Independent Evaluation of FAO Corporate Strategic

Independent Evaluation of FAO Corporate Strategic Objective B-1:
“International instruments concerning food, agriculture, fisheries and forestry, and the
production, safe use and fair exchange of agricultural, fishery and forestry goods”
FINAL REPORT
January 2009
Evaluation Team
Teresa Amador
Sally Burrows
Michael Lodge
Tullio Scovazzi
Tomme R. Young, Team Leader
With contribution from:
Lawrence Christy (Legal advisor)
Tommaso Balbo di Vinadio (Research)
Advisory Panel of Experts
Steinar Andresen (Norway), Senior Research Fellow, Fridtjof Nansen Institute, Norway
Francoise Burhenne-Guilmin (France), Senior Counsel, IUCN Environmental Law Centre,
Germany
Kay Muir Leresche (Zimbabwe), consultant on agricultural economics, South Africa
Ricardo Melendez-Ortiz (Colombia), Executive Director, International Centre for Trade &
Sustainable Development, Geneva
Seizo Sumida (Japan), Director General, Research Institute of Biological Resources, Japan BioIndustry Association
A.H.Zakri (Malaysia), Director, United Nations University: Institute of Advanced Studies, Japan
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Acknowledgements
The evaluation team appreciates and would like to specially recognize the contribution of the persons
who were interviewed in the course of this evaluation or responded to particular inquiries, submitted
survey results or were otherwise extraordinarily frank, gracious and forthcoming in sharing
information and experience in the hope that this evaluation report might constitute a useful tool for
continuous improvement within FAO. In addition, the team depended heavily on the competence,
diligence, responsiveness and good temper of Heather Young, Nadine Monnichon and Melanie Derba,
whose assistance and logistical support were essential to completion of this task.
Finally, it is essential to recognize the important contribution of all the FAO Representatives and staff,
who organized our country visits at short notice and with excellent results: Admir Bay, Norman
Bellino, Maria del Carmen Culebro, Man Ho So, Panida Jongkol, Amadou Kamara, Misael Kokwe,
Mariatou Konate, Hiroyuki Konuma, Norzilla Mohammed, Noureddin Mona, Colleen Morel, Antoine
Marie Moustache, Louis Muhigirwa, Mudenda Mweembe, Waly Ndiaye, Amadou Ouattara, Oscar
Pacheco, Verra Syam and José Tubino.
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Table of Contents
Acronyms and Abbreviations..............................................................................................vii
Executive Summary .............................................................................................................ix
I.
Introduction .................................................................................................................... 1
A.
Origin and Purpose..................................................................................................... 1
B.
Approach and Methodology....................................................................................... 1
C.
Limiting Factors......................................................................................................... 4
II.
Overview of FAO’s Participation in Strategic Objective B-1..................................... 4
A.
International Instruments relevant to FAO ................................................................ 4
B.
Financial Allocations to Strategic Objective B-1..................................................... 11
III. Assessment of FAO’s Work on International Instruments - Overarching Issues .. 13
A.
Strategic View of FAO’s Role in International Law................................................ 13
B.
Financial Commitments to support the Creation and Operation of International
Instruments ............................................................................................................. 15
1. Binding international instruments............................................................................... 15
2. Non-binding instruments ............................................................................................ 17
IV. Assessment of FAO's Work on International Instruments – Process and Governance 18
A.
Initiation of New International Instruments and Proposals...................................... 21
1. Hard or Soft Law? ...................................................................................................... 23
2. Assessment of the Relationship between FAO and International Instruments under its
umbrella ................................................................................................................... 28
a. Formally Separate Secretariat, with FAO staff and co-located with FAO ............. 30
b. Integrated and internalized within FAO Department or Unit................................. 32
c. Separate or decentralized staff and location ........................................................... 32
3. Creation of International and Regional Mechanisms for Compliance, Liability and
Dispute Resolution................................................................................................... 34
B.
Entry into force – National Ratification and Accession........................................... 36
C.
Operation and Amendment ...................................................................................... 38
1. Focal Points and National Delegates .......................................................................... 39
2. Decision-making and Flexibility ................................................................................ 40
3. Technical support ....................................................................................................... 42
4. Standards and standard-setting ................................................................................... 43
5. Reporting and Information ......................................................................................... 45
D.
National Implementation.......................................................................................... 47
1. Benefit expected from each International Instrument................................................. 47
2. Support to National Institutional and Legislative Action ........................................... 49
3. Capacity to Implement and Apply the Instrument...................................................... 51
4. Gender issues in National Implementation................................................................. 54
E.
Issues which cut across all Stages of the Life Cycle................................................ 55
1. Participation and Capacity to Participate.................................................................... 55
a. Enabling and Enhancing Participation of National Delegates................................ 55
b. Expert Bodies ......................................................................................................... 59
c. NGOs, Civil Society and the Commercial Sector .................................................. 60
d. Gender Issues in Instrument Participation and Operation...................................... 62
2. Linking Implementation through Regional Action..................................................... 63
F.
Conclusion: Characteristics and Indicators of Effective International Instruments. 66
V.
FAO’s Role in the “International Regulatory Framework”..................................... 69
A.
Inter- and Intra-sectoral coordination within FAO .................................................. 69
B.
FAO’s role and Integration in Processes and Regulatory Framework outside FAO71
1. FAO’s Role, viewed internationally........................................................................... 72
C.
Suggestions on Regulatory Needs of the Immediate Future .................................... 78
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VI. Conclusions and Recommendations............................................................................ 80
A.
Areas of Comparative Advantage and Weakness .................................................... 81
B.
Overall Assessment by Strategic Objective Component.......................................... 83
1. Forum for policy debate / servicing international instruments ................................... 83
2. Developing international standards and other measures............................................. 83
3. Reflecting the FAO’s core needs and concerns in other instruments and processes .. 84
4. Building member capacity to participate effectively.................................................. 84
C.
Final Recommendations: Improving Overall B-1 Performance .............................. 85
Annexes:
Annex 1 – Team Members
Annex 2 – Terms of Reference
Annex 3 – Background Context of the Six Focus Areas
Annex 4 – Survey formats
Annex 5 – Country visits: selection criteria & topics
Annex 6 – Review of Peer Organizations
Annex 7 – Glossary of “instrument” terminology as used
Annex 8 – Participation in Global Instruments within the Six Focus Areas and Crosscutting
Areas
Annex 9 – Regional Fisheries Bodies
Annex 10 – Bibliography and References
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Acronyms and Abbreviations
ABS
Access to genetic resources and benefit-sharing (CBD)
ASEAN
Association of Southeast Asian Nations
CBD
Convention on Biological Diversity
CCPGC
Code of Conduct for Plant Germplasm Collection
CCAMLR
Convention on the Conservation of Antarctic Marine Living Resources
CCRF
Code of Conduct for Responsible Fisheries
CEDAW
Convention for the Elimination of Discrimination Against Women
CGIAR
Consultative Group on International Agricultural Research
CGRFA
Commission on Genetic Resources for Food and Agriculture
CITES
Convention on International Trade in Endangered Species of Wild Fauna and Flora
Codex
Codex Alimentarius
COP
Conference of Parties
COP-MOP
Meeting of Parties, subject in some way to Conference of Parties
DOALOS
Division for Ocean Affairs and the Law of the Sea (United Nations)
ECOSOC
United Nations Economic and Social Council
FAO Compliance Agreement
Agreement to Promote Compliance with International Conservation and Management
Measures by Fishing Vessels on the High Seas
FPMIS
FAO Field Project Management Information System
GCDT
Global Crop Diversity Trust
GFCM
General Fisheries Commission for the Mediterranean
GPA- PGR
Global Plan of Action for the Conservation and Sustainable Utilization of Plant
Genetic Resources for Food and Agriculture
GPA-AnGR Global Plan of Action for Animal Genetic Resources
IARC
International Agricultural Research Centre
IEE
Independent External Evaluation of FAO
IMO
International Maritime Organization
INFOFISH
[Agreement for Establishment of the] Intergovernmental Organization for Marketing
Information and Technical Advisory Services for Fishery Products in Asia and Pacific
Region
INFOPÊCHE [Agreement for the Establishment of the] Intergovernmental Organization for
Marketing Information and Cooperation Services for Fishery Products in Africa
INFOPESCA [Constitution of the] Centre for Marketing Information and Advisory Services for
Fishery Products in Latin America and the Caribbean
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INFOSAMAK
[Constitution of the] Centre for Marketing Information and Advisory Services for
Fishery Products in The Arab Region
IPOA
International Plans of Action
IPPC
International Plant Protection Convention
ISO
International Organization for Standardization
ISPM
International Standard on Phytosanitary Measures
ITPGRFA
International Treaty on Plant Genetic Resources for Food & Agriculture
IUCN
International Union for the Conservation of Nature
IUU
Illegal, Unreported and Unregulated
JECFA
Joint FAO/WHO Committee on Food Additives
JMPR
Joint FAO/WHO Meetings on Pesticide Residues
JEMRA
Joint FAO/WHO Expert Meetings on Microbiological Risk Assessment
MCS
Monitoring, Control and Surveillance
NAFO
Convention on Multilateral Cooperation in Northwest Atlantic Fisheries
NPOA
National Plan of Action
OIE
World Organization for Animal Health
PBEE
FAO Evaluation Service
PGR
Plant Genetic Resources
PIRES
Programme Planning, Implementation Reporting and Evaluation Support System
PWB
Programme of Work & Budget
RFB
Regional Fishery Body
SBSTTA
Subsidiary Body on Scientific, Technical and Technological Advice
SEAFO
Convention on the Conservation and Management of Fishery Resources in the South
East Atlantic Ocean
SMTA
Standard Material Transfer Agreement
UNCCD
United Nations Conventions to Combat Desertification
UNCLOS
United Nations Convention on the Law of the Sea
UNEP
United Nations Environment Programme
UNEP-MAP United Nations Environment Programme – Mediterranean Action Plan
UNFCCC
United Nations Framework Convention on Climate Change
UNFSA
United Nations Agreement for the Conservation and Management of Straddling Fish
Stocks and Highly Migratory Fish Stocks
VMS
Vessel Monitoring System
WHO
World Health Organization
WIPO
World Intellectual Property Organization
WTO
World Trade Organization
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Executive Summary
Introduction
This evaluation concerns implementation of FAO’s Strategic Objective B-1, which calls for
“Promoting, developing and reinforcing policy and regulatory frameworks for food, agriculture,
fisheries and forestry [through] International instruments concerning food, agriculture, fisheries
and forestry, and the production, safe use and fair exchange of agricultural, fishery and forestry
goods.” It also examines some directly connected elements of Strategic Objective B-2, regarding the
application of “national policies, legal instruments and supporting mechanisms that respond to
domestic requirements and are consistent with the international policy and regulatory framework.”
Its purpose is to provide FAO Members and Secretariat with lessons aimed at improving the use of
international instruments in the future.
Assessment of performance at the level of a strategic objective is not simple. The evaluation team had
to identify a body of work as “international instruments,” which encompasses a wide range of tools,
ranging from the documents generally recognized as international conventions, agreements and other
binding instruments through non-binding instruments, created and adopted at different levels and in
different ways. Beyond this, an overwhelming percentage of FAO’s work on this strategic objective is
through specialized bodies, which have been created and governed through processes sometimes
characterized as “international instruments”. These tools and processes are found across all major
subject areas within FAO’s mandate. As it was not possible to cover all the instruments within the
time and budget available, the evaluation used a mix of approaches and tools to identify sources of
useful information, good practices and other input to enable a broad (geographical and institutional)
analysis within the resources available.
Every international instrument is, by definition, an expression of policy and diplomatic action. Thus,
the primary effort involved in their implementation is that of FAO Members, although the
Secretariat’s support to Members’ efforts in their development and implementation is also an essential
part of this strategic objective.
In recognition of these challenges, the evaluation collected and examined: (i) a limited set of data
regarding a large number of international instruments (the “horizontal analysis”); and (ii) a more
detailed body of information focused on instruments in six focus areas – plant genetic resources;
marine fisheries aspects of the Law of the Sea and related instruments; Codex Alimentarius; the
International Plant Protection Convention; the Right to Food; and animal health. However, the
evaluation is of the corporate strategic objective as a whole, not of any individual instrument or unit.
In addition, it examined relevant aspects of seven other international agencies, as “peer organizations,”
considering their actions and innovations that might be of interest for FAO.
Overview of FAO’s Participation in Strategic Objective B-1
Over 50 binding instruments and at least 15 non-binding instruments have been identified as
“instruments” included within Strategic Objective B-1, covering a broad range of topics and
substantive sectors, each of which have utilized such instruments in different ways. The evaluation
considered available financial records, in an effort to determine the extent to which FAO has allocated
resources to Strategic Objective B-1. On that basis, the resourcing of B-1 appears to be significant,
although specific details and amounts of its Regular Programme and extra-budgetary resourcing and
in-kind contributions cannot be determined with certainty.
Overarching Issues and Processes
Strategic View: The Organization’s work in furtherance of Strategic Objective B-1 is generally
undertaken on a piecemeal basis. It has no process for compiling, analysing or deciding organizationwide strategic policy on a consistent basis, and maintains no central or comprehensive record of its
international instruments. Neither are the positions, policies and concepts of the Organization’s work
on each individual instrument coordinated with the others. This deprives FAO of the opportunity to
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operate in a consistent manner, decide strategic priorities concerning international instruments and
distribute human and financial resources. Accordingly, a central recommendation of this report1 is for
FAO to undertake a regular process of analysis and updating of such a central record.
Financial Commitments to Individual International Instrument: Every international instrument,
whether binding or non-binding; global, regional or sub-regional, can only meet its objective if
financed to an appropriate level. Virtually none of the instruments examined under this evaluation
appeared to be fully funded, and in many cases instrument funding appeared to be seriously inadequate
to needs and expectations. Moreover, both FAO and the individual member countries incur significant
additional expenses for each international instrument, beyond their contribution to the secretariat and
other administrative costs. The evaluation recommends that financial analysis prior to the decision to
create any international instrument should include: (i) an awareness of the complete costs of that
instrument; (ii) consideration of long-term costs that will be necessary for the instrument’s operation;
and especially (iii) awareness of the Organization's total ongoing commitment to international
instruments.
Process and Governance
This evaluation was not tasked with measuring and attributing outcomes to any particular instrument
within the international regulatory framework – a Herculean task. Rather, it focused on questions of
process and governance. It has drawn out a number of challenges and issues common to FAO’s work
on most or all of the international instruments considered in this evaluation. This portion of the report
is organized around four stages in the “life cycle” of an international instrument: (i) initiation/
negotiation of a new instrument; (ii) entry into force; (iii) operation and amendment at the
international level; and (iv) national implementation. It also considered two crosscutting issues
relevant to all four stages: participation in relevant international processes; and integrating FAO’s
regional bodies and processes into the work of Strategic Objective B-1.
Initiation of New Instruments and Proposals: Many factors affect the decision to open processes for
the negotiation or development of instruments. Throughout the process, a number of common
concerns arise. Among these is the effect that may arise from existing perceptions regarding the
relative value of binding and non-binding instruments, or of hard law versus soft law. In some cases,
these perceptions appear to distort reality. FAO has had generally positive and productive experiences
with both hard law and soft law instruments. The evaluation has found numerous examples of both
types which have been successful. Ultimately, for any instrument adopted through an
intergovernmental process, the choices regarding its basic character (binding/non-binding; hard/soft)
are matters of international policy, national sovereignty and diplomacy. Regardless of which choices
are made, however, where the success of the instrument is measured in terms of its acceptance and
implementation (key requirements if the instrument is to achieve its mandate), that success is more
dependent on the nature and intensity of implementation and dissemination by the secretariat than on
whether the instrument is hard or soft.
A second issue relates to the structure of the relationship between FAO and the individual instrument –
a relationship that depends on many different factors. In particular, the fact that binding instruments
are formal intergovernmental agreements suggests to some that their management should be solely
under the oversight of the instrument’s governing body, while others assume that FAO’s role as
sponsor of negotiations and depositary of the resulting instrument gives FAO a considerable power of
oversight, which is, to some extent, linked to its funding responsibility for each instrument. While not
able to resolve this issue, the evaluation has recommended that the precise FAO/instrument
relationship should be clarified in the text of any new binding instruments created in future.
A third common issue was the proposal for the creation of formal mechanisms for promoting
compliance, determining liability and enabling dispute resolution. In this connection, it is notable that
no significant need for these measures has been identified under the FAO instruments to date. Beyond
1
The full text of each recommendation is in the report.
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FAO, negotiations to develop these mechanisms face legal, practical and political challenges.
Consequently, the evaluation recommends that FAO and the parties to the instrument should postpone
developing these mechanisms until either some actual need for such mechanisms is discerned or
successful examples are adopted and proven effective in other instruments. Resources can better be
focused on meeting the demand for support to promoting compliance at regional and national levels.
Entry into force – National Ratification and Accession: Ratification and entry into force is a “key
date” in the life of the instrument or in each country’s relationship to it. The factors which delay
national ratification of the instrument are often more important than the actual ratification process and
dates. For nearly all international instruments which impose national legislative obligations, capacity
questions often prevent countries from confidently commencing the detailed political process of
ratification. Among the actions recommended relevant to this phase of the life of an international
instrument, this Report recommends that FAO’s Members and Secretariat should focus on enabling
countries to feel confident of their ability to participate effectively, increasing awareness of the
instrument’s value and removing capacity barriers.
Operation and Amendment: This evaluation identified many common concerns about internationallevel operations of a binding instrument, including the role of national focal points and delegations to
governing bodies and other processes; the manner in which decision-making processes are undertaken,
the relationship between those processes and the technical support bodies, and the collection and
sharing of national reports and other information. Of these, the evaluation notes a need to reconsider
the level of demand imposed on national focal points and to give special attention to and funding the
prompt development and operation of information-sharing systems and programmes for support to
reporting processes.
In addition, the operation of FAO’s standard-setting processes – long the crowning attribute of FAO’s
international instrument activities –has been considered. Two primary issues are identified here: (i) a
general inability of many developing countries to apply the standard system to imports and domestic
issues; and (ii) the proliferation of separate nationally adopted standards, which impose on exporting
countries the need to comply with multiple standards, depending on the country in which their
products are imported.
National Implementation: The effectiveness of Strategic Objective B-1 is integrally connected to
national action implementing the instruments and the evaluation looked into this issue. The evaluation
considered the benefits expected from each instrument by member countries, which is a critical factor
in determining their satisfaction with the instrument, their belief that it is providing or will provide
those benefits, and their incentive to adopt and apply the instrument through national implementing
law and policy.
The evaluation’s ability to obtain a comprehensive picture of either national expectations or national
implementation was limited. In two focus areas, evaluation surveys indicate a fairly high level of
correlation between the benefits expected by the respondents and those that the instruments are tasked
to provide. Interviews provided a more varying picture, with numerous stakeholders espousing other
expectations. In general, the evaluation has received a strong indication that, in the eyes of national
implementing agencies, the benefits of FAO’s international instruments and the benefits provided by
FAO are largely perceived to be interlinked. In some sectors, particularly fisheries, the international
instruments are increasingly viewed as promoting a highly desirable global and regional goal – a kind
of welfare that extends beyond the implementing country.
Regarding national implementation, the evaluation has discerned that a great number and variety of
projects are undertaken to promote policy, legislative and administrative development at the national
level. It has, however, noted many focus areas in which that development has been hindered or
entirely prevented by a variety of factors, including political issues and weak capacity. At the same
time, the evaluation was not able to obtain collective or systematic information on the extent to which
work in particular areas is actually directed to or has an actual impact on the implementation of
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international instruments. Finally, while the implementation work in some sectors is closely
coordinated with the international instruments and their administration, there are other sectors in
which the evaluation team found possible indicators of a lack of coordination.
Issues which cut across all Stages of the Life Cycle: Two issues of special importance to effective
operation of Strategic Objective B-1 cut across all aspects of process and governance and are relevant
at all stages of the life cycle: (i) participation in international instrument processes; and (ii) the role of
regional processes. The challenges of participation include both the ability of national delegations to
attend relevant meetings, and the need to ensure that this participation is technically effective – that
national delegations include technically and professionally expert participants.
Participation issues are similarly important in the technical expert bodies and other preliminary
discussion meetings. It is generally at these meetings (rather than the main meetings of FAO statutory
bodies and instrument governing bodies) that the most significant technical and political decisions are
made. In addition, the participation of non-governmental observers (NGOs, CSOs and the commercial
sector) is important both in ensuring that these inputs are received, and in enhancing the dissemination
of meeting results and decisions. This evaluation suggests that FAO should further develop
mechanisms for encouraging and supporting observer participation, particularly that of NGOs and
CSOs from developing countries. Solutions are both difficult and expensive. These matters pose
similar challenges for virtually all international instruments both inside and outside FAO. As in other
institutions, FAO Members and instruments are taking many measures to promote broader
participation and many interviewees indicated a clear interest in improving the technical level of
participation. The primary restricting factor in all of these aspects appears to be funding.
Regarding the role of regional action, the report notes the important contribution of many actions by
regional bodies, FAO Regional Offices, and other regional organizations, and recommends
cooperation of such bodies with international instruments encompassing all stages of any new
instrument development or implementation.
FAO’s Role in the “International Regulatory Framework”
In considering Strategic Objective B-1, the evaluation addressed the question of how FAO’s objectives
are integrated into the development of international law – a global cross-sectoral process of which the
international instruments under FAO's umbrella form only one part. These discussions focused around
the vision in FAO's Strategic Framework of contributing to an “international regulatory framework.”
International law relevant to natural resources cannot be described as an integrated or coherent
framework. However, modern work in the development of international instruments depends
increasingly on inter-sectoral coordination and support. For FAO, coordination issues arise at several
levels. The evaluation found that there was a need for greater coordination: (i) among the sectors and
units within FAO; (ii) through the integration of external sectors, observers and agencies in FAO
processes for international instrument development and operation: and (iii) through internal FAO
processes for determining a unified “FAO position” for purposes of advocacy and other participation
in other fora.
The first of these issues has been well canvassed under the IEE. Effective coordination among FAO
instruments and actors within a sector is a hallmark of the most effective use of international
instruments (soft and hard). As to the second, this evaluation has noted FAO's considerable successes
on those occasions where its efforts have been directed at providing the link between a non-FAO
instrument, (such as the UN Convention on the Law of the Sea) and the particular FAO sectors most
impacted by it (in this example, the fisheries sector). The evaluation recommends that FAO consider
two possible international roles for each instrument: either as creator of strong sector-oriented
instruments and advocate of those instruments at international and national levels, or as an open multisectoral body hosting the creation of documents negotiated between sectors. The latter tend to be
broader, less specific and aimed at providing a framework. Finally, regarding the third issue, this
evaluation recommends that FAO consider the extent to which it should attempt to espouse a unified
position in the various international bodies that affect FAO’s core areas or are affected by them.
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Possible areas for Future Action
Finally, in Part V.C, the report identifies (but neither recommends nor rejects) a number of suggestions
received in the course of this evaluation regarding international instruments, regulations and other
negotiations that might be needed in coming years.
Conclusions and Recommendations
By way of conclusion, this report answers four primary questions posted by this evaluation:
o How and to what extent has FAO utilized international instruments as tools for achieving
its strategic objectives?
o To what extent are the procedures and processes involved in creating and implementing
international instruments fair, effective and appropriate to FAO’s objectives?
o To what extent should FAO’s work in international instruments be coordinated with that
of other institutions, sub-sectors and sectors? And
o How can FAO maximise the value and benefit to the organisation and its members with
regard to its use of international instruments?
In answer to these, the Report concludes that FAO has used a number of different appropriate tools in
support of Strategic Objective B-1. It notes that these instruments may face serious challenges to fair
and effective operation, especially in the areas of participation and national implementation. The
organisation continues to face challenges and opportunities for improvement, with regard to
coordination with other sectors.
As an overall assessment of the component strategies under Strategic Objective B-1, the evaluation
notes that FAO has performed well in its role in providing a forum for policy debate and for the
servicing of international instruments. It notes the need to address recent challenges in the area of
international standards, and special needs relevant to the integration of FAO’s international
instruments and processes with those being developed and implemented in other fora, as well as the
continuing need to build the capacity of FAO members to participate effectively in international
instrument processes.
Finally, individual recommendations are placed throughout the report. However, the evaluation’s
overall recommendations for improving overall B-1 performance are as follows. FAO should:
o develop an ongoing strategic process to ensure that FAO’s strategy and approach remain up-todate and well analysed;
o place both new and existing international instruments on a firm financial footing and ensuring
that they can operate fairly and effectively;
o at the beginning of negotiations of any new instrument, choose whether FAO's role will be to
promote coordination and consensus among sectors, or to provide the strongest advocacy
position on behalf of its core sectors;
o create a process for setting authorised advocacy and expert positions to be presented in nonFAO fora;
o focus its efforts in regard to Strategic Objective B-1 in a way that takes advantage of the
organisations strongest and best recognized comparative advantage – technical expertise and
minimising the additional administrative and bureaucratic demands created by the development
of international instrument, and
o develop a focused plan for providing support to national implementation and regional activities
under the international instruments, coordinated by the instrument secretariats.
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I.
Introduction
A. Origin and Purpose
1.
The 93rd Session of the Programme Committee approved FAO’s programme of strategic and
programme evaluation for the 2006-07 biennium, which included an evaluation of the Strategic
Objective B-1, as laid out in the Strategic Framework for FAO 2000-20152.
2.
The Independent External Evaluation of FAO (IEE) of 20073 concluded that FAO must retain
a significant role as a convener, facilitator and point of reference for global policy coherence and
treaties and agreements, including regulatory instruments. The IEE made recommendations to make
that role more effective with the objective of “rebuilding an authoritative and effective voice on behalf
of rural people, the hungry and all those who can benefit from agriculture playing its role in the
economy.” 4 The evaluation team was instructed to accept this conclusion and focus on how well FAO
pursues and implements the strategic objective relevant to the question: “How useful is FAO’s work
on international instruments to its Members in relation to FAO’s objectives?”
3.
The purpose of the evaluation is to provide FAO Members and Secretariat with lessons as a
basis to strengthen the work of the entire Organization on international instruments in the future. It
addresses FAO’s implementation of the strategic objective as a whole.
B. Approach and Methodology
4.
This institution-wide evaluation called on the evaluation team to examine the activities of
widely different units and departments in FAO, relating to a broad variety of documents. It has aimed
at collecting inputs from many sources, and attempting to analyse and refine them into strategic and
systemic lessons, conclusions and recommendations relevant for the entire Organization. The process
was, therefore, “broad-brush” rather than in-depth. Its conclusions are similarly wide-scoped, not
focusing on particular instruments, processes, programmes, units or departments within FAO.
5.
In this process, it was necessary to specify the boundaries of the evaluation by carefully
defining the key concepts used. Specifically, Strategic Objective B-1 is directed at a particular type of
document and process, those which are known as “international instruments” (defined in para.27,
below). The Terms of Reference of this evaluation (attached as Annex 2) adopt Strategic Objective
B-1’s assumption that these instruments are part of an “international regulatory framework.” They
recognize that the term “international instrument” includes both legally binding and non-binding
instruments, but does not include every document from any FAO committee, commission, council or
conference. Table 1 (“formal agreements and international regulatory bodies relevant to FAO”, Part II
below) provides the list of more than 120 instruments, which were designated as most relevant to this
evaluation.
6.
Every FAO technical department is directly or indirectly involved in the use of international
instruments to promote its objectives and mandate.5 Consequently, the most effective way to address
the corporate strategic objective as a whole, while operating within strict cost and time parameters,
was to approach the analysis through a “horizontal” and a “vertical” dimension, as defined in the
Terms of Reference, as follows:
7.
