3. REVIEW OF KEY DECISION-MAKING RULES AND PROCESSES IN SELECTED RFBS

As noted above, the Fish Stocks Agreement singles out four areas relating to decision-making in RFBs. These are: the precautionary approach, functions, transparency and prevention of disputes. They are considered below.

3.1 Precautionary approach

In implementing the precautionary approach, States must “improve decision-making for fishery resource conservation and management by obtaining and sharing the best scientific information available and implementing improved techniques for dealing with risk and uncertainty”

In addressing the implementation of the precautionary approach, the Fish Stocks Agreement does not specifically refer to RFBs. It obligates States to improve decision-making by obtaining and sharing the best scientific information available and implementing improved techniques for dealing with risk and uncertainty.^[72] In practice, States are implementing the precautionary approach both at national levels and through RFBs. In a 2002 survey of the Secretariats of RFBs, most indicated that steps had been taken to implement the precautionary approach.^[73] A subsequent survey in 2003 reported that the precautionary approach is widely endorsed, and in most cases precautionary reference points have been established in accordance with Annex II of the Fish Stocks Agreement.^[74]

The 2003 survey reported that all RFB respondents have standard requirements for the collection of scientific, technical and statistical data, including as set out in Annex 1 of the Fish Stocks Agreement, and most are satisfied that reliable stock assessments are made on the basis of data available. At the same time, the report notes, RFB respondents see scope to improve data collection and management, for example in the following areas:

• expansion in the use of vessel monitoring systems (VMS) as a tool for data collection as well as for monitoring, control and surveillance (MCS) activities;

• improvements in the completeness of data made available, with two related issues being the reluctance of some States to share data and the confidentiality of non-aggregated data;

• participation by a representative sample of qualified scientists from all RFB member States.

The RFBs in the current review have taken a number of approaches towards improvement of decision-making on issues concerning the precautionary approach. They include establishment of special working groups or committees,^[75] tasking existing committees^[76] and receiving scientific advice from another RFB that builds in the precautionary approach.^[77] One RFB that already applies the precautionary approach is developing a more formal procedure of using scientific advice that incorporates the precautionary approach.^[78] Another RFB combines a number of approaches, including an agreement on the adoption of a precautionary approach, and a decision structure and plan of action relating to the precautionary approach in specified contexts.^[79] Finally, in one more recently established RFB, the implementation of a precautionary approach to fisheries management is reflected in the acceptance of the principle of incorporating uncertainty in stock assessments.^[80]

It is evident that the action taken by RFBs to improve decision-making in implementing the precautionary approach indicates broad activity and a variety of approaches.

The call by the Fish Stocks Agreement to share information has been answered by some RFBs working with each other, and more generally in the biennial meetings of RFBs. At the second such meeting in 2001, the meeting expressed support for the development of a Fisheries Global Information System (FIGIS) and recognized the essential need to improve data collection, analysis and dissemination of information on status and trends of fisheries and fishery resources. This was reaffirmed at the third meeting, in considering the status of partnerships between RFBs and FAO to develop the Fisheries Resources Monitoring System (FIRMS).

While the instruments do not mention the ecosystem approach in connection with decision-making, it has been recognized that the ecosystem approach requires clarification of the conceptual and operational implications of the approach, and some RFBs are engaged in this task: one is engaged in the development of an appropriate decision-making model.^[81] It has a full programme of research into, and monitoring of, ecosystem functionality (including possible direct/indirect effects of fishing). It includes conservation measures for bycatch and to regulate the effects of fishing. A decision-making system is being developed to take account of possible ecosystem implications in the implementation of fisheries management measures.

3.2 Function of RFBs - agreement on decision-making procedures

The functions of RFBs include the requirement for States, in fulfilling their obligation to cooperate through subregional or regional fisheries management organizations or arrangements, to “agree on decision-making procedures which facilitate the adoption of conservation and management measures in a timely and effective manner”.

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”.^[82]

In this context, “decision-making procedures” are not confined to a voting formula. It can involve consideration of the elements of the decision-making process, including:

• subsidiary bodies: clear, timely procedures for making recommendations/giving advice;

• principal bodies: clear and timely procedures;

• entry into force in an appropriate time period;

• an objection procedure that is consistent with the criteria of timeliness and effectiveness.

