5 Safeguarding the Founding Fathers’ Interests
The constitutive instruments of RFMO/As and their subsequent practices contain
several mechanisms aimed at safeguarding interests of the original group of States
that initiated the negotiation of the establishment of these RFMO/As. Such States are
in this section called ‘Founding Fathers’. Constitutive instruments sometimes refer
to them as ‘(original) signatory States’.
The most paramount Founding Fathers’ interest is to become a party to the
constitutive instruments and thereby participate in the RFMO, MOP or COP
established thereunder. This safeguards their ability to participate in decisionmaking and thereby influence the substance of individual decisions, as well as the
subsequent evolution of the RFMO/As and their constitutive instruments in line with
the Founding Fathers’ more specific interests. The participatory interests of
Founding Fathers are safeguarded by granting them a right to become party that is
neither time bound nor subject to an approval role of the existing Members.
108
The more specific interests of Founding Fathers mentioned above are often
utilization-oriented or conservation-oriented. Such utilization-oriented interests are,
inter alia, reflected in rules and practices of RFMO/As on the allocation of fishing
opportunities that rely predominantly on historical catch rather than on other allocation criteria, such as zonal attachment, a State’s dependency on fishing, or its
status as a developing State. Rules and practices can also give preferential treatment
to existing Members and CNCPs, for instance by implicitly acknowledging their
‘vested rights’. A well-known example in this regard is NAFO Resolution 1/99 ‘to
Guide the Expectations of Future New Members with regard to Fishing Opportunities in the NAFO Regulatory Area’,
109 which stipulates that
new members should be aware that presently and for the foreseeable future, stocks managed
by NAFO are fully allocated, and fishing opportunities for new members are likely to be
limited.
A similar approach was embraced by NEAFC in 2003.
110 While some other
RFMO/As have adopted somewhat more accommodating approaches,
111 it is evident that existing Members will always be reluctant to accept quota-cuts to make
room for new entrants.
Another way in which Founding Fathers are able to protect their utilizationoriented interests is through the formal rules on eligibility requirements and criteria,
and the procedures on participation laid down in the constitutive instruments of
RFMO/As. While some of these are very ‘open’ (e.g. ICCAT and SPRFMO), a
108 See, e.g., Art. 10(1) of the CAOF Agreement, and Art. 37(1) of the SPRFMO Convention, note
51 supra. See also Molenaar, p. 119.
109 GC Doc. 99/9, Annex 13.
110 Report of the 22nd (2003) Annual NEAFC Meeting, at p. 27. The ‘Guidelines for the expectation
of future new Contracting Parties with regard to fishing opportunities in the NEAFC Regulatory
Area’ are available at http://www.neafc.org/becomingacp.
111 See, e.g. NPFC Conservation and Management Measure 2019-07 ‘for Chub mackerel’, para. 4.
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The constitutive instruments of RFMO/As and their subsequent practices contain
several mechanisms aimed at safeguarding interests of the original group of States
that initiated the negotiation of the establishment of these RFMO/As. Such States are
in this section called ‘Founding Fathers’. Constitutive instruments sometimes refer
to them as ‘(original) signatory States’.
The most paramount Founding Fathers’ interest is to become a party to the
constitutive instruments and thereby participate in the RFMO, MOP or COP
established thereunder. This safeguards their ability to participate in decisionmaking and thereby influence the substance of individual decisions, as well as the
subsequent evolution of the RFMO/As and their constitutive instruments in line with
the Founding Fathers’ more specific interests. The participatory interests of
Founding Fathers are safeguarded by granting them a right to become party that is
neither time bound nor subject to an approval role of the existing Members.
108
The more specific interests of Founding Fathers mentioned above are often
utilization-oriented or conservation-oriented. Such utilization-oriented interests are,
inter alia, reflected in rules and practices of RFMO/As on the allocation of fishing
opportunities that rely predominantly on historical catch rather than on other allocation criteria, such as zonal attachment, a State’s dependency on fishing, or its
status as a developing State. Rules and practices can also give preferential treatment
to existing Members and CNCPs, for instance by implicitly acknowledging their
‘vested rights’. A well-known example in this regard is NAFO Resolution 1/99 ‘to
Guide the Expectations of Future New Members with regard to Fishing Opportunities in the NAFO Regulatory Area’,
109 which stipulates that
new members should be aware that presently and for the foreseeable future, stocks managed
by NAFO are fully allocated, and fishing opportunities for new members are likely to be
limited.
A similar approach was embraced by NEAFC in 2003.
110 While some other
RFMO/As have adopted somewhat more accommodating approaches,
111 it is evident that existing Members will always be reluctant to accept quota-cuts to make
room for new entrants.
Another way in which Founding Fathers are able to protect their utilizationoriented interests is through the formal rules on eligibility requirements and criteria,
and the procedures on participation laid down in the constitutive instruments of
RFMO/As. While some of these are very ‘open’ (e.g. ICCAT and SPRFMO), a
108 See, e.g., Art. 10(1) of the CAOF Agreement, and Art. 37(1) of the SPRFMO Convention, note
51 supra. See also Molenaar, p. 119.
109 GC Doc. 99/9, Annex 13.
110 Report of the 22nd (2003) Annual NEAFC Meeting, at p. 27. The ‘Guidelines for the expectation
of future new Contracting Parties with regard to fishing opportunities in the NEAFC Regulatory
Area’ are available at http://www.neafc.org/becomingacp.
111 See, e.g. NPFC Conservation and Management Measure 2019-07 ‘for Chub mackerel’, para. 4.
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