The “horizontal dimension” essentially called on the team to develop specific indicators that
could be addressed through a relatively rapid analysis of instruments and other information
2
The Strategic Framework for FAO 2000-2015. 1999. FAO. Rome. (Herein “Strategic Framework”)
FAO: The Challenge of Renewal – Report of the Independent External Evaluation, 2007 (hereafter IEE.)
4
IEE, at ¶¶ 749-756 & others. Elsewhere, however, the IEE found a split in these results, and that this work was not “a
priority for most developing country Directors of Agriculture, FAO technical officers and FAORs” and that “Least developed
countries see little direct benefit to themselves from such work, emphasizing that agendas for international law were still
driven by the developed countries.” IEE, ¶272.
5
See Table 1
3
1
development, and apply those indicators to as many of the instruments from the list in Table 1 as were
available. This targeted review was used to identify key statistical facts regarding FAO’s overall
processes in utilizing international instruments.
8.
For the “vertical dimension”, the Terms of Reference identified six “focus areas” from which
information about FAO’s use of international instruments was gathered. For two of these - plant
genetic resources (PGR) and marine fisheries aspects of the Law of the Sea and related instruments the team obtained detailed information across the entire focus area. Two of the remaining focus areas Codex Alimentarius and the International Plant Protection Convention - were analysed on the basis of
prior evaluations.6 The evaluation team supplemented information in these evaluations with additional
input from in-country interviews and other sources. Enquiry into Right to Food, and animal health (the
other two focus areas) involved the collection and review of a much narrower range of information.
9.
For each focus area, the evaluation specifically examined FAO's role in respect of individual
“FAO international instruments” and beyond in global policy and regulatory development. Thus, the
evaluation team’s inquiry into fisheries issues considered both FAO's role in respect of the “FAO
international instruments” and also its integration of that work with international maritime law and the
Law of the Sea. Likewise, the plant genetic resources focus area looked at integration and cooperation
with ongoing global work on "genetic resources" and in the environmental/conservation, intellectual
property and trade sectors. This outward-looking approach was strongly recommended by the
Advisory Panel of Experts.
10.
In addition, the evaluation included research and analysis of seven “peer organizations” which
utilize international regulatory and policy instruments. This work was directed at two objectives: (i) to
provide insights into useful alternative practices and approaches that may be considered within FAO:
and (ii) where relevant, to enable some basic comparison between FAO’s practices and those of other
IGOs regarding the manner in which they address certain aspects of the international instruments
under their penumbra.
11.
The purpose and breadth of this evaluation were developed with the goal of providing
strategic and systemic lessons, conclusions and recommendations for enhancement of FAO’s
organization-wide practices regarding international instruments. The team did not (and was not
mandated to) evaluate any individual international instrument or any expert/international body, nor
was it asked to evaluate or review the individual performance of any sector or unit within FAO.
12.
In the evaluation team’s final discussions at FAO headquarters, staff members working in
three focus areas – animal health, right to food, and plant genetic resources7 – expressed
disappointment that the evaluation did not describe in detail and/or evaluate the work within their
respective units and sectors. This appears to indicate a desire for future in-depth evaluation of the
performance of these individual sectors/focus areas and their use of international instruments8.
13.
The creation of an international instrument is at best an interim outcome. Neither the FAO
Strategic Framework nor the Medium-Term Plan defines specific outcomes and indicators for
evaluation of Strategic Objective B-1. However, any determination of the actual usefulness of
international instruments must depend on the outcomes and impacts that follow after instrument
creation: entry into force, international operations, national implementation and on-the-ground
6
Joint FAO/WHO Evaluation of the Codex Alimentarius and Other FAO and WHO Food Standards Work, PC 89/5 (a),
2002; Evaluation of FAO’s Cross-Organizational Strategy Broadening Partnerships and Alliances, 2005.
7
Persons working on PGR also asked for coverage of other international work in agro-biodiversity, suggesting a potential
interest in evaluation of the international work of a much broader sectoral unit.
8
It has also been suggested that there is a need for a different kind of overarching legal evaluation in FAO – examination of
the Basic Texts, with special attention to Part R ‘Principles and Procedures which Should Govern Conventions and
Agreements Concluded Under Articles XIV and XV of the Constitution, and Commissions and Committees Established Under
Article VI of the Constitution.’ Presumably this issue (well outside the scope of this evaluation) will be addressed by the work
on amendments to FAO’s Basic Texts, as recommended in the Draft “Immediate Plan of Action (IPA) For FAO Renewal
(2009-2011).”
2
application. These outcomes will typically appear only gradually over the one to two decades
following an international instrument's adoption. For purposes of evaluation, moreover, it may be
difficult to measure and attribute any particular social, economic, physical or environmental change or
other result to a particular source, or to measure that source’s contribution to those changes. Where the
change is attributable to governmental factors, it will usually be difficult to apportion it among the
various international instruments within the international regulatory framework.
14.
What is clear, however, is that administrative function affects the ability of any international
input to take actions required within its mandate. Consequently, this evaluation focused on questions
of process and governance, including examination of the manner in which FAO services the creation
and use of international instruments, the common factors among the international instruments
themselves, implementation at national level, FAO's support to them and the relationship between
international instruments and the attainment of FAO’s objectives.
15.
The evaluation was organized around four primary questions, which are reflected in the
structure of the report:
o How and to what extent has FAO utilized international instruments as tools for achieving
its strategic objectives? (Part II of the report)
o To what extent are the procedures and processes involved in creating and implementing
international instruments fair and appropriate to FAO’s objectives? (Parts III and IV)
o To what extent is FAO’s work in international instruments coordinated with that of other
institutions, sub-sectors and sectors? (Part V)
o How can FAO maximise the value and benefit to the Organization and its members with
regard to its use of international instruments? (Part VI and recommendations throughout)
Recommendations are divided into those that are principles for future strategy (in italics) and
those for immediate action (normal type-face). All of them are aimed at enhancing FAO’s
work on international instruments as a whole (Organization-wide), not of individual sectors
or instruments. Examples of approaches that have been effective in meeting challenges in
individual sectors are also cited throughout the main text of the report. Some may be suitable
for adaptation to other sectors too. Individual readers may draw inspiration from those
experiences.
16.
With time a priority, the evaluation used a mix of methods to obtain inputs from diverse
sources:
- review of documentary record of particular international instruments and sectors and wider
relevant literature;
- use of pre-existing evaluations of Codex Alimentarius (2002) and the IPPC (2007) and portions
of the surveys from those evaluations;
- surveys of national fisheries departments, and national focal points or designated officials
working with the ITPGRFA9 (see Annex 5);
- interviews with over 170 persons during visits to 8 selected countries10 (see Annex 6 for details)
or by telephone or in other locations. Persons interviewed included a broad range of
stakeholders11;
- interviews with 19 Permanent Representatives to FAO;
9
The questionnaire on Law of the Sea and fisheries was sent to 137 countries (coastal States) and received 63 responses
(46%). The questionnaire on plant genetic resources was sent to 116 countries (those that are Contracting Parties to the
International Treaty on Plant Genetic Resources) and received 49 responses (42%), not including late responses. The PGR
questionnaire was also sent to members of the CGRFA, but the response was minimal and therefore not usable.
10
Countries visited were: Brazil, Mexico, Indonesia, Malaysia, Thailand, Senegal, Seychelles and Zambia.
11
The 170 person figure includes persons interviewed in country visits and interviews with selected individuals in
international meetings. In addition, members of the evaluation team met with or contacted by telephone, advisors and persons
from peer organizations, to address focus-area issues, operational options and other matters. During country visits,
approximately 80 percent of individuals consulted were government officials.
3
-
interviews with 46 members of FAO staff (of whom 54 percent were based at headquarters and
46 percent in decentralized offices);
- examination of some relevant practices and other data collected from peer organizations12
(Annex 7); and
- collection of data from automated management systems.
Perspectives from 31 different countries were heard, in addition to those provided by FAO staff at
global, regional and national levels.
17.
This evaluation was conducted between January and July 2008. An Advisory Panel of Experts
met at the beginning and during the course of the process. Technical departments were also consulted
on the evaluation approach and the draft report.
C. Limiting Factors
18.
The evaluation’s timing and cost were unequivocal, but extremely limited. It was completed in
about the same time and for a lower budget than a 2007 evaluation of a single international instrument.
In addition, the team was requested to expedite its activities to work within FAO’s programme of
institutional “renewal” in the implementation of the IEE. All members of the evaluation team collected
and produced the maximum possible in the available time, but recognized that significantly more input
was available and necessary, which could not be confirmed, analysed and documented in the time
allowed.
19.
There are four important implications of the tight timeline. First, the evaluation team did not
have the opportunity to assess FAO's performance in the "convening function.”13 Second, the selection
of people interviewed and countries visited was directed at identifying particular experiences to
maximize input useful to the different focus areas and to obtain information with different aspects of
the processes involved in the creation, use and implementation of international instruments. It did not
attempt to obtain a representative sample of countries or interested persons or groups. Finally, three
issues were listed in the ToRs as “cross-cutting”: gender, climate change and trade. These issues were
considered primarily in connection with each of the focus areas, and only to the limited extent possible
within time and budget constraints.
II.
Overview of FAO’s Participation in Strategic Objective B-1
20.
This section provides a basic overview of the international instruments within FAO’s overall
work in Strategic Objective B-1 which have been identified for inclusion in this evaluation, and the
distribution of FAO’s financial resources relevant to Strategic Objective B-1. It provides a basic
understanding of the extent of FAO’s utilization of international instruments.
A. International Instruments relevant to FAO
21.
Strategic Objective B-1 is relatively unique within FAO’s Strategic Framework, in that (i) it is
often externally driven, dependent on decisions outside the competence or oversight of FAO and its
core sectoral focal points, and (ii) it is directly interlinked with other international instruments that are
adopted by the same countries, whether under FAO, in other organizations, or under other sectoral
mandates. In addition, international instruments depend, by nature, on receiving an appropriate level
of legal commitment from sovereign countries. Without this, there can be no binding international
instruments.
22.
Strategic Objective B calls on FAO to work at “promoting developing and reinforcing policy
and regulatory frameworks.” This objective implies that “international policy and regulatory
12
The organizations were: UNEP, UNESCO, DOALOS, IMO, WIPO, ISO and OIE.
As stated in the Terms of Reference, FAO’s use of its convening function has sometimes had an impact on the
development and strength of the international policy and regulatory framework for food, agriculture, forests and fisheries.
Notable in this context is the 1996 World Food Summit’s relationship with the negotiations on the Right-to-Food, leading
eventually to the creation of the Voluntary Guidelines.
13
4
frameworks” exist in a unified and coherent form, which is not entirely true. While there are some
particular instances of integrated and consistent relationships between international instruments that
cover the same topic (including for example the CCRF and its relationship with the UN Convention on
Law of the Sea and other instruments), there are many instances of overlap and even inconsistency
among instruments within a sector.
23.
The problem is exacerbated as one considers other subject areas and sectors. As noted by the
IEE, “a growing number of complex issues with a strong impact on food and agriculture have been, or
are becoming, the subject of global governance. These include, for example, environmental concerns,
climate change, trade liberalization, agricultural subsidies, poverty eradication, natural resource
management, biodiversity, genetic resources, toxic chemicals such as persistent organic pollutants,
wetland conservation, desertification and trade in wildlife products.” 14 In the past, there has been a
proliferation of international instruments on particular topics, each addressing the topic from a
different perspective. In the last two decades, however, international processes have increasingly
focused on building integration and coordination – suggesting that a coherent body of international
instruments will eventually exist.
24.
Table 1 graphically presents the list of international instruments identified in the initial phase
of this evaluation as “international instruments” (both FAO and non-FAO) relevant to this evaluation.
It has been supplemented by other instruments within the focus areas, considered by the evaluation
team.15 It includes over 120 international instruments, clustered into 12 broad subject areas,
graphically illustrating the breadth and diversity of FAO’s potential global governance role, arising
from its mandate. The colour-coding demonstrates the diversity of types of international instruments:
global and regional; ‘hard’ and ‘soft,’ and their origin (from within FAO or otherwise.)
25.
In general usage, “international instruments”16 refers to documents that have been adopted,
signed or ratified by more than one country.17 Although international bodies (committees,
commissions, etc.) and meetings (such as the World Food Summit) are not, in themselves,
“international instruments,” they have sometimes been instrumental in the creation, interpretation,
implementation and operation of international instruments. The principal standing bodies created by
FAO are therefore included in the scope of this evaluation because of their actual and potential
significance in this role. Strictly speaking, their statutes, which are adopted unilaterally by FAO, are
not international instruments. However, their contents are very similar to many true international
instruments that establish similar bodies.
26.
The international instruments in Table 1 have been divided between those that are “binding”
and those that are not. Binding international instruments are international instruments through which
one or more countries formally commit to a legal obligation (by signing and ratifying or otherwise
acceding to18 the instrument). Examples of binding international instruments include the ITPGRFA,
the FAO Compliance Agreement, the IPPC and the Rotterdam Convention, as well as the Desert
Locust Conventions and the documents establishing many of the Regional Fisheries bodies and
databases. Non-binding international instruments covers all other international instruments considered
in this evaluation (including declarations, resolutions, model codes of conduct, international plans of
action, and many international standards.) While they may be signed by national representatives or
adopted by FAO statutory bodies, non-binding international instruments are not formally ratified by
governments, and do not constitute legally binding obligations of the countries.
14
IEE ¶ 145
Table 1 does not include all “plans of action” examined by the evaluation team
16
The term “regional instrument” will be used to convey the same meaning as “international instrument.”
17
Amerisinge, 2005. Non-binding instruments do not always meet this standard, and are usually given “international
instrument” status, where they have been adopted by action of an intergovernmental body, taken in a primary meeting
(conference, governing body) of its members.
18
There are many ways by which a country may formally become party to an instrument. For convenience, in this report, all
of these concepts will be integrated into the term “ratification.”
15
5
6
Table 1: Formal Agreements and International Regulatory Bodies Relevant to this Evaluation
FISHERIES AND AQUACULTURE
GENETIC RESOURCES
CGIAR centres
Regional Fisheries Bodies (Art. VI)
Division Mixte FAO/AIEA des
Techniques Nucléaires 1964
Tropical Agricultural Research
and Higher Education Center
1973
Draft Code of Conduct for
Biotechnology 1991
International Rice Research
Institute 1960
Fishery Committee for the Eastern
Central Atlantic (CECAF)
Committee for Inland Fisheries of
Africa (CIFAA)
Commission for Inland Fisheries of
Latin America (COPESCAL)
European Inland Fisheries Advisory
Commission (EIFAC)
Southwest Indian Ocean Fisheries
Commission (SWIOFC)
Western Central Atlantic Fishery
Commission (WECAFC)
International Institute of
Tropical Agriculture 1967
International Coconut Genetic
Resources Network 1992
Africa Rice Center 1970
International Centre for
Agricultural Research in the
Dry Areas 1977
World Agroforestry Centre
1978
International Coconut
Genebank for the South Pacific
International Centre for
Tropical Agriculture
International Livestock
Research Institute
International Crops
Research Institute for the
Semi-Arid Tropics
International Maize and
Wheat Improvement Center
International Potato Center
Bioversity International
Convention on Biological
Diversity
Protocol on Biosafety
(Cartagena, 2000)
Bonn Guidelines on access to
genetic resources and the fair
and equitable sharing of the
benefits arising from their
utilization (the Hague, 2002)
UN Convention on the Law of The
Sea (Montego Bay 1982)
Agreement for the Implementation
of the Provisions of the United
Nations Convention on the Law of
the Sea of 10 December 1982
Relating to the Conservation and
Management of Straddling Fish
Stocks and Highly Migratory Fish
Stocks (UN Fish Stocks
Agreement) (New York 1995)
UN General Assembly Resolutions
44/225 (1989) and 45/197 (1989)
on large-scale pelagic driftnet
fishing and its impact on the living
marine resources of the world's
oceans and seas
UN General Assembly Resolutions
on sustainable fishing
Regional Fisheries Management Bodies
International Pacific Halibut
Commission (1923)
International Whaling Commission
(1946)
Inter-American Tropical Tuna
Commission (1949)
Convention on Future Multilateral
Cooperation in the Northwest Atlantic
Fisheries, NAFO (1978)
Convention on Future Multilateral
Cooperation in the North East Atlantic
Fisheries, NEAFAC (1980)
Convention on the Conservation of
Antarctic Marine Living Resources,
CCAMLR (1980)
Convention for the Conservation of
Salmon in the North Atlantic Ocean,
NASCO (1982)
North Pacific Anadromous Fish
Commission (1992)
Convention on the Conservation of
Southern Bluefin Tuna, CCSBT (1994)
Western and Central Pacific Fisheries
Commission, WCPFC (2000)
South Pacific Regional Fisheries
Management Organisation (2006)
Pacific Salmon Commission
General Fisheries Commission for the
Mediterranean, GFCM (1949)
Indian Ocean Tuna Commission,
IOTC (1993)
Agreement for the Establishment of
the Regional Commission for
Fisheries, RECOFI (1999)
International Convention for the
Conservation of Atlantic Tunas (1966);
Protocol Amending the Convention
concluded at Paris (1984); Protocol
Amending the Convention concluded at
Madrid (1992)
Regional Convention on Fisheries
Cooperation among African States
Bordering the Atlantic Ocean (1991)
Convention for the Establishment of the
Lake Victoria Fisheries Organization
(1994)
Convention on the Conservation and
Management of Fishery Resources in the
South East Atlantic Ocean, SEAFO
(2001)
Southern Indian Ocean Fisheries
Agreement (2006)
Code of Conduct for
Germplasm Collection 1993
Global Plan of Action on
Plant Genetic Resources
(1996)
Agreement for the
Establishment of the Global
Crop Diversity Trust
UNEP secretariat - Wider
Caribbean (1983), East Africa
(1985), Mediterranean (1995,
replacing 1976), West and
Central Africa (1981)
non-UNEP secretariat - Black
Sea (1992), North-East Pacific
(2002), Red Sea and Gulf of
Aden (1982), ROPME Sea Area
(Kuwait Convention, 1978),
South-East Pacific (1981),
Pacific (1986)
Convention on the Protection of
the Marine Environment of the
Baltic Sea Area (1974)
North-East Atlantic (OSPAR
Convention, 1992)
Fish Info Network
INFOFISH (1985)
INFOPÊCHE (1991)
INFOSAMAK (1993)
INFOPESCA (1994)
EUROFISH (2000)
Agreement To Promote
Compliance With
International Conservation
and Management Measures By
Fishing Vessels On The High
Seas (FAO Compliance
Agreement) (1993)
International Treaty on
Plant Genetic Resources
for Food Agriculture 2001
Commission on Genetic
Resources for food and
agriculture (CGRFA)
Regional seas
Code of Conduct for Responsible
Fisheries (non-binding except for FAO
Compliance Agreement) 1995
International Plans of Action (IPOA)
(under Code of Conduct; voluntary)
IPOA-Sharks
IPOA-Capacity
IPOA-Seabirds
IPOA-IUU
UN Convention on the Law of
the Non-navigational Uses of
International Watercourses
(1997) (Not yet in force)
Global Plan of Action on
Animal Genetic Resources
(2007)
PESTICIDE MANAGEMENT
Basel Convention
(Hazardous Wastes) 1992
ANIMAL HEALTH
International Agreement for the Creation of an
Office International des Epizooties (1924)
International Code of Conduct
on the Distribution and Use of
Pesticides
1985
Bamako Convention 1996
Constitution of the European Commission
for the control of foot-and-mouth disease
(1953)
Agreement for the establishment of a Regional Animal
Production and Health Commission for Asia and the Pacific
(1973)
Stockholm Convention (POPs)
2001
Rotterdam Convention 2004
(joint agreement)
Terrestrial Animal Health Code 2007
Aquatic Animal Health Code 2007
7
Table 1: Formal Agreements and International Regulatory Bodies Relevant to this Evaluation
DESERT LOCUST CONVENTIONS
Agreement for the
establishment of an
FAO Commission
for controlling the
desert locust in
South-West Asia
(1963)
Agreement for the
establishment of a
Commission for controlling
the desert locust in the Central
Region (1965)
Agreement for the
establishment of a
Commission for
controlling the
desert locust in
North-West Africa
(1970)
Agreement for the
establishment of a
Commission for controlling
the desert locust in the
Western Region (2000)
FORESTRY
International Tropical Timber
Agreement, 1994
Guidelines
sustainable management of
natural tropical forests
conservation of biological
diversity in tropical production
forests
establishment and sustainable
management of planted tropical
forests
fire management in tropical
forests
restoration, management and
rehabilitation of degraded and
secondary tropical forests
FAO Model Code of Forest
Harvesting Practice (1996)
National Forest Programme
Facility
UN Forum on Forests UNFF 2000 non-legally
binding instrument on all types of forests
(recommended by ECOSOC for adoption by the
General Assembly, 2007)
Collaborative Partnership on
Forests 2001
Voluntary Guidelines on
Responsible Management of
Planted Forests (2007)
Voluntary Guidelines on Fire Management
(2007)
Convention for the Establishment of the Desert Locust
Control Organization for Eastern Africa (2003)
ATMOSPHERE
UN Framework Convention on Climate
Change
RURAL DEVELOPMENT CENTRES
Agreement for the
Establishment of a
Centre on Integrated
Rural Development for
Asia and the Pacific
(1978)
Vienna Convention (Protection of the Ozone Layer, 1985)
Montreal Protocol on Substances that Deplete the Ozone Layer, 1987
Kyoto Protocol
Agreement for the
Establishment of a Centre on
Integrated Rural
Development for Africa
(1979)
WILDLIFE / PROTECTED AREAS
Unesco World Heritage Convention
Agreement for the
Establishment of a
Regional Centre on
Agrarian Reform and
Rural Development of
Latin America and the
Caribbean (1981);
Protocol to Amend the
Agreement Concluded
at Panama in 1985
Agreement for the
Establishment of a Regional
Centre on Agrarian Reform
and Rural Development for
the Near East (1983)
Alpine Convention (Convention sur la protection des Alpes), 1991
African Convention on the Conservation of Nature and Natural Resources
(Maputo 2003)
Ramsar Convention (Wetlands)
CITES
(endangered
species)
Bonn Convention
(Migratory Species)
ASEAN Agreement on the Conservation of Nature and Natural Resources
(1985)
OTHER RELEVANT INSTRUMENTS
SANITARY AND PHYTOSANITARY
Convention of the African Network for the
Development of Horticulture (2000)
CEDAW
Plant health
World Trade Organisation
International Plant
Protection
Convention 1951
Plant Protection
Agreement for the
Asia and Pacific
Region (1955)
Agreement for the
Establishment of the
Near East Plant
Protection
Organization (1993)
SPS; TBT; TRIPS; Agriculture Agreements; Negotiations on Subsidies and Countervailing Measures
UPOV Convention for the
Protection of Plant Varieties
1961
International Rice Commission
Phyto-Sanitary Convention
for Africa (Kinshasa 1967)
ISPMs (standards
under IPPC)
Food safety & quality
Codex Alimentarius
Codex Standards
IUCN International Instrument on Soils (proposal)
Legenda
Binding instruments:
deposited with FAO under art. XIV in force
deposited with FAO under art. 15 of the Treaty on PGR
deposited with FAO and concluded outside the framework of FAO
under art VI of the FAO Constitution
not deposited with FAO
Non-binding instruments:
Developed by FAO
Not developed by FAO
8
27.
Binding international instruments: As part of its horizontal analysis, this evaluation
considered 57 specifically binding international instruments – that is, agreements formally
ratified by sovereign nations. Of these, 37 were organized under FAO, either formally subject
to oversight by the FAO Conference and/or formally or informally under supervision of the
Director-General. Seventeen of the international instruments examined in this report are
global in scope and the remaining 40 are regional or sub-regional. Among “binding
international instruments”, there are several relevant sub-categories.
- Global-level international instruments which are characterized by: (i) substantive hard
law commitments; (ii) formal governing bodies to oversee a variety of different types of
administrative and substantive matters; and (iii) fully functional secretariats. There are
only 3 international instruments within this category in FAO: the ITPGRFA, the IPPC,
and the “Rotterdam Convention”;
- Regional international instruments which meet the three criteria described above;
- Global international instruments whose primary purpose is the creation of an expert
body. (Seven of the international instruments reviewed fit in this category); and
- Regional international instruments whose primary purpose is the creation of an expert
body.
28.
Non-binding International instruments: This evaluation has considered four types of
non-binding international instruments (which may be either global or regional in scope, or in
some cases both):
“Soft Law,” (see below). Among international instruments, this sub-category includes
o Voluntary Codes of Conduct, such as, FAO’s Code of Conduct on Responsible
Fisheries, Code of Conduct for Germplasm Collection, and Draft Code of
Conduct for Biotechnology, and FAO’s International Code of Conduct on the
Distribution and Use of Pesticides;
o Guidelines, such as FAO’s Voluntary Guidelines on Responsible Management of
Planted Forests; on Fire Management; and
o Model Laws, such as the FAO Model Code of Forest Harvesting Practice (1996)
International instruments creating policy commitments. Within the focus areas, this
sub-category includes, for example, the Global Plan of Action on Plant Genetic
Resources; Global Plan of Action on Animal Genetic Resources, International Plans of
Action (IPOA) (under the CCRF) addressing respectively Sharks; fisheries capacity;
seabirds; and IUU fishing;
Non-binding international instruments creating expert bodies. This sub-category
includes bodies created by mechanisms other than binding international instruments
among sovereigns;
- Standards and “sui generis” FAO process. The Codex Alimentarius is a rather unique
systemic entity within FAO. It is based on a partnership-like arrangement between
FAO and the WHO, resulting in a joint programme. The two organisations established
an intergovernmental framework under which members of FAO and WHO can work
together – regularly meeting to negotiate new or revised standards. Legally, the Codex
Alimentarius Commission was established by the Conference of FAO under Article VI
and its statute was accepted by the World Health Assembly. It functions therefore as a
subsidiary body of both organizations. The primary reasons for including Codex in this
evaluation are its intensive involvement in the creation of non-binding international
instruments – voluntary standards for food safety and food quality19.
29.
In some situations, this report also uses terms “hard law,” “soft law” and “soft
international instrument.” These terms are not interchangeable with “binding” and “nonbinding” designations. For this purpose, a provision in an international instrument is “hard
law” if it is a substantive provision by which a country formally commits to take a particular
action. This term applies provision-by-provision, because no international instrument is
19
The IPPC also creates standards, but is a binding instrument.
9
entirely “hard,” and there are many “gradations of hardness,” 20 depending on how each hardlaw provision is worded. Only “binding international instruments” may contain “hard law,”
although many do not. In many binding international instruments examined in this evaluation,
the only hard requirements are found in provisions that require the parties to pay assessments
to support the international instrument’s secretariat or processes.
30.
A “soft international instrument” may or may not contain “soft law,”21 (formal
guidelines, model laws, voluntary codes of conduct, and standards). If an instrument is “soft
law”, it does not require countries to adopt or apply it. However, any country may formally
enact all or a portion of it. Should this happen, the soft law may become “hard law” within
that country. In FAO, a large number of binding international instruments create
intergovernmental bodies, which discuss or deliberate on a particular substantive issue, but do
not require the parties to comply with the conclusions of those bodies.
31.
Slightly less than one-third of FAO’s binding international instruments contain “hard”
commitments by the parties to take national action. Another third contain no such
commitments; while the remainder fall somewhere in between.
32.
As shown in Table 1, there is a difference among sectors in terms of the international
instruments available and in use. For example, as compared to other sectors, the forestry
sector appears to have a high proportion of non-binding international instruments including
some “soft law”. Similarly, the fisheries sector exemplifies a strong commitment to “regional”
approaches. These differences seem to be determined by many factors - historical, political,
economic, social – as well as the existence of other actors in the subject area.
33.
