New regional fisheries management regimes: establishing the South East Atlantic fisheries organisation

Marine Policy 25 (2001) 353–364

New regional fisheries management regimes: establishing the South East Atlantic fisheries organisation Are K. Sydnes* Norwegian College of Fisheries Science and Faculty of Social Science, University of Tromsø, 9037 Tromsø, Norway Received 7 June 2001; accepted 17 July 2001

Abstract On the 20th of April 2001 the coastal States and fishing nations of the South East Atlantic Ocean adopted the ‘‘Convention on the Conservation and Management of Fishery Resources in the South East Atlantic Ocean’’. This article analyses the process of negotiating the convention, from its initiation by Namibia in 1995 until its adoption in 2001. It argues that the fisheries played a secondary role in the process, while the negotiations revolved around the appropriate status and implementation of the UN Fish Stocks Agreement of 1995. r 2001 Elsevier Science Ltd. All rights reserved. Keywords: Regional fisheries management; The South East Atlantic Ocean; The UN fish stocks agreement

1. Introduction The Convention on the Conservation and Management of Fishery Resources in the South East Atlantic Ocean (SEAFO Convention) [1] is the first international agreement establishing a regional organisation to manage straddling fish stocks, following the adoption of the UN Fish Stocks Agreement in 1995 [2]. The convention’s objective is to ensure the long-term conservation and sustainable use of the fishery resources on the high seas of the South East Atlantic Ocean [1, Article 2]. It establishes the South East Atlantic Fisheries Organisation (SEAFO) to manage fish and sedentary species within the convention area.1 In practice SEAFO (if and when operational) will cover alfonsino, orange roughy, armourhead, wreckfish, deep-

*Tel.: +47-7764-6085; fax: +47-7764-6021. E-mail address: [email protected] (A.K. Sydnes). 1 Excluding sedentary species subject to coastal State jurisdiction [3, Article 77(4)] and highly migratory fish stocks [3, Annex I]. The high seas fisheries of the South East Atlantic Ocean consist of highly migratory, straddling and discrete high seas fish stocks. The highly migratory fish stocks (tuna and billfish) are managed by the International Commission for the Conservation of Atlantic Tuna [4]. Hereafter references to the high seas fisheries of the Southeast Atlantic will refer to straddling and high seas fisheries within FAO statistical area 47 which the SEAFO process addressed.

water hake and red crab [5, p. 8].2 The participants to the SEAFO process (Meetings of coastal States and other interested parties on a regional fisheries management organisation for the South East Atlantic) included the regions coastal StatesFSouth Africa, Namibia, Angola and the United Kingdom (on behalf of St. Helena and its dependencies, Tristan da Cunha and Ascension Island)Fand foreign fishing nations identified as having an interest in the fisheriesFthe European Community, Japan, Norway, Russia, United States, Ukraine, Iceland, Korea and Poland [6]. The article analyses the political processes leading to the adoption of the SEAFO Convention, and the challenges the parties confront in moving the agreement from paper to practice. The lessons learnt from the process may provide insights in the challenges coastal States and fishing nations are confronted with in the formation of regional fishery management organisations, according to their obligations under the UN Fish Stocks Agreement. Particular attention will be given to those provisions which proved to be decisive to reach a final agreement, notably decision-making procedures, compliance and enforcement mechanisms, and the convention area. A main characteristic of the SEAFO Convention is its limited application of the UN Fish Stocks Agreement. 2

The latter is notably a discrete high seas stock [5].

0308-597X/01/$ - see front matter r 2001 Elsevier Science Ltd. All rights reserved. PII: S 0 3 0 8 - 5 9 7 X ( 0 1 ) 0 0 0 2 1 - 5

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2. The deep-water fisheries on the high sea of the Southeast Atlantic Ocean From 1971 the fisheries on the high seas of the Southeast Atlantic, including the Namibian EEZ, were managed by the International Commission on South East Atlantic Fisheries (ICSEAF).3 However, ICSEAF was unable to enforce its total allowable catches, which over time led to unregulated fishing and stock-depletion [7, p. 1; 8]. The organisation became inoperative following Namibia’s independence in 1990, leaving the fisheries without a managing body. Notably, there is no relation between ICSEAF and the SEAFO process. There is a high level of uncertainty regarding the high seas fisheries of the Southeast Atlantic [9].4 The available data is scarce and of poor quality [8].5 Little is known about the stocks targeted and participating States. Estimates indicate that the annual catches may have exceeded 50,000 tons before the eighties. The most reliable catch-data, despite severe shortcomings, was gathered during the SEAFO process for the years 1995– 1998 [8, pp. 9–10]. It indicates that direct effort was both limited and seasonal. The registered total annual catches were in average 3822 tons, though it is generally held that actual catches were closer to 5000 tons.6 Most coastal States and fishing nations targeted alfonsino, orange roughy and armourhead (SA, Namibia, Russia, Spain, Norway and Iceland), while there was some catch of wreckfish, deepwater hake and red crab (Portugal, Korea and Japan) [8, pp. 9–10].7 Few States have economic interests in the fisheries at present, with the exception of the Namibian orange roughy fishery. Nevertheless, there may be potential for increased fishing effort in the future.