Each of these elements will be considered below with reference to the practice in RFBs in this review. However, it should be borne in mind that political will and related considerations also play an indirect part in the decision-making process. In that context, membership issues, including allocations to new members, can also affect decision-making, as noted below in section 3.2.1, below. Discussion of membership issues provides a general background to subsequent consideration of the four elements noted above.

It should be noted that the adoption of conservation and management measures is just one step in the management process. Implementation and enforcement are equally important, and some form of decision-making is required to ensure that they are also effective and timely. However, because they form separate activities, and are approached as such under Article 10 of the Fish Stocks Agreement, they will not be considered separately in this review.

3.2.1 Membership requirements and allocation criteria for new members

The May, 2003 report on the status and implementation of the Fish Stocks Agreement notes that a key challenge for RFBs is to bring as many States as possible within its framework, recognizing the legitimate aspirations of new entrants to engage in fishing on the high seas without increasing the total fishing for stocks.^[83] It is often the case that the stocks are fully exploited and fully allocated among existing RFB members, so such cooperation can translate into the adoption of new allocation criteria by RFBs. Such criteria represent a departure from the general practice of basing allocations on historical catch records, and can lead to timely and effective adoption of conservation and management measures, including allocations.

The Fish Stocks Agreement addresses the issue of new members and participatory rights in three key areas. First, a provision that States having a “real interest” in a fishery may become members of the relevant RFB is in Article 8. Second, accommodating the interests of new members is included in the core functions of RFBs described in Article 10, and third, criteria to be taken into account in determining the nature and extent of participatory rights for new members appear in Article 11. However, “real interest” is not defined, so this would be left to the individual RFB to decide.^[84]

In this context, the issues that impact on decision-making are:

• whether an RFB is open to new members and if so the relevant membership requirements;

• the approach by RFBs to allocation criteria for new members.

Membership and allocation criteria may not be, strictly speaking, the “decision-making procedures” that are referred to in the Fish Stocks Agreement because they do not determine a process for making decisions. Criteria for membership and the decision-making procedures on new members are set out in the constitutive instrument of the RFB, while adoption of criteria would be subject to agreed decision-making procedures. However, one objective of the Fish Stocks Agreement is the adoption of the conservation and management measures by as many relevant States and fishing entities as possible, through a RFB. One part of the decision-making procedure is therefore to ensure that as many relevant States and fishing entities as possible are part of the process; this would facilitate adoption of conservation and management measures in an effective manner. And for this to occur, the RFB’s criteria for new members and the decision-making process in relation to admission of new members can be a fundamental concern.

Adoption of criteria to determine the nature or extent of participatory rights for new members would facilitate the adoption of conservation and management measures because they could offer guidelines for the decision, thus potentially making the procedure more timely and effective.

All the RFBs in this review have open membership, including for REIOs, but many attach qualifications, described in detail below. Participation in the fisheries is the requirement most frequently adopted for membership. Two RFBs require new members to have some interest in the living resources in the Area of Competence (“Area”); two require participation in the fisheries (with one requiring approval by the RFB); an additional two require some form of FAO membership and either participation in the fisheries or coastal States; one refers to coastal States and participation in the fisheries four years preceding the adoption of the Convention; one refers simply to United Nations membership, another to approval by ¾ of the members, and an RFB with a region and species mandate requires that members be a State that exercises jurisdiction in the region or a State of origin for the species. Details of these membership requirements are noted below.