Overall, FAO’s work in promoting international instruments within the Organization
embodies a range of actions, including, in various situations:
o Providing a platform for negotiation of new international (global or regional)
instruments and determination of whether an international instrument is the best
mechanism to address the issue at hand;
o Hosting international instruments within existing departments, which take on the role
of the international instrument’s secretariat;
o Where an international instrument specifically creates a separate secretariat, hosting
the international instrument’s secretariat within FAO offices, and providing
administrative and other services and oversight;
o Supporting the international instrument’s secretariat and parties or delegations to take
relevant decisions, actions and produce necessary outputs at the secretariat level;
o Providing direct assistance and technical support for application of the provisions of
the international instrument at national and regional levels;
o Providing expert information on FAO’s core areas to international instruments
developed by or within FAO, as well as to international instruments created under
other auspices; and
o Serving as depositary of many international instruments (providing an important
diplomatic function).
34.
In addition to these, FAO’s Members, staff and expert bodies also actively participate
in international instruments created, housed or operated outside of FAO (under other
20
In some international instruments, for example, the countries may agree to “consider” certain actions or to “use
best efforts” to apply certain principles. This language may convert a very “hard” commitment to take those
actions or apply those principles into a very soft commitment. In a few instruments, it is presumed that each
country will apply the resolutions or decisions of its governing body, and is only released from that duty if it gives
formal notice that it will not do so. This is yet another “degree of hardness,” even though the instrument is binding.
21
The concept of soft law is much broader than “international instruments.” Soft law can be created by industry
groups, civil society groups and even academics. Its soft nature means that it is only effective if some part of the
target audience chooses to accept and apply it.
10
international organizations or as a completely separate international compact among its
members.
35.
These roles, and the increasing complexity of many of the issues to be addressed and
increasing numbers and types of stakeholders with a role to play are addressed in later
sections of the report.
B.
Financial Allocations to Strategic Objective B-1
36.
As an underlying basis for this evaluation, the team undertook to provide a summary
overview of the level and distribution of FAO resources dedicated to this Strategic Objective.
There are several sources of funds for international instruments: FAO’s Regular Programme,
voluntary contributions, voluntary assessed contributions, and in-kind contributions22. This
section also examines issues of FAO’s specific financial investment in individual
international instruments.
37.
Records tying FAO regular programme activities to specific strategic objectives were
only available for the period 2004-2007. During this period, FAO’s Regular Programme
budget allocations for Member Strategy B were USD 54.4 million in 2006-07, as compared
with USD 62 million in 2004-05. These figures are nominal and should also be considered in
the light of FAO’s overall declining budget. As a percentage share of total Regular
Programme budget, the amount devoted to Member Strategy B decreased from 8.3 percent in
2004-05 to 7.1 percent in 2006-07. The decrease in the share of funds for Strategic Objective
B-1 is less significant, from 3.8 percent in 2004-05 to 3.5 percent in 2006-07, whereas the B-2
share decreased from 4.5 (2004-05) to 3.6 percent (2006-07).
Table 2: Budget allocation for Strategic Objectives B-1 and B-2 in the PWB (in US millions)
Biennium
PWB total
B-1
as %
B-2
as %
B overall
as %
765.7
26.8
3.5
27.6
3.6
54.4
7.1
2006-07
749.1
28.2
3.8
33.8
4.5
62.0
8.3
2004-05
Source: PWB 2004-05 and Revised PWB 2006-07 appropriations by programme entity Lead
Unit
38.
Statistics on the percent allocation of Regular Programme funds for Strategic
Objective B-1 between PE lead departments23 show a shift towards agriculture, reflecting an
increase from 31 percent of total B-1 resources in 2004-05 to 64 percent in 2006-07 (Figure
1). A major factor in this shift is the move of the Codex Secretariat from the Economic and
Social Department to the Agriculture Department between these two biennia.
22
23
These include staff secondments and hosting and servicing of meetings related to instrument operations.
Departments which organisational units are involved in managing / supervising the Programme Entity (PE).
11
Figure 1: Budget allocation for Strategic Objective B1 by Lead Department (percent) 24
Figure 1a Percentage of Revised PWB
2006-07 Resources for B1
by PE Lead Dpt
Figure 1b Percentage of PWB 2004-05
Resources for B1
by PE Lead Dpt
ODG, 4%
FO, 7%
SD, 2%
ODG, 2%
FO, 12%
AG, 31%
FI, 23%
FI, 13%
AG, 64%
ES, 6%
ES, 36%
39.
Comparing to overall Department-led resources, the percentage devoted to Strategic
Objective B-1 was not more than 16 percent - with Agriculture and Fisheries investing the
most in 2006-07 and 2004-05 respectively (Table 3). Agriculture and Forestry allocations
increased in 2006-07 whereas Fisheries and, especially, Economic and Social departments
reduced their contributions to the Strategic Objective B-1.
Table 3: Allocation to Strategic Objective B-1 as a percentage of total resources led by
department
Biennium Agriculture
Forestry
Fisheries
Economic &
Social
16%
11%
9%
3%
2006-07
10%
7%
16%
14%
2004-05
Source: PWB 2004-05 and Revised PWB 2006-07 appropriations by programme entity Lead
Unit
40.
The extent of extra-budgetary funding for Strategic Objective B-1 (through voluntary
contributions and voluntary assessed contributions) is almost certainly greater than funding
from the Regular Programme budget. Some staff members interviewed noted that their
productivity in regard to Member Strategy B was largely dependent on the availability of
extra-budgetary funding. Donor and institutional limitations appear to have had a significant
formative influence on work undertaken in support of international instruments and especially
their implementation at national and regional levels.
41.
Despite extensive efforts of the evaluation team with assistance from TCAP, it proved
impossible to estimate with reasonable accuracy the extent of extra-budgetary funding
devoted organization-wide to Strategic Objective B (or B-1 alone). For many projects or
activities, involvement in international instruments is not reliably traceable. In addition,
contributions under ‘strategic partnership agreements’ with particular donors and at least
some large multilateral projects are not recorded in the field project management system.25
24
Execution may be done by any FAO office (including decentralized offices).
In the project management information system, projects are linked to strategic objectives only via programme
entities, many of which are deemed to contribute to several strategic objectives. Lists of projects derived from the
FPMIS, which have been confirmed by individual departments as having a direct link to B-1, indicated a total
delivery of extra-budgetary funding in 2006-07 of US$5,320,777 to Strategy B-1 from 25 projects with a total
budget value of US$18,894,227. For 2004-05, the total delivery appeared to be US$29,028,759 from 75 projects
with a total value of just over US$133 million. However, these figures do not include all contributions under the
Programme Cooperation Agreement between FAO and Norway (which dedicates approximately US$4.3 million to
B-1 and an estimated US$6.02 million to B-225); and the multilateral trust fund for Fishcode (estimated at
US$11.5 million, excluding the contribution from the PCA Norway). In addition, the US$143 million endowment
25
12
42.
Moreover, a substantial part of FAO’s work regarding the creation, implementation
and utilization of an international instrument is integrated in technical support to practical
application projects. Strategic Objective B can be (and has become) a tool of project design,
as well as a means of obtaining funds for desired activities. By linking a proposal to
implementation of an international instrument, access might be gained to funding earmarked
for international normative work, even where the project’s actual international instrument
component is nominal. A great many projects state a component on relevant international
obligations, especially on enabling the country to comply with or implement them. But the
nature of that component is often not identifiable in the brief project description in FPMIS.
43.
Financial information on FAO’s contribution to some of the individual international
instruments is available but does not yield comparable financial data. Instrument financial
reports, where available, are structured in different ways: some by source of funding and
some by activity, and the manner in which in-kind contributions are assessed is not entirely
clear. To assemble data for comparison would require disaggregation of individual instrument
budgets and reports and reassembling to a generic format. The evaluation was unable to find
any clear separate record even one consistently accounting for all FAO instruments’ total
budgets and operational costs, from which this information could be gleaned. This compares
poorly with some peer organizations, such as UNEP, which have provided the evaluation
team with substantial data on the funding levels and sources for all of the UNEP
instruments.26 Further analysis of the institutional arrangements concerning instruments under
FAO’s management is in Section IV.A.2 below.
44.
Despite uncertainty as to the amounts of FAO’s financial commitments to Strategic
Objective B, there are indications that the total is significant. Lack of clear records on
financial resource distribution may deprive members and management of the possibility to
oversee fully the alignment of means to ends and reduce transparency.
III.
Assessment of FAO’s Work on International Instruments - Overarching
Issues
45.
This part considers the Organization’s priority-setting and tools and processes for
getting an analytical understanding of the sector, analysing and adopting financial and other
commitments underlying the success of new instruments, and providing a deeper awareness
of the objectives underlying the Organization’s stated commitment to universal coverage
within its international instruments. These processes are essential, enabling the Organization
to operate in a consistent manner, to prioritize its activities on the international level, and to
make more planned and rational decisions regarding the distribution of its human, policy and
financial resources under this strategic objective.
A. Strategic View of FAO’s Role in International Law
46.
As documented above, FAO has been extensively involved in a wide range of
international activities across the full panoply of its substantive coverage. However, FAO
presently does not maintain any overview of its international objectives, nor of the extent of
their achievement. It may not be fully aware of the value that such an overview could provide
as a tool for focusing FAO’s efforts within the sometimes convoluted matrix that is
international law.
47.
As a consequence of the lack of strategic organization-wide overview and analysis,
FAO is deprived of an important base on which to make informed decisions about priorities.
raised for the GCDT is not included, as it is held independently of FAO resources, although the Trust’s policy
framework is provided by the ITPGRFA.
26
In fairness, it must be noted that UNEP, as a UN Programme, rather than a Specialized Agency, does not have
any obligation or expectation of contributing to the budgets of any of its international instruments.
13
Given its broad mandate, increasing demand and limited resources, however, strategic
decision making is crucial to FAO’s work at international levels, to ensure that the costs and
time needed to develop or participate in an international instrument are incurred for more
substantial and justifiable reasons. Lack of such an overview, and the clearer perspective it
would engender has also limited this evaluation’s ability to adequately answer its basic
question.
48.
One proposal to address this need has been prepared by the FAO Secretariat at the
request of FAO’s Governing Bodies and is currently under discussion. This proposal
recommends institution of a biennial “State of Policy and Regulatory Framework for Food
and Agriculture” (SOPRFA). Most relevant to Strategic Objective B-1, SOPRFA could
include an examination of the demands that international instruments are placing on
developing countries, in terms of both implementation and capacity needs. For purposes of
effective implementation of Strategic Objective B-1 such an examination appears to be
essential.
49.
Although its scope could extend well beyond the scope of this evaluation, the
SOPRFA proposal would, at least, necessitate an “Analysis and Strategic Programme for
FAO’s Involvement in International Instruments and Processes Affecting Food and
Agriculture” (including fisheries and forestry.) Such an analysis would be linked to FAO’s
role in promoting, supporting and advising on the implementation of such instruments at the
national level, as to matters within FAO’s areas of competence.
50.
The SOPRFA proposal would require each of the FAO Committees (CCP, COFI,
COFO, COAG, CWFS and CCLM) to participate, essentially requiring and enabling them to
create a strategic approach to participation in the international regulatory framework and/or to
reconsider their role in it. These committees have been described by contributors to this
evaluation as being among the most important tools of international action in FAO. This
pyramid approach for integrating these inputs into an overall plan could be very effective, so
long as the committees, members and FAO departments integrate their actions, rather than
simply re-characterizing current actions to “pass” under the new strategic language.
51.
An important component of this work would be its ability to integrate regional
perspectives, ensuring that FAO’s work in Strategic Objective B-1 does not entrench a “onesize-fits-all-regions approach.” To this end, Regional Offices would play an important role in
preparation of the analysis. Regional economic integration organizations may also in some
cases be natural partners in addressing regional and sub-regional policy and regulatory
framework issues.
52.
FAO’s peer organizations, too, are grappling in different ways with the need for a
strategic approach. While some (UNESCO, WIPO and IMO) have adopted specific, though
not perfect, systems for strategic analysis of the need for and value of proposed new
international instruments; others (such as, UNEP) have not. The UNEP Mediterranean Action
Plan (UNEP-MAP II), however, uses action planning as a dynamic process, through which
new hard and soft international instruments, as well as a variety of other documents and
activities, are strategically developed, coordinated and implemented.
53.
In informal discussions with staff, some concerns were expressed that the creation of
a strategic overview and analysis might prevent rapid response to unforeseen but urgent needs
and/or unique opportunities to develop a new international instrument of importance to FAO’s
core mandate. The team concludes, however, that where a new need or demand arises that is
not addressed in the global analysis, decisions on how to address it and how it will integrate
with the rest of the international regime will only be improved, if a sound contextual analysis
regarding the relevant global political/legal situation already exists.
14
RECOMMENDATION 3.1:
Immediate Action: FAO should approach its implementation of Strategic Objective B-1
more strategically. The Secretariat should create and regularly review an analysis and
strategic programme to guide and support future decision-making regarding involvement in
international policy and international instruments, possibly as part of a “State of Policy and
Regulatory Framework for Food and Agriculture.” Regional Offices should be specifically
and aggressively involved in preparation of the analysis. Each of the FAO Committees (CCP,
COFI, COFO, COAG, CWFS and CCLM) should participate in this planning process in a
pyramid approach, building from the bottom up, based on initial guidance from Headquarters.
This will require significant investment in the baseline document, but less investment in
subsequent review.
B. Financial Commitments to support the Creation and Operation of
International Instruments
54.
The resourcing of each individual instrument is essential to its success and to its
viability as an element of FAO’s achievement of the goals of Strategic Objective B-1. These
financial requirements are also essential to the overall strategic analysis, described above, not
only with regard to proposals to develop new instruments, but also to the management and
operation of existing instruments within FAO’s penumbra.
55.
As discussed in Part II.B above, FAO’s financial record system was not able to
provide detailed or comparative information on the extent and nature of resourcing of the
instruments shown in Table 1. The following discussions focus on the manner and extent to
which FAO’s international instruments are resourced, and are based on limited available
information collected from individual instrument sources and others.
1. Binding international instruments
56.
Within the focus areas, budgetary information could only be obtained on those global
international instruments that are overseen by formal governing bodies. Their budgetary
decisions are based on publicly available documents and conducted through transparent
international decision-making processes. Examination of these instruments’ most recent
budgetary and other processes make it apparent that, although these instruments have
financing plans, current funding is not sufficient to fund the secretariat activities described in
each instrument’s text.27 Beyond those basic duties, moreover, international instrument
governing bodies frequently call on their secretariat for additional activities which require
additional funding.28 In some cases, secretariats report that donors have directed funding to
these special activities even before the secretariat has found sufficient funding to cover its
basic budget.
57.
The true cost of any formal binding international instrument is borne three ways:
(i) through the international instrument’s operational and secretariat cost; (ii) by the members
in implementing it (including participation in international meetings and dissemination of
27
See, e.g. ITPGRFA: Report on Progress of Programme of Work and Budget, 2006/7 and on Actions Taken by
the Secretariat Regarding Decisions of the First Session of the Governing Body. Document IT/GB-2/07/19.
Rotterdam Convention; Programme of work and proposed budget for the biennium, 2009–2010
(http://www.pic.int/COPS/COP4/V23)/English/K0841227-COP-4%20-23.doc and
http://www.pic.int/COPS/COP4/V23add1)/English/K0841353-23%20ADD1%20FINAL.doc). This document
focuses on the budgetary impact of a proposal to integrate administration of the three “chemicals conventions”
(Rotterdam, Stockholm and Basel). See also IPPC Evaluation, 2007, para. 176
28
Regarding IPPC, for example the Business Plan 2007-2011 of the Committee on Phytosanitary Measures (dated
May 2008, accessed online September 2008) states that [IPPC] Convention is funded from FAO’s Regular
Programme (mandatory assessed contribution from all FAO Members) and through trust funds and in-kind
contributions. However, it notes that “To date this means of funding has not enabled sufficient resources to meet
the requirements of the planned work programme.”.
https://www.ippc.int/servlet/BinaryDownloaderServlet/184215_CPM_2_report.pdf?filename=1179929463410_CP
M_2_report.pdf&refID=184215.)
15
their results); and (iii) by intergovernmental bodies (including FAO) and NGOs in supporting
and developing that implementation. The best-drafted international instrument, with a
functional secretariat can have no impact unless supported by political action to encourage
parties to accede, national commitments of funds and manpower, and support at all levels to
enable implementation.
58.
In country visits and interviews during international meetings, more than 85 percent
of persons who commented on instrument-finance issues focused on the relative costs borne
by each of these components (secretariat, members and IGOs), and the parties’ expectations
relevant to FAO’s contribution. In these groups, there was little difference between developed
and developing country representatives, all noted a general expectation that FAO will provide
substantial funding to secretariats, suggesting that the primary divergence among countries
relates to the percentage of each secretariat’s budget that they feel FAO should cover and the
reasons underlying FAO’s contribution.
59.
In interviews with several Permanent Representatives, it was noted that some donors
prefer to keep the instrument’s secretariat a bit “lean” whether to encourage economy or
based on the expectation that particular donor countries will provide voluntary funding. Many
FAO staff also referred to this practice. While none of these sources provided detailed
examples or figures, all indicated that donors sometimes direct funds to FAO departments, for
capacity and field support to its implementation, rather than helping fund its secretariat29.
Without a properly funded secretariat, however, there may be fewer opportunities for
cooperation and integration of implementation efforts under the international instrument or
the parties and secretariat’s ability to take advantage of those opportunities may diminish.30
60.
In country visits, a significant majority of interviewees who had directly interacted
with the secretariat of at least one of the global level binding instruments noted that
performance of particular secretariat-based responsibilities were very necessary to their
national implementation.31 Interviews with staff of instrument secretariats supported this and
indicated that those secretariats’ abilities to compile and upload databases and other services
have been delayed, sometimes indefinitely, due to funding constraints.
61.
In sum, FAO international instruments examined in this evaluation appear to be
confronted with a basic funding dilemma. With FAO’s budget as their only permissible
source of “Regular Programme” funding (and sharing the ‘ups and downs’ of the
Organization’s funding and budget allocation processes), they must find other funds in order
to pay for instrument-required operations. To fill this shortfall, most rely to a greater or lesser
extent on parties’ expected contributions, which are technically voluntary. In budgeting
however, global binding instruments indicatively apportion voluntary contributions among
their contracting parties, based on the UN scale. This process effectively converts these
“voluntary contributions” into a specific source of annual operational support in budgetary
calculations. Predictably, some countries opt not to make this voluntary contribution, creating
an annual squeeze on secretariat budgets. 32
29
Extra-budgetary funding to FAO units constitutes the overwhelming source of support for national and regional
work under Strategy B-1, across the majority of FAO’s core areas. The exception is in relation to Codex and IPPC,
where 80 percent was funded by FAO Regular Programme in both the periods covered by the respective
evaluations.
30
See discussion of coordination in part IV.E.1.4 of this report.
31
Particular deficiencies noted in country visits were primarily focused around the need for technical assistance
with implementation, database and information/reporting data. See further Section IV
32
See, e.g. ITPGRFA, Report on Progress of Programme of Work and Budget, 2006-07 and on Actions Taken by
the Secretariat Regarding Decisions of the First Session of the Governing Body. Document IT/GB-2/07/19. The
problem is also experienced by the IPPC, whose 2007 evaluation found clear “under-funding for certain core
activities of the Secretariat,” deriving from both an insufficient stream of resources and unpredictability that is not
matched to the instrument’s planning cycle.
16
62. Instrument secretariats are often strongly urged to be rational, building their budgets
around a more realistic expectation – i.e. not using the scaled contributions as a base. Use of a
lower number, however, may risk giving the impression that scaled voluntary contributions
should be reduced. In fact, it has been suggested that FAO budget decisions to allocate more
Regular Programme funds to a particular instrument may actually encourage some countries
to lower their voluntary contributions to that instrument. This problem is illustrated in the
case of the ITPGRFA (see Figure 2).
Figure 2: Voluntary contributions from Contracting Parties
Source: ITPGRFA: Report on Progress of Programme of Work and Budget, 2006-07 and on Actions Taken by the
Secretariat Regarding Decisions of the First Session of the Governing Body. Document IT/GB-2/07/19.
62.
Unfunded and under-funded mandates, may also negatively affect an international
instrument’s ability to broaden its support base. Most international instruments’ ability to
achieve their objectives is integrally connected to creating a base of political support
relatively early in the international instrument’s life.33
63.
At the regional level, instrument funding information has been more difficult to
acquire, whether officially or through other sources. While a large number of FAO’s regional
instruments receive some level of funding through FAO, this is not true in the majority of
instances. It was not possible to determine or compare funding information, as many such
bodies did not publish this information nor respond to direct inquiries about it. Recent
evaluations conducted by FAO have considered some regional instruments, but did not clarify
discuss contribution, budget and expenditure for them.34
2. Non-binding instruments
64.
Specific and comparative financial information on FAO’s non-binding international
instruments is not independently presented and operated, but integrated into FAO department
budgets. The exception is FAO’s most extensive and longest lived international instrumentrelated process, the Codex Alimentarius. The 2002 Evaluation of Codex (at the global level)
33
For example, the ITPGRFA is challenged at present to demonstrate its value to two critical stakeholder groups –
germplasm collections outside of the CGIAR system and developing countries – so that these groups will perceive
a functional advantage or benefit not only from joining the treaty and/or its multilateral system, but also from being
a wholehearted assertive supporter of its objectives and functionality.
34
The IPPC evaluation focused on the global level instrument and activities, particularly concerning financial
matters. The Multilateral Evaluation of the 2003–05 Desert Locust Campaign entitled Towards a More Effective
Response to Desert Locusts and their Impacts on Food Security, Livelihoods and Poverty (FAO, July 2006)
examines financial aspects of regional instruments, but only as part of its consideration of the entire programmatic
area of desert locust control (¶¶ 348-354, and 415). (A process which includes a number of formal, binding
international instruments within FAO which operate at the regional level.) It stresses the importance of providing
adequate resources at regional and national level to enable the relevant groups and national units to carry out their
tasks effectively, and notes the importance of FAO’s role as a lead entity in coordinating the various sub-regional
instruments. (Recommendation 52(a), at page 83 and ¶ 412.)
17
found that – like the binding instruments described above – “the Secretariat has insufficient
resources to support the present activities of Codex”35.
65.
Seen in overview, it is clear that each decision to create or extend the responsibilities
of an international instrument should involve serious organization-wide analysis addressing
the funding of the proposed international instrument’s secretariat and operations.36 FAO’s
constitutional mandate and objectives clearly envision use of the Organization’s assets to
accomplish specific purposes (e.g. locust control), address particular regional needs
(including regional seas and fisheries as well as the needs of less developed countries),
maximize the global uptake of effective concepts and services (e.g. through the Codex
Alimentarius and international agricultural research centres and collections) or to promote
progress and the development of new solutions (e.g. the IPPC and ITPGRFA).
RECOMMENDATION 3.2:
a. Future Strategy: FAO should integrate concerns and commitments relating to funding
and operational responsibility into its decisions to authorize commencement of
negotiation of new instruments, recognizing that the creation of a new instrument
provides no guarantee of funding of its activities. To this end, the FAO Secretariat
should prepare realistic analyses of the financial cost of a new instrument, including
secretariat operations, national implementation and global processes. These estimates
should be fed into discussions at an early moment when they will have the most impact
on the decision regarding whether to go forward with international instrument creation or
pursue other options.
b. Future Strategy: FAO’s budgetary decisions and member decisions to make extrabudgetary contributions should recognize that performance of key initial activities can be
essential to long-term support for and participation in a new instrument and thus its longterm success. As such, these decisions should specifically take into account the need of
each new international instrument to ensure the levels of early progress necessary for the
instrument’s long-term success. Consequently a higher level of funds should be allocated
to new instruments to enable them to put necessary initial programmes into operation.
c. Future Strategy: In the creation of new instruments, where the parties anticipate that
FAO shall pay all or a portion of the costs of an instrument’s operations, that instrument
or some other document should specify which operations FAO will fund. This document
should be submitted with the instrument financing plan to the Finance Committee (in
addition to the Programme Committee) and also separately approved by the FAO
Conference.
IV.
Assessment of FAO's Work on International Instruments
– Process and Governance
66.
This section considers another aspect of FAO’s implementation of Strategic Objective
B-1: The specific operation of particular instruments and sectors in which FAO has been
involved. It is derived from empirical analysis, built on the basis of evidence gathered at two
levels:
o The “vertical level” – under which it examined of a number of specific experiences with
the creation, implementation and oversight of individual instruments; and
o The “horizontal level” – which focused on a body of overarching data regarding FAO’s
instruments, seen collectively.
This data was integrated with peer organization data and other expert inputs.
35
Codex Evaluation, ¶ 101
For example, IPPC and ITPGRFA have 164 and 116 current members respectively, as compared with the 191
Members of FAO. FAO instruments that are regional in scope (the vast majority of FAO’s international
instruments) each have significantly fewer parties.
36
18
67.
The following discussions are divided into four sub-headings, representing the first
four stages of the life cycle of an international instrument (see Table 6). This construct was
intended to provide a simplified representation demonstrating that international instruments
are iterative and evolving. Where the principles and approach described in this model are
generally followed, international instruments may have a better chance of staying “current”
and maintaining their value. In practice, the operation of the life cycle is much more informal
than appears below. This section ends with a brief discussion of the two most crosscutting
issues which are relevant to all stages: participation and the use of regional mechanisms.
19
Figure 3: Stages in the Life Cycle of an International Instrument
Initiation/“Ripeness” : identifying each issues’
potential for international action
Initiation:
Proposing and
negotiating a
new
international
instrument
Level of specificity and coverage
Priority setting within FAO by Secretariat &
Governing Bodies
Consultation with technical experts
Type of instrument and relationship to FAO
Negotiation & drafting
Entry into Force
“Institutionalising”
the Instrument:
International
Implementation
Ratification & Adherence
International Implementation
Standard setting
Information exchange
Subsidiary legislation drafted or ‘spawning’ of
related legislation or ‘Soft Law’ instruments
Dispute settlement
National Policy/Legislation/Institutions/Practices
National
Implementation
and Compliance
Technical assistance and capacity building
Enforcement
Feedback loops and compliance monitoring
Revision, update
and supercession*
Revision (returning to Step 1), supercession by
later legislation or other alteration/termination
Potential for adapting existing instruments to
meet new challenges
* Insufficient information on the revision, update and supersession processes has been available to
enable formal analysis in the evaluation. They are not further examined in this report. .
20
A.
Initiation of New International Instruments and Proposals
68.
The processes by which international instruments are proposed, developed and
operated differ markedly depending in the first instance on whether the international
instrument is hard law, a standard (produced by a “standard-setting body”), or soft law. FAO
has facilitated the development of all three types of international instruments, including at
least 15 that it does not host, staff or finance.
69.
The nature and difficulty of development of each new international instrument is
primarily impacted by its initial purpose – the kind of action or agreement that is sought.
Box 1 describes several common motivations behind the creation of existing international
instruments. Some of these are relatively easy to negotiate and quick to enter into force and
even implement. Others – those seeking to resolve controversies or take on
technological/conceptual challenges – may be more difficult, not only in negotiation and
accession, but also in the support needed for national implementation.
Box 1: Motivation to develop a New International Instrument37
There are many reasons to develop a new international instrument, each of which results in a
different kind of international instrument, and different challenges:
o Memorializing or harmonizing similar activities, where countries have been acting under
national law in a particular sector or activity and seek to streamline relationships across
national borders with regard to that subject area. (e.g. Codex Alimentarius);
o Filling needs and gaps in the international regulatory framework, where an international
instrument or process exists, but questions remain regarding its meaning or
implementation that can best be addressed internationally, due to the need for technical
expertise/assistance. (e.g. the CCRF and FAO Compliance Agreement, Right to Food);
o Addressing new challenges, where countries, faced with new technological or conceptual
issues, seek internationally agreed method of addressing them. (e.g. Cartagena Protocol);
o Enabling positive action, where there is agreement that an action is desirable, where
international commitments and clarifications are needed. (e.g. ITPGRFA);
o Resolving controversies, where countries are in conceptual conflict. (e.g. Kyoto Protocol);
o Enunciating shared objectives and commitments, particularly in areas of social and
environmental well-being. In one subgroup of this category – technology forcing
instruments – States agree to technological solutions to shared problems, even where their
capacity to meet those obligations is still some years distant. (e.g. IPPC).