3. The UN fish stocks agreement The UN Fish Stocks Agreement has since its adoption in 1995 provided the institutional framework for the management of straddling and highly migratory fish stocks. The agreement seeks to strengthen the obligations of States to cooperate directly or through regional 3 Parties did not acknowledge South Africa’s jurisdiction over Namibia’s EEZ [7]. 4 There is little information and literature available on the high seas fisheries of the Southeast Atlantic. As a consequence the article mainly relies on ‘‘grey literature’’ produced by the SEAFO process, such as drafts texts and reports. In addition, a series of topical interviews have been conducted with members of the participating States delegations. In sum this provides the best available basis for an analysis of the SEAFO process. 5 Statistics from ICSEAF and FAO do not differentiate between catches on the high seas and in the EEZs. 6 Personal communication, informant. 7 The red crab fishery is a discrete high seas stock, while the remainder are straddling stocks [5].

fisheries management organisations (RFMOs) (or other arrangements) in the management of such fisheries [2, Article 8(1)]. It establishes a range of management principles which RFMOs are to abide to when adopting regulatory measures, including the precautionary approach, protection of biodiversity and ecosystems management [2, Articles 5–6]. It also seeks to bridge the legal void between coastal States’ sovereignty within the EEZs and the freedom of fishing on the high seas, through the compatibility principle [2, Article 7].8 However, it is in regional compliance and enforcement that the UN Fish Stocks Agreement breaks new ground [10, p. 231], creating global standards, including strengthened flag State duties [2, Article 18], procedures for non-flag State enforcement [2, Articles 21–22] and port State measures [2, Article 23]. Notably, the UN Fish Stocks Agreement is a framework agreement, subject to international negotiations and implementation at the regional level [11].

4. The formation of regional fisheries management organisations The RFMOs have increasingly come to be regarded as the ‘‘vehicles of good governance’’ in international fisheries [12]. This has paved way for increased interest in their formation and effectiveness. RFMOs can be viewed as international regimes constituted by agreements, outlining principles and norms for the management of fisheries, and establishing rules and procedures for how to fulfil the organisations objectives and functions [13].9 Their main functions are to gather and assess scientific information about the fish stocks, establish regulatory measures, and to ensure compliance through appropriate enforcement mechanisms [15]. The international process of establishing RFMOs can be divided into three stages; agenda formation, negotiations and operationalisation [16, pp. 282–283; 17]. Agenda formation covers the process from an issue arises on the international agenda until it is subject to actual negotiations. The negotiation stage begins with the initiation of focused, substantive negotiations and ends with the adoption of an agreement. The operationalisation stage comprises the domestic and international actions needed to move an agreement from paper to practice. Though these stages may overlap, they commonly involve different path-dependent dynamics [17]. 8 Measures set for straddling and highly migratory fish stocks within EEZs and on the high seas shall be compatible. 9 Regimes, in general, can be defined as ‘‘social institutions composed of agreed-upon principles, norms, rules, and decisionmaking procedures that govern the interaction of actors in specific issue areas’’ [14, p. 1].

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4.1. Power, interests and ‘‘discourses’’ in the formation of RFMOs There is a growing body of literature on the role international regimes have in environmental politics and the management of natural resources [14,18–20]. The current debate on the formation of such regimes is largely dominated by three theoretical approaches: neorealism, neoliberalism (contractualism) and constructivism [21,22].10 Neorealists claim that, in the absence of a supra-national authority in the international system, States are forced to act as rational actors. In the formation of regimes, agendas are set, negotiations conducted and operationalised, on the basis of States utilising their material capabilities/power (military force, trade sanctions, aid) to secure their interests. As a consequence RFMOs will mirror the distribution of power between the participating States. According to neo-liberal contractualists, regimes are established when States identify common interests in overcoming collective-action problems (e.g. stock-depletion). Regime formation is viewed as an interest-driven process, which success is dependent on facilitating the interests of all participants [23]. RFMOs reflect the maximum achievable level of agreement among participating States. Constructivists take a ‘‘sociological’’ approach claiming States interests and actions are (partly) shaped by the process of establishing regimes. Regime formation is thus a process whereby States, through ‘‘discourse’’, reach common understandings which are reflected in the final agreements. The article will analyse the relevance of these three lines of argument in the SEAFO process. There are three cross-cutting factors which have proved important in the formation of regimes. These are the institutional framework for the process (e.g. the Law of the Sea and the UN Fish Stocks Agreement), the presence of leadership (structural, entrepreneurial and intellectual), and the organisation of the process [14, pp. 223–261; 17].

5. Setting SEAFO on the agenda The initiative to the SEAFO process was taken by Namibia in 1995 when it approached SA to discuss the need for a RFMO in the South East Atlantic Ocean [9]. The Namibian initiative was based on its concern that unsustainable fishing practices on the high seas could undermine national efforts to manage and utilise the orange roughy fishery [5, p. 7; 9]. Namibia viewed the newly adopted UN Fish Stocks Agreement to provide a sound institutional framework for the management of the high seas fisheries of the South East Atlantic Ocean. 10 This section is based on [22] except otherwise indicated by references.

