2.4 Provision for harmonization

COMPARATIVE ANALYSIS

The term “harmonization” is frequently used in the literature, but seldom defined. The terms “harmonize”, “harmonization” or “harmonizing” are also used in some of the arrangements [Torres Strait Treaty; Herring System; Norway/Russia 1976 Agreement; Trinidad and Tobago/Venezuela Agreement; African Atlantic Convention], again without definition.

In this report, harmonized measures will be taken as meaning compatible measures, i.e. measures that fit well together for the purpose of achieving the desired fisheries management objective. Thus although harmonization derives from cooperation, not all cooperation leads to harmonization. In the following analysis, the focus will be on harmonized conservation and management measures within the zone under consideration. Thus harmonized measures related to research, MCS or a matter other than fisheries have not been included.

The arrangements have been analysed for evidence that the parties have wished to place themselves under a duty in respect of harmonization. The method used has been to look for: (a) provision for a primary consultative mechanism that can make binding decisions; (b) provision for quantitative technical measures or quantitative allocations; or (c) use of appropriate words (such as harmonization, unification, coordination, complementarity, compatibility, uniformity). The present analysis has excluded (a) bare cooperation or collaboration, (b) information exchange and (c) primary consultative mechanisms making only non-binding recommendations, on the assumption that none of these would at face value be sufficiently likely to lead to harmonization. The results are presented in Table 3.

Of course, where no evidence under these criteria is found, that does not necessarily mean that no harmonization will occur. For example, an arrangement may provide for delegations to “cooperate” in a commission and submit the resulting non-binding conservation and management recommendations to the parties. In practice, the commission may choose to create harmonized measures and the parties may choose to accept them. However, such an arrangement would nevertheless be excluded from the current analysis for the reasons given above.

A look at Table 3 shows that express references to harmonization of legislation are found in only two arrangements [River Plate Treaty; Netherlands/Venezuela Treaty]. In contrast, express references to harmonization of regimes, policies or measures are found in fifteen arrangements. In all 17 of these arrangements, with two exceptions, the harmonization can be described as the desired end point of a process.

In eleven of the seventeen arrangements, a duty on the parties as individuals is involved. In nine of these, the duty is not to harmonize per se but inter alia to “seek to develop” [Australian/Indonesia Agreement], “consult... for the purpose of” [Torres Strait Treaty], “endeavour to” [African Atlantic Convention], “initiate work to” [Herring System, 1996 Protocol], “cooperate... with a view to” [Norway/Russia 1976 Agreement] or “support the broadest international cooperation in order to” [Colombia/Costa Rica Treaty]. In the remaining two, the parties simply agree to “coordinate as much as possible” [Colombia/Dominican Republic Agreement] or “coordinate... insofar as possible” [Netherlands/Venezuela Treaty].

Nine arrangements provide for primary consultative mechanisms that can in turn make binding recommendations [Japan/China and Japan/Korea Agreements; NEAFC Convention; Herring System (its primary consultative mechanism being the annual meetings of the parties); Baltic Sea Convention; Mediterranean Agreement; Black Sea Convention; Gulf Agreement; Lake Victoria Convention].

Two arrangements require the parties to implement specified quantitative technical measures [Black Sea Convention; SRFC Access Convention] and a further five set allocation tonnages or percentages [Torres Strait Treaty; Herring System; Mackerel System; Halibut Convention; Pacific Salmon Treaty].

COMMENTARY

Among the arrangements analysed, the three routes most likely to lead to harmonization are: (a) to provide for a primary consultative mechanism that can in turn make binding decisions (used by nine arrangements); (b) to place a duty on the parties as individuals to harmonize their measures, or at least to seek harmonized measures (used by seven arrangements); and (c) to provide for quantitative technical measures or allocations in the arrangement (used by seven arrangements). Only one [Herring System, 1996 Protocol] attempts to use all three together.

The remaining arrangements appear to avoid any of these routes, though some instead have aspirations to harmonization, discernible from the wording used.

