2.7 Consultative mechanism in relation to fisheries aspects

Table 4 summarizes the type of primary consultative mechanism provided for by each arrangement, its meeting frequency and the size and/or composition of the delegations (as provided for in the arrangement or in any rules of procedure). The table omits mechanisms with the primary purpose of dispute settlement. Where a commission (or equivalent) is provided for, its name has been emboldened. In most cases, the mandate of the commissions is highly specific to each arrangement. No attempt has been made to summarize the mandate in this section. Instead, reference will also be made to the mandates in sections 2.10-2.12 below.

2.7.1 Types of consultative mechanism

COMPARATIVE ANALYSIS

Seven arrangements do not appear to have any consultative mechanism at all, either directly or indirectly. Six of these are delimitation treaties in Central America/Caribbean; the other is the Loophole Agreement. These arrangements have all been discussed in section 2.3 above.

Four of the arrangements [Australia/Indonesia MOU; Australia/Indonesia Agreement; Faroes/UK Agreement; Canada/US Enforcement Agreement] provide only why “only” for consultations. Two of the arrangements [Herring System; Mackerel System] do not expressly provide for any consultative mechanism. Instead, the fact that in each case the parties decide to meet on an annual basis is the way that the necessary consultations occur. Two of the arrangements [SRFC Access Convention; SRFC Hot Pursuit Convention] involve the consultative mechanism provided under the basic agreement constituting the SRFC. Though neither of these arrangements expressly provides for a consultative mechanism, in each case the parties may resort to the SRFC mechanism itself.

The remaining arrangements expressly provide for more formal consultative mechanisms, under the name of “commission”, “advisory council”, “committee”, “annual meeting” or “conference”.

COMMENTARY

The four arrangements providing only for consultations [Australia/Indonesia MOU; Australia/Indonesia Agreement; Faroes/UK Agreement; Canada/US Enforcement Agreement] are all bilateral arrangements. Evidently the intention was not to create any kind of institutional structure but nonetheless to leave a channel available if necessary. Such a system may be appropriate where there is less of a need for active cooperation, i.e. cooperation in terms of specified joint actions. However, in that sense the lack of any kind of commission for the Australia/Indonesia Agreement is surprising. This arrangement does, after all, go as far as stating that “[t]he Parties shall seek to develop complementary regimes for the conservation, management and optimum utilisation of shared stocks, straddling stocks and highly migratory species”^[18] (see section 2.4 above and Table 3).

The two arrangements that simply rely on the parties deciding to meet on an annual basis [Herring System; Mackerel System] may appear precarious. However, arguably, the main reason that the parties continue to meet on an annual basis is that in each case they wish to prepare their joint position prior to the annual meeting of NEAFC. That way, they may have a coordinated quantitative stance against the non-coastal State parties desiring access to the straddling stocks concerned. Thus what at first sight may appear to be rather fragile arrangements are in fact more robust because of the linkage with the NEAFC Convention.

Assuming a need for regular meetings, and in the absence of an external force driving the need for such meetings, a commission or equivalent, with its mandate and timetable provided for in the arrangement, is an appropriate solution. It is for the parties to decide whether the principal consultative mechanism is, say, a council of ministers or a commission of officials. The exact name given to the mechanism is irrelevant so long as the desired functional elements are provided for and the name does not conflict with these elements. Some of these elements are discussed below. Mandates of commission are discussed further in sections 2.10-2.12 below.

2.7.2 Internal rules

COMPARATIVE ANALYSIS

In arrangements establishing formal consultative mechanisms, the practice is generally for the arrangements themselves to establish the key principles relating to that mechanism, but to omit more detailed internal rules and instead provide for the consultative mechanism to draft its own. Such provision usually refers to both rules of procedure and financial rules.

Table 4: Consultative mechanisms

In the arrangements analysed, the provision generally only appears in the arrangements creating “commissions”. However, there are three exceptions to this [FFA Convention; Micronesia Arrangement; Lake Victoria Convention] and six arrangements creating “commissions” contain no such provision [Argentina/UK Joint Statement; Norway/Russia 1975 Agreement; Black Sea Convention; Halibut Convention; Colombia/Jamaica Treaty; Trinidad and Tobago/Venezuela Agreement]. Rules of procedure do in fact exist for the commission established under one of these six arrangements [Halibut Convention]; it may be that the commissions of the other five arrangements listed also have their own rules despite lack of a provision in the arrangement itself.

COMMENTARY

The need for rules of procedure and financial rules depends in part on the degree to which such matters have already been covered in the arrangement. However, in most cases the arrangement itself is unlikely to cover the necessary procedures and financial issues in sufficient detail.

Various models for internal rules exist and in general the adoption of internal rules is to be encouraged. As well as regulating the primary consultative mechanism, such rules can also be used to provide for the mandate of subsidiary bodies. As such, they can contribute to the legal framework in place for the management of the shared stocks in question but avoid the need to too much prescription in the arrangement itself.

2.7.3 Secretariats

COMPARATIVE ANALYSIS

Again, it is generally only the “commissions” per se that have their own secretariats. However, there are three exceptions [FFA Convention; Lake Victoria Convention; African Atlantic Convention] and five commissions have no express provision for a secretariat [Argentina/UK Joint Statement; Norway/Russia 1975 Agreement; Black Sea Convention; Colombia/Jamaica Treaty; Trinidad and Tobago/Venezuela Agreement]. Of the thirteen bilateral arrangements with a formal consultative mechanism, only three bilateral expressly provide for a secretariat [River Plate Treaty; Halibut Convention; Pacific Salmon Treaty]. The terminology for “secretariat” varies, including also headquarters [River Plate Treaty] and references to an office (or seat), director (or executive secretary) and staff [NEAFC Convention; Baltic Sea Convention; Halibut Convention; Pacific Salmon Treaty].