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During 1996 SA and Namibia held a series of bilateral meetings (open to but not attended by Angola), discussing the principles to be applied for a RFMO in the Southeast Atlantic. Having agreed upon the need to establish a RFMO they agreed to invite the other relevant coastal States, Angola and UK (on behalf of St. Helena and its dependencies), to participate in future consultations. The first coastal State consultation, held in February 1997, was attended by Namibia, SA and UK [24]. Its main outcome was that the participants agreed to continue discussions on a draft convention with a view to establish a RFMO. Three additional consultations were held between the coastal States in 1997 [25–27]. Though the coastal States by and large had common interests, there were certain differences. Namibia, having the main stakes in the fisheries, focused on coastal State interests and management aspects, making ‘‘radical’’ proposals on specific issues.11 SA and UK adopted more conservative approaches based on their experiences from established RFMOs,12 focusing on conservationist aspects of cooperation. Nevertheless, the consultations were constructive and contributed to galvanise the coastal States as a group and carving out common stands. The coastal States consultations culminated in the ‘‘coastal States draft’’ for a SEAFO convention in 1997 [29, Doc. No. CISM1–7]. Though representing the views of the coastal States, they had been conscious of the need for a balanced proposal to have it accepted by the participating DWFNs as a basis for negotiations.13 Moreover, ‘‘the coastal states had no wish to reinvent the wheel’’ [30, Attachment 6]. The coastal States draft was therefore largely based on the UN Fish Stocks Agreement as applied to the Southeast Atlantic. Additional sources of language for the provisions were the Code of Conduct and CCAMLR [29, Doc. No. CISM1–5, Doc. No. CISM1–6] (Table 1). The first session of the SEAFO process was held in December 1997 between the coastal States and DWFNs identified as having an interest in the fisheriesFEC, Japan, Norway, Russia and US. It was agreed by the parties that the meeting should be informal. The coastal State draft was presented as ‘‘ideas’’ and a possible basis for discussion [30, Attachment 6]. SEAFO 1 was a short meeting with discussions revolving around principles and sources of language [29]. It had the function of presenting the issues at stake, and preparing the ground for substantive negotiations. 11

Personal communication, informant. It is worth noting that while Namibia did not have any experience from participating in RFMOs, SA and UK were members of several RFMOs. SA’s experience from CCAMLR [28] proved especially influential in this regard. 13 Personal communication, informant. 12

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Table 1 Timeline for the agenda formation Session and consultations

Participating states

Informal bilateral consultations, 1996 First informal coastal State consultation, 24–26 February, 1997 Second informal coastal State consultation, 30 June–4 July, 1997 Third informal coastal State consultation, 9–10 September, 1997 Fourth informal coastal State consultation, 2nd December, 1997 SEAFO 1, 3–4 December 1997, Windhoek, Namibia

SA, Namibia SA, Namibia, UK Angola, SA, Namibia, Angola, SA, Namibia, Angola, SA, Namibia, Angola, SA, Namibia,

6. Negation the SEAFO convention When the parties met at SEAFO 2 in May 1998, most delegations had clarified views and positions on the coastal state draft. The move towards substantive negotiations was a natural development. EC tabled an alternative draft proposal, which main thrust was to amend provisions regarding compliance, enforcement and flag State duties [31], while US and Japan provided papers on their views [32, Attachments]. Nevertheless, it was agreed discussions would commence on the basis of the coastal States draft. On the agenda at SEAFO 2 were; objectives and principles, the structure of the organisation, the scope of cooperation, and matters related to adopting and signing the convention [32, Attachment 3]. Though most issues were discussed rather than resolved, two major accomplishments were made. After lengthy debate the parties agreed that the convention would cover the highs areas of FAO statistical area 47, thereby excluding EEZs.14 Moreover, general agreement was achieved on the structure of the SEAFO organisation.15 SEAFO 2 thereby established a basis for later negotiations which were to be more controversial. Though EC and Japan formally reserved their position on the draft convention as a whole [32, Attachment 4, p. 2], SEAFO 2 was regarded a success. The parties had committed to establish a RFMO for the Southeast Atlantic. The following sessions of the SEAFO [30,33–38] were to a greater extent dominated by hard bargaining. The issues to be addressed were numerous and complex. The next section outlines the main characteristics of the negotiation stage. This is followed by some illustrative 14 The coastal State draft proposed that the convention area should be the high seas area of FAO statistical area 47. This was initially opposed by several fishing nations who wanted to include EEZs [32, attachments]. Nevertheless, the coastal States maintained that there was no room for negotiation on the issue. EC and US accepted the proposed convention area, while Japan made a formal reservation [32, attachment 5, article 5(1)]. 15 SEAFO was to comprise of a Commission, Compliance Committee, Scientific Committee and a Secretariat [32, Attachment 5, Article 6(2)]. Japan presented a reservation on establishing a Compliance Committee.

UK UK UK UK, EC, Japan, Norway, Russia, US

‘‘snapshots’’ from the negotiations, focusing on issues related to decision-making, compliance and enforcement and a re-visitation of the convention area. 6.1. The structure of the negotiation stage An important feature of the SEAFO process was that it was conducted under a ‘‘veil of uncertainty’’.16 Entering negotiations, there was limited knowledge about the fish stocks in the area and the States participatory rights [9]. The compilation of biological and catch-data on the fish stocks thereby became an integral part of the process. One consequence was that, as information was made available, new fishing nations were invited to participate in the negotiations.17 The information was based on FAO statistics, supplemented by national data. The results were first presented at SEAFO 3, but due to the lack of data were revisited at SEAFO 5. Due to shortcomings in the material provided by national delegations, it was agreed that further work on compiling scientific information would await a final agreement on a SEAFO Convention [6, p. 5]. As such the negotiations were conducted without an adequate knowledge base on the status of the stocks and established fishing patterns. The lack of an adequate knowledge base and the low level of vested interests in the fisheries, resulted in the negotiations focusing on the principles of management rather than the actual fisheries. Several participants in the SEAFO process were also dominant actors during the UN Fish Stocks Conference 1993–95 (e.g. EC, Japan, Norway, Russia and US).18 The conflicts of interests between coastal States and fishing nations which had dominated the UN Fish Stocks Conference, were thus brought down to the regional level by the SEAFO process. The parties were also conscious that SEAFO, as the first RFMO established to manage 16 On ‘‘veil of uncertainty’’ during international negotiations see e.g. [23]. 17 On this basis Iceland, Russia and Ukraine were invited to participate from SEAFO 3 [33, paragraph 1], while Poland and Korea were invited to SEAFO 4 [33, paragraph 4(a)]. 18 For analysis of the UN Fish Stocks Conference 1993–95 see e.g. [39–40].

