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The South-East Atlantic Fisheries Organization (SEAFO) Convention: an initial review On 20 April, the SEAFO Convention was opened for signature. The Convention, which is the product of several years of negotiations, seeks to ensure the conservation and sustainable management of the fishery resources of the Southeast Atlantic, principally through the establishment of a regional management body: the South-East Atlantic Fisheries Organization (SEAFO). This article reviews and comments on the main provisions of the Convention. On 20 April 2001, the Convention on the Conservation and Management of Fishery Resources in the South-East Atlantic (the "SEAFO Convention") was signed by eight States and the European Community (EC). The signatories included all four coastal States in the region - Angola, Namibia, South Africa and the United Kingdom (on behalf of St. Helena and its dependencies, Tristan Da Cuhna and Ascension Island) - as well as distant water States, namely Iceland, the Republic of Korea, Norway, the United States and the EC. The Convention has generated significant interest, not least because it is one of the first regional fisheries agreements to be negotiated since the adoption of the UN Fish Stocks Agreement, on which the SEAFO Convention is closely modelled. This paper seeks to provide an initial review of the Convention and to comment on some of the main provisions. Negotiating history The SEAFO process began in 1997, when the four coastal States in the region initiated negotiations for a regional fisheries agreement to cover the high seas fisheries of the Southeast Atlantic. Preparatory negotiations were held in February 1997 between the four coastal States and an initial draft convention was drawn up. In December 1997, the negotiating process was opened up to include States identified by using FAO catch data as having distant water fishing interests in the region, namely the EC, Japan, Norway, Russia and the United States. Other distant water States - namely Iceland, Poland, Republic of Korea and Ukraine - reflecting the desire of the participants for openness and the inclusion of all States with an interest in the fisheries concerned. All of the invited distant water States participated, at some stage, in the process. This process lasted four years and spanned seven negotiating sessions. The text of the Convention was finally adopted in November 2000, although the signing ceremony was delayed until April 2001 to allow more time for internal consultations, particularly in Angola, and to allow enough time for the relevant documents to be translated into Portuguese. Throughout the negotiations, the basis for discussion was often the UN Fish Stocks Agreement. This was so even though that Agreement had not entered into force (and so did not create any legal obligations on the parties); not all participants in the process had ratified it; and two of the coastal States (Angola and South Africa) were not even signatories. Nevertheless, the coastal States when they presented their original draft made it clear that they had no wish to "re-invent the wheel" and the draft drew extensively on language from the Fish Stocks Agreement, as well as the UN Law of the Sea Convention and the FAO Code of Conduct for Responsible Fisheries. At the same time, the parties did not, in the words of the Chair of the negotiating sessions, and as evidenced by the length of the negotiations, opt for a simple text "cut and paste" approach. The provisions of the Convention are thus the product of sometimes difficult and lengthy negotiations. Furthermore, the parties had a number of issues with using the Fish Stocks Agreement as a basis, notably that, as has been stated, the Agreement had not entered into force and not all negotiating parties were signatories and also the proposed scope of SEAFO to cover discrete high seas stocks as well as straddling stocks. However, although these points were recognized all participants were generally willing to accept the Fish Stocks Agreement as a basis. Objectives and general principles (Articles 2, 3 and 7) The general objective of the Convention is to ensure the long-term conservation and sustainable use of the fishery resources in the Convention Area through the effective implementation of the Convention. In order to achieve this, the Convention sets out a number of general principles which reflect the Fish Stocks Agreement and modern principles of responsible fisheries management. These include, inter alia, requirements to:
As regards the precautionary approach, Article 7 sets out the basic elements of the approach, using language from the Fish Stocks Agreement, but does not specify in detail how it is to be implemented. Thus, contracting parties are to apply the precautionary approach widely to conservation, management and exploitation of fishery resources and the absence of adequate scientific information can not be used as a reason for postponing or failing to take conservation and management measures. Article 7 also provides that parties are to be more cautious when information is uncertain, unreliable or inadequate, which could be of importance given the new and developing status of fisheries in the Southeast Atlantic. Although Article 7 does not specify the details of implementation, it does require parties to take cognisance of best international practices regarding the application of the precautionary approach, including Annex II of the Fish Stocks Agreement and the FAO Code of Conduct for Responsible Fisheries. Scope (Articles 1, 2 and 4) As has already been mentioned, the general objective of the Convention is to ensure the long-term conservation and sustainable use of the fishery resources in the Convention Area. This immediately raises two question concerning the Convention's scope: to what fishery resources does it apply and in which area. To these questions