I’ve been at times asked to be part of expert consultations (FAO a couple of times and PEW), and I never paid much attention to the differences between consultations and panels… particularly in the frame of RFMOs.
some of my favourite experts
And as I’m now quite keen on seeing things through the lenses of UNCLOS, so I was quite interested in reading this analysis by Valentin J Schatz, for two of the most credible and prestigious law institutions in Law Oxford Public International Law and Max Planck Encyclopedias of International Law.
As usual, I recommend you read the original… I just quote the intro and Concluding Remarks below:
Introduction
1 Ad hoc expert panels are a means of the → peaceful settlement of international disputes in the framework of regional fisheries management organizations (‘RFMOs’) (→ Dispute; → Fisheries Disputes; → Fisheries, Commissions and Organizations). From the perspective of the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 1995 (‘UNFSA’), RFMOs are international organizations established by two or more States through → fisheries agreements for the purpose, inter alia, of establishing conservation and management measures (‘CMMs’) in a subregion or region for one or more → straddling and highly migratory fish stocks (Harrison, 2019, 84; → Marine Living Resources, International Protection). As such → fish stocks are not confined to waters within national jurisdiction but are also present on the high seas (→ Fisheries, High Seas), their conservation and management requires cooperation. Against this background, ad hoc expert panels may be placed in the broader context of both dispute settlement in the law of the sea (→ Law of the Sea, Settlement of Disputes) and, more specifically, the settlement of international disputes to which international organizations are parties.
2 In simplified terms, there are two different categories of ad hoc expert panels, which should be distinguished, although this distinction may not always be clear. The first category represents a consensual procedure on the basis of international law for the settlement of disputes of a technical nature between two or more RFMO members by panellists of their own choosing. The second category—Review Panels—shares most of the general features of the first category but constitutes a special procedure between RFMO members and the RFMO itself to review a decision of the RFMO and/or recommend alternative or interim measures (→ International Organizations or Institutions, Legal Remedies against Acts of Organs).
3 Ad hoc expert panels differ from the traditional means of dispute settlement non- exhaustively listed by Article 33 Charter of the United Nations, 1945 (‘UN Charter’) and Article 279 United Nations Convention on the Law of the Sea, 1982 (‘UNCLOS’), which include → negotiation, inquiry (→ Fact-Finding), → mediation, → conciliation, → arbitration, and → judicial settlement of international disputes. Accordingly, they fall within the scope of the catch-all term ‘other peaceful means’ under Article 33 UN Charter. A comparison with other means of dispute settlement illuminates the nature of ad hoc expert panels, although any categorization in abstract terms is rendered difficult by the fact that they take a variety of different shapes. Generally, ad hoc expert panels share many elements of other forms of → alternative dispute resolution, most importantly conciliation and arbitration (Harrison, 2019, 92). Against this background, they may be categorized as ‘hybrid’ or ‘mixed’ procedures whose features may be placed on a spectrum between what could be called ‘quasi-arbitration’ (eg compulsory Review Panels rendering binding recommendations) and ‘quasi-conciliation’ (eg voluntary ad hoc expert panels rendering non-binding recommendations). The → Permanent Court of Arbitration (PCA) refers to ad-hoc expert panel proceedings as ‘other interstate proceedings’ rather than ‘interstate arbitrations’ or ‘interstate conciliations’ (see PCA Cases webpage). To the extent that a type of ad hoc expert panel does not render binding decisions, it may also be qualified as a → quasi-judicial body (cf Romano, 2011, 255).
Concluding Remarks
34 Compulsory ad hoc expert panel procedures can make an important contribution to the prevention and settlement of disputes of a technical nature in the framework of RFMOs. In particular, the incorporation of Review Panel procedures in the decision-making procedures of RFMOs can be a suitable alternative to the unfettered rights of members to opt-out of CMMs, which undermine the effectiveness of conservation and management by RFMOs (Lodge and others, 2007, 75–76). Review Panels procedures can also increase accountability of both RFMOs and their members with respect to conservation and management obligations laid down in the legal frameworks of RFMOs, including UNCLOS and the UNFSA. The findings and recommendations of the two SPRFMO Review Panels were accepted and complied with (eg SPRFMO Annual Report, 2013, 2). Generally, the existence of Review Panels coincides with younger generation RFMOs (eg SEAFO, SPRFMO, or WCPFC) and older generation RFMOs whose constitutive treaties have been amended after the adoption of the UNFSA (eg NAFO and, although the procedures are not currently in force, NEAFC). In 2006, the General Assembly of the United Nations (‘UNGA’) (→ United Nations, General Assembly) has urged States to undertake performance reviews of RFMOs, using the best practices of RFMOs (UNGA Res 61/105 (8 December 2006), para 73). Following this call, recent performance reviews have criticized the absence of both modern decision-making procedures and effective dispute settlement procedures in older generation RFMOs, such as the International Commission for the Conservation of Atlantic Tunas (‘ICCAT’) (Report of the Independent Performance Review of ICCAT, 2016, 59–60) or the Indian Ocean Tuna Commission (‘IOTC’) (Report of the 2nd IOTC Performance Review, 2016, paras 65–69, 176–78).