70.
Past experience shows that deciding to negotiate a new international instrument and
the manner in which it is drafted will usually depend on three interlinked elements –
(i) the “ripeness” of the issue (whether the “timing is ripe” so that countries are
willing to engage in the negotiations and ultimately to take on the resulting
commitments);
(ii) the perceived need (including the nature and technical level of the international
instrument needed to address that need); and
(iii) the extent to which the current situation is likely to change necessitating that the
international instrument adjust to such change.
71.
Successful initiation of an international instrument is largely a matter of timing.
Issues and awareness need to mature. But the maturation process is not always simple. One
cannot, even in retrospect, know with certainty what factors indicate the “ripeness” of a given
topic. Parties or proponents of a new regulatory framework or revision need time to clarify
their objectives and develop a shared understanding of the role of a new international
instrument. Time is also needed, in order to build countries’ willingness and internal desire to
37
This list was prepared by the team leader and confirmed with other members of the evaluation team, the
Advisory Board and other research.
21
commit to the actions and process necessary to create as well as to implement a new
instrument. This is a particular concern for many developing countries, especially those at
middle and upper income levels. As one respondent wrote, it is important not to set the wheels
in motion “until, in an environment consisting of sovereign States, the main players have been
convinced of the need for action.”
72.
For FAO, however, many aspects of its primary mandate, such as food security,
natural resource sustainability, human health and the eradication of plant pests and animal
diseases, appear to necessitate the development of consensus in situations in which
knowledge, trust or shared understandings are relatively thin. This challenge may also arise
with regard to the proposal of international instruments that are intended to be “technology
forcing” – that is, international instruments that call for a level of technology difficult for
many countries to attain.38 In these situations, it is often FAO’s experts who recognize that an
issue which is not “ripe” still needs urgent attention at the plenipotentiary level. In promoting
this type of work, FAO may risk criticism that it is “promoting its own agenda.”39
73.
By contrast, FAO is sometimes able to “surf the wave of international desire” for
particular new developments, utilizing its international status to convene experts and
sometimes plenipotentiaries to address new or emerging topics that are ready for action. In
these situations, it has had notable impact. The IEE recommended that the Members should
strengthen their role “in convening meetings on subjects of global importance that could
benefit from the existence of international agreements...and other means of concerted
international cooperation”40 at global and regional levels. FAO’s recent High-Level
Conference on World Food Security: the Challenges of Climate Change and Bioenergy, was
widely recognized as an example of FAO’s special capacity to provide a neutral – and in this
case, timely - platform for discussing international concerns regarding food prices and
availability.
74.
Several interviewees (from among staff and Permanent Representatives) referred to
examples of situations in which FAO’s intensive efforts to promote an international
instrument were at least unnoticed, and in a few cases somewhat unwelcome, because the
time was not ripe. Specific examples include FAO’s participation in some of the efforts made
over the years to promote an international instrument on forests – in the mid-1990s – and
similar work in the mid-1980s to develop organizations to support the fish trade – as well as
more recent calls for FAO to develop a sui generis regime for protecting intellectual property
rights in plant genetic resources for food and agriculture under the WTO’s TRIPs Agreement,
which were seen to be untimely in light of the untried and developing impacts of the ITPGR.
75.
Ripeness is more than a question of timing, however. The resource cost of
negotiations can be quite significant, and the decision to open negotiations will normally not
be withdrawn until either the international instrument is created or the negotiations have
completely broken down. In the latter case, the failure of negotiations may stifle further
efforts, whereas successful new development incurs costs, including additional expenditures
for years after adoption and much effort to bring it into force, and implement it at national
38
Specific examples include FAO’s use of model codes and other mechanisms to promote the regulation, use and
application of new technology, such as the Code of Conduct for the import and release of exotic biological control
agents (http://www.fao.org/docrep/x5585E/x5585e0i.htm) Cartagena Protocol on Biosafety and a significant
number of fisheries instruments. Some of the work underpinning the development and adoption of global plans of
action is also relevant to this point.
39
The evaluation team received a number of reports of past and current situations, but has deemed it advisable not
to circulate them further.
40
IEE, para. 193 The IEE cites the World Food Summit (1996) and the follow-up World Food Summit: five years
later (2002) as examples that “combined the roles of a neutral forum, setting global goals and policy, with that of
advocacy, raising the profile of hunger. IEE, para. 293. The Voluntary Guidelines on the Right to Food reportedly
emerged from this action. Both the IEE and the Evaluation of Partnerships & Alliances (2005) found that FAO’s
convening role and ability to work with multiple stakeholders were well valued.
22
level. The decision to open negotiations is clearly one aspect of Strategic Objective B-1 which
would benefit from a strategic planning process (see Recommendation 3.1.)
76.
FAO’s role as a provider of expert knowledge and a forum for sharing experience has
frequently given it awareness of a particular type of need – the need to interpret another
international instrument and determine how it will apply to a particular FAO sector. Thus the
CCRF and FAO Compliance Agreement provide technical and practical agreement on
implementation of the fisheries-related components of UNCLOS. The ITPGRFA provides
similar guidance as to some aspects of the CBD relevant to agricultural development. Its work
has been made more difficult by the fact that the CBD’s negotiations of the basic concept are
still not complete and may have unknown impacts on the Treaty’s implementation in future.
In these and other sectors, survey respondents strongly approved of FAO’s efforts in
developing tools for real implementation of instruments which are very broad in scope and
political in nature, including both those created through hard law development (the
ITPGRFA) and those developed in soft law (the CCRF).
77.
Finally, states sometimes express discomfort regarding rapidly evolving situations.
The prospect of finishing a new international instrument only to face an immediate need to
amend it was often raised as a reason to oppose new instrument negotiations. Alternatives and
solutions include streamlining amendment procedures and shifting the proposal from hard to
soft law. (¶ 80-95.)
1. Hard or Soft Law?
78.
The question of whether FAO instruments should be “hard” or “soft” has been one of
the most intensively discussed elements of this evaluation. During negotiation, design and
development of a new instrument, the choice between hard and soft law evolves throughout
the diplomatic/negotiation processes of instrument creation. In general, the decision occurs by
“evolution” as the parties either agree to firm commitments or “soften” those commitments in
the negotiation process.
79.
For a lawyer, the “hard-law”/”soft-law” status of each individual provision is thought
of as a “bright-line” test – that is, it is very clear and simple to determine. A hard-law
provision is one which imposes a binding obligation on its parties, where a non-binding
instrument does not. Among non-binding instruments, “soft law” refers to instruments,
recommendations, models and guidelines to which countries make no commitment and have
no specific duty to comply. It can be complicated to determine whether an instrument is hard
or soft, however, only because (i) there are many different kinds of hard law instruments that
are not “international instruments”41, and (ii) soft-law status is expressed in many ways.42
80.
During negotiations of an international instrument, it may not be clear whether the
final product will be hard law, soft law, a combination of the two or something else.
Ultimately, the various positions on this issue within the negotiations arise from a
combination of diplomatic discussions, national policy and sovereignty. The negotiators may
go forward expecting to create one type of international instrument, but at the end, the process
may be converted to another approach. Within the focus areas, this has occurred with the
Right to Food. Initial efforts to develop hard law were refocused on creation of a soft
instrument. Conversely, the development of the ITPGRFA generally grew out of discussions
41
FAO is a legal entity and is thus a direct participant in legal arrangements, such as contracts, that are formalized
in legal documents (sometime called “legal instruments.”) As noted above, however, if a legal document is signed
only by FAO as an entity, and not by the individual sovereign nations that comprise FAO, it is not considered to be
an “international instrument” for purposes of Strategy B-1.
42
While some, such as “voluntary codes of conduct” are generally clear as soft “law” – it should be noted that
although “soft” in the sense that countries have the option of whether to adopt them as national law, lead to the
creation of “hard” law, in terms of their impact on the persons regulated, if adopted by national legislatures.
23
of proposals to revise and update a pre-existing soft-law instrument, the International
Undertaking on Plant Genetic Resources.
81.
A significant number of FAO staff and Permanent Representatives express a strongly
held view that FAO should develop more hard law, based on a presumption that there is a
hierarchy among international instruments—that hard law is better than soft per se. More than
one third of those who had participated in international instrument processes or
policy/position development, indicated their belief that every process should initially aim for
hard-law development, settling for soft-law status only when hard is not possible.
82.
This opinion is balanced by the preference for soft law, expressed by many national
and regional government agencies, especially in discussions involving the fisheries sector.
One of the primary international instrument systems43 reviewed during this evaluation, the
CCRF, has been widely disseminated and supported throughout FAO, and has been the
subject of a wide variety of national capacity and implementation activities. On the basis of
combined inputs from country visits, surveys and other sources the evaluation team found that
its impact at national level was greatest in promoting awareness and facilitating the
development of management frameworks and plans relevant to any type of fisheries.
Countries indicated that its direct assistance (in addressing ecosystem implications in fisheries
planning and management, in using the precautionary approach, and in promoting stakeholder
involvement and scientific research) was detailed and, as such, valuable as expert input. Many
interviewees in the country visits stated their firm belief that the CCRF would have been less
detailed and less valuable, had it been negotiated and adopted as hard law (see Box 2).
Box 2: Fisheries and soft law
The information obtained in the fisheries focus area indicates a strong and growing awareness
at national level of the value and usefulness of international soft law. On the one hand, the
international nature of the soft-law development process has allowed countries collectively to
achieve results which each would otherwise have struggled with individually (such as
practical implementation of the fisheries elements of UNCLOS or commitments of the FSA).
Their experience in developing and using international soft law has helped national fisheries
officials get accustomed to a single body of terminology and concepts. In essence, no matter
what language or dialect they speak, they all speak “Fisheries.” Finally, soft law enables the
development of more soft law. For example, the problems of artisanal fisheries are the same
all over the world. Through the linkages developed in negotiating and using the CCRF and
other soft international instruments, many countries are able to establish partnerships to find
means to address this common concern.
83.
As shown throughout this evaluation, many soft law international instruments of
various types have been widely accepted and implemented. Most of the national officials met
during the country visits indicated a fairly strong positive reaction to soft law. Many noted
situations in which soft international development was or is needed, where hard law would be
unnecessary or even counter-productive. In the PGR survey, more than 70 percent of
respondents indicated that their willingness to participate in negotiations would not be
affected by the fact that the instrument was soft law.44 The fisheries surveys directly indicate
that a “soft” instrument is attractive to implementing countries. Over 90 percent of responding
countries indicated that they are implementing the CCRF at the national level. Table 4
provides a basic analysis of the characteristics of hard and soft law, as discerned and tested in
discussions under this evaluation45.
43
The CCRF is a system that includes both soft and hard instruments, but soft instruments appear to predominate.
This percentage is unexpectedly high, given that major soft-hard controversies are ongoing in the CBD’s ABS
negotiations
45
It is directed at “laws” and plenipotentiary instruments, and does not apply to various bodies adopted under
Article VI and other critical actors in FAO.
44
24
Table 4: Characteristics of Hard and Soft law
Strengths
• Formal commitment: taken seriously. States will be less
Hard
•
•
•
•
Soft
likely to sign, if they do not intend to implement
Operates in a “contractual” way, with each State bound
by exact language of the instrument. This approach is
valued where countries view the “rule of law” strictly
Believed to carry greater weight with national
legislatures, when pressured to regulate or budget for
implementation.
May provide a foothold for public interest litigation by
individuals, non-governmental organisations and other
groups seeking national compliance.
Sometimes proposed as a means to protect a ‘space’ for
FAO among competing agencies
• Enables agreement on concrete recommendations and
provisions, including technical matters and best
practices
• Level of commitment is basically “as much as each
country can” (given political/social/economic factors)
• Lower barrier to reaching agreement
• Equivalently perceived by both “strict-rule-of-law” and
“flexible legal system” countries
• Lower cost to negotiate & maintain
• Amendment easier, enhancing ability to respond to new
situations or address/integrate new international
instruments/sectors
• Soft status is designed to give countries maximum
flexibility. Hence, while soft internationally, national
implementation will often be hard law (mandatory
requirements imposed at ground level.)
Weaknesses
• To avoid early obsolescence, the international
instrument must either (i) be expressed generally (as
policy outcomes) or (ii) enable amendment (see below);
or (iii) operate primarily via subsidiary documents.
• Processes for signature, ratification and/or accession are
complex and diplomatic requiring many months or
sometimes years, delaying entry into force
• Normally not practicable as a means of reaching
agreement on technical matters
• “Binding” status is often hollow, lacking mechanisms to
compel compliance (but see, e.g., WTO, CITES)
• Legal enforcement through “dispute resolution”
provisions and international courts open only to claim
by another State -- unlikely in international instruments
addressing agriculture and/or natural resources
• Difficult to reach agreement because of the high stakes
• Engenders differences in expectation between “rule of
law” countries and countries where law operates flexibly
• Development may often be costly and time-consuming
• Amendment/revision is essentially a full new
negotiation, and creates an “interregnum” between the
amendment’s adoption and the time when it is accepted
by all parties to the original international instrument
• Perceived to be “weaker” international instruments
• No formal commitment imposed on any country to
comply with specific provisions or requirements
• Many countries adopt partial or stepwise approaches to
utilisation or compliance. For some this is seen as
delaying.
• Compliance relies on self-motivated or alternative
mechanisms, which normally must be created and
approved separately – e.g., international certification
systems
84.
Soft-law is not a permanent condition. The creation of a soft international instrument
may lead to the eventual creation of hard law in many ways. As an example of this
progression: the (hard-law) ITPGRFA replaced the (soft-law) “International Undertaking on
PGR” which preceded it.
85.
The FAO Compliance Agreement (hard law) provides an example of another type of
legal progression. That agreement did not replace or renegotiate the original soft-law (CCRF).
Rather, the two operate together in an integrated relationship. Another example is the
International Code of Conduct on the Distribution and Use of Pesticides 46(1985), the
negotiations of which specifically excluded prior informed consent. Eventually, the
discussions which led to that exclusion also led to the commencement of international
negotiations for a binding instrument on prior informed consent – the Rotterdam Convention,
46
ftp://ftp.fao.org/docrep/fao/009/a0220e/a0220e00.pdf
25
whose secretariat functions are performed jointly by UNEP and FAO.47 In both examples, the
new hard and pre-existing soft instruments continue to operate in an integrated fashion.
86.
The major factors underlying the decision to create soft law, as expressed in the
various interviews conducted in this evaluation, appear to have been that such processes may
be less costly and more time-efficient, in some cases, owing to the fact that soft instruments
are not subject to the institutional formalities required of hard laws (e.g. formal adoption,
separate secretariats and depositary mechanisms). During the course of this evaluation,
however, it became clear that soft law is not a “cost free” option. One obvious example is the
Codex Alimentarius, whose standard-setting processes are costly.48
87.
The cost of soft law development is balanced against the benefit that will be received
from the instrument once it is completed. That benefit is found in the assistance it provides to
countries, stakeholders, civil society and others. This evaluation discovered that soft
instruments are frequently lost to obscurity once they are completed. Several soft instruments
examined were generally unknown or unused at the national level.49
88.
It is important to remember in choosing to create any instrument – hard or soft – that
the creation and existence of a document, although essential, is not the only step necessary in
ensuring that instrument creation is effective and valuable to FAO and its members.
Ultimately, the greatest risk relating to the use of soft law is that it will be developed and
forgotten. All instruments (whether hard or soft) require active dissemination and support to
be effective. Hence, it is necessary for some project, programme, agency, division or
department to be assigned and/or committed to its assertive promotion and support. Where
this has happened (e.g. the CCRF and Right to Food,)50 the instrument’s value and
contribution do not appear to have been affected by the fact that they are “only soft law.”
89.
Experience within FAO shows that an instrument’s promotion is effective when, in
addition to being specifically adopted or assigned to one unit or department which will be
accountable for it as a major responsibility: (1) that unit or department is appropriately
staffed; (2) the international instrument is supported by FAO Members at regional and
national levels, serving as primary outreach; (3) it is targeted to the group most affected and
desirous; and (4) it is actively promoted to governments and other organizations.
90.
Among the reasons given for preferring hard instruments over soft, the one most
emphatically stated was a claim made by key FAO personnel who have worked on new
instrument creation both within and outside the focus areas, and echoed in whole or in part by
approximately 69 percent of interviewees in national country visits who indicated direct
awareness of international instrument development processes, and about 25 percent of
Permanent Representatives interviewed. These individuals stated their belief that, if FAO
adopts a soft instrument, this leaves the field open to some other organization to come in and
“scoop up the lead” in the issue by adopting hard law covering or including the same topic.
47
It may be relevant to this evaluation to note that the Rotterdam Convention is currently in the process of
discussions which may eventually lead to its unification with the other UN “chemicals conventions” (the Basel
Convention on Transboundary Movement of Hazardous Waste and the Stockholm Convention on the Control of
Persistent Organic Pesticides. (See decision SC-2/15 of the Stockholm Convention COP, decision RC-3/8 adopted
by the Rotterdam Convention COP, and decision VIII/8 of the Basel Convention COP, establishing an ad hoc joint
working group to “prepare joint recommendations on enhanced cooperation.” The Ad Hoc Joint Working Group
offers a web site at: http://ahjwg.chem.unep.ch.)
48
Codex Evaluation, 2002, at ¶¶ 54-55 and Annex 3 (not including costs provided by national sponsors of
particular standards-development processes, which are provided in kind.
49
This concern arose most frequently in the PGR focus area, where many soft instruments are available.
50
Codex Alimentarius is not cited as an example in the above reasoning because of its unique characteristics, as
already explained.
26
91.
The evaluation team has investigated specific claims – that is, situations cited as
examples of how FAO “lost the lead” on an issue because its instruments were only soft-law
when some other agency adopted hard-law.51 In the course of this investigation,52 it discerned
that the hard international instruments, which were alleged to have “usurped” FAO’s lead, did
not appear to have done so in fact. In each, FAO’s involvement was fully expected by all
parties as documented in decisions (both contemporary with the adoption of the international
instrument and subsequently), and its expertise fully recognized, particularly where FAO was
present and contributing actively to the negotiations. In some cases, participants expressed
disappointment at FAO’s low level of continuing involvement, negatively comparing less
involved sectors to FAO’s intensive and well valued work under the CCRF continuing after
commencement of negotiation of the UNFSA.53
92.
This research also strongly suggests that there are four basic reasons that FAO “gets
the lead” in a particular issue: (i) by staying intensively involved in international work and
negotiations of the issue, across the full range of agencies and proponents; (ii) by being
recognized as the agency whose expertise is most relevant; (iii) by being most aware of and
willing to address the broad range of perspectives; and (iv) by being perceived as the agency
which is most capable administratively to take on the task. In essence, whether assigned the
“lead” or not, FAO’s involvement in soft-law and/or negotiations can be specifically
integrated into new work by other UN bodies, agencies, or negotiations, and may provide an
opportunity for increased international cooperation between FAO and those activities.
93.
Ultimately, the decisions which make an international instrument “hard” or “soft” in
terms of its legal and practical impact are taken in two possible ways: (i) by the parties to a
negotiation, who change the wording of proposed commitments or recommendations to make
them harder or softer, or who in some cases convert the entire instrument from a formally
binding one to a non-binding one; or (ii) by FAO as an organization or by some department,
programme or body within FAO unilaterally deciding to develop a model or other
recommendation or guidance for national action, which is, by definition, non-binding and
may not in many cases be formally adopted by any Statutory Body of the Organization. In
either case, the resulting soft document may be the precursor of the development of a binding
instrument at some later date. And in the end, the choice between soft and hard provisions is a
political one.
51
Specifically, it carefully examined the Cartagena Protocol, Fish Stocks Agreement, the Convention on
Biological Diversity, and engaged in less detailed examination of several other instruments.
52
FAO’s history of participation in national and international processes is not well documented. This indicative
inquiry was conducted through research of relevant “meeting reports” of FAO bodies, UN Bodies, international
negotiating committees (both FAO Instruments and others) and interviews with persons who were aware of and
using FAO soft law at the time that a new hard-law instrument was proposed.
53
Several FAO staff (not in the Fisheries Department), described this event as “the point at which FAO lost the
lead in marine fisheries to DOALOS.” Nobody within the Fisheries Department or sector so described FAO’s
position in this sector.
27
RECOMMENDATION 4.1:
a. Future Strategy: FAO should continue to develop both hard- and soft-law Those making
or advising the choice between soft and hard law should ensure that this choice is made
strategically, considering the following factors:
i) The specific needs of each situation. Hard law should be used where there is a need for,
and parties are willing to make, national-level political commitments on a particular issue.
Soft law should be used where there is an international need or desire to enable planning,
implementation, legislation, enforcement or other actions in an area in which a significant
number of FAO Members (with or without consensus) want to take action.
ii) The fact that FAO’s strongest comparative advantage – technical expertise – is often better
mobilized through soft instruments rather than hard instruments; and that its most
generally recognized comparative disadvantage administration and bureaucracy can often
be better avoided through soft instruments as well.
iii) The estimated long-term costs and impacts of negotiation, adoption and implementation of
an instrument of either type.
b. Future Strategy: where soft law is chosen, promotion and circulation of such documents
should be maximized and support to assist in their implementation mobilized in order to make
best use of FAO’s high quality expert contributions of this type.
c. Immediate Action: The FAO Secretariat, possibly in conjunction with the analysis
described in Recommendation 3.1, should inventory its existing soft law instruments in order
to determine whether and how they can be more effectively used and promoted.
2. Assessment of the Relationship between FAO and International
Instruments under its umbrella
94.
The structure of each international instrument’s secretariat (or other responsible staff)
and its relationship to FAO are important defining facts in any analysis of international
instruments within FAO’s umbrella. It affects the nature of FAO’s support to the instrument,
and the extent to which the instrument secretariat is able to meet the requirements imposed on
it by the international instrument’s text and by its governing body. While normally spoken of
only in connection with legally binding instruments, these issues are also relevant in
considering non-binding instruments, especially “soft law.”
95.
Part R of the FAO Basic Texts (containing the Constitution and basic rules) sets out
some principles for the arrangements that can be made for international instruments adopted
by FAO. These have been elaborated by the Conference at different sessions over several
decades. However, the principles are not binding and have not in fact been followed very
closely. Moreover, Part R of the Basic Texts does not deal with some important aspects
affecting the degree of independence of instrument secretariats in relation to the FAO
Secretariat54. In the end, it was found more useful for the evaluation to analyse instruments
empirically rather than on the basis of Part R.
96.
Within FAO, three basic structures are generally used, in which the international
instruments operations are conducted: (a) through a secretariat that is a separate unit within a
FAO department’s or unit’s activities; (b) as an integrated part of a FAO department’s or
54
Part R refers to three categories for Art XIV bodies: (a) "entirely financed" by FAO; (b) financed by
FAO but enabled to "undertake cooperative projects financed by members of the body"; and (c)
financed by FAO but also having "autonomous budgets" (Para.33)
28
unit’s operation; or (c) by creation of an institution that is entirely separate from FAO. This
section looks at each of these three types, the manner in which they are used in FAO, and the
advantages and disadvantages of each. The breakdown among FAO’s legally binding
international instruments examined in this evaluation is set forth in Table 5.
Table 5: FAO’s relationship with binding international instruments under its penumbra55
a) Generally separate operation, but with FAO staff and location
156
b) Integrated and internalized within the operations of an FAO Department
9 57
c) Separate or decentralized staff and location
21
97.
As Table 5 demonstrates, the majority of FAO’s binding international instruments
operate and are located separately from FAO. All of the international instruments in category
(c) are sub-regional, regional or multi-regional in scope.
98.
For binding international instruments, the determination of whether to formally
include an instrument under the umbrella of an international body such as FAO, and to set the
nature of that inclusion is a matter of negotiation. In some cases, such as the ITPGRFA, there
were serious discussions regarding whether the instrument should be a separate treaty under
FAO (the option that was selected) or a protocol to the UN Convention on Biological
Diversity. A few international instruments, such as the OIE, have remained entirely separate
from UN bodies.58 Others (such as the Rotterdam Convention) resolve the issue by choosing
two relevant intergovernmental bodies, which operate as a “joint venture.” Once that general
decision has been made, however, it is still necessary to agree on the nature of the relationship
between the instrument (a legal entity) and each selected international body.
99.
For non-binding instruments, the relationship to FAO (or whichever international
body sponsored or took responsibility for the instrument’s creation) is usually presumed. The
manner in which the non-binding instrument is staffed, managed, and utilized is, in many
cases, left to FAO’s discretion.
100.
The choice between binding and non-binding instruments affects the options available
for creating the instruments themselves. Standards, for example, are often made through
institutional rather than plenipotentiary processes, and do not have independent secretariats
and promotion. The overwhelming majority of FAO’s non-binding standards are generally
created by and housed under the Codex Alimentarius Commission and its secretariat.59 In
some departments, many soft instruments are created by expert panels and considered
complete, even without formal adoption by any FAO statutory body.60
101.
Non-binding instruments and standards are being created at regional level as well.61
This evaluation was only able to focus primary attention on non-binding instruments created
at the global level.
55
Full information was not available on all 37 of FAO’s binding instruments. Data relevant for this table was
available on 31.
56
The ITPGRFA
57
The IPPC, the Compliance Agreement (fisheries) and the Rotterdam Convention. The latter is jointly staffed by
FAO and UNEP, with part of its operations located in Geneva.
58
OIE was formed in 1923, long before the UN existed.
59
Codex itself is a “joint venture” between FAO and WHO, many of whose functions and operations are operated
through a secretariat which closely resembles category (a) in Table 4.
60
See, e.g, International Guidelines for the Management of Deep-sea Fisheries in the High Seas, adopted on 29
August 2008 by a FAO Technical Consultation comprising representatives of 69 countries, the European
Community, the Faroe Islands, and 14 NGOs. Although the work was done following a request of COFI, it will not
be “adopted” by COFI or any other statutory body.
61
One, which was investigated in this evaluation, is the development of a regional version of the CCRF in the
ASEAN Region. Discussed in Section IV.E.2.
29
a.
Formally Separate Secretariat, with FAO staff and co-located with FAO
102.
Formally binding international instruments are, in legal terms, separate entities. They
are, by definition, directed by instrument-created mandates and governed by instrumentdefined “governing bodies.” Their existence depends on a sufficient number of countries
(defined differently in each instrument) remaining party to the instrument. As such, each
secretariat has a fiduciary responsibility (a legal duty of the highest order) to the parties to its
international instrument and to its governing body. For a few binding instruments, FAO has
agreed (whether in the text of the instrument or by later document) to provide the staff of the
instrument’s secretariat and to “host” the secretariat within FAO’s facilities.
103.
In this evaluation, the overwhelming issue emerging from all sources relevant to
administrative structures of binding international instruments have focused on the nature of
FAO’s responsibilities, particularly those in which FAO has agreed to provide “host
functions” for the instrument’s secretariat.
104.
Co-located secretariats have identified a variety of positive aspects of their
involvement with FAO, including: FAO administrative staff and support services,
(administrative, planning, financial, communications, legal, protocol,
documentation/interpretation), recruitment services and training opportunities; inclusion
within FAO’s privileges and immunities62; access to diplomatic representations in Rome; and
use of FAO’s legal framework for convening intergovernmental meetings. In addition to all of
these, as noted in Section II.B, FAO provides some level of funding to international
instruments which are hosted within FAO.
105.
In addition, instrument secretariats noted several less tangible benefits, such as
proximity and easy access to other FAO units with technical expertise in areas related to the
subject of the instrument; and access to FAO Governing Body meetings to draw political
attention to emerging issues; and, access to the network of FAO Regional Offices and country
offices for information flow and support to implementation63.
