The former Chairperson of SPRFMO, Bill Mansfield, was invited to be a panellist for the second segment of the above event at the United Nations in New York and to moderate the first segment of the event. That invitation would seem to reflect a wider interest in SPRFMO and its work. Mr Mansfield participated in the event in his personal capacity and was not representing SPRFMO but his presentation drew on his experience as Chair of the SPRFMO process from the beginning and is set out below for general interest.
It is nine years since we began the process of establishing a South Pacific Regional Fisheries Management Organisation in order to fill a major gap in the architecture of high seas fisheries management and protection of the marine environment in the South Pacific. It took three years to negotiate and adopt the Convention, another three years for it to enter into force and the new Commission concluded its third meeting last month.
In developing the first draft of the Convention and the six subsequent revisions, as requested by participants, I paid close attention to the text of the Fish Stocks Agreement and the texts of existing RFMOs as well as the Chatham House publication on recommended best practices for RFMOs.
In the SPRFMO case we were primarily seeking to regulate the high seas but we were very aware that at least one adjacent state had a strong and direct interest in the conservation and management measures relating to a major straddling stock. Obviously a high seas area cannot be effectively managed if straddling stocks are over exploited in adjacent EEZs. And, of course, the same applies in reverse: a coastal state cannot effectively manage a straddling stock inside its EEZ if the stock is being over exploited on the adjacent high seas. Accordingly some of the Convention articles that took us the most time to negotiate were those giving effect to Article 7 of the Fish Stocks Agreement relating to the compatibility of conservation and management measures. Our key article in that regard is Article 20 that establishes the circumstances and conditions under which the Commission’s measures can be extended to adjacent EEZs.
But perhaps our most innovative provisions are those intended to give effect to Article 10(j) of Fish Stocks i.e. the obligation to “agree on decision-making procedures which facilitate the adoption of conservation and management measures in a timely and effective manner”.
Our solution to this difficult issue was to provide for qualified majority voting on substantive decisions coupled with a carefully limited objection procedure governed by strict time limits designed to produce an effective result within the relevant fishing year.
In my view a rule that requires conservation and management measures to be adopted by consensus does not fulfil Article 10(j) of Fish Stocks. It does not facilitate the adoption of such measures “in a timely and effective manner”. Certainly all efforts should be made to achieve consensus before a vote is taken but voting should not be ruled out or else the effect is to provide every member with a veto and therefore, at the very least, an effective stalling device. It is worth recalling here that the emphasis on the importance of making every effort to achieve consensus stems from the Law of the Sea Conference itself and the so-called “gentleman’s agreement”. But we also need to remember that in the end that Conference had to vote and we would not have the Law of the Sea Convention today if it could have been adopted only by consensus.
In an RFMO it is essential that primacy is given to scientific advice and that advice is publicly available so it is clear to the wider world when management decisions are taken that are inconsistent with that advice. A consensus rule on the adoption of conservation and management measures can operate to provide political cover for a member that does not want to exercise the necessary restraint recommended by the scientists. Instead of being publicly exposed as voting against a science based decision everyone else is prepared to accept, the decision is simply blocked.
At the same time it is reasonable to have a safeguard, such as an objection procedure, to ensure that a majority decision is lawful and does not unjustifiably discriminate against a member or members. But again it is critical that any such objection procedure cannot be used as a delaying tactic. The SPRFMO objection procedure requires an objection (the grounds for which are limited to discrimination or unlawfulness) to be lodged within two months of the decision and the objecting party must at the same time adopt and notify alternative measures equivalent to the decision to which it is objecting. A Review Panel must then be established within a month and the Panel must within a further 45 days present its findings and recommendations on whether the objection is justified and whether the alternative measures are equivalent in effect to the decision to which the objection has been lodged. The Convention spells out in detail how the findings and recommendations are to be dealt with and to have effect. In essence it ensures that the issue is resolved promptly or formally submitted to binding dispute settlement in accordance with Part VIII of the Fish Stocks Agreement.
In its short life to date the SPRFMO Commission has had occasion to test both its objection and its voting procedures. At its first meeting the conservation and management measure relating to the main commercial species, jack mackerel, was the subject of an objection. At its second meeting the equivalent measure had to be adopted by vote. But at the recently concluded third meeting the equivalent measure was adopted by consensus.
In my observation the possibility of voting affects the negotiating dynamics and increases the pressures to achieve consensus. In the case where it proved necessary to adopt the jack mackerel conservation and management measure by vote, the Commission’s report recorded that the circumstances were unusual and it was anticipated that similar decisions in the future would be able to be achieved by consensus. And, as already noted, this proved to be the case this year.
The implementation of the objection procedure in respect of the first jack mackerel conservation and management measure proved without doubt that this safeguard could work and the tight deadlines could be met. With great support from the Permanent Court of Arbitration, an excellently led and high calibre Panel produced constructive findings and recommendations to resolve the issue within the necessary timeframe.
In terms of giving effect to Fish Stocks Article 10(j) what is particularly noteworthy, in my view, is that on all three occasions the resulting catch limits were set and maintained at the level recommended by the Scientific Committee.
But the possibility of voting is not just important in relation to the negotiation and adoption of effective conservation and management measures. In my judgement, the possibility of a vote was an important element in the background when the Commission decided by consensus at our recently concluded meeting to place two vessels on the SPRFMO IUU list.