• States interested in research or harvesting activities in relation to the living marine resources of the Area;^[85]

• States interested in preservation and exploitation of the living resources in the Area;^[86]

• participants in the fisheries of the Area, approved by the General Council;^[87]

• any government whose nationals participate in the fisheries covered by the Convention;^[88]

• Members or Associate Members of FAO; other States members of UN, any of its Specialized Agencies or the International Atomic Energy Agency that are (i) coastal States or Associate Members situated wholly or partly within the region; (ii) States or Associate Members whose vessels engage in fishing in the region for stocks covered by the Agreement that accept the Agreement and are approved by a two-thirds majority of its membership;^[89]

• Members and Associate Members of FAO that are (i)coastal States or Associate Members situated wholly or partly within the Area; (ii) States responsible for international relations of territories situated wholly or partly within the Area; (iii) States or Associate Members whose vessels engage in fishing in the area of stocks covered by the Agreement. New members may be admitted by a two-thirds majority vote provided they are Members of the United Nations or any of its Specialized Agencies or the International Atomic Energy Agency provided that they are coastal States situated wholly or partly within the Area or States whose vessels engage in fishing in the Area for stocks covered by the Agreement;^[90]

• coastal States, other States and REIOs whose vessels fish or fished in the Area during the four years preceding the adoption of the Convention;^[91]

• any member of the United Nations or of any Specialized Agency;^[92]

• approval by ¾ of the members;^[93]

• any State that exercises fisheries jurisdiction in the North Atlantic or is a State of origin for salmon stocks, provided the Council approves.^[94]

For REIOs, it is standard for RFBs to require that States have transferred competence to the REIO in respect of matters within the purview of the RFB. In such a case the REIO normally votes on behalf of all its members. Circumstances are foreseen, in some cases, where a REIO is to exercise its membership rights on an alternative basis with its member States that are members of the RFB within areas of their respective competence, and this is provided for in the constitutive instrument.^[95]

Many RFBs have a proactive policy of inviting non-members that fish in the Area to become members or participate in meetings of the RFB,^[96] and the membership of some RFBs has increased in recent years.^[98]

Different approaches have been taken towards adopting new allocation criteria for the new members as follows:^[99]

• NAFO is open to new members with the proviso that stocks are fully allocated and new allocations will only be available for previously unallocated stocks when these recover sufficiently to allow allocations. The allocation criteria for such stocks are under discussion, with the criteria in Article 11 of the Fish Stocks Agreement on the nature and extent of participatory rights for new members regarded as non-exhaustive.

• ICCAT is open to new members and in 2001 agreed new allocation criteria for all its stocks. These take into account Article 11 and other elements relevant to the ICCAT situation, including historical catch records, but without prioritising the various criteria.

• IATTC limits fishing in the Convention Area to vessels on its purse seine register rather than by allocations, so new members would have to access these vessels by purchase or transfer.

• NEAFC does not have allocation criteria and is planning discussions on new members.

• IOTC and CCAMLR do not have allocation criteria.

Despite best efforts to agree on allocation criteria, a decision on conservation and management measures, including allocations for new entrants, may be taken, at least in part, for political reasons. Considerations such as return on investment and historical tradition tend to support this. Adoption by RFBs of relevant criteria, however, minimise this risk and may result in more effective decision-making procedures.

3.2.2 Subsidiary bodies: clear and timely procedures for making recommendations/giving advice

The 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. In some RFBs, if there is no consensus in the scientific body, the report to the commission must contain all views.^[100]

The institutional structure of each RFB, including its subsidiary bodies, is different. Depending on factors such as mandate, membership and funding, some RFBs have established an extensive web of subsidiary bodies, while others which haven’t might operate with a focus on fewer separate issues. A detailed description of the institutional structure of each RFB is provided in Appendix 2, and an indication of the types of its subsidiary bodies appears in Appendix 3 under “Organization”.

The constitutive instrument of the RFB usually specifies the subsidiary body or bodies, or designates authority to set up subsidiary bodies. In most cases such authority resides with the principal decision-making body. Rules of Procedure may then apply to the subsidiary bodies. All RFBs in this review have a Commission as the main decision-making body (except NASCO which has three geographical Commissions and a Council). Each RFB has a secretariat, and most have special bodies to address Finance and Administration, but they take different forms. For example, four of the RFBs have set up Standing Committees on Finance and Administration,^[101] three have established Committees for that purpose,^[102] two have Councils that attend to such matters,^[103] one has budget and contributions sub-committees,^[104] and others take different approaches.