106.
Some staff interviewees have raised two other points relevant to the claim that
substantial benefits warrant giving FAO a stronger level of oversight and control over binding
instruments. The first such claim questions the actual value of benefits received, noting that
many of the services provided by FAO are backcharged, and that some of these services may
be acquired more cost-effectively from other providers on the open market.64 In particular, the
staff recruitment rules and processes have resulted in cases of understaffing of instrument
secretariats or forced the hiring of staff at a lower level of qualification than the secretariat
would have desired in order to fulfil its commitments to its governing body. Moreover,
instrument secretariats must compete with others for the use of FAO services, which means
that services are not always available to instrument secretariats when needed (for example,
when a large FAO event is occurring). Similarly, FAO may decide to reduce services, as a
cost-cutting measure, without consulting instrument secretariats.
107.
A second point frequently raised by national delegates to instrument governing bodies
relates to the question of “international instrument autonomy.” A binding international
instrument is, by definition, a mutual agreement among the parties to that instrument
62
An important legal protection for the Organization, its assets, operations, and staff, separately granted to each
instrument or organization by each individual country. FAO’s privileges and immunities (developed over many
decades) derive from the UN, from FAO’s Charter, from its host agreements with all countries which host any part
of the FAO Secretariat, and in other ways.
63
Quantification of these benefits has not been attempted. Indeed, many would be very hard to quantify.
64
For example, mandatory pooling of translation and interpretation services has meant that easy access to
translators familiar with specialist terminology of some instruments has been lost. Also, the IPPC Evaluation
(2007) found that FAO translation services were almost 2.5 times the going market price (para. 144, p.41).
30
regarding actions that they will take, contributions that they will make, etc., in exchange for
the reciprocal agreement of other parties. In becoming party to such an instrument, each
country, in effect, transfers a bit of its national sovereignty. It agrees to be governed by the
instrument and/or the will of all parties acting collectively, as to a particular issue. If the
instrument is an “FAO international instrument", however, there may be a question relating to
the ability of FAO to overrule the will of the parties. The membership of FAO may include
many countries that are not parties to a particular instrument and whose authority to oversee
that instrument is not clearly expressed in legal documents.
108.
None of the instruments reviewed for this evaluation specifically (in text) authorizes
FAO’s Secretariat to make decisions or take an oversight role, although a number of the older
FAO instruments give a limited power to the FAO Conference or Council.65 Despite this,
some national delegates and FAO Permanent Representatives specifically consider that FAO
has the power to exert substantive authority over binding international instruments that are colocated with FAO. They see this as a quid pro quo for the benefits, which the international
instrument receives as a result of being hosted by FAO. On the other hand, approximately an
equal number of national delegates interviewed appeared to assume that FAO's role as host to
the secretariat of an autonomous legal instrument creates no specific rights in that instrument.
It only invests FAO with obligations equivalent to those of a “host country.”66
109.
Concerns connected to autonomy issues have been noted by more than half of the
interviewees (FAO staff and national delegates) in this evaluation who indicated any
involvement in international delegations and negotiations. They assert that, in practice, FAO’s
organization-wide budgeting and planning can at times have the consequence of altering the
priorities set by the parties to the international instrument. This can occur, for example,
through differences between FAO's organizational priorities and individual instruments'
priorities and mismatch between timing of FAO decision making on financial resource
allocation and individual instrument's needs. FAO also reportedly requires instrument
secretariats and their staffs to take on duties that are directly relevant to FAO, but otherwise
not relevant to the instrument. Autonomy is further challenged by limits on the instruments’
ability to directly enter into contractual agreements with other instruments or respond to
letters from ministers.67
110.
It is also possible for non-binding instruments to operate as separate units of FAO. A
major example of this approach is the Right-to-Food, which operates in a very visible mode,
presented and cited as a separate unit. It is located within the Office of the Director of the
Agricultural Development Economics Division in the Department of Economic and Social
Development. For most non-binding instruments, the above-described challenges of FAO’s
oversight authority and the instrument’s autonomy are generally not relevant. Separate unit
status may provide benefits, both in terms of a higher profile (website, publications) and more
staff, dedicated entirely to the instrument. These benefits and challenges, however, have also
been identified in non-binding instruments which are fully integrated into other FAO units.68
65
These instruments give the Conference or Council a specific power to approve major changes to the instrument
(amendments) and other direct approval rights. Some newer instruments have not included these provisions and/or
have specifically stated that no such approval right exists.
66
Host country arrangements of this type are usually embodied in a “Headquarters Agreement” which specifies the
particular rights and protections that the host country will ensure for the secretariat. A few give the host country a
permanent seat on the instrument’s executive board. None that have been reviewed by the evaluation team give the
host country any direct right to take action or make decisions regarding the manner in which the secretariat
functions or sets its priorities (matters overseen by the parties to the instrument).
67
Instruments must defer these activities to the FAO Director-General and wait for compliance with his external
relations processes.
68
The Secretariat of the Codex Alimentarius Commission, which operates through a separate governing body, has
also recently been converted to a separate unit within FAO. Codex Evaluation at ¶ 104.
31
b.
Integrated and internalized within FAO Department or Unit
111.
The largest number of international instruments in FAO are standards set by the two
standard-setting bodies which are fully or partly staffed and located in FAO (Codex
Alimentarius Commission and the IPPC.) These international instruments are, in essence,
fully integrated into two FAO units, which are responsible for their respective standardsetting processes. In addition, most of FAO’s non-binding international instruments appear to
be integrated into particular departments, even those which are subject to high levels of
activity, budget and staff demand (such as the CCRF framework of instruments.) Similarly,
three of the global binding instruments examined in this evaluation – the FAO Compliance
Agreement, the IPPC, and the Rotterdam Convention – are staffed and supported using this
approach.
112.
In general, as suggested above, this approach allows the Organization maximum
latitude regarding budget and other decisions, without any apparent challenge based on issues
such as autonomy and oversight authority. However, staff of instrument secretariats indicated
that challenges have arisen between these instruments and FAO regarding who has decisionmaking authority.
113.
The primary challenges for integrated international instruments are those that arise
from this flexibility, which has enabled FAO to limit their budgeted funds and staffing at
times.69 In addition, some concerns expressed by interviewees and in a recent regional
conference regarding Codex participation and related issues have been generally linked to a
need for more formalized rules of procedure and other structures.
114.
Finally, in country visits, it appeared that a number of FAO’s soft-law instruments
integrated within FAO departments in some focus areas, were unknown to the overwhelming
majority of national interviewees functioning in that subject area, including those who have
served as national delegates at international meetings in that field.70 This suggests that, in
some cases, integration of a non-binding instrument into existing units of FAO with preexisting functions and mandates may minimize its distribution and development/use, because
of the level of pre-existing demand on those units.
c. Separate or decentralized staff and location
115.
After Codex and IPPC standards, the next largest category of FAO’s international
instruments is that for which FAO serves as “depository” only71 (i.e. not host or other direct
or statutory relationship). Of FAO’s 42 binding international instruments, 19 (45%) fall into
this category.
116.
The duties of a convention depository include several diplomatic functions, which are
somewhat technical and complex. They include validating national membership (signature,
ratification, adherence, reservation, etc.) maintaining the official record of these matters,
69
See, e.g. IPPC Evaluation ¶¶ 169-183.
Although most interviewees in country visits recognized the importance of the GPA-PGR, when questioned
about the CCPGC, GPA-PGR and GPA-AnGR, few national officials interviewed on PGR issues could provide
even general information about its contents. The majority gave one of three responses (1) a claim of no knowledge
concerning the instrument; (2) a statement that the instrument had not provided information that the country could
use, or (3) a descriptive statement about the instrument which was substantially misinformed. None indicated that
they had used or planned to use or apply it. In the surveys, by contrast, around 55 percent of national focal points
or primary contacts for the ITPGRFA reported a fairly high level of GPA implementation.
71
In a few instruments, FAO’s role is less that that of depository, even where it sponsored or otherwise supported
the negotiations. These are primarily regional instruments in which one of the member countries is designated as
depository, or in the Rotterdam Convention, where the UN serves as depository, rather than selecting either of the
joint-implementing intergovernmental bodies.
70
32
providing notifications as relevant, and ensuring that formal requirements that allow countries
to continue to hold the rights of a contracting party are met on an ongoing basis.
117.
Beyond these duties, FAO’s relationship with “depository only” international
instruments is dictated entirely by the instrument, its governing body and FAO. Some such
instruments appear to operate relatively independently of FAO,72 while others (including
many of the fisheries instruments) call for the development and specification of the
instrument’s relationship with FAO in a separate agreement.
118.
For some international instruments and their staff and other proponents, however,
distance from FAO has been stated as an affirmative objective. At present, for example, the
GCDT is wrestling with the challenge of attaining legal personality that is fully separate from
FAO. The primary advantage underlying this effort was to remove its funds from FAO
administration, enabling more transparent and expeditious management and disbursement.73
119.
Several interviewees stated that donor agencies were sometimes unwilling to directly
fund ITPGRFA activities, while the treaty remained subject to FAO administration. This
statement was supported by numerous persons (most with no direct relationship with the
GCDT) who stated their belief that the GCDT’s success in raising funds was in part due to the
fact that it is separate from FAO and will not be subject to FAO administrative requirements
which tend to cause delays. Others, however, stated that their support for the treaty was given
because it was part of FAO – that their country would not have supported the ITPGRFA nor
be paying a voluntary contribution, if it were not within FAO. Finally, a larger number of
persons (including many of both types of statements described above) called on FAO to
increase the amount of funding it provides to the treaty, indicating their belief that FAO has a
responsibility to ensure that the treaty secretariat is able to comply with its primary
responsibilities under the treaty (setting up databases, and building or overseeing other
processes.)
120.
To conclude, in-depth analysis has not produced any clear determination regarding
the relationship between treaty sovereignty and FAO oversight, or enabled the team to
develop a unified rational perspective on this issue. FAO has no clear legal or policy
explanation which clarifies these matters. With regard to binding instruments, there is no
“one-size-fits-all” conclusion on the definition of the instruments' relationship with FAO and
issues of autonomy. Every instrument is different and has different needs.
121.
For FAO, the structure of its relationship to the governing bodies and secretariats of
binding international instruments will be best clarified at the time that a new binding
instrument is being created – the best time in the life of any instrument for the parties to
achieve consensus on major matters. For existing instruments, there is still the possibility of
achieving greater clarity on these matters, through addressing specific problems as they arise
72
The various Desert Locust Commissions, each created by formally binding instruments, have operated
autonomously in many respects, although reporting to the FAO Director-General, and contributing information to
an FAO maintained information service. FAO has been encouraged to take a much greater role, however, in
coordination of the instruments themselves, and in other matters. Towards a More Effective Response to Desert
Locusts and their Impacts on Food Security, Livelihoods and Poverty: Multilateral Evaluation of the 2003–05
Desert Locust Campaign 2006, FAO PBEE. “Coordination by itself is a daunting task when it comes to the Desert
Locust given the areas it covers and its spontaneity. An absolute reliance on central coordination is unrealistic for
the Desert Locust response. It is important to recognize that while the central coordination may work well for
communicating with the field representatives, there is a justified need for initiating coordination efforts at the
regional and national levels. FAO, regional organizations and national government efforts in organizing
country/regional coordinating committees is an instrument that needs to be strengthened as it is the first line of
communication with donors in areas where the actual problem can be described. ” ¶ 346.
73
The costs of such arrangements and the general costs of setting up endowment and trust funds on an
international scale suggest the need for in-depth analysis prior to commencement of serious efforts. The GCDT, for
example, is the culmination of a multi-year process advised by fundraising analysts and other specialists,
undertaken initially within FAO and IPGRI (Bioversity) Secretariats.
33
in a consistent way across all instruments. With regard to non-binding instruments, that
decision is not so critical, with many options available, given the variety in the types of nonbinding instruments created and the difference in the motivations that may underlie their
creation.) At a minimum, the choice of administrative structure, the specific commitments
made by FAO, and the specific rights of oversight it will have should be determined on the
basis of the particular needs of each instrument, recognizing a combination of cost and
efficiency factors. Ultimately, for FAO and for all instruments, the goal should be to
maximise FAO’s ability to support, use, circulate, promote and enable implementation of any
international instrument that it expends the time and resources to develop.
RECOMMENDATION 4.2:
a. Future Strategy: Cost and oversight factors suggest that integration of instrument
operations within FAO departments or as FAO units should be preferred where possible,
and where the nature of the specific rights and duties of the instrument and FAO can be
delineated by agreement. New instruments should seek to be completely or primarily
separate (autonomous) only where that decision has been rigorously analysed and
justified.
b. Future Strategy: In any new, renegotiated or amended binding instrument, specific
language should be included to clarify the precise nature of the FAO-instrument linkage
and expectations. Such a provision will help in clarifying each situation, avoiding
potential future difficulties, and respecting the rights of sovereign parties.
c. For existing binding and certain non-binding instruments, resolution of autonomy issues
should occur as an affirmative process, where either FAO or an international instrument
is experiencing problems or challenges.
3. Creation of International and Regional Mechanisms for
Compliance, Liability and Dispute Resolution
122.
In recent years, practice throughout the natural resource sectors has increasingly
focused on the development of tools to promote national compliance with commitments made
in international instruments, and the mobilization of funds and expertise to assist in their
implementation. At the level of international instrument operation, attempts to develop two
other key legal tools have gained prominent attention:
o broadly accepted principles of liability and redress, in cases where violations or
activities in one country or outside of national jurisdiction cause harm or damage in
another or to shared resources and the global commons; and
o (receiving less attention) mechanisms to enable the peaceful and final resolution of
disputes among countries related to their international commitments.74
123.
Discussions regarding the need for formal “compliance mechanisms” are currently on
the agenda of many of FAO ‘s international instruments and bodies and at both regional and
global levels.75 At the global level, there is great variation in these discussions regarding who
74
In this evaluation, no interviewees made statements regarding dispute settlement mechanisms in the FAO
instruments. The 2007 evaluation of the IPPC noted the existence of a dispute settlement mechanism under the
instrument, which has not been used and suggested that its use should be encouraged. Comparison to other natural
resource-related international instruments indicates that disuse is not unusual – relatively few disputes arise among
countries over whether one country is complying with its commitments regarding natural resources and
environment. Like other natural resource instruments, the reason that the IPPC’s dispute settlement mechanism has
not been used so far is that it has not yet been needed.
75
See, e.g. IPPC, Report of (I) CPM-2, Appendix 17, Terms of Reference for a working Group on Compliance,
whose mandate includes the call to “Explore the possibilities of such a potential compliance mechanism under the
IPPC.”
34
may initiate claims of non-compliance and what actions that may be taken in response to
enable increased compliance.76 Most compliance mechanisms follow a relatively similar
pattern of creating a “compliance committee” mandated generally “to address issues of noncompliance”. It does this normally by providing advice and assistance to countries facing
compliance difficulties and in some cases by calling for or conducting regular monitoring.
124.
Within the focus areas, compliance-related development has occurred primarily at the
regional level, particularly with regard to fisheries. For example, there have been notable
developments regarding the promotion of compliance in several RFBs. Here, compliance
activities combine promoting Monitoring, Control and Surveillance of Fisheries (MCS) by
member states with adopting unified practices and databases for enforcement of harmonized
legal requirements throughout the regional waters.77 This work is legally facilitated under a
provision of the UNFSA that authorizes RFBs to create mechanisms by which the body or its
member states may take direct action relevant to individual vessels of parties to the UNFSA,
whether or not they are members of the RFB. Such measures can include mandatory
compliance with a Vessel Monitoring System (VMS), registration of vessels which have
obtained requisite authorization to fish in the waters within the scope of the RFB’s authority
and “blacklisting” of those caught fishing without a license, in addition to maintaining catch
records and other relevant databases.78
125.
Conceptually these possibilities received nearly universal positive comments in
country visits. However, many noted that the realities of practice in developing countries limit
the feasibility and capacity to implement them. Greater attention has been directed to the
development of sub-regional collaboration on MCS and especially on support to and
regulation of artisanal fisheries.
126.
This underscores again that the greatest value obtained through international
instruments on natural resources arises through secondary processes, developing those policy
agreements into practical applications for regions and individual countries. Recently, one peer
organization – the IMO – has recognized the value of secondary processes in a rather unique
way. It has declared its auto-evaluation process, the Voluntary IMO Member State Audit
Scheme,79 to be a global scale compliance process.
(https://www.ippc.int/servlet/BinaryDownloaderServlet/184215_CPM_2_report.pdf?filename=1179929463410_C
PM_2_report.pdf&refID=184215.) In this evaluation, apart from advisors (lawyer/consultants) and statements in
the IPPC evaluation, the issue of compliance mechanisms has generally been dismissed by all interviewees, with
little or no comment. The exception was in the PGR area where the issue is, not unexpectedly, a source of
controversy, given the early stage of implementation of the ITPGRFA, and the fact that it calls for specific kinds of
benefit-sharing and other assistance from, inter alia, developed countries and the private sector. A few interviewees
from among the permanent representatives of developed countries and in country visits to developing countries
indicated their belief that the creation of strong and effective compliance mechanisms should be accorded high
priority. The two groups of respondents appeared to have different types of compliance in mind. Developed
countries focused on technical and trade matters, while developing countries made these statements in the context
of commitments to benefit-sharing and social assistance. Within negotiations and formal discussions of compliance
issues, many delegates expressed scepticism about the real-world functionality of internationally adopted
“compliance measures”; and still others indicated only a willingness to consider “voluntary compliance.”
76
A comparative analysis of these efforts, written by an individual who currently chairs the Compliance
Committees of two global instruments, is found in Koester, V., 2007.
77
See, e.g., UNEP MAP’s 2008 adoption of “Procedures and Mechanisms on Compliance” and establishment of a
Compliance Committee; SEAFO’s 2007 establishment of a list of Authorised Fishing Vessels and creation of a
compliance committee; and, efforts in the IOTC to establish a Compliance Committee and, in conjunction with the IOC
to review/harmonise fisheries legislation throughout the region.
78
Lodge, et al. 2007, in particular on the special legal challenges of granting non-member states the status of
cooperating entity, while avoiding or minimizing “free rider” problems.
79
Established under IMO Assembly Resolution A.946(23) of December 2003; and see IMO Assembly
Resolutions A.974(24), Framework and Procedures for the Voluntary IMO Member State Audit Scheme,
A.973(24) Code for the Implementation of Mandatory IMO Instruments, and A.975(24) Future development of the
Voluntary IMO Member State Audit Scheme of December 2005.
35
127.
While many international instruments addressing natural resources and similar
matters are developing formal compliance committees, the use of and experience with such
committees has been relatively limited up to now, and the body of information about their
value has been minimal. Practical compliance mechanisms being developed at the regional
level, on the other hand, offer some significant hope of mobilizing direct support to address
particular compliance problems. Besides those described for fisheries, a variety of different
approaches have been suggested, but in particular enhanced collaborative compliance
mechanisms to enable and encourage more complete implementation of instruments. Within
the focus areas of this evaluation (especially in PGR and RTF discussions), the main interest
focused on the application of compliance mechanisms at national level (courts and agencies).
128.
In sum then, the greatest and priority demand for assistance to enhance compliance
seems to be at national and/or regional levels, rather than through legal tools in the instrument
operations at international/global level. These types of assistance are discussed in Sections
IV.D.2 and 3 below.
RECOMMENDATION 4.3 Immediate Action: FAO’s international instruments should hold
off expending scarce resources to develop formal, legal compliance and liability mechanisms
and/or to increase the profile of their dispute settlement mechanisms, until there are clearer
indications of (i) success in the use and application of these mechanisms in other international
instruments and (ii) demand for such mechanisms within FAO. At that point, it may be
possible for FAO to develop organization-wide mechanisms, and give the particular
instruments the right to adopt or not adopt them.
B. Entry into force – National Ratification and Accession
129.
The transition of an international instrument from “proposed” or “adopted” status to a
“document in force” is a major watershed date in the instrument’s life. In practice, although
participation80 statistics are not a reliable indicator of the ultimate relevance or effectiveness
of the instrument, they do serve as a useful barometer of the basic question – whether an
international instrument appears likely to enter into force.
130.
In nearly all situations, international instruments are, at most, an “interim outcome”
between the original objective and final outcomes and impacts. In order for an international
instrument to achieve its objectives and desired outcome, it is essential that countries only
take the final step of ratification or accession when they are committed and able to implement
it. National processes for ratification and accession are generally quite slow, in part as a
means of preventing overhasty accession, and situations in which countries cannot implement
it or are not politically ready to do so. In the course of this evaluation, for example,
interviewees in approximately half of the countries visited identified particular issues or
problems of implementation that were preventing or delaying their accession to key hard-law
instruments in the focus areas. In other words, if the country is not confident that it can
implement an international instrument, it may not be willing to ratify it, and take on
implementation obligations.
131.
These factors make it difficult to use raw participation data as an indicator relating to
the evaluation of any or all international instruments. Within the limits of their objective and
mandate, however, instruments should and do realise that national participation (ratification)
is important in terms of the instrument’s probable ability to reach and influence action in its
target area or group (region, legal system, language group, political or social objective, or
80
The term "participation" is used here to cover the various ways that states may take part in an
instrument’s operations.
36
problem.) Moreover, widespread success in encouraging national ratification can be a useful
promotional tool when seeking additional participants and voluntary funding.
132.
Annex 8 shows basic information of national participation (signature and ratification)
in 21 global hard-law81 instruments and bodies examined within the six focus areas and
crosscutting issues (gender, climate change and trade). It demonstrates a relatively high level
of “national participation” (countries becoming parties) in FAO instruments and processes
and other key instruments. It also demonstrates some advantage of certain types of processes,
which focus on establishing international expert bodies (CGIAR, GCDT, etc.). Direct formal
signature and/or ratification processes are not necessary for these.
133.
Individual decision-makers in more than half of the countries visited, indicated a
particular problem with the process by which an instrument’s “final text” is adopted, which
may have a long-term impact on national participation, as follows: normally, adoption comes
as the last step in a negotiating meeting. This creates a difficulty for developing-country
negotiators some of whom are already struggling to digest each day’s changes and to
participate actively in the debate on them. As a consequence, the implications of the final
version of a new international instrument, as seen from the country’s perspective, are assessed
at a much later stage – after finalization of the instrument – by which time, the country’s
concerns can no longer be addressed by re-drafting. The country’s options have telescoped
down to, in essence, “take it or leave it.”82 In some cases, this may prevent the country from
ever ratifying an instrument, which it would otherwise support.83
134.
In a number of instances, countries in which institutional, political or other obstacles
are preventing full accession to an international instrument normally are given status to
participate in the instrument’s meetings as “associate” members or “observers.” This status
may be a viable option for many non-party states. For example, “non-party participant status”
in RFBs enables a country to participate in meetings, receive allocations, and be exempt from
measures otherwise imposed on vessels carrying flags of countries that are not parties (as a
means of deterring IUU fishing), but not to vote or to be formally bound by provisions of
RFB’s instruments.
135.
The nature of the instrument’s objectives and legal orientation may have a very
significant impact on national participation. Particularly in FAO’s core areas, an increasing
percentage of international regulatory action is aimed at addressing issues and needs which
are highly controversial, with some countries refusing to acknowledge the existence of a
particular problem while others give highest priority to solving it. Many proposals that are
viewed by some as essential to the planet’s future are perceived by others to require too high a
level of action and change. In cases such as the Right to Food, the ultimate result has been a
decision to step away from ‘hard-law’ proposals, creating instead soft law instruments and
supporting them with high levels of effort and promotion. This choice empowers countries to
take a step-wise approach to achieving RTF objectives. In other situations, however, countries
that support key proposals or requirements feel that it is important to band together with
others of similar mind, hoping perhaps that their experience and commitment will encourage
other countries to join the instrument in future. Within the focus areas, there are several
examples of such instruments, including the Cartagena Protocol, UNFSA, FAO Compliance
Agreement, and the Optional Protocol to CEDAW.
81
National participation in soft-law instruments is difficult to assess, given that most of these instruments do not
require or collect national endorsements.
82
In most, but not all, instruments the country may have the ability to lodge a “reservation” at the time that they
ratify the instrument.
83
This problem also arises in other deliberations and meetings relevant to international instruments. See ¶140,
below.
37
136.
According to expert analysis commissioned by this evaluation and supported by
interviews, the question of participation can take on a gloomier aspect in three of the focus
areas (PGR, Codex and Marine Fisheries). At both regional and global levels, instruments
face the “free rider” situation in which countries may choose not to participate in the
instrument, but will still gain the benefits of it. One of the strongest examples of this occurs in
marine fisheries, where RFBs are designed to link all members in a programme to improve
the sustainability of marine resources through, inter alia, control of access to the fishery, the
reduction of off-take to sustainable levels, and the establishment of explicit and detailed user
rights and obligations. The resulting improved conditions may be greater for a non-participant
country (not complying with the restrictions) than for the participants.
137.
Programmes and approaches to address this problem are being developed. The
UNFSA essentially makes it a duty of all its parties to become members of relevant RFBs.
This links them with requirements such as vessel registry, monitoring and catch reporting. In
application, this process creates an even stronger incentive for cooperation. According to one
team member’s research, in most cases, fishing vessels of non-member flags found within an
RFMO regulatory area are presumed to be engaged in IUU fishing. Non- members cannot be
assumed to be conducting fishing in accordance with the RFMO conservation and
management measures if they have not expressly committed to compliance. This approach
may prove instructive to other sectors.
138.
Promoting participation should remain of primary concern. In addition to sovereignty
considerations, the substantive and normative value of instruments is reaped only by
encouraging national participation.
RECOMMENDATION 4.4
a. Future Strategy: With regard to promotion of national participation, FAO’s Members and
Secretariat should focus on actions aimed at enabling countries to feel confident of their
ability to participate effectively, by increasing awareness at the political level of the
instrument’s value, removing barriers of capacity (see later recommendations) or relaxing
the interpretation of politically charged language, and, where technical compliance is at
issue, building a step-wise approach to compliance.
b. Future Strategy: FAO should not utilize international instruments as a tool for addressing
current emergencies or other urgent situations, except when necessitated by special
circumstances. Where there is sufficient consensus, however, international instruments can
create mechanisms now to enable prompt action in particular future situations of urgency.
C. Operation and Amendment
139.
The fair and effective operation of international instruments at national level is a
critical factor in determining whether FAO’s creation of and activities involving them are
perceived by FAO members and others to be “useful… in relation to FAO’s objectives and
members.”
140.
The evaluation team focused on five operational aspects, which are generally
common among relevant bodies studied in this evaluation:
(i)
the main interface between instruments and parties– national focal points and
delegates;
(ii)
decision processes and the manner in which instruments adjust to change (i.e.
flexibility);
(iii)
the technical expert bodies and the manner in which they operate in conjunction
with international instruments;
38
(iv)
(v)
the special concerns in the operation of standard-setting bodies and FAO’s
involvement in the creation of particular international standards; and
reporting and information-sharing.
1. Focal Points and National Delegates
141.
One of the most consistent findings throughout country visits was the fact that
national delegates to and national focal points of international instruments lack one essential
type of capacity to enable them to do their job – sufficient time. With the exception of
national Codex focal points in four countries,84 every national focal point interviewed during
the country visits indicated that he or she was able to allocate less than 20 percent of available
work time to focal point responsibilities. Within this limit, the focal points are responsible for,
inter alia:
o maintaining awareness of developments in their assigned instrument;
o responding to inquiries from the instrument secretariat and from others on the
country’s implementation and situation relative to their assigned instrument;
o informing national legislative bodies regarding the commitments made and other
actions required or recommended vis-à-vis their assigned instrument, including the
impact of such actions on national law, practice, policy and other matters;
o reviewing national legislative and regulatory decisions potentially affecting or
conflicting with implementation of their assigned instrument and liaising to avoid
unintentional conflicts and to help resolve or address those which seem unavoidable;
o liaising with focal points of other relevant or potentially relevant instruments to
maximize implementation synergies and avoid conflicts or ambiguities;
o reading, digesting and gaining necessary technical advice regarding the documents
prepared and circulated in advance of each meeting relevant to their assigned
instrument
o obtaining policy and other input from all affected governmental and private sectors
into preparation of positions and instructions for national delegations; and
o informing other ministries, departments and stakeholders of the developments,
actions, decisions and requirements of their assigned instrument.
