On being at WCPFC TCC and the decision making process at RFMOs / by Francisco Blaha

The WCPFC Technical and Compliance Committee (TCC) is over, a massive "shout out" of nothing more than pure respect to EVERYONE in MIMRA that worked non-stop to make TCC be the success it was.

 Sometimes a sensory depravation chamber, sometimes the front line of geopolitics.

Sometimes a sensory depravation chamber, sometimes the front line of geopolitics.

I have to admit that being part of it was a confronting experience sometimes, yet somehow illuminating… I never been to one before, but I totally understand how people get hooked on them and become RFMO “junkies”. Yet I don't think that there is something I could do.

I’m a total believer of being totally aware of your limitations and know where your strengths are, and meeting rooms is definitively an area where I don't really contribute, particularly when it comes to language discussion and endless correction to a text. Yet I totally understand why it has to be done, as words becomes the “lawyers” job in the delegations fighting ground, when shit hits the fan.

The level of geopolitics, influencing, positioning, country egoisms, plain misplaced righteousness, coalitions, back room deals and in many cases full hypocrisy (as in the case of CN,TW, KR and TW in regards transhipments at sea) could be a sociologist/international relationships specialist wet dream.

The dynamics of decision making among countries as despair as China and Tokelau are unique to RFOMS and the presence of member institutions such as FFA, SPC and PNA are unique to the WCPFC in particular, so during my time there I wonder how the situation would be in other RFMOs in regards decision making and if what I see there is the best we can do? 

But no more, academia came to the rescue and a recent paper by Antonia Leroy and Michel Morin “Innovation in the decision-making process of the RFMOs”.

Is an interesting read, and I recommend you go to the original. In the meantime, I quote the abstract and some parts that I stuck to my little brain. 

Abstract
Throughout the last several decades, the Regional Fisheries Management Organizations (RFMOs) have become essential bodies for the management of the fisheries resources. However, the state of fish stocks that are fished in the high seas seem even more critical for some species. That situation put into question the functioning of the RFMOs where decisions adopted have not been stringent enough to tackle the overexploitation of many fish stocks.

When states are establishing RFMOs’ conventions they have to fulfil their duty to co-operate while applying the principle of consent, a basic principle in international law. This has led states to setting up various decision-making processes within RFMOs. The paper shows that a better tailored decision-making process for RFMOs is needed so as to bring changes in them to comply with the objectives set out in the UN Convention on the Law of the Sea, i.e. maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield. 

With that aim, the analysis defines three principles to evaluate the effectiveness of the decision-making procedure in RFMOs; 1) blocking or opting-out behaviours constrained, 2) transparency in the objection procedure, 3) conservation and management measures, including the related dispute resolution process, adopted in a timely manner. In line with these three principles, after considering the example of 12 main RFMOs, the study concludes that among them, the South Pacific Regional Fisheries Management Organisation (SPRFMO) has developed the most advanced and innovative decision-making mechanism.

Conclusion
Despite the duty for states to cooperate in the management of fisheries resources, they remain cautious about the establishment of transparent and timely efficient decision-making mechanisms, certainly as a fear of renouncing some of their prerogatives. RFMOs decision-making procedures have evolved. In the last few decades, several RFMOs have evaluated and modified their Convention provisions such as the NAFO, the NEAFC, the IATTC and the GFCM.

However, there is a lack of a true evolution on the objection and dispute settlement procedures. Recent adopted or amended conventions remain far below the recognised best practice (see Fig. 1 below for a summary of RFMOs’ performance in terms of decision-making process). For instance, with one of the last organizations created, the SIOFA, while the convention text is rather innovative in including the precautionary approach and the ecosystem approach to fisheries, the lack of which is seen as a weakness in performance assessments of other RFMOs, the decision-making procedure does not correspond to best practice; in this case, each decision must be made by consensus without the possibility to object to a CMM. 

The ICCAT convention has been under revision since 2013 and a new one should be adopted soon; debates on the objection procedure and its follow-up are one of the issues that remain to be solved. Up to now, only the NAFO and the SPRFMO conventions have set out provisions which oblige the members of the RFMO concerned to take into account the positions of the others when one of them decides to present an objection and might be considered as implementing best practice. 

These two examples show that it is possible to bring progress in core provisions of these conventions without ignoring the principle of consent. But these are the only two examples, that is not enough. States, which are members of the other RFMOs, should really push for the adoption of conventions giving a better framework for the adoption of strong CMMs in order to tackle the issue of the poor state of many fish stocks.

The international community is far from having defined the appropriate procedural rules in order to adopt the necessary measures for the optimal management of fishery resources. The possibility of not accepting a measure or of objecting to it is still too frequent. 

For this reason, the procedure developed by the SPRFMO is promising in that it obliges the parties to resolve the dispute quickly and within the organization itself. This way of resolving the conflict is certainly preferable to treating it outside of the organization as shown by the CCSBT case in 1999–2000. This is so far one of the newest and the most innovative decision-making mechanisms.

Screen Shot 2018-10-04 at 2.11.40 PM.png