Otherwise, subsidiary institutional structures, and their form and mandates, vary. This is seen below, in the listing of some component bodies of RFBs in this review. They have various forms, including Councils, Committees, Standing Committees, Sub-Committees, Panels, Working Parties, Working Groups, Permanent Working Group, ad hoc Working Groups and Species Groups, and the organization and hierarchy is determined by each RFB. Although this represents an aggregation of many of the subsidiary bodies for the RFBs, and not any particular decision path, it illustrates the breadth of issues considered by RFBs and inspires an appreciation for the value of adopting clear decision-making procedures to ensure that the recommendations or advice will be timely and effective.

Councils

Scientific Council^[105]
General Council^[106]
Council - administration^[107]
Council of Parties to the Convention^[108]

Committees

Scientific^[109]
Technical^[110]
Finance and Administration^[111]
Aquaculture^[112]
Permanent Committee on Control and Enforcement^[113]
Compliance Committee^[114]

Standing Committees

Finance and Administration^[115]
Observation and Inspection^[116]
Regulatory Measures Committee^[117]
International Control^[118]
Non-contracting Party Fishing Activities^[119]
Fisheries Science, Publications, Fisheries Environment and Research Coordination^[120]
Research and Statistics^[121]

Sub-Committees

Stock Assessment, Economic and Social Sciences, Marine Environment and Ecosystems, Statistics and Information^[122]

Statistics, Environment, Bycatch^[123]

Aboriginal Subsistence Whaling, Infractions, Budget, Contributions^[124]

Panels

Tropical Tuna, Northern Temperate Tunas, Southern Temperate Tunas and Swordfish, Billfishes and Small Tunas^[125]

Working Parties

Data Collection and Statistics, Tropical Tunas, Neritic Tunas and Billfishes, Tagging, Methods, and Temperate Tunas (future)^[126]

Working Groups

Fish Stock Assessment, Ecosystem Modelling and Management, Incidental Mortality Associated with Longline Fishing^[127]

Blue Whiting, the Future of NEAFC^[128]

Fishing by Non-Parties^[129]

Permanent Working Group

Compliance^[130]

Ad hoc Working Groups

Small Pelagic Species, Demersal Species, Economic and Social Indicators, Marine Ecology and Environment, Anthropogenic Effects and Fishing Technology^[131]

Management Units, Operational Units and Sustainable Tuna Farming^[132]

Large Pelagic Species^[133]

Experts on Computerisation^[134]

Precautionary Approach^[135]

Species Groups

Individual stocks^[136]

It should be noted that not all recommendations on matters relating to conservation and management measures come from subsidiary bodies; additional advice is often solicited from other RFBs, research institutions or others. Decision-making procedures should take this into account as well.

It is generally acknowledged that decision-making in the Commissions can be subject to political motivation. There is also scope for this in the subsidiary bodies, but in general the latter tend to be more technical and therefore objective. Decision-making procedures at that level have the opportunity to promote the objectivity. From the point of view of establishing subsidiary bodies and/or seeking their advice, some of the considerations in promoting clear procedures and timely recommendations or advice can include, as appropriate:

• the establishment of subsidiary bodies as provided in the constitutive instrument;

• the mandate and capacity of an RFB to establish or maintain a subsidiary body;

• whether the procedure to establish a subsidiary body is flexible and responsive to the need for recommendations/advice;

• the procedure for initiating a request to subsidiary body - e.g. a member State,^[137] the principal body (e.g. Commission), or a senior subsidiary body (e.g. Scientific Council);

• collection/provision of data and information;^[138] and

• agreement on a timetable.

In addition to the above, the decision-making procedures in the subsidiary body contribute to the effectiveness of the recommendations or advice. As noted above, decisions are usually taken by consensus or regulated by Rules of Procedure.