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straddling fish stocks following the UN Fish Stocks Agreement, would set important international precedences [41, pp. 63–64]. Consequently, the status and implementation of the UN Fish Stocks Agreement became a focal-point during the negotiations.19 The acceptance of the coastal States draft as the staring-point for the negotiations at SEAFO 1 was an important determinant for the development of the negotiations. It largely defined who were going to be the ‘‘pushers’’ and ‘‘laggards’’ throughout the process.20 The coastal States, most often supported by US, sought to move the process forward and generally supported the revised draft texts. Meanwhile, EC and Japan were laggards, opposing the drafts and demanding changes. Notably, a number of DWFNsFIceland, Korea, Norway, Poland, Russia, UkraineFwere relatively anonymous throughout the process. Moreover, the participation by many of these DWFNs was fluid, reflecting the low level of vested interest in the fisheries. For these reasons the article will mainly focus on the dominant actors in the SEAFO process, the coastal State coalition (Angola, SA, Namibia and UK),21 US, EC and Japan. At SEAFO 2 it was agreed that the meetings would be informal and that the meeting would constitute the beginning of a technical review of the ‘‘coastal States draft’’ [32, paragraph 3]. The working-group style with informal and frank discussions became an important feature of the negotiations.22 Most discussions took place in the plenary sessions, but when specific issues were not moving towards a resolution, these were dealt with by small working groups [5, p. 8]. This ensured a high level of transparency among the participants throughout the process.23 The negotiations themselves were straightforward. They started with a ‘‘broad’’ approach and gradually narrowed down on the issues of controversy. Proposals met with counter-proposals, formal reservations were 19

Iceland, Namibia, Norway, Russia and US have ratified the UN Fish Stocks Agreement. All other participants to the SEAFO process are signatories, except SA and Angola who, however, have signalled their intention to become a parties to the UN Fish Stocks Agreement [41, p. 66]. 20 The terms ‘‘pushers’’ and ‘‘laggards’’ are used widely within international relations. Applying the terms is not intended to ascribe any value-judgement on either party. 21 The coastal States held meetings to co-ordinate their positions prior to each session of SEAFO. They can therefore reasonably be regarded as a coalition. 22 Personal communication, informants. 23 Informants were divided in viewing this as facilitating or obstructing reaching agreement on controversial issues. Moreover, from SEAFO 5 an editorial group was set down to review the draft convention to ensure necessary clarity and accuracy in the text [36, paragraph 26]. 24 Japan presented eleven formal reservations on different provisions throughout the process. Other delegations rarely or never used formal reservations as a negotiation technique.

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made,24 unresolved issues bracketed, alternative provisions included in the text,25 consensus or vast majorities achieved, and so forth. Though all issues could be revisited throughout the negotiations, it was commonly perceived that once consensus was achieved, it took weighty arguments to reopen it. In general, the discussions were viewed as productive.26 6.2. Decision-making by the commission Decision-making procedures, implementation and dispute-settlement were not subject to negotiation before SEAFO 4. The point of departure was the coastal State proposal27 which was supported by US [32, US note, Article 15]. The essence of the coastal States and US models were that objections to decisions made by the Commission only could be made on a limited set of grounds, and that unqualified objections could be deemed invalid by a majority of the contracting parties.28 EC and Japan, on the other hand, both proposed decision-making by two-thirds majority with a general objection-procedure [31, Article 22(c); 42, Article 20(c)]. The following discussions revolved around whether the decisions made by the Commission should be binding, and the implementation-procedures (objection-procedure) to be adopted. At the end of SEAFO 4 there were a number of alternative models on the table [30, Attachment 8, Articles 16 and 22]. Following lengthy negotiations at SEAFO 5, agreement was reached that all decisions on matters of substance should be made by consensus [34]. Moreover, the procedure whereby a majority of the parties could deem an objection unqualified was deleted [35, Article 22]. Entering SEAFO 6 an agreement was within reach and a compromise was achieved [37, Articles 17, 23 and 24]. The SEAFO Convention states that decisions by the Commission on matters of substance are to be made by consensus. Meanwhile, parties may present an objection within sixty days of notification of a management measure. In the case of objections, a meeting is to be 25 Until SEAFO 5 the coastal States draft and EC’s proposal were contrasted in separate columns. 26 Personal communication from informants, meeting documents and records of proceedings [29–30,32–34,36,38]. 27 Much of the ‘‘action’’ on decision-making procedures had taken place during the bilateral meetings between SA and Namibia and the coastal State consultations. Discussions had revolved around whether decisions should be made by consensus or a majority vote. Namibia initially championed the former while SA, based on its experience from CCAMLR [28], supported the latter. After discussions the coastal States reached agreement on decision-making by consensus. 28 Objections had to be qualified on the grounds that the measure is inconsistent with the Convention, is discriminatory, or the member cannot practically comply with it [29, Doc.No.CISM1–7, Article 22, b–d]. The latter was considered a ‘‘safeguard’’ for the developing coastal States who were expected to represent a minority in the Commission (Personal communication, informants).