may be added a third, namely to what activities does the Convention apply. (i) Species covered As regards the species covered, this is relatively easily answered as the Convention provides a definition in Article 1. Thus "fishery resources" means resources of fish, molluscs, crustaceans and other sedentary species within the Convention Area, excluding sedentary species subject to the fishery jurisdiction of coastal States under Article 77(4) of the Law of the Sea Convention and highly migratory species listed in Annex I of that Convention. These two categories are excluded because they fall under the jurisdiction of, respectively, the coastal State and the International Commission for the Conservation of Atlantic Tunas (ICCAT). Mention should also be made of other "living marine resources," which Article 1 defines as all living components of marine ecosystems, including seabirds, to which the Convention addresses some measures. There are not, as yet, major fishing operations conducted beyond 200 miles in the Southeast Atlantic, although there is increasing interest in a number of species. According to FAO, the main species of interest, on which SEAFO can be expected to focus, at least initially, are alfonsino, orange roughy, armourhead, wreckfish, deepwater hake and red crab. Interestingly, red crab, which is subject to a fairly small fishery conducted primarily by Japanese vessels, is a discrete high seas stock. It is noteworthy that the definition of "fishery resources" does not limit the application of the Convention to straddling stocks but is expressed widely enough to encompass such stocks. Furthermore, in general, the Convention text does not distinguish between discrete high seas stocks and straddling stocks. Thus, subject to slight exceptions relating to compatible measures and dispute settlement, the same regime is to apply to both. It is to be welcomed that there was no weakening of the regime in respect of such stocks. (ii) Geographical application As regards the Convention's geographical application, Article 4 provides a detailed definition in terms of latitude and longitude. Broadly speaking this area corresponds more or less with FAO Statistical Area 47, in the Southeast Atlantic, although the Convention only applies, subject to one or two limited exceptions (mainly relating to compatibility of measures) to the high seas areas. The result of using FAO Statistical Area 47 as the basis for the Convention Area, as opposed to the maritime boundaries of potential coastal State parties, is that the Convention Area covers the high seas areas adjacent to only part of the Angolan EEZ, a consequence with which that State expressed concern during the negotiations. Although these concerns did not result in a modification of the definition of the Convention Area, a Resolution was adopted at the signing ceremony agreeing to consider amending the Convention “to extend the boundary of the Convention Area northward to include those areas of high seas adjacent to all waters under Angolan jurisdiction, including waters adjacent to Cabinda, subject to the co-operation and agreement of the other coastal states concerned, who have not participated in the SEAFO process, and once the Convention enters into force”. (iii) Activities covered This is a question which appears to be arising with increasing frequency in relation to modern international fisheries instruments. The question relates, in particular, to the extent to which international agreements apply to vessels not directly engaged in the act of fishing but engaged in some ancillary activity, such as the provision of fuel or other supplies or transshipment. The SEAFO Convention attempts to provide clear answers to this question by defining, in some detail, terms such as "fishing" and "fishing vessel". These definitions, in turn, indicate the scope of the Convention. Thus, under the Convention, "fishing" is defined as:
Furthermore, "fishing vessel" is defined as any vessel used or intended for use for the purposes of the commercial exploitation of fishery resources, including mother ships, any other vessels directly engaged in such fishing operations and vessels engaged in transshipment. Such vessels are distinguished from "fishing research vessels" which are defined as any vessel engaged in "fishing", as defined in the Convention, but for scientific research purposes, including permanent research vessels or vessels normally engaged in commercial fishing operations, or fishing support activities. "Transshipment" is also defined as meaning the unloading of all or any of the fishery resources on board a fishing vessel to another fishing vessel either at sea or in port without the products having been recorded by a port State as landed. As can be seen, these definitions are quite broad and encompass not only fishing vessels, but also those engaged in support operations such as transshipment, motherships and even aircraft reconnaissance. The term "fishing" is also quite widely defined, and it is clear that even preparatory acts in advance of a fishing operation fall within the scope of the Convention. The South-East Atlantic Fisheries Organization (Articles 5 - 10) One of the major features of the Convention will be the establishment of the South-East Atlantic Fisheries Organization (SEAFO). The basic objectives of SEAFO, which is to be based in Namibia, are to oversee and administer the implementation and application of the Convention. The organization will be composed of four main bodies: a Commission; two subsidiary bodies - the Compliance and Scientific Committees; and a Secretariat. The Commission can also establish other subsidiary bodies, from time to time, as it deems necessary. The Commission The Commission is the main decision-making body of SEAFO. Article 6 sets out a long list of functions for the Commission, which include, inter alia, the following:
The types of conservation and management measures envisaged under the Convention include: measures relating to the quantity of any species which may be caught; the areas and periods in which fishing may occur; the size and sex of any species which may be taken; the fishing gear and technology which may be used; the level of fishing effort; and the designation of regions and sub-regions. The Commission is not limited to these measures, although Article 6, read as a whole, provides SEAFO with a comprehensive range of conservation and management capabilities. As mentioned above, the Convention provides a set of criteria which the Commission is to take into account when determining the nature and extent of participatory rights in fishing opportunities (Article 20). These include:
Interestingly, Article 20 also ties in future quota allocations with the implementation and compliance record of parties. Thus, subject to agreed rules, the Commission can review quota allocations, effort limitations and participation in fishing opportunities of parties, taking into account the information, advice and recommendations on the implementation of, and compliance with, conservation and management measures. The inclusion of such criteria in the Convention text is generally to be welcomed, although how useful the Commission will find them when making TAC and quota decisions remains to be seen. Although there are arguably some criteria listed in Article 20 that are not commonly found in allocation systems in other organizations or arrangements, past experience from these other organizations suggests that parties frequently agree on the range of measures which might be taken into account but find it difficult to agree, in any particular case, on the criteria which should be considered and the relative weights to be attached to the different criteria. Article 20 provides no guidance in this respect. Compliance Committee As was mentioned above, in addition to the Commission, SEAFO is to consist of Compliance and Scientific Committees and any other subsidiary bodies that the Commission may deem necessary. The main functions of the Compliance Committee, which is to be composed of a representative from each party, will be to provide the Commission with information, advice and recommendations on the implementation of and compliance with conservation and management measures and to coordinate compliance activities undertaken by or on behalf of SEAFO. The Compliance Committee is also empowered to establish, with the approval of the Commission, further subsidiary bodies as are necessary for the performance of its functions. Scientific Committee The functions of the Scientific Committee, which will also be composed of a representative from each party, will be to provide the Commission with scientific advice and recommendations for the formulation of conservation and management measures for fishery resources covered by the Convention and to encourage and promote cooperation in scientific research in order to improve knowledge of the living marine resources of the Convention Area. Article 10 also lists, non-exhaustively, a number of specific functions which the Scientific Committee it to carry out, including:
As with the Compliance Committee, the Scientific Committee is also empowered to establish, with the approval of the Commission, further subsidiary bodies as are necessary for the performance of its functions. Decision-making process and implementation (Articles 8, 17 and 23) The Commission shall ordinarily meet once a year, although additional meetings may be held, as deemed necessary. Each party will have one representative in the Commission and each will have one vote (including regional economic integration organizations). The Convention also provides for the participation of non-governmental organizations (NGOs) as observers and requires the Commission to adopt rules to govern such participation and to provide for transparency in the activities of SEAFO. These provisions reflect the desire of the negotiating parties to develop an open and transparent organization, although it is interesting to note that NGOs were not included in the negotiations. Decisions of the Commission on matters of substance are to be taken by consensus. Decisions on other matters will be taken by a simple majority. (The question of whether a matter is one of substance is to be treated as a matter of substance). Once a decision has been adopted by the Commission, the measure shall enter into force in accordance with the procedure set out in Article 23. Rather unusually, given that decisions on conservation and management measures are to be adopted by consensus, Article 23 provides for what is essentially an objection procedure. The procedure, which was apparently inserted at the insistence of the European Community, will therefore allow parties to withdraw from measures they have previously agreed to. Under Article 23, a measure will become binding 60 days after the Secretariat has notified contracting parties of the measure's adoption by the Commission. During this 60-day period, parties are given the opportunity to notify the Commission that it is unable to accept the measure, the result of which being that the measure will not enter into force for that party. If a party makes such an objection, it is required to provide a written explanation of its reasons and, where appropriate, its proposals for alternative measures which it will implement. In the event of such an objection, the Commission is to meet at the request of any other party to review the measure. At the time of such a meeting and within 30 days following, any other party also has the opportunity to opt out of the measure. Contracting party obligations (Article 13) In addition to establishing SEAFO, with the basic objectives and functions just described, the Convention also sets out a number of obligations which apply generally to contracting parties. Thus, these are to be applied both through SEAFO and directly by contracting parties, as relevant, in the absence of measures agreed within SEAFO. The Convention divides these obligations into four categories: contracting party obligations; Flag State duties; Port State duties; and Observation, inspection, compliance and enforcement. As regards the first category, Article 13 sets out a number of rather general obligations on all contracting parties, including:
The Convention also emphasizes the duty of contracting parties to cooperate for the purposes of achieving compatible measures in respect of stocks that occur in the Convention Area and in areas under national jurisdiction (Article 19). Flag State duties (Article 14) As regards flag State duties, the Convention contains a number of general provisions which reflect modern principles of flag State responsibility. Thus, flag States are required to take such measures as may be necessary to ensure that vessels flying its flag comply with SEAFO conservation, management and control measures and that they do not engage in any activities which undermine the effectiveness of such measures. Furthermore, flag States are only to authorize the use of vessels flying its flag for fishing where it is able to exercise effectively its responsibilities in respect of such vessels and are to ensure that vessels flying its flag do not undermine measures agreed by the Commission through unauthorized fishing within areas adjacent to the Convention Area on stocks occuring in both zones. In addition to these general provisions, Article 14 lays down, non-exhaustively, a number of specific measures to be taken by flag States, including, inter alia:
Port State duties (Article 15) The provisions on port State control begin by recalling the right and the duty of a port State to take measures, in accordance with international law, to promote the effectiveness of subregional, regional and global conservation and management measures. As regards specific measures, Article 15 requires parties, in accordance with measures agreed by the Commission, to inspect documents, fishing gear and catch; to prohibit landings and transshipments by vessels flying the flag of non-parties where it has been established that the catch has been taken in a manner which undermines the effectiveness of SEAFO conservation and management measures; and to draw to the attention of flag State parties any suspected violation. Observation, inspection, compliance and enforcement (Article 16) In addition to establishing a Compliance Committee, the SEAFO Convention provides for the establishment of a "System" of observation, inspection, compliance and enforcement. The major purpose of the System is to ensure that contracting parties effectively discharge their obligations under the Convention and, where applicable, under the Fish Stocks Agreement, in order to ensure compliance with the conservation and management measures agreed by the Commission. Article 16 lays down a number of guidelines and principles which the Commission should take into account and a number of essential elements the System must contain. The latter includes, inter alia:
In order to strengthen the effective exercise of flag State responsibility under the Convention, an Annex, which forms an integral part of the Convention, sets out certain interim arrangements which are to apply upon entry into force and until the establishment of the System or until the Commission decides otherwise. The Annex sets out a number of the control measures described above, such as vessel authorization and marking of vessels and gear. However, it does not provide for inspection or observer programmes or procedures for the follow-up on infringements. Non-parties to the Convention (Article 22) As mentioned above, the Commission and the contracting parties have certain responsibilities relating to the promotion of compliance by vessels flying the flag of non-members. In particular, parties, either directly or through the Commission, are to request non-parties whose vessels fish in the Convention Area to cooperate fully with SEAFO either by becoming party to the Convention or by agreeing to apply the conservation and management measures adopted by the Commission with a view to ensuring that such measures are applied to all fishing activities in the Convention Area. It should be pointed out, of course, that for non-parties which are also parties to the Fish Stocks Agreement, it will be a legal obligation to so comply, when that agreement enters into force. Non-parties which cooperate in this manner shall enjoy benefits from participation in the fishery commensurate with their commitment to comply in respect of the relevant stocks. Article 22 also provides that contracting parties may, either directly or through the Commission, take measures, consistent with international law, to deter fishing activities by non-party vessels which undermine the effectiveness of conservation and management measures adopted by the Commission. Recognition of the special requirements of developing States in the region (Article 21) As might be expected, the position of developing States played a prominent role in the negotiations. Three of the four coastal States, which, it will be recalled, initiated the SEAFO process, are developing States, while the fourth is an overseas territories of the United Kingdom with developing status. As a result, the Convention contains slightly more detailed provisions on developing States than is usual in regional fisheries agreements. These provisions reflect and implement the relevant provisions of the 1995 UN Fish Stocks Agreement. The contracting parties are thus to give full recognition to the special requirements of developing States in the region in relation to conservation and management of fishery resources and the development of such resources. In particular, parties are to consider:
Article 21 also sets out a number of specific areas in which developed contracting parties may provide assistance, including:
The special position of developing States is also recognized in the provisions on finance and the budget (Article 12) which provide that the Commission can amend the basic formula for contributions to the budget (which consists of a combination of an equal basic fee and a fee based on catch) to take into account the economic status of each contracting party. For contracting parties with territory adjoining the Convention Area, this is to be the economic status of that territory. The provisions on finance and budget also emphasize the principle of cost-effectiveness. Dispute settlement (Article 24) The basic approach taken to the settlement of disputes under the Convention is that, if other attempts to resolve the dispute have failed, the dispute settlement procedures under the Law of the Sea Convention are to apply in respect of disputes concerning discrete high seas stocks and the dispute settlement procedures in the Fish Stocks Agreement (which, in any case, are based on the Law of the Sea Convention) are to apply in respect of disputes concerning straddling stocks. It does not matter whether any or all of the parties to the dispute are not also parties to the Law of the Sea Convention or the Fish Stock Agreement. Thus, Article 24 provides that, in general, parties are to cooperate in order to prevent disputes but that if a dispute arises, the parties concerned are to consult among themselves with a view to resolving the dispute, or to having the dispute resolved by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice. However, where a dispute is not referred for settlement within a reasonable time, or where a dispute is not resolved by these other means within a reasonable time, the dispute shall, at the request of any party to it, be submitted for binding decision in accordance with procedures in the instruments mentioned. In cases where the dispute is of a technical nature, and the parties are unable to resolve the dispute among themselves, provision is made for the dispute to be referred to an ad hoc expert panel established in accordance with procedures which are to be adopted by the Commission at its first meeting. Such a panel should confer with the contracting parties concerned and endeavour to resolve the dispute expeditiously without recourse to binding procedures for the settlement of disputes. Signature, ratification and entry into force (Article 25 - 27) As was mentioned above, the Convention was opened for signature on 20 April 2001, when it was signed by eight States and the EC. The Convention will now remain open for signature for one year by States whose vessels fish, or have fished in the Convention Area, for fishery resources covered by the Convention, in the four years preceding its adoption. Those States which have signed may ratify the Convention and, after the Convention is closed for signature, States may accede if their vessels fish in the Convention Area for fishery resources covered by the Convention. The Convention will enter into force 60 days after the date of deposit of the third instrument of ratification, accession, acceptance or approval at least one of which has been deposited by a coastal State. For each State or regional economic integration organization which, subsequent to entry into force, deposits an instrument of ratification or accession, the Convention will enter into force on the thirtieth day following such deposit. Commentary The SEAFO Convention is a lengthy and detailed text. It deals comprehensively with the conservation and management of straddling stocks and discrete high stocks in the Southeast Atlantic, based on modern principles of sustainable management. It draws not only on recently adopted global instruments, such as the Fish Stocks Agreement and the Code of Conduct, but also on experience in other regional fisheries organizations, such as NAFO and CCAMLR. However, although the text is detailed and comprehensive, it still leaves a number of difficult issues to be resolved once SEAFO is established, such as the implementation of the precautionary approach and of the provisions on allocation. Nevertheless, the Convention does provide sufficient tools for the development of an effective fisheries management regime. If SEAFO is to be fully effective, of course, then participation by all interested States will be required. In this respect, it is noteworthy that almost from the outset, the SEAFO process has sought to include all States with a "real interest" in the fisheries concerned. Discussions on the meaning of "real interest" (one of the main issues relating to the Fish Stocks Agreement) in the negotiations were largely inconclusive, although the parties were able to take as their basis States with active fishing vessels in the area during the negotiating period. This approach may be contrasted with the process in the Western and Central Pacific where the coastal States have been reluctant to include all distant water parties, notably the EC. The participation in the SEAFO process of both coastal and distant water States, which were often at odds during the negotiations, has allowed for the negotiation of a more balanced and effective Convention. Despite their inclusion, however, not all distant water States, and notably not Japan, have signed. Japan has expressed its intention to sign and participate in the SEAFO Convention, although it has some reservations about the text, particularly relating to dispute settlement and the "incorporation by reference" of the UN Fish Stocks Agreement. Japan has not signed the Fish Stocks Agreement and admits to having many problems to be resolved with it. Despite these reservations, the SEAFO Convention is to be widely welcomed and should establish the framework for sustainable high seas fisheries management in the Southeast Atlantic. Chris Hedley |