3.2.3 Principal bodies: clear and timely procedures

Decision-making procedures for conservation and management measures by the principal bodies (Commissions) are included in the constitutive instrument for an RFB. Details of requirements for each RFB in this review are included in Appendix 2, and summarized in Appendix 3 under “Decision-making by Principal Body”. They vary from a requirement for a unanimous decision,^[139] to a specified majority or simple majority, and a stated quorum. Two RFBs in this review take decisions by consensus where possible,^[140] and two take decisions by consensus on matters of substance.^[141] For majority or qualified majority votes, some RFBs relate the vote needed to those present and casting affirmative or negative votes, others refer to members “present and voting”. Many require a 2/3 or 3/4 majority when deciding on conservation and management measures.^[142] Some RFBs require unanimous decisions.^[143] Some RFBs allow votes to be taken by secret ballot, roll call or, between sessions as needed, by written communication.

The timeliness of Commissions’ decisions on conservation and management measures can depend to some extent on the timeliness of the procedures in any subsidiary body that is mandated with making recommendations or giving advice. Matters are usually decided at meetings of the Commission, but the flexibility of some RFBs in allowing intersessional votes as necessary or in cases of emergency allows a timely response.

The normal rule is one vote per contracting party, depending on the structure of the RFB. For example, one RFB with national sections provides for one vote to each national section.^[144] As noted above, REIOs will normally exercise one vote unless it does not have competence in the matter being discussed.

3.2.4 Entry into force in an appropriate time period

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. In determining the time period, two factors are normally taken into consideration. One is adequate time for an objection period, described in section 3.2.5 below, and the other is to allow member States adequate time to implement the measures at national level.

Most RFBs in this review have an objection procedure. If no objection is made, the earliest time any conservation and management measure can enter into force is sixty days, usually after notification by the Secretariat. This applies in three RFBs. One RFB requires a period of six months before measures enter into force. Mindful that the objection period, discussed below, could extend the date of entry into force, the waiting periods required by the RFBs in this review between notification and entry into force are:

• 60 days^[145]

• 80 days^[146]

• 90 days^[147]

• 120 days^[148]

• 180 days^[149]

• six months^[150]

An objection procedure is seen as unnecessary by the RFB that requires unanimous voting, so resolutions may authorise the Director to set a date for entry into force of the measures.^[151] For example, resolutions may state that a fishery be closed two weeks after notification by the Director if he determines that the catch has reached a certain level. It is accompanied by an obligation for each Party to send the Director information on the legal and administrative provisions for implementing the closure, at the latest 10 days after its entry into force.

3.2.5 An objection procedure consistent with the criteria of timeliness and effectiveness

The objection procedure, which results in a member not being bound by a conservation and management measure and may trigger other consequences, varies from one RFB to another. Some RFBs refer instead to “non-acceptance” procedures.^[152] The procedures are found in the constitutive instrument for the RFB.

The procedures are described in detail for each RFB in Appendix 2, and are summarized under the heading “Objection” in Appendix 3. In general, objection procedures can significantly delay the entry into force of conservation and management measures, and for some RFBs, if a certain critical mass of members object, for example 1/3, then the other members are not obligated to give effect to the measures.^[153]

Extended periods of objection are provided by many RFBs. This is triggered by the first objection, and consists of one or two additional periods of time beyond the original objection period during which further objections may be made, sometimes in a manner of leap-frogging^[154] or meetings may be called.^[155]

An example of the “leap-frogging” objection procedure^[156] is where a member objects in the six-month period, the recommendation does not become effective for an additional 60 days. Then, another member may object during the 60 days and another member may object within the expiration of 45 days of the first objection or the expiration of 60 days, whichever is later. NAFO provides another example, where objections may be made with 60 days and measures will not become binding on non-objecting parties until 40 days after the objection. Other members may object during the 40 day period or within 30 days from notification of the objection, whichever is later.

Because of the contingencies involved in many of the procedures, it is difficult to state with accuracy the longest possible time an objection procedure could take. However, it would appear to range from around 100-150 days^[157] to 180 - 200 days^[158] to 8 months or longer.^[159]

Some RFBs also provide for termination of conservation and management measures by members. This type of provision usually permits members to opt out of a binding measure from a certain time, such as one year from the date of entry into force. There is normally a waiting period of around one year for the opt-out to take effect.^[160]

3.3 Transparency

States must provide for transparency in the decision-making process and other activities of subregional and regional fisheries management organizations and arrangements.

