Guidance to achieve biodiversity conservation measures in high seas fisheries

This document serves as a pragmatic guidance for those wishing to engage with Regional Fisheries Management Organisations (RFMOs), explaining how to achieve conservation measures in an RFMO, through establishing legally binding decisions. It is a distillation of personal experiences including successes, failures and insights into some of the more arcane aspects of RFMOs. The purpose of this document is the imperative of the STRONG High Seas project – to explore the fractured governance regime of the oceans, and more explicitly for this work, to provide guidance to support the implementation of spatial conservation in the High Seas. This work is therefore framed in the context of achieving spatial conservation measures but draws on examples from other biodiversity conservation efforts and offers guidance for achieving binding measures for any matter, in any RFMO.
Aspirations for achieving biodiversity conservation using enforceable, area-based management tools (ABMT) in an RFMO will require dedicated action if they are to move from aspirations to actuality. Getting binding measures for high seas areas approved and enforced in an RFMO is a complex, multi-stage process. A major reason for that is because binding decisions are made almost universally through consensus. RFMOs have structures that facilitate a logical flow of information, particularly scientific underpinnings for management actions (such as would be required before no-take zones are established). Subsidiary bodies gather information, digest it, and recommend actions based (in theory) on evidence or scientific merit. Every RFMO has a statutory Scientific Committee (or equivalent) that follows a consensus approach to making scientific recommendations to the Commission. Even if there are other interests besides science that weigh upon their decisions, Scientific Committees perform two functions: provide scientific advice to the Commission and directing subsidiary bodies to undertake specific work. Because decisions made at Commission meetings are binding, they are influenced by scientific and political considerations.
Although binding measures at an RFMO are finalised at the meeting of the Commission, that is not where the process starts. Binding measures require two steps to be completed successfully. First is a scientifically robust conservation case, made via a subsidiary body, culminating in a recommendation from the Scientific Committee to the Commission. The second is drafting and securing unanimous support for, or lack of opposition to, a proposed CMM.
The passage of advice (and associated recommendations for practical actions) cannot be left to chance or uninvested partners – it requires a dedicated effort from start to finish. Further, only members of an RFMO can propose or decide upon a CMM. There are few obstacles to demurral from parties that do not support a proposal, and there is no obligation for demurring parties to justify their positions. Careful negotiations before and in the margins of Commission meetings are essential tools to address points of concern.
Examples of binding measures at RFMOs that lack effective compliance monitoring and enforcement systems abound. The lack of compliance, including the lack of systems to even know the levels of compliance with a measure, is evident in multiple flawed conservation and management outcomes at RFMOs. Experience shows that careful attention must be paid to crafting a fair, transparent, equitable and manageable compliance regime embedded within a CMM. Failure to codify explicit compliance mechanisms and consequences for non-compliance creates appreciable risks that the CMM will be functionally ignored.
Changing the status quo is the quintessential challenge in all RFMOs, because of consensus rule-making. Securing consensus support for any measure at a Commission meeting will likely require compromises and concessions. Only the proposing parties can decide whether to withdraw a measure or to accept compromises in securing support. Careful consideration is needed for the latter option. While there is no ostensible barrier to regular ‘updates’ or changes to a measure at subsequent Commission meetings, it is inadvisable to accept a highly compromised/weak/ineffective measure, i.e. something is not always better than nothing, since there are no guarantees that subsequent efforts to strengthen a measure will be successful. In all negotiations, it is important to strike a balance between acceptable concessions and fatally weakening a measure. It is not possible or advisable to offer opinions here on when to withdraw a proposal and regroup for another attempt at a subsequent Commission meeting, or to forge ahead with a weakened but workable measure. But experience shows that such decision points are almost inevitable and should be anticipated and planned for carefully.