COMMENTARY

Whether or not a secretariat is appropriate depends on the work programme of the consultative mechanism. For an arrangement with a large number of parties and/or an active coordination function, a secretariat may well be appropriate for facilitating such coordination (e.g. in terms of administering meetings [including those of subsidiary bodies] or other initiatives [e.g. research programmes]). An arrangement with just two parties may well justify a secretariat if its work programme merits it. This would explain the difference between, say, the Argentina/UK Joint Statement (no secretariat) and the Pacific Salmon Treaty (secretariat). However, though secretariats may be a good idea in theory, they inevitably having running costs. If money not available for secretariat funding, it may be more appropriate to aim for a realistic work programme that can be administered instead by, say, the government offices of the parties. In that event, it needs to be borne in mind that particularly in developing countries the government officials may be relatively few and already overstretched on purely national issues.

2.7.4 Meeting frequency

COMPARATIVE ANALYSIS

Meeting frequency is of course variable, ranging from “as necessary” [Australia/Indonesia MOU; Torres Strait Treaty; Canada/US Enforcement Agreement; Trinidad and Tobago/Venezuela Agreement] to twice a year [Argentina/UK Joint Statement; Halibut Convention] to once ever two years [Lake Victoria Convention; African Atlantic Convention]. The norm however is annual regular meetings. With one exception, the multilateral arrangements do not specify the quorum required to constitute a valid meeting. The exception is the Lake Victoria Convention, which specifies that no meeting is to take place unless all three parties are present.

COMMENTARY

The most appropriate frequency for meetings depends on the work programme, the desired responsiveness of the arrangement and the funding available. The first two factors will be in part determined by the stocks and fisheries covered. In general, meetings held at least annually are probably desirable for effective management of shared stocks. One solution may be to opt for annual meetings but provide scope for additional special meetings (see below). Regular meetings, rather than ones “as necessary” allow for forward planning and coordination with regular meetings in other relevant forums (e.g. the annual Mackerel System meeting timed to be just prior to annual NEAFC meeting). With respect to quorums in multilateral arrangements, some arrangements specify the quorum required for a vote, rather than specifying the quorum required for a meeting.

2.7.5 Special meetings

COMPARATIVE ANALYSIS

Of the arrangements setting frequencies for their regular meetings, almost all provide for special meetings as an option. The pre-conditions for such meetings are very variable. Of the bilateral arrangements, the trigger may be (a) agreement by both parties [Japan/China Agreement; Japan/Korea Agreement; Trinidad and Tobago/Venezuela Agreement], (b) a request of either party [River Plate Treaty; Pacific Salmon Treaty; Senegal/Mauritania Convention] or (c) as the Commission determines necessary [Halibut Convention]. Of the multilateral arrangements, the number of parties that must be in agreement varies. Two arrangements require at least 3 requesting parties [Nauru Agreement; Micronesia Arrangement - 7 parties]. Two others require at least 4 requesting parties [NEAFC Convention - 6 parties; FFA Convention - 16 parties]. Three require the request of the majority [Mediterranean and Gulf Agreements; African Atlantic Convention].

COMMENTARY

One disadvantage of a provision for special meetings is the risk that it may be abused by parties with strong vested interests. However, with multilateral arrangements there is scope for introducing procedural safeguards to minimise this risk. For example, a requirement for a minimum number of supporting states is sensible. There appears to be no fixed practice based on percentages: in four arrangements with six to sixteen contracting parties, the minimum number hovers around three or four.

In the case of bilateral arrangements, the requirement that the request of one party is sufficient is probably preferable to the need for joint agreement. If one party were to have a concern that the other chose not to debate at that time, a requirement for both parties to agree on the special meeting might well mean no meeting. At least with both parties at the same table, albeit brought there at the request of one party, there is more chance of cooperation on the point of concern that if the parties each remained at home.

2.7.6 Delegations

COMPARATIVE ANALYSIS

Many arrangements provide for a specified maximum number of delegates, in turn referred to as “delegates”, “members”, “representatives”, “commissioners” or “ministers”. Typically, the arrangements allocate a delegation size of two to each party.

However, in general, this maximum number may be accompanied by an unspecified number of experts and advisers and sometimes by alternates. Two arrangements specify the categories from which the delegates are to be drawn [Torres Strait Treaty; Mauritania/Senegal Convention]. One sets rules for accompanying delegates depending on whether the meeting is an open meeting or an executive meeting [Pacific Salmon Treaty]. One places a duty on each party to ensure that the minister is accompanied by heads of specified government departments [Lake Victoria Convention].

COMMENTARY

To give the work of any consultative mechanism a credibility in the eyes of environmental and industry organisations, such bodies need access to, and some degree of influence over, the decision-making process. Though this may be done by giving such bodies observer status or an involvement in subsidiary bodies, an alternative is to involve them in the parties’ delegations in some respect. In terms of industry, this is provided for by the Mauritania/Senegal Convention. It is possible that other arrangements do so through their rules of procedure.