142.
Similar requirements are imposed on national delegates to governing bodies and other
instrument-related meetings, with emphasis on the last three points. This was generally
reckoned to require more work than could be reasonably undertaken, given that this task was
an “add on” to an already-more-than-fulltime workload.
143.
In particular, the last two bullet points were recognized to be essential. Nearly all
focal points and delegates interviewed, as well as an overwhelming majority of survey
respondents indicated that they seek input from other sectors and ministries prior to the
meeting, and inform them of results following the meeting. During country visits, however, a
serious gap in this process was evident. Although most focal points and agencies claimed to
include other ministries in the various preparations for and responses to processes for which
they are responsible, very few had themselves been included in the processes of other
instruments or had any specific knowledge about relevant developments in those instruments.
In most cases, the preparations and post-meeting debriefing are attended overwhelmingly by
representatives of the focal-point ministry, with one or two persons from each other relevant
ministry. Those persons normally do not view themselves, and are not viewed as having any
specific responsibility to further disseminate that information.
84
Many of the national Codex Alimentarius authorities interviewed were in separate entities whose primary task
(or one of the primary tasks) was implementation of Codex Alimentarius and coordination of national participation
in Codex processes.
39
144.
The national focal points mechanism is a tool frequently used by binding international
instruments to promote coordination among member countries, integration of the instrument
into national processes and many other goals including information development and
dissemination, as well as interlinkage among sectors. There are indications that the focal point
concept can work well, where properly resourced. But the majority are burdened by a level of
obligations beyond what they are capable of, given their other duties. It is necessary to apply
some direct attention to clarifying the role of focal points and enabling them to meet their
responsibilities and to meet the objectives underlying the creation of the focal point concept.
145.
There are no simple solutions. Another approach – a national committee of experts
with responsibility for intra-national meeting preparation and information-sharing within their
home country – has not been functionally effective in many countries, though it has worked in
some.
RECOMMENDATION 4.5
For Future Strategy:
a. In assigning responsibilities to focal points and national intra-sessional activities, FAO’s
Conference, Members, and Instrument Governing Bodies should balance the additional
responsibility against the level of demand already imposed on individual focal points.
b. In designating national focal points, Members should recognize the level of demand
involved by such persons, including authorizing appropriate powers relevant to intranational preparation, integration and information-sharing processes, is essential to
converting any international instrument into a functional element within the international
policy and regulatory framework, and providing staffing appropriate for these tasks.
c. National implementation, delegate preparation and meeting report processes should be
designed as two-sided processes, requiring both sharing information among ministries and
each ministry’s willingness to disseminate, use and apply the information received from
other ministries and to consider how national commitments under other international
instruments can be integrated at national level in a way that is thorough and organic.
2. Decision-making and Flexibility
146.
Decision-making by each hard-law instrument’s governing body and/or secretariat is
the primary means by which the parties can enable and promote action to achieve the
instrument’s objectives. In general, these processes must balance concerns of sovereignty
against the need to get things done. Relevant provisions normally vary from instrument to
instrument, according to many factors. Key issues raised about decision-making processes
include:
(1)
the selection and transparency of the executive body and its operations;
(2)
the possibility that executive body choices might operate as pre-decisions of
the full governing body, leaving little practical ability for delegates to the
main governing body to take or consider alternate actions when adopting the
final decision on a given issue;
(3)
the assignment of various tasks (committee chairs and other positions);
(4)
the level of agreement (majority, super-majority or consensus85) is required
for the body to formally agree on decisions of various types;
(5)
the appointment and oversight of members of the executive council or bureau
of the instrument’s governing body area selected and overseen;
85
Several experts consulted in this evaluation indicated the belief that there is an overwhelming trend and practice
in this area favouring consensus in nearly all situations, although voting is still possible, where it is allowed under
rules of procedure. A number of conventions continue to be deadlocked on this procedural point, and are forced to
decide all non-financial matters by consensus, so long as the impasse continues. (See, e.g. CBD, Rules of
Procedure, Rule 40.1, in which the relevant language has remained bracketed since 1992, and arises as the first
order of business in every COP.)
40
(6)
(7)
the setting of agendas (how and by whom); and
the division of authority between the governing body, executive council,
bureau and/or secretariat of each instrument.
The first two of these issues were each raised by at least 62 percent of Permanent
Representatives interviewed plus the interviewees in country visits who had experience in
international processes.86 The others were raised primarily by FAO staff and previous
evaluations of individual instruments.
147.
Another concern expressed by FAO staff members, especially those in instrument or
expert body secretariats, related to the extent to which decision-making rules and procedures
might limit a governing body’s ability to take prompt action in situations where delays can
make a critical difference. In the Fisheries focus area, for example, it was noted that nontimely (slow) decision-making processes can have serious and negative impacts on
sustainability of threatened populations. In particular, it was noted that lack of a resilient and
efficient decision-making process can compromise effectiveness in controlling severe overexploitation of target and non-target stocks.
148.
These concerns are most problematic in the context of formal adoption of instruments
and decisions, where challenges of language ability and expertise sometimes present serious
obstacles to many countries’ effective participation in decision-making. Documents provided
in advance of the meetings are rarely available in all UN languages within the specified
deadlines. A large number of delegates do not speak any UN language as a native or official
language in their country, placing them under an even greater burden with regard to meeting
preparation – a burden which intensifies during the meetings themselves.
149.
Many interviewees reported that they are unable to fully absorb and understand
decisions and other documents received due to the press of work. Even if language is not a
problem, such documents require attention and analysis from experts in specialities not
represented in the national delegation. For many delegates, full understanding of any decision
is only obtained after they have returned home and can read the documents in detail, consult
with experts and gain a clearer understanding of the meaning of the decision and especially of
its legal and practical impacts on their country. This may be one source of the complaints
expressed by other delegates (especially from developed countries) that “some issues seem to
be decided and then continue to come up”.
150.
o
o
o
o
Possible responses to these concerns include the development of:
rules for identifying particular decisions for which urgent action is needed;
processes for mediating deadlocks and negotiating conflicts that prevent timely
decision;
provisions enabling the adoption of “interim” decisions, resolutions or actions
(including expiration dates, if the interim decision is not promptly replaced by a
“final” decision);
creation of a standing body of experts in “peaceful dispute settlement”.87
151.
Formally, the need for flexibility in international instruments may ultimately lead to
amendment, revision and adoption of subsidiary instruments, to enable or empower the
instrument to better suit the parties’ needs in a changing world. The time needed to negotiate
and adopt such an amendment and for it to enter into force, however, may be long. During
86
It has been suggested that this is one of the main advantages for the GCDT, in becoming entirely separate from
FAO. Even before that separation, in reliance on that status, the GCDT has developed a streamlined governance
structure that is designed to: (i) maximize its international profile by selecting high-level public figures to serve on
its executive board; and (ii) increase the efficiency of its decision-making system by, inter alia, providing that all
board members are acting in their individual capacity.
87
As to this final suggestion, however, all who raised it also noted a specific need to insulate that body from
influences, including FAO’s influence, in order to maintain its credibility as an unbiased mediator.
41
that time, the status of the instrument may be unclear, as many countries remain bound only
by the original instrument, while others are bound by the amended version, etc. This situation
existed for several years during the two amendments to the IPPC. As one approach to the
elimination of these delays, IMO has developed a procedure of “tacit acceptance,” now
incorporated in most IMO conventions and protocols. Under this procedure, adopted
amendments enter into force on a certain date unless an agreed number of states parties object
within a specified time.
3. Technical support
152.
A hallmark of virtually all of FAO’s instruments is their focus on bringing the highest
level of available scientific and technical knowledge to bear in each area. Given FAO’s nearly
unchallenged reputation for technical expertise in its core areas, it is unsurprising that nearly
all international instruments within FAO’s penumbra obtain technical and scientific support
directly from or through FAO. Equally important, however, international instruments outside
FAO’s penumbra also rely on FAO and its bodies for technical and scientific input.
153.
FAO instruments usually provide for technical support from one of the following:
– a scientific body (consisting of scientists selected by members) created within the
instrument or body. This approach is common in many fisheries bodies (including
CCAMLR, GFCM, IOTC, NAFO and SEAFO), in the CGRFA (Intergovernmental
Technical Working Group on plant and animal genetic resources) and is found in other
instruments as well;
– a new or existing separate external support organization. Examples of this approach are
found in fisheries (various RFBs relying on the ICES to provide these services);
Climate Change (the UNFCCC’s relationship to the IPCC) and Conservation (the
UNESCO World Heritage Convention’s designation of ICCROM, ICOMOS and IUCN
as advisory bodies);
– its own secretariat;
– FAO staff or committees;
– a specially created body of international experts in the relevant areas. Some examples of
the bodies providing this type of expertise include JEMRA, JECFA and JMPR (Codex
Alimentarius); or
– expert workshops, working groups and panels mobilized and vetted by the secretariat.
154.
A perennial concern in these relationships is that of geographic distribution and/or
national and regional nominations. In developing country interviewees during country visits,
persons who indicated experience with specific international instrument processes
interviewed noted a very important capacity impact arising from the small and specialized
nature of these technical support bodies. Often the body may lack sufficient representation of
persons with knowledge of relevant conditions in developing countries, or may have limited
regional awareness. Many developing countries and regions have been unable to promote and
support their nationals’ participation in such meetings, in some cases because individuals with
sufficient qualifications are not willing or able to participate, and less qualified junior staff are
not allowed to participate.
155.
However, more than 90 percent of the interviewees (from country visits and
Permanent Representatives) with experience in meetings of international instruments stated
their belief that most actual debate relating to the decisions of an international instrument’s
governing body occurs in preliminary and technical meetings, with little or none occurring in
42
the formal meeting of the governing body. The works and representation of these technical
support bodies are thus essential to overall operation of the instruments.88
156.
The Codex Alimentarius evaluation further noted concern about the delays involved
in seeking technical advice from three Joint Committees, which have other mandates and
priorities, in addition to advising Codex.89 FAO secretariats for scientific bodies providing
expert advice to Codex have increased dialogue with relevant Codex bodies in an effort to
better match priority and streamline timing between Codex meetings and expert meetings and
maximize synergy.
4. Standards and standard-setting
157.
Standard-setting in light of its initial purpose – enabling and supporting actions to
improve national conditions (food safety, veterinary health, phytosanitary protection) while
promoting the eventual creation of homogenous standards for international movement of food
and agricultural commodities - is recognized to be a very important component of Strategic
Objective B-1. Recently, all three primary standard-setting instruments most relevant to
FAO’s work have become integrated into (and some claim taken over by) the WTO objectives
of promoting trade and eliminating national barriers to the importation of foreign goods.
158.
In this evaluation, this issue was analysed by considering the programmatic
evaluations of Codex Alimentarius and IPPC, coupled with inquiries regarding the animal
health focus area, supplemented in a few instances with information from country interviews.
These resources have provided an opportunity for consideration of:
(i)
the role and uses of ‘standards’ as international instruments;
(ii)
some general indications of effectiveness of standard-setting process in achieving
their objectives and expectations; and
(iii)
the lessons relevant to future uses or revisions of standard-setting processes.
159.
FAO is involved in all three of the primary food-related standard-setting systems (the
Codex Alimentarius Commission, the IPPC and the OIE), both as the entity supporting the
setting of the standards, and as one of the primary international bodies using the standards in
the development of normative guidance to every level of food production in developing
countries.
160.
Operational challenges for the standard-setting bodies differ. For Codex, the primary
challenges identified involve managing the sheer numbers of meetings, and the need to
maximize each country’s ability to participate (¶¶ 216-226.) For IPPC, the primary challenges
seem to arise from the technical level of the standards and the capacity needed for their
implementation, as well as challenges that still remain regarding the development and
implementation of a still relatively new global standard-setting system. Within the area of
animal health, challenges have heretofore been focused on developing and clarifying a
productive working relationship between the three key international bodies working in the
area (OIE, FAO and WHO). The three have recently agreed a “map” of each agency’s area of
coverage and respective responsibilities and nature of services they provide. The challenge
now focuses on implementing the agreement throughout all three institutions (that is, at
national and regional, as well as global, levels).
161.
All three standards bodies face serious challenges arising from their inclusion in the
WTO’s 1994 Agreement on the Application of Sanitary and Phytosanitary Measures (SPS
88
The proliferation, separate funding and attendance in these processes are sometimes cited as the primary
mechanism by which it is claimed that some (developed) countries exert primary influence over the agenda of
FAO and its instruments.
89
Codex Evaluation at ¶¶ 162-171.
43
Agreement), which specified that some of their standards shall be considered as ‘reference
standards’ by WTO Tribunals. The WTO’s recognition of Codex and IPPC was instantly seen
to have major impacts on FAO, and by some misinterpreted to create some change in the
“legal status” for the programme.90 In fact, however, the direct impact of this designation is
not the creation of a new status, but rather the agreement that WTO Tribunals will, in certain
circumstances, rely on Codex, IPPC and OIE standards in deciding claims relating to import
controls on foods, plants, animals and their products. Already WTO Tribunals have utilized
SPS-designated standards in approximately 22 cases. Codex has been applied as a reference
standard in five cases.
162.
But the designation of Codex, IPPC and OIE standards as SPS “reference standards”
has had a wider effect on their evolution. As a result of this designation, many changes have
been perceived in the standard-setting environment. An increased importance of trade
facilitation in the global goals of IPPC and Codex Alimentarius was particularly noted in the
recent evaluations of those instruments. Another consequence that has been suggested is that
it may be contributing to the perceived reduction in the extent to which Codex and IPPC
standards are legislatively adopted by members.
163.
The second major challenge relates to the adoption of higher standards by OECD
countries. Although these countries are generally members of the Codex Alimentarius
Commission, many persons interviewed in this evaluation claim that their adoption of
competing standards impairs the original Codex objective of facilitating international
movement of agricultural commodities, with primary negative impact on developing
countries. One possible approach to adapt to this challenge would be the development of new
international mechanisms (global or regional) to enable developing countries to select
relevant standards in their export programmes.
164.
A large number of parties to the IPPC are as yet unable to implement its
requirements. This suggests that it is, for the present, a “technology forcing” instrument. It
promotes continued improvement in countries that are currently almost completely unable to
apply IPPC standards or take other measures for the control of international movement of
plant pests and diseases, rather than primarily focused on unifying existing efforts.
165.
Among the FAO standard-setting bodies, the existing process for proposing new
standards was generally found to be satisfactory. But the time taken to adopt standards is
perceived as still presenting room for improvement, especially for Codex Alimentarius, which
was formerly criticised as being extremely slow.91 This criticism is best examined by
comparison. For example, the OIE, which is sometimes faced with urgent health problems
and epidemics, adopts nearly all standards within two years of proposal through a
combination of meetings and electronic/mail discussions. In order to do this, however, the
organization relies heavily on a continuous and very detailed review and revision process to
ensure that the standard keeps up on a year-by-year basis with evolving knowledge in
veterinary science. Other standard-setting bodies (such as ISO) are much more variable in
time. Like Codex Alimentarius, they may negotiate standards over a long process of face-toface meetings, but are normally able to rely on the resulting standard for a longer period of
time before it will come up for comprehensive review and possible revision.
90
For example, in the Codex Evaluation, it was noted that “Whereas in the past member governments of Codex
were under no obligation to use Codex standards for domestic consumer protection or health, since the WTO SPS
agreement of 1994, Codex has had legal status. While this does not require that all countries adopt all Codex
standards, they must be able to justify non-adoption according to strictly-defined criteria. Legal recognition of
Codex has given it greater relevance and importance, but has inevitably made compromise more difficult.” Codex
Alimentarius Evaluation at ¶ 21.
91
Codex Alimentarius Evaluation at ¶¶ 26, 43-44, 117 (calling for standards development work to be “timebound”) and 130-131. Codex has taken many steps to address these concerns; however, the perception continues at
the national level. This is probably (although unconfirmed) a function of “long memory,” since few were aware of
the process changes.
44
5. Reporting and Information
166.
Information is, in the eyes of many parties, a primary benefit of international
instruments, particularly in environmental, natural resource and trade sectors. Within FAO’s
core areas, a number of different types of information are essential or important. For example,
within the realm of plant protection, desert locust control, and animal health, the ability of
each country to know about specific conditions of concern constitutes a major objective of the
parties in creating the instrument.92 In the PGR area, information exchange programmes are
essential to enabling the utilization of PGR and ensuring that all countries and users have
equal access to those resources. Resource management instruments, including many of the
regional fisheries bodies, depend on the collection and utilization of detailed and credible
resource information.
167.
There are two information-related aspects of international instruments and their
operation: (i) the provision of information – an obligation of each member country; and
(ii) the integration and dissemination of that information – a task normally expected of either
the instrument’s secretariat or of FAO.
168.
The linkage between reporting and information access requirements is normally
rather clear. In many instruments, including the ITPGRFA, the Rotterdam Convention, many
of the regional fisheries bodies, desert locust commissions and other bodies, national
reporting constitutes a major or primary source of critically important data.
169.
National Reporting: Within natural resource conventions and instruments, it is
common to call on all member countries to provide data to the instrument’s secretariat in
answer to specific questions. Normally, the precise questions or at least the precise area of
inquiry is agreed either in the text of the instrument, by decision of the governing body or by
some other group to whom the instrument or governing body has delegated this task.
Frequency of reporting depends on the nature of the requirement – where reporting focuses on
the need to know of current conditions of concern (animal diseases, pests, etc.) reporting is
expected “as soon as possible.” Where the data is collected for other reasons (planning,
analysis, evaluation), however, it is normally required less than annually (i.e. a reporting
request may go out in such cases once every two to five years).
170.
In this evaluation, survey results in the fisheries and PGR sectors indicate that half of
the responding countries were unable or mostly unable to meet their reporting obligations.
Analysis of fisheries sector results indicates a clear division of these results, with high-income
countries generally able or fully able, while a majority of lower income groups list themselves
as unable or mostly unable to do so.93
171.
National reporting obligations are found not only in FAO and its instruments, but
across the range of the peer organizations examined, where similar results have been found
virtually across the board. In studies, these results indicate two bases for limited reporting
response from developing countries.94 In some cases, the countries report capacity problems
which limit the ability to obtain the requested data, while in others the problem is described as
one of excessive demand on particular agencies and focal points, as each individual
instrument’s reporting questionnaire may number dozens of pages, necessitating responses of
100-200 pages in length. A variety of international processes are ongoing seeking to unify
92
This type of information is discussed in the IPPC Evaluation at ¶¶ 83-107, and in the Desert Locust control
evaluation at ¶342, where it is identified as a “strong point” of the programme.
93
This analytical result accords with studies conducted more widely regarding international reporting requirements
and responses, discussed in the following footnotes.
94
Summarized at http://www.unep-wcmc.org/conventions/harmonization/index.htm.
45
reporting requirements across a range of instruments affecting a particular sector, 95 and
promoting other actions to maximize countries’ ability to meet those obligations.96.
172.
Information-sharing mechanisms: In the natural resource sectors, the sharing and
general access to reported information is extremely important. As noted, many instruments,
including the ITPGRFA, the Rotterdam convention, many of the regional fisheries bodies, the
desert locust commissions and other bodies, use national reports as a major or primary source
for some critical databases regarding natural conditions, government activities (permits issued
and other actions), market activity, and other critical data. In addition, many databases
contribute to taxonomic or other essential scientific baselines.
173.
Information-sharing may occur in a variety of ways. Among the FAO instruments,
the most common are: (i) through FAO information services (e.g. the Desert Locust Control
Information Service) which provide general data access directly on information issues
addressed in one or more instruments; or (ii) through databases created and/or maintained by
instrument secretariats. In addition, some critical databases from instruments outside the FAO
have proven useful to parties in implementing FAO instruments.
174.
In surveys (fisheries and PGR), while respondents overwhelmingly agreed that the
information that is made available through the reporting/information processes under the
ITPGRFA, UNCLOS, and UNFSA processes is or will be important,97 a much smaller
percentage indicated that they had sufficient capacity to participate in information sharing
through relevant databases.
175.
The fisheries focus area provides additional examples of the way that FAO has
promoted the instruments’ reporting and information-sharing objectives. FAO has proven to
be an important partner for countries and for regional fisheries bodies, through the Fisheries
Resources Monitoring System – an important tool that allows RFBs to share data and FAO to
compile status and trends on global monitoring and management of fishery marine resources;
and a forum for exchange of information with other RFBs created under FAO auspices and
outside – of particular relevance is the Regional Fisheries Body Secretariats Network. FAO's
role in organizing the network's biennial meeting is particularly appreciated. Similarly, in
PGR, database development and information access are critical components of the broader
objective of maximizing access to plant genetic resources as a global public good.
176.
Within many international negotiations, the human and financial costs of information
services are sometimes underestimated. The fact that capacity to use the internet remains
limited is sometimes ignored. Given the general recognition of the importance of these
services, however, it seems important that they be sufficiently resourced and recognized. This
finding is hardly new, having been expressed in the IPPC Evaluation (at ¶¶ 103-107 plus
Recommendation 2) and the Desert Locust evaluation (at Recommendation 53). Database
development is underway in the IPPC, many regional fisheries bodies and other instruments
and sectors as well. Within FAO and peer organizations, however, instrument secretariats are
facing increasing challenges regarding database development. While the use of electronic
databases minimizes many of the costs of information sharing, database development,
compilation and maintenance requires a substantial outlay of capital (human and financial)
95
Id. discussing the various worldwide initiatives addressing “Harmonization of National Reporting,” many of
which focus on forest resources, linking reporting processes under a large number of binding and non-binding
instruments.
96
Id. One of the few factors viewed as a guarantee to improve national reporting is a country’s receipt of project
funds earmarked for this purpose.
97
Over 60 percent of respondents to PGR questionnaires cited the existing databases relevant to genetic resources
(the CBD’s clearinghouse mechanism (CHM), and Cartagena Protocol’s biosafety clearinghouse (BCH)) as either
“important” or “very important.” Over 90 percent indicated that information from the existing PGR databases is
and that expected from the ITPGRFA will be useful.
46
and may be prevented where there has been a low level of national reporting as described
above.
RECOMMENDATION 4.6:
Immediate Action: Given the importance of information sharing, FAO, its Secretariat and
the FAO instruments should give high priority to:
a. assisting developing and least developed countries in meeting their reporting and other
information collection responsibilities under relevant international instruments;
b. providing resources and other support to building and operation of instrument-required
databases and other information-sharing mechanisms;
c. taking measures to assure that electronically accessible databases are made available (in
hard copies or CD-Rom) to agencies and other users of the data whose internet access is
limited.
D. National Implementation
177.
International instruments normally operate at two levels: (i) by creating international
institutions; and (ii) by national sovereign action (legislation, policy adoption, administrative
processes). Each instrument involves a different balance between these components. A large
number of the instruments examined in the horizontal component of this evaluation place
heavy emphasis on the first level, creating expert bodies, market collaborative systems and
other transnational institutions.98 The focus areas examined a number of instruments which
place primary emphasis on action at the national level, calling on member countries to adopt
legislation and impose controls.
178.
Among the focus areas, this evaluation examined, for example:
o instruments/processes that are long established and implemented at national level
(Codex Alimentarius, OIE);
o instruments where national implementation is active and progressing (Fisheries);
o some newer instruments in which national implementation efforts are still
evolving and addressing particular problems (IPPC and ITPGRFA); and
o one in which national implementation efforts are generally still in embryonic
stages (Voluntary Guidelines on the Right to Food.)
179.
FAO and its instruments have devoted significant resources to all aspects of
instrument implementation: (i) the promotion of national participation in international
instruments; (ii) the development and adoption of national legislative and administrative
measures required or recommended under the instrument; and (iii) enhancement of national
capacity to implement the instruments.
1. Benefit expected from each International Instrument
180.
In promoting international instruments, seeking to encourage countries to become
parties, one critical analysis is the benefits which the instrument offers to participating
countries. The question of “benefit” has been important in most focus areas, whether the
nature of such benefits is controversial or not. Specifically, the link between the needs of
members, and the benefits expected from the international instrument, considered overall,
may be a major factor both in promoting countries to participate in and implement
international instruments, and in determining national satisfaction with them.
181.
The interviews strongly indicate that the benefits expected and/or received for each
instrument align relatively well with the proposed benefits that each instrument expects to
98
See Table 1.
47
provide. These issues arise and are viewed differently in the fisheries focus area, where the
benefits are generally agreed, than in the PGR area, in which benefit-related issues in the PGR
area are often much higher profile.
182.
Benefits expected for the fisheries sector were assumed to be relatively similar to the
overall objectives of the instruments (improvement of fisheries management and the
concomitant benefit to all countries of sustained fish stocks.) In country visits, this
assumption was validated with an overwhelming recognition that international fisheries law
provides an essential benefit in promoting sustainability. The most direct essential national
implementation issues were not whether the instruments provide an overall benefit, but
whether the countries could implement the instruments sufficiently to contribute to and share
in that benefit. Satisfaction was highest among developed countries and the highest income
developing countries.
183.
In the PGR area, benefit-related issues often have a much higher profile. The surveys
and interviews demonstrate a significant split between developing and developed countries
regarding the kinds of benefit expected. Those differences were not noted in the country visits
and surveys, which demonstrated a high level of consensus among ITPGRFA focal points and
primary agencies about the nature of benefits. More than 75 percent of in-country
interviewees who had any direct involvement in PGR issues, and 65 percent of those surveyed
in the PGR focus area, agreed that benefits will be primarily non-financial99. The primary
divergence in opinion relating to benefit relates to the possibility of other benefit. As
documented by the surveys, the national expectation of direct financial benefit has not
disappeared. Over 70 percent of PGR survey respondents from developing countries
indicating that they expect or are hoping for some monetary benefits to come to them as a
result of the instrument. None of these respondents and few interviewees, however, identified
financial as the only benefit expected.
184.
In other areas, the benefits of FAO’s international instruments and the benefits
provided by FAO were largely perceived to be interlinked. In interviews, national delegates,
officials and representatives identified participation in FAO committees, access to FAO’s
experts and expertise, and the ability to create and be part of organization-wide consensus as
important benefits of participation in the international instruments and in FAO.
185.
Among developed countries, the creation of internationally agreed concepts and their
broad global adoption and implementation was recognized as having commercial and other
value for developed countries and promoting other long-term objectives. The fisheries focus
area may be a useful example: the IPOAs are tools to encourage an internationally accepted
standard of fisheries management100. As such, it is hoped and expected that their greatest
impact will generally extend beyond national catches and the countries’ marine ecosystems,
hopefully resulting in “global sustainability”—a benefit which, if it is promoted, will be felt
by all. Surveys indicate high levels of IPOA implementation at national level. (Table 6).
Table 6: Percentage of respondents currently working to implement the International
Plans of Action
IPOA IUU
IPOA Sharks
IPOA Capacity
IPOA Seabirds
87.5%
64%
57%
43%
99
For example in increased availability, conservation and use of plant genetic resources and progress in
on-farm conservation and farmers’ rights.
100
The IPOAs are voluntary instruments, designed to reflect an international consensus among FAO Members on
the implementation of specific measures of the CCRF which guide countries in adopting their National Plans of
Action for the management of their fisheries and marine ecosystems.
48
186.
The knowledge that an instrument creates a benefit to the entire planet or region
sometimes gives rise to the phenomenon of “free riders,” who do not accept the duties or
agree to the limitations of the instrument, but experience its benefits (see Section IV.B above
on ways this is being addressed in the fisheries sector).