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held to review the relevant management measure. Pending the meetings outcome, any party may request an ad-hoc expert panel to make recommendations on interim measures.29 These interim measures shall be binding if all parties, other than those having presented an objection, agree that the sustainability of the stocks will be undermined otherwise [37, Article 24(g)]. Notwithstanding, any party may invoke the procedure to have the matter resolved by binding dispute-settlement.30 6.3. Compliance and enforcement The provisions on compliance and enforcement31 became the ‘‘make-or-break’’ of the SEAFO process. The coastal States draft initially outlined a scheme broadly based on the UN Fish Stocks Agreement [29, Doc. No. CISM1–7, Articles, 8, 12–14, 20], supported by US [32, US note, pp. 5–7]. Meanwhile, EC and Japan wanted the Convention to establish a set of more narrowly defined principles for a compliance and enforcement system, to be established by the future Commission [31, Article 8, 12–14, 20; 32, Japanese note].32 The discussions at SEAFO 3 on compliance and enforcement proved difficult. Nevertheless, substantial changes were madeFseveral based on the EC proposalFnarrowing down the provisions of the draft text [33, Attachment 5, Articles 14–15]. SEAFO 4 continued with heavy confrontations between the coastal States and US versus EC and Japan. Following discussions, the text was narrowed down further, with a number of brackets [30, Article 15].33 At SEAFO 5 EC brought in a technical expert to commence negotiations on compliance and enforcement. This seemingly changed the tone and approach of 29

Procedure to be established by the first meeting of the Commission [37, Article 23(3)]. 30 On disputes arising concerning the interpretation or implementation of the SEAFO Convention, States shall seek to resolve the dispute by means of their own choice. In disputes concerning technical issues, disputes may be referred to an ad-hoc panel of experts for non-binding settlement. If disputes are not resolved within reasonable time, disputes shall be referred to binding dispute-settlement according to LOSC Part XV or UN Fish Stocks Agreement Part VIII. The court, tribunal or panel shall apply the relevant provisions of the LOSC, UN Fish Stocks Agreement, SEAFO Convention, as well as generally accepted standards of conservation and management, and international law [37, Article 23]. 31 Including provisions on the functions of the Compliance Committee, flag State duties, port State duties, contracting parties obligations, observation, inspection, compliance and enforcement. 32 The view of the EC was that the provisions of the UN Fish Stocks Agreement, though comprehensive, were not detailed enough to be applied in practice on the regional level. See also [41, p. 63]. 33 As a consequence Namibia reserved its position viewing the provisions as too limited, as did Japan for the opposite reason [30]. 34 An informant claimed that the conflicts prior to SEAFO 5 largely were due to the EC-delegation comprising of ‘‘eurocrats’’ rather than fisheries managers and experts.

discussions.34 Seizing the opportunity, a working-group was set down to work parallel to the plenary session. The working-group set aside the UN Fish Stocks Agreement and focused on principles of compliance and enforcement, and the technical elements required to apply them.35 US was initially sceptical to this approach,36 while Namibia (leading among the coastal States on the issue) and EC supported it. The meeting of the working-group proved to be constructive. It was therefore decided to hold a technical consultation on compliance and enforcement before the next session of SEAFO. The technical consultation addressed technical elements related to an interim arrangement, a system for compliance and enforcement, and outstanding technical issues to be addressed by SEAFO 6 [43, paragraph 8]. Though poorly attended, the central participants were present (see Table 2). The consultation sought to distance itself from the SEAFO sessions by focusing on technical issues rather than political principles [43, paragraph 7]. It resulted in detailed proposals on interim arrangements and a system for compliance and enforcement based on ‘‘best practices’’ from other RFMOs, rather than the UN Fish Stocks Agreement [43, Attachment 5–8].37 The proposals of the technical consultation were presented at SEAFO 6. As a result, the provision on an observer programme was agreed upon [37, Article 16.3(c)], which had been a main issue of conflict. Changes were also made to the provisions on flag State duties and measures taken by port States [37, Articles 14–15]. Finally, a provision was included referring to the UN Fish Stocks Agreement’s obligations on the implementation of boarding and inspection procedures [37, Articles 21–22].38 At this stage all the elements of an integrated compliance and enforcement system were agreed upon, in principle. When it came to the detailed elements proposed by the technical consultation, ‘‘(p)articipants agreed that these matters should be dealt with at a later stage and that, in the interest of advancing conclusion of the draft convention, would not be addressed in detaily’’ [36, paragraph 16]. 6.4. A final twist Following the agreements on decision-making and compliance and enforcement at SEAFO 6, the main obstacles were overcome. Outstanding for SEAFO 7 35

Personal communication, informant. US formal reservation [34]. 37 NAFO [44], CCAMLR [28], but particularly NEAFC [45]. 38 However, it remains unclear whether SEAFO is an alternative arrangement which substitutes the obligations in Articles 21 and 22 of the UN Fish Stocks Agreement. On the background of SEAFO 5 the parties agreed not to enter detailed negotiations on this issue [36, paragraph 16]. 36