Transparency and accountability are two major themes in the post-UNCED international instruments, including the Fish Stocks Agreement. The RFBs in this review have addressed the issue in a variety of ways, some of the most visible and publicly accessible being the maintenance of websites and regular publications. In terms of the decision-making process, this translates into procedures for observers. International or regional organizations, non-member States, non-government organizations (NGOs) - as well as international non-government organizations (INGOs) - are increasingly taking part in the meetings, and as appropriate the work, of the RFBs. They do not take decisions, but can be part of the process. They contribute as observers at commission and other meetings. Some of the organizations, NGOs and INGOs support active research, communication or other relevant programmes and it can benefit both the RFBs and the organizations to facilitate coordination and cooperation.

With the apparent aim of enhancing transparency in the decision-making process, all RFBs in this review have adopted rules for observers at their meetings. They are described in detail for each RFB in Appendix 2, and summarized under “observers” in Appendix 3. The rules of many RFBs require that the applicant organization have specified qualifications, for example they should have special competence in the field of activities of the RFB, or legitimate interests.

The rules normally require that application for attendance be made well in advance of the meeting. This can range from 15^[161] to 120^[162] days prior to the meeting. Other RFBs require advance notification of around 60 days.^[163] Information to be submitted by the applicant is specified in the rules. There is then usually a time within which member States are notified, so they may approve or object to the application. In many cases the observers are required to pay a fee, which can be related to costs of documentation and administration.

The rules provide a framework for observers rights and privileges at meetings. This includes making statements - usually for a limited time at the invitation of the Chair - distributing documents (often with prior approval) and receiving meeting documents. Some RFBs provide that observers may be excluded if the seating capacity in the room is insufficient, or that the number of observers from each organization is to be limited. Rules may specify that observers are excluded from in camera sessions, or may declare that they may or may not attend meetings of specified subsidiary bodies. They may also specify whether and when members of the press are invited to observe, and when press conferences may be held.

3.4 Dispute prevention

States must cooperate in order to prevent disputes and to this end must agree on efficient and expeditious decision-making procedures within subregional and regional fisheries management organizations and arrangements and strengthen existing decision-making procedures as necessary.

Dispute prevention is an area that is, in general, acknowledged to be neglected. Most RFBs focus on the related area of dispute settlement, which applies after a dispute has arisen. But, as noted above in section 2.2, many of the RFBs in this review do not include dispute settlement in their constitutive instrument. Those that do generally refer to action in the first instance such as conciliation, consultation, arbitration, consideration by a committee or the commission, or establishment of an ad hoc panel for technical disputes. If first attempts to resolve the disputes fail, some RFBs provide for referral to the International Court of Justice. Details on dispute settlement for each RFB are included in Appendix 2, and are summarized in Appendix 3 under “Dispute Settlement”.

To emphasise the different elements in the process, the Fish Stocks Agreement provides in separate Articles for the obligation to settle disputes by peaceful means,^[164] the prevention of disputes;^[165] disputes of a technical nature,^[166] and procedures for the settlement of disputes.^[167]

Indicators for efficient and expeditious dispute prevention have not been developed, possibly due in part to political implications and other day-to-day priorities of RFBs. Disputes could arise over any issues dealt with by RFBs, including development of conservation and management measures. The Code of Conduct elaborates on the concept of dispute prevention and resolution:

States should cooperate in order to prevent disputes. All disputes relating to fishing activities and practices should be resolved in a timely, peaceful and cooperative manner, in accordance with applicable international agreements or as may otherwise be agreed between the parties. Pending settlement of a dispute, the States concerned should make every effort to enter into provisional agreements of a practical nature which should be without prejudice to the final outcome of any dispute settlement procedure.^[168]

The actions required by the Fish Stocks Agreement to prevent disputes are more specific: the agreement of efficient and expeditious decision-making procedures within RFBs and the strengthening of existing procedures as necessary. However, the Agreement does not prescribe or indicate any specific method of decision-making for this purpose, nor does it refer to the type of disputes that might be prevented by efficient decision-making. The latter could cover a range of disputes, for example on technical matters (foreseen by reference to disputes of a technical nature in Article 29), constitutional or institutional matters, the process to develop conservation and management measures and final decisions on such measures.