2.
Support to National Institutional and Legislative Action
187.
As noted, many international instruments within the focus areas depend on national
legislative and administrative action by the parties. FAO Corporate Strategic Objective B-2
complements Strategic Objective B-1 in calling on FAO to promote “National policies, legal
instruments and supporting mechanisms that respond to domestic requirements and are
consistent with the international policy and regulatory framework”. This element of Strategic
Objective B-2 was specifically included in the TORs of this evaluation.
188.
Legislative assistance, however, is a kind of crosscutting service placing demands on
crosscutting FAO departments, such as Legal, to distribute services very widely around the
globe, sometimes creating deceptive perceptions – either that only a limited amount of work
is being done or that FAO-provided services are unable to go deeply into any issue or
activity.101 The greatest volume of FAO’s legislative assistance, provided between 2004 and
2007 was in the composite area of “biosecurity,” followed by forestry, agrarian reform and
land, fisheries, water and trade. In FAO departmental reports, this work was linked to
implementation of international instruments “where relevant,” making particular reference to
the International Code of Conduct on the Distribution and Use of pesticides, the IPPC, Codex
Alimentarius, the Cartagena Protocol on Biosafety and UNCLOS.
189.
Through country visits and surveys, the evaluation team was able to identify critical
issues and areas relevant to national capacity to implement international instruments at the
levels of policy, legislation and institutional development. This inquiry focused on four areas
– Fisheries, ITPGRFA, Codex Alimentarius and Right to Food – which presented a relatively
broad range of results and experiences. Findings indicate that legislative and institutional
capacity constitutes continuous needs. In an international instrument’s initial phase, such
assistance is needed for the development of relevant implementation systems and their
integration with pre-existing national law. Later on, they are needed for continuously
upgrading that law as national capacity improves, as new approaches and understandings are
developed internationally and generally to take advantage of the growing body of information
regarding best practices in implementation of the relevant commitments and objectives.
190.
Comparing information received from interviewees, permanent representative and
FAO staff during this evaluation, across a range of countries, it appears that national
implementation is generally strongest in countries that have taken a coordinated, strategic
approach to legislative development, which includes review of all potentially relevant or
affected existing legislation followed by the adoption of a new law or general revision of the
entire framework. This option is becoming increasingly difficult for countries in light of the
high levels of demand imposed by the rapidly increasing number of new international
instruments and the increasingly high technical level of input necessary to the adoption of
implementing legislation. While technical support has generally been appreciated, most
persons dealing with legislative issues in countries visited placed at least an equal value on
their need for guidance on how to integrate these proliferating requirements and
commitments.
191.
In several countries, the demand for implementing legislation has been met by a
quicker option – simply to adopt a new “National Law number XX on [International
Instrument] Implementation.” Ultimately, although getting something on the books quickly,
101
See ¶ 199, below. Other facets of this issue are discussed in the IEE, ¶¶ 328-354, 424-5, et passim.
49
this approach normally yields only “paper” – that is, a law that is not implemented in any
effective way, whether because it conflicts (was not integrated and harmonized) with other
national legislation and instruments, or because institutional and other needs are not funded or
clearly authorized.
192.
Information on PGR legislation has generally been unavailable, as few countries have
adopted ITPGRFA-implementing laws and none of the countries visited have implemented or
applied any legal measures, policies or standard administrative practices in this area.102
193.
The CCRF provides information directed at integrating all or most international
requirements and providing information about how they can be practically applied in the
development of national legislation.
194.
Other focus areas also face implementation challenges. While the primary
organizational requirements of Codex Alimentarius and IPPC (national agencies and
committees) were found to be generally well implemented institutionally,103 the standards
themselves are more difficult for many countries. Among the countries visited, all indicated
that only a portion of the Codex standards are formally adopted as legislation or regulation
within the country, although most indicated that 80-95 percent of Codex adopted standards
are at minimum used as an advisory tool for national inspectors and producers.104
195.
Many international instruments require or recommend that the development of
national legislative processes should include input and participation of various stakeholders
(industrial groups, commercial participants, indigenous groups, artisanal fishermen, rural
communities, and subsistence farmers). Although identified as an immediate legislative need
in most of the countries visited, none of the agencies or units visited had yet received
assistance with this task.
196.
Although not specifically referenced in any of the FAO instruments, the FAO legal
office has produced a database of relevant international instruments as well as legislative
measures adopted by many countries, known as FAOLEX, and has joined forces with UNEP
and IUCN in a related effort known as ECOLEX105, both available within the Organization
and as publicly accessible databases. These databases, can offer important value to parties.
Countries seeking to regulate or to integrate their national practices with the international
framework of regulation often need to know how other governments are interpreting and
applying that framework, as a tool to assist their work. Commercial entities use such data to
102
These problems were most frequently noted where national implementation of various related instruments is
undertaken through multiple different lead agencies (i.e. the agricultural ministry as national lead or focal point for
ITPGRFA, industry ministry for the Cartagena Protocol, environment ministry for the CBD, commerce or
industrial ministry for instruments under WIPO, etc.) More than half the countries responding to survey or
interviewed noted serious difficulties and inconsistencies of approach with regard to implementation of PGRrelated international instruments. Given that the treaty is quite new, countries have not yet benefited from its
secretariat’s efforts to resolve these issues.
103
Most developing countries seem to have relied on substantial guidance provided by the Codex Alimentarius
Secretariat regarding how to build the necessary legislative and institutional base for participation in the Codex
Alimentarius bodies and structures, and for consideration and use of standards that are developed. Similarly, but
less universally, as reported in the IPPC evaluation, the IPPC regional and national committee structures are
generally well received and implemented.
104
Half of the countries visited stated that they adopted or apply at least half of the Codex Standards.
105
The relationship between FAOLEX and ECOLEX is far from precise, but generally is explained as follows:
ECOLEX includes legislation, treaties, literature and court decisions. Not all elements are as yet fully developed. It
contains all information in FAOLEX. FAOLEX focuses on national legislation, including that in ECOLEX, and
continues to be offered to users as a separate fully developed service, whose sectoral coverage is different, and
which continues to develop. The websites of the two databases are http://www.ecolex.org; and
http://faolex.fao.org/faolex/ .
50
help understand what rules apply to products crossing national borders, and to develop system
wide approaches to those activities.106
197.
Tracking legislative information, however, is a difficult and multifaceted task. Within
the FAO instruments, information on national implementation is scarce. The FAOLEX and
ECOLEX databases each provide single-source online access to a large body of national
legislative documents. Both are, however, (and will continue for some time) plagued by
questions about the extent to which their databases are completely up-to-date, concerns which
are unavoidable, given the difficulty of monitoring and extracting data from the legislative
process of over 190 countries and their sub-national divisions, with limited staff.
198.
In addition, these lawyer-oriented databases may not be fully usable by non-lawyers,
including national focal points working with legislative and policy issues. For many, the path
through numerous laws to understand the specific national meaning or application of a
particular concept in a specific country can be an insurmountable obstacle to using the
database effectively. For this reason, some non-FAO instruments make a practice of obtaining
relevant legislative information from ECOLEX, and then digesting it in their own database in
ways that make it more palatable to national focal points and other non-lawyers.107
RECOMMENDATION 4.7:
a. Immediate Action: FAO should be cognizant of the multiple and sometimes conflicting
demands imposed on countries as a result of the proliferation of international instruments.
Where international instrument implementation is needed, legislative and
administrative/institutional assistance should focus on developing tools to help national
legislators and administrators implement multiple obligations effectively.
b. Immediate Action: FAO should continue to strongly support national implementation of
FAO instruments and give priority to capacity-building for the development of solutions to
technical concerns that obstruct or delay national implementation.
c. Immediate Action: Relevant units, and FAO instruments should develop and make
available information on national and regional legislation and policies adopted or proposed
as full or partial implementation of their obligations (or soft law objectives) under the
instrument. In this work, it is important, not to duplicate work already being done through
FAOLEX, and to ensure that both FAOLEX and the instrument’s databases are equally upto-date. If sufficient resources can be found, special sub-databases of FAOLEX could be
programmed and refined to provide national implementation data in form accessible to
national and international non-lawyers (including for example, identifying particular
clauses in the instruments of general or related sectors, and might be missed or omitted).
3. Capacity to Implement and Apply the Instrument
199.
Ultimately, ratification of an international instrument and adoption of the legislation it
requires are only preliminary (but essential) steps toward achievement of the instrument’s
objectives. Actual achievement depends on on-the-ground implementation of the instrument’s
requirements. Plant protection, for example, is only served where national agencies and
stakeholders actually implement the measures set out in the IPPC; and regional fishery
management is attained by action in compliance with regional agreements. This evaluation
was not able to undertake a detailed analysis specific implementation of any particular
106
Basic information such as the contact and focal points at national and international levels are generally well
provided and up-to-date, although newer instruments (such as the ITPGRFA) normally face a delay in providing
this information, while their respective governments debate and then formally authorise focal point assignments.
Currently, the ITPGRFA website includes the names and contact information of 57 national focal points, compared
with 116 parties.
107
The CBD legislative databases (ABS measures and Biosafety) both harvest data from ECOLEX.
51
instrument or group of instruments,108 but has gathered some information regarding of
compliance (that is the parties’ adoption of instrument-required measures and the extent to
which their agencies and private sector are complying with those measures.) It has discerned
many limitations inhibiting developing countries’ ability to implement instruments in the
focus areas.
200.
For example, within the fisheries sector, most capacity and implementation problems
revolve around enforcement and compliance at the level of individual vessels and fishermen.
Enforcement is a near universal problem, more affected by limitations in human/financial
resources than by legal or political issues.109 Relevant fisheries instruments have been
specifically designed to raise regulatory standards in all countries, but capacity remains the
main restraint on achievement of their objectives. One example is the use of VMS110 linked to
vessel licensing systems, which presents special problems when applied in developing
countries, particularly in connection with artisanal fishing.111 Virtually all coastal countries
visited indicated some level of progress toward VMS systems, but need help to address
specific challenges.
201.
Another example relates to the Codex Alimentarius. Across the range of countries
visited, Codex Alimentarius was specifically seen to be facing a growing capacity-related
problem as a result of the role of food standards. Lower and low-middle level countries
visited report that many standards are applied primarily to goods for export. This means that,
in those countries, the food-safety benefits of Codex Alimentarius are not experienced by
resident populations. In addition, the ability of rural and individual farmers to meet Codex
export standards often depends on the export price paid for the commodity, leaving many
locally consumed products unprotected. Capacity building is sometimes directed only at
larger corporate farms, minimizing the ‘trickle down’ of benefits from participating in Codex.
To some extent, the work of FAO in animal health and in food safety demonstrates the
manner in which such standards can benefit a wider population. Its work in developing
guidance documents and other assistance is built on the basis of formal standards set by OIE,
Codex Alimentarius and ISO coupled with the desire to comply with these standards in
producing food for domestic consumption, as well as in enabling farmers to enter
international markets.
202.
In the IPPC, by contrast, although countries commit, inter alia, to the adoption of
measures control the movement of plant pests and diseases, the country visits encountered
little implementation of those measures. In terms of implementation, the IPPC resembles a
technology-forcing instrument, – all of IPPC interviewees in countries visited admitted to
serious problems in attempting to implement the Convention’s border control and other
monitoring requirements.112
108
An example of the level of effort and the issues that must be addressed in such an evaluation is found in the
Evaluation of the FAO-related programmes for the control of Desert Locusts. Towards a More Effective Response
to Desert Locusts and their Impacts on Food Security, Livelihoods and Poverty: Multilateral Evaluation of the
2003–05 Desert Locust Campaign 2006, FAO PBEE. Other evaluations on international instruments have focused
on compliance measures, but have not been able to evaluate these questions.
109
Regulations and legal issues such as inappropriately low penalties have been identified as problems, but
generally ranked lower in the list than the lack of human and material resources; lack of information; need for
technical awareness as well as legal information; procedural delays which delay decision on fisheries violations,
and especially the inefficiency or lack of adequate marine and coastal surveillance systems. (Source: survey
supplemented by interviews.)
110
VMS is a near real-time, usually satellite-based, positional tracking system for fishing vessels.
111
IUU fishing, while being increasingly controlled at the level of commercial vessels, through VMS, licensing
and coastal surveillance, is becoming increasingly serious as the number of artisanal fishing vessels and their
offtake capacity is increasing. In the words of one of the numerous interviewees addressing this issue, “a warship
cannot control a pirogue.” Some (potentially sharable) successes have been achieved through co-management
concepts such as “participatory surveillance” in which artisanal fishermen participate in policing, in collaboration
with officials operating in small patrol vessels.
112
The IPPC evaluation did not address national implementation issues.
52
203.
Another problem which cuts across virtually all implementation areas113 is the need to
improve judicial capacity. Judges are currently the target of at least five global projects for
“judicial training” designed to increase their level of familiarity and competence in relation to
fisheries, forests and environment issues.114 Most interviewees working at implementation
level indicated a need to build durable understanding in more specialized areas such as food
safety, sustainable natural resource management processes, environmental and scientific risk
analysis, and (eventually) plant genetic resources.
204.
The mandate of Strategic Objective B-2 extends beyond national legislation as well
calling on, FAO to support and promote the implementation of international instruments
through, inter alia, assisting countries to “assess, adapt to and implement the international
policy and regulatory framework in the food, agricultural, fisheries and forestry sectors as
well as relevant international instruments dealing with natural resources, environment and
trade”; “implement international standards at the national level, in areas such as food quality
and safety, plant protection and animal health,” and “develop national capacities to respond to
and benefit from changes in the international trade environment”.115
205.
In fulfilment of that mandate, FAO’s technical assistance and capacity-building
relevant to addressing these challenges reflects the importance of addressing actual
implementation as well as legislative assistance. That work spans a gamut of different types
of output and support. A large number of FAO’s implementation activities in the area of
animal health, for example, although not directly creating animal health standards and or
addressing the processes for issuance of animal health certificates, has been commended as an
important tool linking the international instruments on this topic (the OIE and its Terrestrial
Animal Code and Aquatic Animal Code) with on-the-ground animal husbandry and
commercial trade.
206.
As borne out by the surveys, both the amount of national implementation assistance
provided by FAO, and the acceptance of the work has been directly linked to the age of
detailed international development processes and activities in the particular substantive area.
Thus, as shown above, relatively well established programs for, approaches to and interest in
capacity building for international fisheries implementation is generally positively received.116
In addition to the quality of the work itself that positive reception arises in part from the
extensive development, support documents, awareness and national legislative base, which
began to be provided in the early 1990s and still provides a foundation for ongoing assistance.
By contrast, the nature and newness of many genetic-resources-related FAO instruments
(ITPGRFA, GPA-AnGR, etc.) has necessitated that those instruments, and many supporting
units and organizations focus on creating the necessary support documents and awareness.117
Implementation has focused on institutions, collections and other entities.118
113
As noted, there is little or no national implementation in developing countries as yet, with regard to the PGR
and RTF focus areas.
114
Judicial training programmes at global and multi-regional levels relating to natural resource issues have been
developed by UNEP, IUCN, the Environmental Law Institute, Council of Europe and CUSO and perhaps others.
115
FAO Strategic Framework at page 20.
116
Seventy-six percent of respondents nevertheless rated fisheries assistance good or very good.
117
During country visits, nearly all national legislative officials and experts, focal points and policy-level staffers
met noted a primary need to grapple with uncertainty. Especially, they noted a need to ensure that the rights of
persons relying on treaty-oriented permission and use of PGR will not run afoul of new laws or principles that
other agencies will develop under the CBD’s “international regime” on genetic resources, when it is adopted. Most
believed that the CBD negotiations will alter the international landscape on PGR. If another ministry adopts CBDrelated legislation on genetic resources, normal principles of legislative interpretation might determine that the
CBD provisions may control in case of any conflict between them.
118
Within the PGR sector, the most active assistance noted during the country visits has been input that is expected
from the GCDT, which is primarily directed to securing and supporting the most important international PGR
collections. It also assists other collections, where the collection is determined to be “important.”
53
207.
In the face of continuing and strong demand for technical assistance and capacity
building, FAO’s capacity and technical assistance programmes are stretched rather broadly
across the entire range of food, agriculture, forests and fisheries. The needs and demands for
these services extend far beyond the scope of the present evaluation.119
208.
The breadth of FAO’s substantive coverage may also be a weakness. Many of those
interviewed who are working at regional or national level either noted that “FAO presents a
workshop every year or so, but does not seem to do anything else” (a view expressed by those
working intensively in a single subsector within FAO’s core areas) or that “FAO seems to
scatter around making small contributions on many topics, but never seems to drill deeply
into any one area” (a viewpoint expressed by those with a broader overview of relevant
actions across the range of FAO’s purview).
209.
It has been suggested in the course of this evaluation that programmes for promoting
national implementation under the various instruments are not well coordinated.120 Many
interviewees who have experience as national delegates have indicated the belief that
instrument secretariats and governing bodies have a primary role in the planning, oversight
and coordination of implementation projects and technical support. Some others indicated
their belief that they should have this role. Interviewees from within instrument secretariats,
however, noted that they are frequently unaware of other FAO units’ activities specifically
addressed at implementation of their instrument.
RECOMMENDATION 4.8:
Immediate Action: FAO and the various international instruments’ governing bodies should
consider focusing a larger percentage of efforts to build capacity for implementation of
international instruments around the subject area of FAO’s most widely accepted
international instruments.
a. Immediate Action: Coordination between FAO departments and the secretariats
regarding the development of capacity to implement the international instruments should
be enhanced. Plans for building capacity for implementation should be prepared, based on
systematic needs assessment, taking into account alternative sources of supply. FAO
should focus its resources for capacity building on meeting needs for the type of relatively
short-term, technical forms of assistance that it can supply well. The instrument
secretariat should have the key role in coordinating and prioritizing response to demand
and need, even where funding is channelled through technical units.
4. Gender issues in National Implementation
210.
Relative to Strategic Objective B-1, national implementation of international
instruments is the most direct situation in which gender issues arise. It is at this point that
international commitments are translated into direct consequences for individuals, companies,
sectors and communities and thus that inequities in how those consequences impact particular
groups may develop. This is a key point at which countries, legislators and agencies have the
opportunity to meet their policy commitments to avoid inappropriate gender-based
discrimination and to promote equitable treatment of both genders and of the rights and
interests of children. At the national level, it was not really possible for the evaluation team to
examine gender questions relevant to international instruments, in part owing to the difficulty
119
FAO began development of an institution-wide capacity building strategy early in 2008.
These views are more pronounced among those commenting on FAO’s regional level work, where 1-3
individuals may staff an entire FAO department, covering a variety of institutional responsibilities as well as
implementation of projects – a workload that leaves little space for even “a workshop every year or so.” Some
important developments in this connection have included negotiations among FAO’s animal health programme,
the OIE, and relevant departments of WHO, providing detailed plans for implementation of their respective
instruments and their secretariats, and suggested that these plans should be a central basis around which FAO’s
technical assistance and capacity building efforts should be built.
120
54
of identifying a specific influence of any international instruments on any particular factor
below the international level.
211.
Work at regional and national levels is driven by a broad mix of issues, which should
include awareness of and action to address gender equity and the elimination of particular
types of discriminatory, debasing or harmful treatment. Based on cursory review, it appears
that FAO projects in gender issues do not normally mention international instruments as a
justification for project activities.
E. Issues which cut across all Stages of the Life Cycle
212.
Two important issues are common not only to all international instruments but also to
all stages of the instrument life cycle (Figure 3): (i) issues related to participation in various
processes relevant to the instrument; and (ii) the use of regional mechanisms in the
negotiation, operation and implementation of instruments.
1. Participation and Capacity to Participate
213.
Participation of delegates or delegations representing all member countries is a
fundamental need to the entire realm of international legal and policy development in the
United Nations. Basic decisions affecting the choice of participants, participation by NGOs
and other observers and the nature and extent of each group’s participation can have a
significant influence on the effectiveness, value and relevance of each instrument.
214.
The importance of broad-based and effective participation is clearly reflected in
Strategic Objective B-1 in three ways, explicitly calling on FAO to address the challenges of:
(i) “facilitating the full and informed participation of all FAO Members in the further
development of an appropriate regulatory framework”; (ii) “Improving Members’ capacities
to participate actively in negotiations in relevant international fora”; and (iii) “providing a
[global and neutral] forum for debate and negotiation”.121
215.
Issues relevant to participation in international instrument negotiations and operations
cut across the entire range of activities of FAO’s international instruments. The following
discussions describe three key aspects of this issue: effective participation of FAO’s Members
(Sub-section 1); participation in the expert bodies (Sub-section 2); and participation by
observers and other non-Member stakeholders (Sub-section 3).
a.
Enabling and Enhancing Participation of National Delegates
216.
Results of this evaluation clearly show both accomplishment and continuing need
with regard to member representation in FAO meetings and negotiations. Surveys across four
focus areas indicate that low-income countries are less satisfied with their level of
participation than middle- and high-income countries. More than 70 percent of low-income
countries indicated this. Figure 4 graphically shows the relationships between national income
level and representation in primary meetings of the Codex, ITPGRFA, CGRFA and COFI. It
compares the distribution of country membership by income group (top row) against the
actual distribution of national delegations averaged across two meetings each of the Codex
Commission and ITPGRFA governing body, as well as the average of all primary meetings of
the CGRFA and COFI in the past five years (bottom row). It demonstrates a degree of overrepresentation of high-income countries and under-representation of low-income countries in
those meetings.
121
The Strategic Framework for FAO 2000-2015, ¶¶ 55-57. The bracketed language is inserted out of order, but is
directly quoted.
55
Figure 4: Distribution of Representation (Delegations) in Main Meetings of Four Global
Processes122
Key:
high income;
upper middle income;
lower middle income;
low income
Note: Globally, high-income countries (the group normally designated as “developed”123)
constitute 22% of FAO members; middle income countries constitute 19.5%; lower middle
income countries, 28.5%; and low income countries, 28%.124
217.
In the surveys, financial constraints, specifically the availability of funds for travel
and accommodation, were cited as the major obstacle to higher levels of participation125. In
country visits too, more than 85 percent of persons interviewed who had participated as
national delegates to one or more international instrument-related meetings indicated that the
availability of funding was a primary factor limiting their country’s participation. As a
consequence of financial limitations, selection of the individuals on a country’s national
delegation, although having a great impact on the effectiveness of that country’s participation,
normally involves prioritization, both budgetary and substantive. With limited funds allocated
through a country’s foreign or sectoral ministry for participation in international processes, a
country’s decision to send a delegation to a meeting, and the selection of specialities to be
represented on that delegation may not reflect the importance or impact of the particular
meeting, so much as the need to make sure that future travel is also possible.
218.
Among the FAO instruments, attendance-sponsoring programmes have been quite
active in providing money to fund developing country participation. Two examples are the
122
NOTE: This table refers only to specific global meetings, but does not include the negotiations or other
processes which feed into these primary meetings.
123
All figures based on the World Bank Classification of Economies, using 2006 GNI per capita data
http://siteresources.worldbank.org/INTRGEP2004/Resources/classification.pdf. Income groups are: low income,
US$905 or less; lower middle income, US$906 - US$3,595; upper middle income, US$3,596 - US$11,115; and
high income, $11,116 or more.
124
Four FAO Member Nations are not found on the World Bank rating on which this chart is based. They are
Cook Islands, Nauru, Nike and Tuvalu.
125
For IPPC, Codex and fisheries, financial constraint was cited more than twice as often as any other constraint.
For PGR, the difference between constraining factors was less marked.
56
fund for participation in the IPPC126 and the FAO/WHO Fund for Participation in Codex
Alimentarius.127
219.
Interviews, surveys and various other analyses relied on in this report, however,
indicate that “primary meetings” examined in Figure 4 may not be the primary source of
participation concern in most cases. As shown in survey data, processes such as standardsdevelopment under Codex Alimentarius and IPPC involve a large number of meetings in
which the technical and political decisions are made and new or revised standards are
basically finalized. The Codex Alimentarius Commission meetings are the final stage, at
which the parties generally have three options – approval of the proposed standard with little
or no change, return of the standard for further work or rejection of the standard.
220.
Virtually all international instruments and processes face the same situation – the
main meeting of the entire governing body is a long, time-bound and unwieldy process, in
which technical and substantive work cannot usually be reopened. Hence, their primary
substantive deliberations occur in a variety of permanent and ad-hoc bodies and meetings. It
is these meetings at which much of the substantive and political work of the instrument is
undertaken. Surveys on plant genetic resources and fisheries, as well as data extracted from
evaluations of the Codex Alimentarius and IPPC indicate that, as more meetings are added,
there may be a lower percentage representation (of all members) in those meetings. Thus
participation concerns cut across a very large number of working meetings.
221.
These attendance issues are a relatively severe limitation on international governance
processes, even ignoring the technical meetings and expert bodies (discussed in ¶¶ 227, and
following.)
222.
Attendance limitations are only a one part of the challenge of “improving Members'
capacities … to participate actively in negotiations in relevant international for a”.128 More
than 85 percent of those interviewed in country visits also specifically identified problems
relating to their national delegations’ technical capacity to participate effectively in such
meetings. Similarly, of the FAO Permanent Representatives who were interviewed 47 percent
commented on meeting participation issues. Eighty percent of this group noted in particular
that the technical level of participants needs to be addressed.129 In the words of one person
(echoed by many others), “In an expert negotiation, it is important, not only to have someone
across the table, but also that that someone be an expert.”
223.
From the surveys (also supported by nearly all persons interviewed in country visits
who were directly involved with the selection of or participation in national delegations),
other major factors constraining participation in instrument-related activities are:
o the shortage of qualified personnel (strongly emphasised regarding standard-setting
processes);
o language and electronic limitations (noted particularly in the fisheries sector), and
o the level of other demands on qualified officials, preventing them from leaving the
office.
126
This evaluation largely relied on the limited information available from the evaluation of IPPC (2007) on this
point, supplemented by information published in that Convention’s business plan (2007-2011). It notes that
“limited funds for travel assistance have been provided by donors to help enable this. The FAO Regular
Programme and IPPC trust funds assist participation in CPM meetings on standard setting, information exchange
and dispute settlement” (page 9), but also that “the funds allocated to the IPPC cannot be used to finance
participation in the annual meeting of the CPM,” offered as one reason that “additional funding is sought through
trust funds and in-kind contributions” (page 10)
127
See e.g. Codex docs: CAC/29 INF/11; CAC/28 INF/12
128
FAO Strategic Framework, 2000-2015 para. 56
129
Those from developing countries noted both financial and technical barriers to participation.
57
224.
Approximately 35 percent of persons interviewed who had experience on national
delegations described uncertainties that increase the challenge presented by the delegate
participation issue. Each meeting calls for a different mix of professional experience, political
authorization and diplomatic skills. Lower income countries are frequently unable to send
more than one or two delegates to key meetings. As such, a country may often be forced to
choose between a qualified scientist and a political negotiator. This problem increases in
meetings of larger scope (e.g. governing bodies) where multiple technical expertise and issues
may be relevant.130
225.
Interviewees from both developed and developing countries have suggested a variety
of possible mechanisms to partially address technical participation concerns. A few have
suggested that FAO provide one or more unaffiliated experts in the various technical issues
covered by a particular meeting, to serve as accessible “advisors” on technical matters, for
developing countries unable to provide their own experts.131 A slightly different version of
this approach has evolved spontaneously in a few meetings, where several delegations from
within the same negotiating group (e.g. GRULAC) have “pooled” the qualified experts
attending a meeting, who each provided technical expertise in their various areas to all
delegations in the region, throughout the meeting.
226.
Peer organizations are generally grappling with the same participation issues, and
have generally addressed them in similar ways – i.e. primarily through financial assistance to
enable attendance132 – and have noted approximately similar levels of success. With regard to
technical participation issues, they too have developed and/or extended regional and subregional preparatory processes (see ¶ 238), so that these can be directed at technical matters,
and have opened discussions about possible provision of an expert ombudsman to assist with
decisions involving complex technical information.