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Table 2 Timeline for the negotiation stage Session and consultations

Participating states

SEAFO 2, 19–22 May 1998, Cape Town, South Africa SEAFO 3, 22–25 September 1998, Swakopmund, Namibia SEAFO 4, 8–11 March 1999, Oxford, United Kingdom

SA, Namibia, UK, EC, Japan, Norway, US Angola, SA, Namibia, UK, EC, Japan, Norway, US, Ukraine Angola, SA, Namibia, UK, EC, Japan, Norway, Russia, US, Ukraine, Iceland, Korea, Poland Angola, SA, Namibia, UK, EC, Japan, Norway, US, Iceland, Korea SA, Namibia, UK, EC, US, Korea

SEAFO 5, 27 September–1 October 1999, Cape Town, South Africa Technical consultation on enforcement issues, 1–4 March 2000, Windhoek, Namibia SEAFO 6, 8–12 May 2000, Midgard, Namibia SEAFO 7, 9–11 November 2000, Windhoek, Namibia Ceremony for signing the SEAFO Convention, 20 April 2001, Windhoek, Namibia

SA, Namibia, UK, EC, Japan, Norway, US, Iceland, Korea Angola, SA, Namibia, UK, EC, Japan, Norway, Russia, US, Iceland, Korea Angola, SA, Namibia, UK, EC, Norway, US, Iceland, Korea

were technicalities, revisiting some reservations, and some last minute proposals [38, Attachment 5]. Evidently the ‘‘deal’’ was struck at SEAFO 6 and it seemed too late to make major amendments to the text. Most reservations and proposals were therefore set aside while the technicalities were resolved. There was, however, one issue which disrupted the consensus, Angola’s reservation on the northern boundary of the convention area [38, Attachment 3]. At SEAFO 2, with Angola absent, the parties had agreed that the convention area should cover the high seas of FAO statistical area 47. This was more out of practical and political considerations than biological facts.39 The issue re-occurred at SEAFO 5 when Angola proposed to adjust the northern boarder to include its northern coastline (Cabinda), which fell outside the proposed convention area [34]. Angola’s concern was that the SEAFO convention area could establish a precedent, which would disadvantage it in unresolved disputes with neighbouring coastal States regarding the northern boarder of its EEZ. As Angola did not attend SEAFO 6, the issue fell down the order of the agenda. At SEAFO 7 Angola made it clear that their support of the SEAFO Convention was pending on an amendment of the convention area [38, paragraph 10; Attachment 3]. The Angolan proposal would result in an overlap between SEAFO and the Committee for the Eastern Central Atlantic Fisheries (CECAF) [46] and give new coastal States the right to participate, who could then object to the SEAFO Convention due to their non-participation in the negotiations [38, paragraph 9]. The other participants therefore underlined that the SEAFO convention area and FAO statistical areas did not have any bearing on claims to EEZs [38, paragraph 9]. The situation was critical since neither

SA or Namibia would sign the SEAFO Convention without the participation of Angola.40 Following SEAFO 7 a meeting was held between Namibia and FAO to explore the possibility of changing the boundaries of FAO statistical area 47 (and thereby the convention areas of CECAF and SEAFO) [47]. The meeting did, however, not result in any viable solution. Namibia then proposed that the participants to the SEAFO process would meet a day ahead of signing the SEAFO convention to sign a declaration stating the parties willingness to extend the SEAFO boundary northwards, provided the cooperation of other coastal States, who had not participated in the SEAFO process [48, p. 3]. This was accepted by Angola. The signing ceremony for the Convention on the Conservation and Management of Fishery Resources in the South East Atlantic Ocean was held in Windhoek, Namibia, on the 20th of April 2001 [49]. The convention was signed by Angola, SA, UK, Namibia, EC, Iceland, Korea, Norway and US. The convention enters into force 60 days after the deposit of the third ratification, accession, acceptance or approval, of which at least one has to be by a coastal State [1, Article 27]. It is open for accession by the coastal States, and all other States and regional economic organisations whose vessels fish for fishery resources covered by the convention within the convention area [1, Article 26(1)]. In addition a resolution was adopted where the parties agreed to consider ‘‘yto extend the boundary of the Convention Area northward to include those areas of high seas adjacent to all waters under Angolan jurisdictionysubject to the cooperation and agreement of other coastal states concernedy’’ [49].

39 Considering the low level of knowledge about straddling and high seas fish stocks in the area. Personal communication, informants.

40 This is to be understood on the background of the broader international relations between the three African coastal States.

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7. Operationalising SEAFO The operationalisation stage largely involves moving the SEAFO Convention from paper to practice. It includes ratification by the parties, mobilising funding and resources to operationalise the SEAFO organisation, and committing national authorities and bureaucracies to fulfil their obligations. Though this lies in the future, some predictions may be made as to what factors may influence the eventual operationalisation of SEAFO. While the low level of vested interests can be viewed as facilitating the parties ability to reach agreement on the convention, this may pose a serious obstacle to the operationalisation of the SEAFO organisation. The present catches in the convention area give few incentives for parties to commit time and resources to operationalise the organisation. As such SEAFO runs the risk of becoming a ‘‘dead letter’’ organisation. A crucial determinant for the operationalisation of SEAFO is thereby the development of the fisheries.41 The parties to SEAFO have agreed to establish an interim arrangement operational from the signing of the convention, including observing and monitoring the development of the fisheries [38, Annex]. It has been signalled that the coastal States will take initiative to establish the interim arrangement, located in Windhoek. The critical issue is, however, whether the interim arrangement is an ‘‘alternative arrangement’’ which substitutes the parties obligations under the UN Fish Stocks Agreement to establish a compliance and enforcement system within two years [2, Articles 21– 22]. If the obligations under the UN Fish Stocks Agreement are triggered, the parties will have strong incentives to operationalise the organisation to set in place a compliance and enforcement scheme designed by the parties themselves, rather than the one outlined by the UN Fish Stocks Agreement. If not, parties without vested interests will have few incentives to move SEAFO beyond the interim arrangement, given their low level of fishing activity in the area. In the end, the interpretation of this provision may determine the operationalisation of SEAFO. The above illustrates that adopting the SEAFO convention, did not mean the end of the formation process. There are, in practice, several challenges confronting the parties when moving the convention from paper to practice.

