Treaty
6	Agreement on Fisheries between Japan and the People’s Republic of China, 1997	Japan/China Agreement
7	Agreement on Fisheries between the Republic of Korea and Japan, 1998	Japan/Korea Agreement
8	Convention on Future Multilateral Cooperation in Northeast Atlantic Fisheries, 1980	NEAFC Convention
9	Protocol on the Conservation, Rational Utilization and Management of Norwegian Spring Spawning Herring (Atlanto-Scandian Herring) in the Northeast Atlantic, 1996 and Agreed Records 1997-2001	Herring System
10	Agreed Record of Conclusions of Fisheries Consultations between the European Community, the Faroe Islands and Norway on the Management of Mackerel in the North-East Atlantic for 2000 and 2001	Mackerel System
11	Agreement between the Government of the the Kingdom of Denmark together with the Home Government of the Faroe Islands, on the one hand, and the Government of the United Kingdom of Great Britain and Northern Ireland, on the other hand, relating to the Maritime Delimitation between the Faroe Islands and the United Kingdom, 1999	Faroes/UK Agreement
12	Agreeement on Cooperation in the Fishing Industry, 1975 (Norway, Russia)	Norway/Russia 1975 Agreement
13	Agreement Concerning Mutual Relations in the Field of Fisheries, 1976 (Norway, Russia)	Norway/Russia 1976 Agreement
14	Agreement on an Interim Practical Arrangement for Fishing in an Adjoining Area in the Barents Sea, 1978 (Norway, Russia)	Norway/Russia 1978 Agreement
15	Agreeement between Iceland, Norway and Russia Concerning Certain Aspects of Cooperation in the Area of Fisheries, 1999	Loophole Agreement
16	Convention on Fishing and Conservation of the Living Resources of the Baltic Sea and the Belts, 1973 (as amended)	Baltic Sea Convention
17	Agreement for the Establishment of a General Fisheries Commission for the Mediterranean, 1997	Mediterranean Agreement
18	Convention Concerning Fishing in the Black Sea, 1959	Black Sea Convention
19	Agreement for the Establishment of the Regional Commission for Fisheries, 1999	Gulf Agreement
20	Agreement Between the Government of the United States of America and the Government of Canada on Fisheries Enforcement, 1990	Canada/US Enforcement Agreement
21	Convention for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea, 1953 (as amended)	Halibut Convention
22	Treaty between the Government of Canada and the Government of the United States of America Concerning Pacific Salmon, 1985 (as amended) and Agreement between the Government of Canada and the Government of the United States of America, 1999	Pacific Salmon Treaty
23	South Pacific Forum Fisheries Agency Convention, 1979	FFA Convention
24	Nauru Agreement Concerning Cooperation in the Management of Fisheries of Common Interest, 1982	Nauru Agreement
25	Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement, 1982	Niue Agreement
26	Federated States of Micronesia Arrangement for Regional Fisheries Access, 1994	Micronesia Arrangement
27	Maritime Delimitation Treaty between Jamaica and the Republic of Colombia, 1993	Colombia/Jamaica Treaty
28	Agreement on the Delimitation of Marine and Submarine Areas and Maritime Cooperation between the Dominican Republic and the Republic of Colombia, 1978	Colombia/Dominican Republic Agreement
29	Treaty on Delimitation of Marine and Submarine Areas and Maritime Cooperation between the Republic of Colombia and the Republic of Costa Rica, 1977	Colombia/Costa Rica Treaty
30	Treaty on the Delimitation of Marine and Submarine Areas and Associated Matters Between the Republic of Panama and the Republic of Colombia, 1976	Colombia/Panama Treaty
31	Agreement between the Government of Colombia and the Government of Ecuador Relating to the Maritime Boundary between Colombia and Ecuador, 1975	Colombia/Ecuador Agreement
32	Treaty Concerning Delimitation of Marine Areas and Maritime Cooperation Between the Republic of Costa Rica and the Republic of Panama, 1980	Costa Rica/Panama Treaty
33	Delimitation Treaty between the Kingdom of the Netherlands and the Republic of Venezuela, 1978	Netherlands/Venezuela Treaty
34	Fishing Agreement Between the Government of the Republic of Trinidad and Tobago and the Government of the Republic of Venezuela, 1985	Trinidad and Tobago/ Venezuela Agreement
35	Convention for the Establishment of the Lake Victoria Fisheries Organization, 1994 (as amended)	Lake Victoria Convention
36	Convention on Fisheries Cooperation Among African States Bordering the Atlantic Ocean, 1991	African Atlantic Convention
37	Convention relative à la détermination des conditions d’accès et d’exploitation des ressources halieutiques au large des côtes des Etats Membres de la Commission sous-régionale des pêches, 1993	SRFC Access Convention
38	Convention sur la coopération sous-régionale dans l’exercice du droit de poursuite maritime, 1993	SRFC Hot Pursuit Convention
39	Convention entre le Gouvernement de la République du Sénégal et le Gouvernement de la République islamique de Mauritanie dans le domaine de la pêche maritime, 1999	Senegal/Mauritania Convention

2.2.2 Memoranda of understanding

Memoranda of understanding are a flexible category of instrument, seen by some States as binding and others as non-binding. The wording used is therefore of critical importance. Indeed, situations may arise where one party considers the instrument to be binding, while the other does not. When considered as non-binding instruments, they permit use of imperative language (with the political message that State carries) without the binding impact that such language would have if contained in a treaty. The Australia/Indonesia MOU provides for a fisheries surveillance and enforcement arrangement and a fisheries line, but both are couched as “provisional”. The sentiments reflected by the text of the savings clause and the provisional nature of the regime were presumably factors that dictated the choice of instrument in this case.

2.2.3 Agreed Records of the Mackerel System

The first page of each Agreed Record in the Mackerel System states that the Record “constitutes an ad hoc arrangement, it being without prejudice to future fisheries arrangement between the Parties”. There is also no statement in either Agreed Record that the Record will be applied from a given date. In view of these factors, the exact nature of the Agreed Records relating to northeast Atlantic mackerel is not clear. The Mackerel System can be seen as consisting of three participants that meet on an annual basis. The annual meeting is in effect the consultative mechanism, the recommendations that it makes apparently being non-binding upon the participants.

2.2.4 Treaties

Treaties are of course covered by the law of treaties (including the 1969 Vienna Convention on the Law of Treaties, where applicable). Two major benefits of treaties are that (a) they are binding on their contracting parties and (b) they are permanent over a specified timeframe unless otherwise terminated, or suspended or withdrawn from. This brings certainty, which is both attractive to fisheries managers and creates a political impetus that may be lacking in non-binding, more transient instruments. Yet they are also flexible instruments. They can be broad political frameworks or very specific technical instruments, applying for, say, just a year or much longer. Having said that, the effectiveness of a treaty of course depends on the political will of its contracting parties.