A clear shift in the role of RFBs has occurred over the past half-century, a trend which has intensified since the adoption of key international fisheries instruments after the United Nations Conference on Environment and Development (UNCED). In the first half of the twentieth century, the mandates of many RFBs identified their roles as research arm and advisor rather than decision-maker and enforcer.
The first watershed event - initiation of the process leading to the 1982 United Nations Convention on the Law of the Sea (“1982 UN Convention”) - prompted a focus on the emerging role of RFBs. A suite of new activities was envisaged, and this prompted RFBs to review and amend their conventions and opened the door to the establishment of new organizations with more modern mandates.
The second watershed event - adoption of the post-UNCED international fisheries instruments, brought the role of RFBs into sharper focus. In particular, the 1995 United Nations Fish Stocks Agreement (“Fish Stocks Agreement”) aims for a coherent conservation and management process. Its dependence on RFBs to achieve that process is clear: they are expected to become the management authorities for the establishment of conservation and management measures for the high seas and for their enforcement, through member States, on the high seas. In many respects, however, its application extends beyond the high seas and to States that are not party.
Fundamental to the new role it creates for RFBs in general, the Fish Stocks Agreement sets out an extensive list of RFB functions that underline the management role of RFBs. These functions take on particular significance in view of provisions relating to fishing by non-members and new entrants. Among the functions is a requirement for States, in fulfilling their obligation to cooperate through RFBs, to “agree on decision-making procedures which facilitate the adoption of conservation and management measures in a timely and effective manner”. This is accompanied by other provisions relating to decision-making that address the precautionary approach, transparency and dispute prevention. Reinforced by other post-UNCED international fisheries instruments, these areas indicate broad international agreement on decision-making in RFBs. They form the framework in this document for the review of decision-making in selected RFBs.
The recognition by the international community of the need for strengthened fisheries governance led to a review and reform of the mandates of some RFBs. At the same time, some RFBs have identified a number of constraints, such as a lack of willingness by member States to delegate sufficient decision-making powers to the regional bodies. This review, notes that decision-making is only one of many interrelated elements of governance by RFBs and that developing performance indicators for self-evaluation is within the domain of the RFBs, takes an objective approach in presenting information. While it is recognized that there are three main elements to decision-making - political will, legal obligations and institutional mechanisms - there is no attempt to analyse or evaluate the constraints or effectiveness of the decision-making process in any RFB or the reason for the adoption by an RFB of any particular process or decisions.
There is a wide range of decision-making objectives, functions and processes among the RFBs, and examples of these are described. Their relevance to the areas in the international instruments is introduced, and the increased level of activity of decision-making activity in some RFBs is noted.
A review of key decision-making rules and processes in RFBs is presented, within the framework of the provisions in the international agreements described above. In relation to the Fish Stocks Agreement’s call for improved decision-making in implementing the precautionary approach, this review notes that many RFBs are endorsing or implementing precautionary approach, including the establishment of reference points. Some RFBs see scope to improve data collection and management in certain areas, and many endorse the sharing of information and data. Approaches that have been taken towards improvement of decision-making on issues concerning the precautionary approach are described in the text.
The functions of RFBs described in Article 10 of the Fish Stocks Agreement include the obligation for States to “agree on decision-making procedures which facilitate the adoption of conservation and management measures in a timely and effective manner.” In this context, the following areas are considered, with illustrations drawn from the selected RFBs: subsidiary bodies, principal bodies, entry into force of conservation and management measures in an appropriate time period, and an objection procedure that is consistent with the criteria of timeliness and effectiveness.
Membership issues, including allocation criteria for new members, can also affect decision-making, and they are addressed as a backdrop to the above four areas. Reference is made to requirements of real interests, accommodating the interests of new members and the nature and extent of participatory rights. Membership requirements of the RFBs in this review are considered, with most RFBs in the review providing for open membership, subject to various requirements. Adoption of criteria that determines the nature or extent of participatory rights for new members facilitates the adoption of conservation and management measures and may encourage objectivity.
Decision-making in the subsidiary bodies is normally not provided in the Convention or Agreement establishing the RFB, but may be found in the rules of procedure. On the whole, subsidiary bodies make recommendations that are not binding and their decisions or reports are reached by consensus. The institutional structure of each RFB, including its subsidiary bodies, is different, and can be very complex with many levels, as illustrated in the text. The value of adopting clear decision-making procedures to ensure that the recommendations or advice will be timely and effective is emphasised.
Decision-making procedures for conservation and management measures by the principal bodies (Commissions) are included in the constitutive instrument for an RFB, and vary from a requirement for a unanimous decision, to a specified majority or simple majority, and a stated quorum. Some RFBs allow votes to be taken by secret ballot, roll call or, between sessions as needed, by written communication.
The time period between decision on and entry into force of conservation and management measures is normally set out in the constitutive instrument of the RFB. If an objection procedure is not used the earliest time for entry into force in the RFBs in this review ranges from 60 days to six months. The objection procedures differ in each RFB, but if there are objections, the longest period before entry-into-force is between around 100 days and eight months or longer. Various elements of the objection procedures are discussed.
To enhance transparency in the decision-making process, RFBs have inter alia adopted procedures for observers. The rules are summarized, including reference to qualifications of observers, application procedures and attendance at meetings.
Although most RFBs focus on the related area of dispute settlement, many of the RFBs in this review do not include dispute settlement in their constitutive instrument. Procedures for those that do are described, and procedures for dispute prevention, called for in the Fish Stocks Agreement, are discussed. One recently established RFB has taken some innovative steps in this regard.
The IPOA-IUU calls for strengthened decision-making in RFBs for effective implementation of relevant policies, and the implications of this are addressed in the context of the call by the World Summit on Sustainable Development to put the IPOA-IUU into effect by 2004.
The evolving role of RFBs to management bodies has placed demands on decision-making in RFBs, as evidenced by post-UNCED international instruments. While RFBs have not, on the whole, actively reviewed this area of governance, the current decade, a period of consolidation in which the post-UNCED instruments are being implemented, could provide a platform for further elaboration of decision-making procedures in RFBs in respect of the areas discussed in this document.