8. Analysis The SEAFO Convention was the first regional convention establishing a RFMO for the management 41

Personal communication, informants.

of straddling fish stocks following the adoption of the UN Fish Stocks Agreement in 1995. Though all such processes are unique, it may provide insights to the challenges States confront when implementing the UN Fish Stocks Agreement. 8.1. Organisation and leadership The SEAFO process was conducted as an informal technical and legal consultation with a working-group style. It has been characterised as ‘‘not very diplomatic’’ with discussions being of an informal and frank nature.42 This was probably important to counterbalance the principle oriented discussions, where the fisheries often had a secondary role to the UN Fish Stocks Agreement. The relative success of the SEAFO process also rested on the leadership provided by individuals and delegations. The personal capacity of the Chairman43 proved important in this regard, doing much to navigate the process towards conclusion. Among the coastal States, Namibia maintained a driving-force throughout the process, while (particularly) South-Africa’s experience from CCAMLR influenced the coastal States stand on a number of issues. US, who was brought in to give the process political weight, proved to be an important partner for the coastal States. Among the DWFNs, EC provided leadership, largely supported by Japan and Korea. 8.2. Power, interests and ‘‘discourses’’ in the SEAFO process This section discusses to what degree neorealism, contractualism and constructivism, focusing on material power, self-interest and ‘‘discourses’’ (respectively), contribute to explain the SEAFO process. The initiative to the SEAFO process was taken by Namibia who was concerned that unregulated fishing on the high seas could undermine its national orange roughy fishery. The other coastal States, and later the DWFNs, also took part on the basis of their interests in the fish-eries and/or the implementation of the UN Fish Stocks Agreement in the region. There was, as such, no under-lying power-structure or political pressure which contributed to set SEAFO on the agenda. To the extent that a discoursive approach was pursued, this took place during the bilateral meetings between SA and Namibia, and the coastal State consultations.44 These meetings, and the work on the coastal State draft, contributed to galvanise the coastal States as a group by reaching 42

Personal communication, informants. Andrew Jackson from SEAFO 4. 44 I.e. between participants who had common interests as coastal States vis-a-vis the DWFNs. 43

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common stands on important issues.45 Notwithstanding the agenda setting was by and large an interest driven affair. The negotiation stage of the SEAFO process provides a particularly interesting case from a theoretical point of view. First, and rather uncommonly, there was a low level of vested interests in the fisheries among the participating States. Moreover, the process was conducted under a ‘‘veil of uncertainty’’ regarding the state of the fish stocks and established fishing patterns [8,9]. Consequently, discussions were oriented towards management principles, rather than the distribution of fishing rights. In theory this should have provided for a discoursive approach during the negotiations, seeking broad consensus and common understandings. However, the participants were aware that the SEAFO convention would establish international precedences to be followed by other RFMOs to which they were parties. As one participant later stated, ‘‘The power of precedent in any international agreement should not be underestimated’’ [41, p. 64]. The issue-linkage between SEAFO and establishing international precedents thereby raised the stakes, leading to more self-interested strategies by the participants. In such settings the distribution of material resources (power) between the participating States may become an important factor (threats and promises). But despite substantial asymmetry in the participants material capabilities, power did not come into play during the negotiations. One explanation may be that few fishing nations had strong interests at stake. Moreover, there are few established relations between the coastal States and the DWFNs (bilateral agreements, aid, or likewise) which could serve as mediums for putting power into play. As the issue regarding the northern boarder of the convention area illustrated (Section 6.4), the participants pursued their national interests, irrespective of their material capabilities. The negotiations were thus characterised by hard bargaining directed towards reaching a compromise facilitating the interests of all the participating States. The SEAFO process is an example of a RFMO being established between developing coastal States and industrialised DWFNs. Such organisations are often dependent on funding and technical resources from the developed member-countries. This may give members with material resources substantial leverage over less resourceful members during the operationalisation stage. This is not the case for SEAFO. Namibia and SA, as the major stake-holders in the fisheries, have highly industrialised fishing industries and are willing to commit substantial resources to operationalise SEAFO. Meanwhile, a main obstacle lies in the development of the fisheries. If the current fishing effort and catches do not increase, there is a real possibility of the SEAFO 45

Personal communication, informants.

