2.9 Decision-making mechanism of primary consultative mechanism

Table 6 summarizes the decision-making mechanism of the primary consultative mechanism in respect of conservation and management measures and specifies whether its decisions are in turn binding on the parties or merely advisory. Where there are no express provisions in an arrangement on these matters, that arrangement has been omitted from the list. In most cases, the consultative mechanisms concerned have a function extending beyond conservation and management measures. Further details on the functions of the mechanisms in all the arrangements can be found in Annex II.

COMPARATIVE ANALYSIS

In arrangements with two parties, it is logical that decision-making should be by consensus. This is indeed the case with the examples in Table 6. However, consensus decision-making is not confined to the two party arrangements [Herring System; Mackerel System; Black Sea Convention]. Whether the decisions are binding or merely advisory appears to bear no relationship to the number of (intended) contracting parties. With one exception [Lake Victoria Convention], multilateral arrangements using majority voting to adopt binding decisions have an objection procedure.

COMMENTARY

Where the decisions of a consultative mechanism are binding, it is in the interests of the parties to send delegations of sufficient competence and with a sufficiently robust negotiating brief. However, it is also logical that in such cases, any use of majority voting should be accompanied by an objection procedure. Such a system represents a balance between the potentially inhibitory influence of, on the one hand, the need for consensus and, on the other hand, the threat to sovereignty posed by majority voting with no objection procedure.

Where the decisions of a consultative mechanism are merely advisory, it is assumed that one of the reasons for this restriction in the power of the mechanism is the politics of the situation. Thus in a politically sensitive situation, one area for compromise whilst retaining the concept of cooperation over shared stocks could be to agree to a consultative mechanism but not give it the power to make binding decisions. In some instances, this may be the price to pay for at least some cooperation.

Table 6: Decision-making mechanism