Table 3: Provision for harmonization

	Arrangement	Provision for harmonization
1	Argentina/UK Joint Statement	None.
2	River Plate Treaty	Art 82: “The... Commission shall... [promote]... studies and presentation of projects on the unification of the laws of the two Parties concerning matters with which the Commission has been entrusted”
3	Australia/Indonesia MOU	[Enforcement only.]
4	Australia/Indonesia Agreement	(a) Preamble: “Recognising that coastal States are obliged to seek... to agree upon measures necessary to coordinate... the conservation and development of shared stocks” (b) Art 3(1): “The Parties shall seek to develop complementary regimes for the conservation, management and optimum utilisation of shared stocks, straddling stocks and highly migratory species.”
5	Torres Strait Treaty	a) Art 13(4): “The Parties shall consult, at the request of either, for the purpose of... harmonizing their policies with respect to the measures that each shall take pursuant to this Article... and ensuring the effective and coordinated implementation of those measures”. The measures include inter alia “measures for the prevention and control of... damage to the marine environment from all sources and activities under its jurisdiction or control” (Art 13(2)) b) Establishes allocation percentages between the parties.
6	Japan/China Agreement	Only in the sense that recommendations of the committee on certain matters are binding.
7	Japan/Korea Agreement	Only in the sense that recommendations (on certain matters) and decisions of the committee are binding.
8	NEAFC Convention	(a) In the sense that the recommendations of the commission are binding (on non-objecting parties). (b) Art 5(2): “The appropriate Contracting Party and the Commission shall accordingly promote the coordination of such recommendations, measures and decisions [i.e. those for straddling stocks].”
9	Herring System	a) In the sense that the conclusions of the parties are binding. b) Protocol, para 3.2: “The Parties shall initiate work to establish harmonized conservation measures in relation to the fishery on the stock.” c) Establishes allocation tonnages between the participants.
10	Mackerel System	(a) 2001 Agreed Record, Annex I, para 8: “... the Parties concur that it is of paramount importance to adopt compatible conservation measures in different management areas...” (b) NEAFC recommendations, para 2: “This [high seas] allowable catch is established in order to ensure compatibility with the management measures adopted by the relevant coastal States.” (c) Establishes allocation tonnages between the parties.
11	Faroes/UK Agreement	None.
12	Norway/Russia 1975 Agreement	None.
13	Norway/Russia 1976 Agreement	Art 4(2): “The Contracting Parties shall cooperate... with a view to ensuring the harmonization of any new measures for the regulation of fishing in [specified] areas... in so far as is practically feasible.”
14	Norway/Russia 1978 Agreement	[Agreement not seen.]
15	Loophole Agreement	None.
16	Baltic Sea Convention	Only in the sense that the recommendations of the commission are binding (on non-objecting parties).
17	Mediterranean Agreement	Only in the sense that the recommendations of the commission on conservation and management measures are binding (on non-objecting parties).
18	Black Sea Convention	Art 8: “With a view to working out and coordinating measures for the application of this Convention, a Joint Commission shall be established.” In the sense that the convention (in Art 5) establishes specified quantitative conservation and management measures. In the sense that decisions of the commission on the matter of introducing amendments to Art 5 are binding.
19	Gulf Agreement	Only in the sense that the recommendations of the commission on conservation and management measures are binding (on non-objecting parties).
20	Canada/US Enforcement Agreement	[Enforcement only.]
21	Halibut Convention	Establishes allocation percentages between the parties.
22	Pacific Salmon Treaty	Establishes allocation percentages between the parties.
23	FFA Convention	Preamble: “Desiring to promote regional cooperation and coordination in respect of fisheries policies;” Art 5(2)(a): “In particular the Committee shall promote intra-regional coordination and cooperation in... harmonization of policies with respect to fisheries management” [Not known whether recommendations of the committee are binding.]
24	Nauru Agreement	[Enforcement only.]
25	Niue Agreement	[Enforcement only.]
26	Micronesia Arrangement	[Enforcement only.]
27	Colombia/Jamaica Treaty	None.
28	Colombia/Dominican Republic Agreement	Art V: “[The parties have agreed to] coordinate as much as possible the measures of conservation that each party applies in its [zones, particularly for those species which go further than their respective marine zone...”
29	Colombia/Costa Rica Treaty	Art IV: “[The parties have agreed to] support the broadest international cooperation in order to coordinate the conservation measures which each State applies in [its zone], particularly as regards species that move beyond its... zone...”
30	Colombia/Panama Treaty	Art V: “[The parties have agreed to] promote cooperation... in coordinating the measures for conservation applied by each [party] in [its zone], particularly with regard to species which move beyond their respective [zones]...”
31	Colombia/Ecuador Agreement	Art 8: “[The parties have agreed to] encourage the most comprehensive international cooperation for the purpose of coordinating those measures for conservation applied by each State in [its zone], particularly in reference to those species that migrate from their respective [zones]...”
32	Costa Rica/Panama Treaty	Art V: “[The parties will] encourage the fullest international cooperation in order to coordinate the conservation measures each state applies in [its zone], especially with respect to migratory species...”
33	Netherlands/Venezuela Treaty	Art 10: “For the purpose of properly conserving and using the living resources in the adjacent waters of both nations, the Contracting Parties agree to coordinate their respective legislation and regulations, insofar as possible.”
34	Trinidad and Tobago/Venezuela Agreement	Art II(3)(a): “For the purpose of harmonizing the rules and measures adopted by each government... the... Commission... shall recommend to the respective Governments the adoption of rules and measures relating to the management and conservation of these resources.”
35	Lake Victoria Convention	Preamble: “Being convinced that joint action by the Contracting Parties is essential, in order to develop uniform management measures to the extent appropriate...” Art II(2): “The objectives of the Organization shall be to... harmonize national measures for the sustainable utilization of the living resources of the Lake...” In the sense that decisions of the Council of Ministers (inter alia on conservation and management measures) are binding on the parties.
36	African Atlantic Convention	Preamble: “Convinced... of the need for regional consultation for the purpose of achieving harmonized policies regarding fishery resources exploitation, conservation and processing;” Preamble: “Convinced that... no rational management of stocks... may be secured without coordination of policies in this field...” Art 2(d): “[The objectives of this Convention shall be to enable Parties to]... coordinate and harmonize their efforts... for the purpose of conserving [and] exploiting... fishery resources...” Art 3(4): “Parties shall endeavour to adopt harmonized policies concerning the conservation, management and exploitation of fishery resources...” Art 4: “Parties undertake to... coordinate their actions [regarding the conservation of highly migratory species] within the competent international organizations.” Art 13: “Parties shall endeavour to harmonize their fisheries polices.”
37	SRFC Access Convention	In the sense that the convention establishes specified quantitative conservation and management measures.
38	SRFC Hot Pursuit Convention	[Enforcement only.]
39	Senegal/Mauritania Convention	[Not known whether recommendations of the committee are binding.]

Harmonization of measures is an important element of effective cooperation in fisheries management. Providing for such harmonization adds a level of sophistication to bare cooperation or collaboration. Providing for a primary consultative mechanism that can make binding decisions is one way the parties can seek to bring about harmonization. However, the use of such a mechanism may not be appropriate in all circumstances. In other cases, the parties may simply wish to draft the concept of harmonization into the arrangement. The most popular drafting solution seems to be to place a duty on the parties to undertake some kind of process that will lead to harmonization of regimes, policies or measures.