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Convention remaining a ‘‘dead letter’’. It is doubtful that States will ratify the convention or commit resources to a RFMO managing ‘‘paper fish’’, without any benefits in return. However, this may partly depend on how the SEAFO Convention is interpreted, regarding whether it triggers the obligations under the UN Fish Stocks Agreement to establish a compliance and enforcement system within two years [2, Articles 21–22]. Since this issue has been left open, its resolution lies in the ability of the State parties to reach a common interpretation. However, the above indicates that, whether the participating States view the SEAFO convention as serving their national interests, may be a necessary condition for it to be operationalised. The SEAFO process was conducted in a context where one could expect a certain level of support to all the theoretical approaches during the different stages of regime formation. There was a high level of uncertainty regarding the fisheries, a low level of fishing activity, substantial asymmetry in the material power of the participating States, and strong conflicts of interest between the coastal States and certain DWFNs. However, the SEAFO process mainly lends support to the contractualist approach. The States perceptions of their national interests were the driving-forces during the agenda setting and negotiation stages, and will most likely be so during the operationalisation of the SEAFO convention. 8.3. The SEAFO convention and the UN fish stocks agreement SEAFO is the first convention to be adopted to manage straddling fish stocks following the UN Fish Stocks Agreement in 1995. Currently there are several process to reform or establish similar organisations in other parts of the world [13]. What lessons can be learnt from the SEAFO process regarding the implementation of the UN Fish Stocks Agreement? It seems evident that the international momentum created by the UN Fish Stocks Agreement was instrumental in getting parties to the negotiation table. Nevertheless the agreement was contested as the institutional basis for negotiations. Since there was no consensus on how to apply the UN Fish Stocks Agreement, this became subject to negotiation. The status and implementation will likely become a focal-point for other processes to establish regional conventions to manage straddling and highly migratory fish stocks. The UN Fish Stocks Agreement addresses issues which have to be resolved by all regional fisheries management organisations and to which there are no ‘‘easy’’ solutions. The coastal State draft, which constituted the starting-point of the substantive negotiations, was by and large a direct application of the UN Fish Stocks Agreement to the Southeast Atlantic. Throughout the negotiation-stage a main trend became that its, often

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detailed and binding provisions, were narrowed down gradually. Viewed as a path-dependent process, the SEAFO Convention can be viewed as representing how far the DWFNs would go in the direction of the coastal States. On many issues the main question became whether or how to apply the UN Fish Stocks Agreement. For several DWFNsFnotably EC, Japan and KoreaFit was acceptable to adopt language from the UN Fish Stocks Agreement, but not to make direct references to it. Where the DWFNs directly opposed the provisions of the UN Fish Stocks Agreement, the solution often became to adopt models from RFMOs these countries were parties to, such as CCAMLR, NAFO and NEAFC. Moreover, on issues such as compatibility,46 and compliance and enforcement, the UN Fish Stocks Agreement was set aside to facilitate compromises. Under these circumstances it became the strategy for Namibia and SA to accept the SEAFO convention as a framework agreement. Their expectation was that it will be easier to reach agreement within the Commission, where the political stakes will be lower, and the issue of establishing precedents less critical.47 These factors contributed to that a main characteristic of the SEAFO Convention is its limited application of the UN Fish Stocks Agreement.48 However, The SEAFO Convention comprises of all the functions of a full fledged fisheries management regime. The SEAFO organisation is to consist of a Commission, Scientific Committee, Compliance Committee and a permanent secretariat (to be located in Windhoek, Namibia). Biological data, and statistics on catch and effort are to be provided by the membercountries to the Scientific Committee, who provides the Commission with scientific advice [1, Article 13(1)]. Coastal States shall also provide data on activities within their EEZs on fish stocks covered by the convention [1, Articles 13(2) and 19(2)]. When adopting conservation and management measures the Commission is to apply the precautionary approach [1, Article 7], take into account by-catch on species belonging to 46 Notably, on compatibility which is the linchpin underlying the UN Fish Stocks Agreement, the SEAFO Convention [1, Article 19(1)] refers to LOSC [3, Articles 61 and 119]. The explanation is that SEAFO’s convention area only covers high seas. Personal communication, informants. 47 Personal communication, informants. 48 The Preamble recognises the relevant provisions of the UN Fish Stocks Agreement but goes no further in elaborating on the relationship between the SEAFO Convention and the UN Fish Stocks Agreement. Cross-references to the UN Fish Stocks Agreement are only used in regard to the precautionary approach [1, preamble and Article 7], participatory rights on new or exploratory fisheries [1, Art 20(1) f], and dispute-settlement [1, Article 24(4)–(5)]. Regarding the parties obligations on observation, inspection, compliance and enforcement, the formulation is ‘‘obligations under this Convention and, where applicable, under the 1995 Agreement’’ [1, Article 16(1) and (6)].

the same ecosystem, and protect marine biodiversity [1, Article 3]. The member-countries have a duty to cooperate to achieve compatible measures in the convention area and the coastal States EEZs [1, Article 19(1)]. Finally, the Compliance Committee shall provide the Commission with advice on the implementation of a multilateral compliance and enforcement system [1, Article 9(2)], comprising of e.g. a vessel monitoring system, inspection programme at sea and port, an observer programme, and investigation procedures to follow up on infringements [1, Article 16]. There is nothing in the SEAFO Convention which prevents SEAFO from evolving into an efficient RFMO if its provisions are implemented by the membercountries. The SEAFO Convention also breaks new ground internationally in its inclusion of a discrete high seas stock (red crab) [5]. Beyond this, however, it is doubtful whether the SEAFO process has contributed to the evolution of new international practices to secure the sustainable management of international fisheries through its implementation of the UN Fish Stocks Agreement.

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