In the broadest context, the decision-making procedures to prevent disputes would cover all matters, substantive or procedural, technical or political. The range of procedures in the RFBs, discussed in section 3.2.3 above, include unanimity, qualified majority, simple majority and consensus, with varying requirements for a quorum and, for counting majority votes (e.g. those present and voting, those casting affirmative or negative votes, etc.). Because the scope of decision-making is so multifaceted, measuring the efficiency and expeditiousness of procedures in general terms is not practical and, as noted above, indicators could be useful but have not been developed by the RFBs.

Consideration of dispute prevention through appropriate decision-making processes in the context of decisions on the adoption of conservation and management measures may be a starting point. Article 7.3 of the Fish Stocks Agreement calls for compatible measures to be established in areas of high seas and under areas of national jurisdiction. Where agreement is not achieved in a reasonable period of time, Article 7.4 specifically provides for resort to dispute settlement procedures and Article 7.5 refers to provisional arrangements pending agreement on compatible measures. Article 7 does not specifically refer to RFBs, and not all RFBs have competence over areas of high seas and in areas under members’ national jurisdiction. However this does not preclude such disputes arising in RFBs, and the value of this reference is the practical application it gives to the call for dispute prevention.

Another approach to dispute prevention in the context of decisions on conservation and management measures is the use of the objection process, discussed in section 3.2.5, above. While it prevents disputes, it can also lead to a serious dilution of the conservation and management measures where members are unwilling to commit to implementation, and to a weakening of the authority of the RFB.

One of the more recently established RFBs has departed to some extent from the more traditional decision-making of majority-voting and an objection procedure. Decisions are made by consensus and a member may subsequently declare it does not accept a measure, and it will not be binding on that member. However, in notifying non-acceptance, the member must provide a written explanation of its reasons for making the notification and, where appropriate, its proposals for alternative measures which it is going to implement. The explanation is to specify whether the basis for non acceptance is:

(i) the Contracting Party considers that the measure is inconsistent with the provisions of the Convention;

(ii) the Contracting Party cannot practicably comply with the measure;

(iii) the measure unjustifiably discriminates in form or in fact against the Contracting Party; or

(iv) other special circumstances apply.

The Executive Secretary circulates this explanation to all other members, and at the request of any member must call a meeting to review the measure. At the time of the meeting and for an additional thirty days afterwards, any member can notify the Commission it is no longer able to accept the measure and will not be bound. There is also provision for provisional measures to be recommended by an ad hoc panel established under the Convention.

This process has not yet been used because the Commission had not begun operations at the time of writing. It does illustrate a process for dispute prevention that is consultative yet at the same time requires the reasons for non-acceptance to be objectively sound and consistent with the Convention. In addition, it moves from the traditional notion of “objection” to one of non-acceptance.^[169] While they can be seen as two paths to the same end result - that the measures are not binding on the member - one of the paths sets a higher standard for the member to take, and justify its decision.

This type of decision-making procedure might offer a basis for dispute prevention procedures in other arenas.

3.5 IPOA-IUU

As noted above in section 1.3.3, the IPOA-IUU has identified key objectives of institutional and policy strengthening in RFBs in relation to IUU fishing. These include enabling the RFBs to, inter alia, determine policy objectives, strengthen institutional mechanisms as appropriate including decision-making, regularize coordination with other RFBs, and ensure timely and effective implementation of policies and measures.

It is representative of the increasing call for RFBs to take decisions on global matters that complement decisions on conservation and management measures. These would include policy matters that have a global reach and areas that are related to fisheries management, such as trade and information exchange.

Because of the gathering worldwide momentum associated with putting the IPOA-IUU into effect by 2004, described above, and through national plans of action, it can be expected that policy development and implementation, and coordination with other bodies and institutions - already the subject of much activity in RFBs - will continue to develop. Decision-making in this regard will play a role in contributing to the outcome of addressing IUU fishing.

The call by the IPOA-IUU for RFBs to strengthen decision-making as appropriate reinforces similar references in the other post-UNCED fisheries instruments.