227.
Adequate representation in international instrument meetings and negotiating process
is more than just a question of perceived fairness and/or assistance to developing countries. It
is also a primary determinant of each country’s willingness and ability to implement the
outcomes of those meetings and processes.133 Proposals which diminish the numbers of
participants from each developing country may have the effect of eliminating the opportunity
for that country’s delegates to gain necessary experience in how to work effectively in those
fora. Active participation also encourages countries to “buy in” to decisions and compromises
in which they have effectively participated, which may also be lost, if delegations dwindle in
size or number of members. Improvement of the technical preparedness and capacity of
national delegations as well as the extent to which they are representative are key
prerequisites to effective utilization of international instruments.
130
Concerns have been expressed that the wide geographical spread of Codex committee meetings operates as a
hardship, both in terms of the number of days involved in travelling to meetings, and in other ways.
131
The challenge in such a situation would be to ensure that the expert was sufficiently neutral and well insulated
from association with particular positions and/or that s/he be acceptable to the delegations using his/her services. In
country visits, very few respondents outside of the FAO secretariat questioned or doubted the neutrality and
expertise of, for example FAO expert panels and other support mechanisms, although desiring a continuing process
of improving their geographic balance.
132
The most successful participation programme is the OIE’s. It specifically sets aside travel costs for annual
meeting attendance out of each OIE member’s annual assessment as soon as it is received.
133
These processes experience the language and related problems described in ¶ 130, above, as it may be
extremely difficult to make changes or alterations (even small ones) once a meeting or negotiation is concluded.
Yet small changes may be necessary to enable a country to accept, adopt or implement a document or decision.
58
RECOMMENDATION 4.9:
a. Immediate Action: FAO Conference, FAO staff and the FAO instruments should continue
to address the issues of lack of funding for delegate transportation and accommodations,
which remain major obstacles to national representation in instrument processes.
b. Immediate Action: FAO Conference, FAO staff and the FAO instruments should place
high priority on enhancing experiential and technical capacity to participate in
international negotiations, investigating the cost, impacts and benefits of developing and
executing the various options for promoting attendance by national delegates and
increasing capacity to participate effectively. Possible options include:
- Extended support for delegates’ preparation, especially at regional level, (meetings,
seminars and expert training programmes) prior to global FAO meetings at which
substantive issues will be negotiated;
- Engagement by FAO of one or more un-aligned ombudsmen, whose mission is to
advise delegates in critical meetings;
- Voluntary collaboration by delegations in regional groupings, to ensure that each
grouping’s joint delegations includes experts in all primary professions relevant to a
particular meeting;
- Increased and extended funding for increasing the number of delegations able to
participate and increasing developing countries’ ability to participate in those negotiations
and meetings, in which most substantive decisions and discussions are conducted.
Given the substantial differences among the international instruments examined in this
evaluation, each instrument’s governing body, secretariat, parties and other supporters
(including the FAO Conference and staff) must consider its own circumstances regarding
which among the above (or other) options to investigate or apply. Each has its own
advantages and drawbacks.
b.
Expert Bodies134
228.
FAO’s Constitution, as well as the procedural rules under some international
instruments, provide opportunities for addressing technical issues in depth by authorizing the
creation of “commissions, committees, conferences, working parties and consultations.”135
The rules allow the creation of many different various types of bodies to meet a variety of
different needs.
229.
The manner in which expert bodies are called into existence varies greatly, depending
on many factors. For example, each type of body created under FAO’s Constitution, is
governed by specific rules. Some types (commissions) may be created only by Conference
and Council.136 As to others (“committees” “working parties” “general, regional, technical or
other conferences, or working parties or consultations”)137 the Director-General may take
action, whether “on the authority of Conference or Council,” or on his own in situations of
urgency. 138 Another category, expert panels, may be convened by the Director-General “in
consultation with Member Nations, Associate Member and National FAO Committees.”139
134
Used here as a generic term for bodies and meetings convened by FAO or some group within FAO for technical
and other work (see glossary in Annex 8 for more detail).
135
FAO constitution, Art. VI, 1, 2, 4, 5 and 6.
136
FAO Constitution, Art. VI.1.
137
FAO constitution, Arts. VI.2 and VI.5, respectively.
138
FAO constitution, Art. VI.6.
139
FAO constitution, Art. VI.4.
59
230.
These options (especially expert panels) have been widely used across all of the focus
areas.140 Of FAO’s 42 legally binding instruments, 33 have a primary purpose of creating
specific expert bodies. More than half of these expert-body-establishment instruments do not
impose any specific obligations on their parties apart from the duties to pay regular
assessments for the operation of the expert body and similar commitments. In addition,
binding instruments which include other types of substantive commitments also frequently
include specific provisions establishing subsidiary bodies (expert committees and other
bodies). Expert bodies may also be established through the operations of an international
instrument, created by the instrument’s governing bodies on a permanent or ad-hoc basis. In
all of the above examples, the procedures for creating and convening such bodies, as well as
the rules for operating such meetings and on who may participate, vary depending on the
nature of the authority under which they are created.
231.
Within FAO’s operations, as well as in nearly all of the instruments examined under
the focus areas, the use of expert panels is relatively flexible. It is expected, however, that
such panels be specifically tasked to address particular topics or concerns, narrowly focused
both in terms of the task assigned and of the participants selected to undertake it. By selecting
the experts individually, based on actual expertise, and stipulating that each is participating in
his/her individual capacity, creating an expert panel is considered to be a primary means to
guarantee the technical level of collective work on a specific issue.
232.
In numerous instances, FAO expert panels have been very successful. For example,
recent work by FAO in addressing CITES listing141 proposals of several commercial fish
species was offered through a FAO expert panel, whose qualification and neutrality was
recognized and respected by the CITES parties. The CITES COP adopted the FAO
recommendations in six of seven proposals.142
233.
On the other hand, the use of expert panels sometimes presents problems of
geographic and other balance. These concerns arise particularly where the technical topic to
be addressed is very specialized and/or is not widely available in developing countries or
particular regions. Many interviewees and other sources in this evaluation specifically
claimed that such panels and other bodies143 frequently lack regional and other balance.
234.
The importance of balance issues generally varies according to the content of the
meeting. Where technical issues predominate, any imbalance may often be a secondary
concern. Where regional, income level, gender and other perspectives are involved, however,
representation becomes a very important element.
c.
NGOs, Civil Society and the Commercial Sector
235.
FAO’s Evaluation of Partnerships and Alliances indicates a perception that NGOs144
played “a critical, constructive and complementary role” in numerous processes, including the
negotiations of the Code of Conduct on Responsible Fisheries, the ITPGRFA and the Right to
Food (within the focus areas of this evaluation).145 Within the current evaluation, on the other
140
It appears that some were created by the Conference, Council or Director-General, and others by other statutory
bodies. As to the latter, it is not clear whether they are “Article VI” bodies by virtue of approval by the DirectorGeneral. Even if not Article VI bodies, however, expert panels created by other bodies (besides the Council,
Commission or Director-General) appear to view themselves as governed by the same rules as those which are
created under Article VI. They also share the same general strengths and weaknesses.
141
To protect those species from commercial or other transboundary movement under CITES
142
“Report of the 2nd FAO Ad Hoc Expert Advisory Panel for Assessment of Proposals to Amend Appendices
I&II of CITES Re: Commercially-Exploited Aquatic Species” Doc. UNEP/CITES/CoP/14/Inf/38.
143
Commissions, committees, conferences, working parties and technical consultations.
144
The term NGO (Non-Governmental Organizations) in this context includes both civil society organizations
whose members have no commercial objectives and also organizations formed to represent the interests of
commercial entities, though the organization itself is non-profit.
145
The Evaluation of FAO’s Cross-Organizational Strategy on Partnerships and Alliances (2005) at ¶ 63.
60
hand, some interviewees noted that other international organizations and instruments have
higher levels of participation by non-governmental participants. This was confirmed by
comparing primary meetings (instrument governing bodies and organization-wide
conferences), which indicated a very high level of participation of this kind in other
organizations.
236.
FAO’s procedural rules,146 as written, appear more limiting with regard to nonmember participation in FAO processes than comparable rules of other organizations and
bodies.147 In practice, FAO’s application of these rules may also be stricter than that of other
fora applying similar rules.148 This approach received mixed response in the IEE, as well as in
the Codex evaluation. Many national delegates to Codex and other governmental
representatives strongly favour limitation on the number of outside participants allowed to
participate in FAO’s processes.149 Surveys in the current evaluation were circulated to
governmental representatives of FAO Members. They (predictably) echo the conclusion that
FAO processes should not broaden external representation. In the Codex and IPPC
evaluations and interviews in the current evaluation, the primary goal of such controls has
been described as trying to ensure that observers do not outnumber the official delegates.
237.
Interviews with persons who have attended FAO meetings as national delegates
indicated a strong belief that the inclusion of “too many observers and other participants”
would engender delay and difficulty.
238.
This belief is balanced by the political analysis of NGO participation, which
recommends that affected stakeholder groups (whether private commercial or non-profit or
both) should be involved for three reasons, even where limiting participation to sectoral
groups.150 First, such groups can provide important inputs of a type that may not be obtained
elsewhere and often from the bottom up. Second, participation is a major social factor which
promotes the participant’s “buy-in” and commitment (rather than opposition) to the resulting
instrument or decision.151 This can be important for the implementation and ultimate
effectiveness and use of the instrument, as demonstrated in Codex152 and the Code of Conduct
for Responsible Fisheries.153 Third, ensuring a more balanced representation of the most
affected stakeholders is necessary if FAO wishes to retain its role and reputation as a global
and neutral broker154. Failure to do this may feed the general perception that FAO is not the
appropriate body to take the international “lead” in addressing subjects whose import extends
beyond the remit of FAO’s delegates and focal points.
146
“Principles and Procedures which Should Govern Conventions and Agreements Concluded under Articles XIV
and XV of the FAO Constitution, and Commissions and Committees Established under Article VI of the
Constitution” Basic Texts of FAO, Chapter R (passim), and other documents.
147
The primary exception is the ISO, which limits participation by NGOs in a manner very similar to FAO.
148
The 2005 Evaluation of Partnerships and Alliances, for example, noted at ¶82, that the number of organizations
participating in the parallel forum at the World Food summits was much smaller than other UN summits
(comparing 30,000 NGO delegates at World Summit on Sustainable Development with 1,000 in 2002 World Food
Summit: five years later).
149
See, e.g. Codex Alimentarius Evaluation, ¶¶ 95-246-8, Recommendations 10, 27.
150
Ripinsky and van den Bossche, 2007.
151
Programs for observer participation in the ISO’s development of “corporate social responsibility” standards
have involved the identification of a small group of NGOs, representing various interested groups. Some of these
NGOs undertook extensive programs and meetings to ensure that their participation reflects the inputs and
concerns of a larger number of NGOs, and to encourage other NGOs to use their networks to broadly disseminate
interim and final results of those processes. (ISO Standard 26000, under development. A similar approach was
taken with regard to NGO and community representation in the Africa series of meetings and discussions on Forest
Law Enforcement and Governance (AFLEG / FLEGT Task Force, described at
http://cms.iucn.org/about/work/programmes/forest/fp_our_work/fp_our_work_thematic/fp_our_work_flg/fp_forest
_law_our_work/fp_forest_law_our_work_regional/fp_forest_law_our_work_task_force/index.cfm.),
152
See, e.g. Codex Alimentarius Evaluation, ¶ 212
153
See Sections IV and V below
154
See Evaluation of FAO’s Cross-Organizational Strategy on Partnership & Alliances, 2005,
61
RECOMMENDATION 4.10
a. Future Strategy: The FAO Conference or others responsible for maintenance of the
FAO Basic Texts should ensure that rules regarding participation of observers in
international meetings carefully balance the interests of public participation by all
interested groups and the overall objectives of the meeting or process involved. Examples
from peer organizations mentioned in this section above may provide useful benchmarks
in drafting.
b. Immediate Action: Each instrument or body should reconsider its individual rules on
participation of industry or other non-governmental stakeholders, to maximize its
inclusion of views of all relevant sectors and interest groups by credible organizations,
and to find an appropriate balance in participation. What is “appropriate” will vary from
instrument to instrument.
c. Immediate Action: Each instrument should take a more proactive role in selecting
observers, encouraging each of them to marshal and present the views of other
organizations within his stakeholder group.
Specific options to be considered in order to increase the level of participation by NGOs
and private sector groups from developing countries and to enable such groups to
represent the interests of other similarly focused groups are:
- preparatory meetings for NGOs and private sector groups to share positions and
concerns prior to essential meetings;
- support and assistance to observer groups, to encourage dissemination of the results of
FAO meetings and to inform them of the impact that their group’s inputs, issues and
proposals had on the meeting.
d.
Gender Issues in Instrument Participation and Operation
239.
Institutionally, FAO has given gender a very high priority, as set out in specific
crosscutting plans of action, since 1989.155 Questions of equitable treatment and awareness of
the needs of both women and men, as well as the rights of children enter into Strategic
Objective B-1 in two primary ways: (i) ensuring that no inappropriate barriers (including de
facto barriers) prevent or impede the participation of women in international-instruments
processes; and (ii) in addressing the level of national implementation needed in relation to
women and children and their rights. The second of these aspects is addressed above (¶¶ 200201). As to the first, statistics on representation in national delegations to international
meetings are not broken out by gender (nor were the surveys.) It is difficult to imagine how
FAO could alter the composition of a sovereign member nation’s delegations, were imbalance
found, beyond whatever efforts are already included in FAO’s Gender Plan of Action to
encourage states to promote gender balance in selecting delegations.
240.
Among the global instruments reviewed for this evaluation, gender awareness and
action is generally addressed in operative text in nine instruments (including six within the
focus areas of this evaluation),156 in preambular text in two instruments reviewed,157 and was
unaddressed in nine others.158 This statistic may only reflect the difficulty in identifying
gender-related concerns in areas such as biosafety and animal health.
155
The plan most relevant to the time period covered by the current evaluation is the “FAO Gender and
Development Plan of Action (2002-2007),” adopted by the FAO Conference in November 2001.
156
Operative text on gender is found in FSA (Art. 24.2(b)); the Global Plan of Action on PGR (Arts. 31, 33, 37,
43, 67, 70(f), 158, 189, 193, 203(a) and 204(b) and (c)); the Global Plan of Action on Animal GR (SP II.6, action
2); the CGIAR Charter, (Sec. III Art. 110(e), and Sec. IX, Art. 6); the Bioversity Constitution (Art 4(a)); the
GCDT Constitution (Art 5(1)(f)) and 14(2), as well as in operative text of CEDAW (Entire); UN-CCD 9 (Arts.
5(d), 10.2(f), 19.1(a), 19.3(e), and Annex 1 Art. 8.2(c); and ICESCR, Arts.3 and 7(a)
157
UN-CCD, 20th clause; CBD, 13th preambular clause.
158
FAO Constitution, IPPC, ITPGRFA, Cartagena Protocol, UNCLOS, CITES, OIE, UNFCCC and WTO.
62
241.
In interviews and surveys, gender questions garnered few responses. Within the PGR
survey, respondents were asked to rate their satisfaction with various instruments’
performance in certain operational areas, including gender. The general rating, across all
instruments was slightly lower in satisfaction compared to other elements (e.g. agenda setting,
technical support, intersessional development, stakeholder participation, transparency, etc.).
This could be taken to indicate a need for strategic action to address gender issues or to
communicate the extent of these efforts. Given the low response in interviews,159 however, it
seems more likely that gender issues may not have arisen in any obvious way in these fora as
yet.
2. Linking Implementation through Regional Action
242.
The nature and role of regional action in connection with international instruments
and their implementation is evolving and varies from topic to topic and from instrument to
instrument, based on a number of factors. This evaluation’s work with regional instruments
has been undertaken primarily in the fisheries focus area, in which FAO has established 10
regional fisheries bodies, serves as depositary for 5 others and has active relationships with 27
others. (Annex 9 lists all 42 established regional fisheries bodies, noting the nature of their
respective relationships to FAO.) Regional implementation, often including regional
instruments and bodies as well as regional cooperation, was generally identified as a factor
that may strongly influence all focus areas, except Right-to-Food, where a regional role has
not yet been clearly expressed. The horizontal component of this evaluation has encountered a
number of examples in which the global-regional linkages have been important.160
243.
As with all other resource allocation issues examined in this evaluation (see
Section II.B), FAO’s support and work on Strategic Objective B-1 at the regional level has
been difficult to track or disaggregate. FAO’s Development Law Service reports that in 200607, it provided regional assistance, including regional consultations on legislation, on various
topics including animal health, plant protection, seed certification, forestry, fisheries and
organic agriculture. The topic covered most widely was food safety legislation (W.Africa,
Latin America, Central Europe and the CARIFORUM countries).161 In addition, a high
proportion of all technical assistance projects relating to programme entities that contribute to
Strategic Objective B-1 are regional projects. In many cases, assistance provided by FAO’s
technical staff is undertaken in partnership with other intergovernmental bodies.162
244.
In the fisheries focus area, the primary innovation in RFBs is the power under
UNFSA to apply the regional instrument’s provisions directly to private actors, including
persons or vessels under the flag of another party to UNFSA (including non-members of the
RFB). Examination of these developments in six RFBs suggests that regional and subregional collaboration is filling an important authorization gap in legislative framework for
responsible and sustainable fisheries. Without such instruments and measures, it would be
practically impossible for countries and regional or sub-regional groups to assert controls on
harvesting capacity and prevention of IUU fishing affecting migratory and straddling stocks.
In some cases, RFBs are entering into multi-RFB collaborations to address the most important
issues (IUU fishing) more comprehensively. Performance statistics on these new approaches
are not yet available. The evaluation team found that most agencies interviewed in the
fisheries sector were committed to applying these powers to the extent adopted in their RFB.
159
More than half of the persons interviewed were female. The team raised gender questions as a cross-cutting
issue in interviews, wherever relevant.
160
In addition to fisheries regional cooperation and the evolving relationship between the IPPC and the RPPOs, a
number of regional instruments and bodies have operated effectively in conjunction with FAO HQ. See, e.g. the
desert locust control programme evaluation, which noted in Recommendation 37, that the: “delegation of authority
for operational activities, lasting for the duration of the Desert Locust campaign, be given by FAO to the lowest
possible level.”
161
Programme Implementation Report for the biennium 2006-07. No report in PIRES for 2004-05.
162
E.g. FAO’s founding participation (with OIE, World Bank, WHO and WTO) in the Standards and Trade
Development Facility. www.standardsfacility.org
63
245.
Development of the linkage between global instruments and national level
implementation is a key role for regional action in the realm of international instruments. In
fisheries, for example, it has been claimed that the international policy and legal framework,
including RFBs, is primarily directed at commercial fisheries, large-size vessels and other
developed country issues, ignoring issues of great importance to developing countries, such as
artisanal and coastal fishing. Regional bodies, however, have the ability to address this
imbalance, and to provide a linkage between international instruments and national
implementation. One example has been SEAFDEC’s sponsorship of a regional process by
which its member states have developed an ASEAN regional approach to the CCRF, which
has since been recognized by ASEAN – and recommended to ASEAN members beyond the
original sub-regional group that created the guideline. The regional instrument focuses on
small-scale fisheries and other issues to help clarify and enhance the CCRF’s relevance to that
region.
246.
With regard to instruments themselves and their operation, regional processes take
many forms. The most advanced regional developments create specific (direct and indirect)
regional governance, including especially in the development and implementation of on-theground compliance measures. Particularly in the fisheries area, this approach is prevalent and
well received. In the surveys, for example, regional work and RFB processes were rated more
important than UNCLOS and the UNFSA163 and were identified as having a greater impact
than either of these on the countries’ abilities to achieve objectives. FAO’s collective
contributions are not yet as highly rated as the RFBs. However, many elements of FAO’s
work, including the CCRF, FAO Compliance Agreement and the IPOAs are seen as critically
important tools at this level.
247.
For many developing countries, sub-regional cooperation is increasingly identified as
a means of obtaining economies-of-scale and other advantages in achieving implementation
objectives.164 Collaboration at this level enables sharing many costs and demands in
implementation of for example, MCS in domestic waters, in addition to better linking national
level actors to global instruments and commitments. Although discussed primarily in the
fisheries focus area, this approach (sharing technical and manpower costs through subregional instruments) has also been mentioned with regard to plant protection and plant
genetic resources, where technological needs necessitate investment in both technical capacity
and manpower. This trend in solutions is worth noting.
248.
Among other FAO instruments, the role of regional bodies is also changing. The role
of regional plant protection organizations, for example, is generally changing, and at present,
many persons interviewed in this evaluation generally believed the IPPC to be abandoning the
regional approach.165 This shift is not well understood outside of the Convention, where
discussions focus on the impacts of species introduction, noting that ecosystem susceptibility
varies according to geo-location. The IPPC evaluation clarified this issue in proposing that,
subject to appropriate capacity building, “RPPOs could play a greater role regarding the
development and implementation of ISPMs … the organization and conduct of regional
workshops to review ISPMs and … the regional implementation of ISPMs”.166 This indicates
163
The UNFSA is viewed as the source of these innovations, in authorizing RFBs to adopt various kinds of
compliance measures.
164
In addition to the RFB cooperation experience, we note the potential for regional action as a means to minimize
the delays and other problems encountered in the desert locust control programme (Desert Locust Evaluation at
¶¶200-236.)
165
In the first two versions of the IPPC, RPPOs were the only bodies authorized to develop standards on
phytosanitary protection. The SPS Agreement specifically identifies regional standards under the IPPC as
reference standards.
166
IPPC Evaluation, ¶¶189.
64
that the change only re-conceptualizes the time and manner by which geo-local concerns enter
into the ISPM process.
249.
Approximately 40 percent of the Codex-knowledgeable persons interviewed in
country visits, as well as many persons interviewed in regional and global meetings during
this evaluation, indicated their belief that the Codex Alimentarius is phasing out regional
standards, But national Codex officials in three countries visited in Asia and Africa noted that
they generally expect an increase in the development and use of regional standards. When
Codex deals with commercial product standards, it is often necessary to recognize differences
in regional tastes and expectations. Consequently, in some recent decisions the Codex
Commission has specifically diverted standard proposals to the regional level, for
development as a regional standard rather than a worldwide standard. Besides, all six Codex
regional committees serve as a regular forum for exchanging views and information on food
control and food standardization. Some of them have adopted regional strategic plans for
more effective participation in the Codex process and for wider application and use of Codex
standards.
250.
Another type of regional involvement in Strategic Objective B-1 relates to promoting
effective action by national and regional delegations to primary meetings of FAO
international instruments.167 Increasingly, international instruments within the focus areas and
among peer organizations are promoting, encouraging or enabling regional preparatory
meetings in advance of key global meetings and negotiations. During country visits, nearly
half of the interviewees who had participated in national delegations indicated that regional
preparatory processes have proven very useful and recommend extension and expansion of
the use of these mechanisms.
251.
Regional bodies (potentially including FAO Regional Offices) may have several
important roles regarding Strategic Objective B-1. First, the vast majority of FAO instruments
are regional in nature. Second, FAO’s regional processes and conferences consider important
issues relevant to Strategic Objective B-1. The development of regional positions and other
preparations for international negotiating meetings can enhance the extent to which each
region’s “voice” is heard. Third, some global instruments are specifically required to work
through regional bodies to some extent. Even where not mandated in this way, many
international instruments and intergovernmental processes propose or enable regional
preparatory meetings in advance of key global meetings and negotiations. There is also a
possibility that regional bodies may be specially qualified and situated to provide support
services, interpretation and implementation tools and other and input of value to international
instruments.
RECOMMENDATION 4.11:
For Future Strategy: Cooperation with regional bodies and instruments, whether created
under FAO’s mandate or not, should be an essential element of FAO’s use of international
instruments, particularly at the level of national implementation. Such cooperation should also
encompass all stages of any new instrument development or implementation. Corresponding
support should be given to ensure adequate capacity at regional level, as part of coordinated
capacity building plans for each instrument (see Recommendation 4.8 above).
167
This work need not be limited to preparation for FAO meetings. In some cases, it may be useful to tie-in
preparation for international meetings in other venues, such as the CBD, in which regional agricultural issues are
frequently unrepresented.
65
F. Conclusion: Characteristics and Indicators of Effective International
Instruments
252.
In this Part IV, the evaluation has highlighted the common issues, characteristics and
factors that have been identified as indicating or affecting instrument effectiveness,
summarized in Table 6. Many (perhaps all) of these characteristics and indicators are well
recognized at least in general terms. They reflect the “established wisdom” on the creation
and use of international instruments. However, this evaluation noted numerous obstacles to
effective functioning of particular instruments or processes, which appeared in many cases to
arise from inadequate analysis of the functional ability of a particular instrument to achieve
the desired objectives. In some negotiations, proponents have assumed that certain conditions
exist, or that particular mechanisms can address certain problems. These and other
assumptions have in some cases not been sufficiently researched before they became the basis
for adopting the instrument.
253.
In addition, the most effective sectoral instruments demonstrate similar qualities of
integration and partnership with other instruments outside FAO. They welcome participation
by other sectors, even where this results in a compromise between those sectors and the
positions that would be taken in an FAO-only forum. The team has noted that instruments in
the food, agriculture, forests and fisheries and other social/environmental sectors are most
successful in implementation and operation where they reflect a relatively high level of
motivation across the range of affected developed and developing countries and sectors.
66
Table 6: Characteristics & Indicators of Effective International Instruments and Processes
Stage in
instrument’s
“life cycle”
Stage 1: Prenegotiation /
decisions to
begin
negotiations or
processdevelopment
activities.
Characteristic
Motivated by
broad national
gov’t support
favouring the
initiation of
negotiations?
Based on
realistic
objectives
Selection of
form and type
of instrument
(including hard
law / soft law)
Stage II:
Negotiation /
Adoption
Supported by
sound, credible
and non-biased
expert
information.
Reflecting
agreement or
compromise
among a broad
range of
stakeholders
Fair and
rule-based
processes and
procedures
Stage III:
Instrument
Implementation
Overall:
Instrument’s
implementation
contributes to
achieving the
objective
International:
Instrument or
Process
becomes
operational at
the global (or
regional, as
appropriate)
level.
Possible Indicators
Initial development processes and decision undertaken through a group representing broad consensus of
countries, as well as relevant experts, NGOs.
Financial support made available to negotiations from a broad range of countries and organizations.
Proposed negotiations are directed at multiple objectives (i.e., not limited to a single interest category or subsector168
Use of an international instrument or process will achieve underlying purposes or alter conditions about which the
negotiations are concerned.
International law, policy, practice and technical capabilities are such that the it will be realistically possible for a
sufficient number of parties to take contemplated actions and commitments within a reasonable time following the
effective date of the instrument’s entry into force
Instruments are negotiated with full awareness of other international instruments affecting matters within the
scope of the instrument, and with due efforts to maximize inter-instrument participation and integration, and to
minimize overlap
Denomination of the type of instrument to be created is based on the expected coverage, contents and objectives
of the instrument rather than generalized perception of a hierarchy of instruments
Instrument is able to use and uses existing forms and accepted legal principles in their accepted ways,
enunciating new approaches or applying laws or formats in untried ways only where no other option can be
suggested by experts to achieve the objective.
Secretariat provides expert support without preferring any particular result.
Technical questions answered by complete, professionally expert, balanced identification and analysis of all
available/reasonable options
Negotiating countries aware of their implementation capabilities and legal/practical limits on to their ability to take
action.
Parties aware of specific requirements imposed on them and how to implement them
An appropriate mix of all interested or affected countries is represented.
Developing countries enabled to fully participate in negotiations
Representation by NGOs sufficient to reflect a fair balance of interests and to ensure that primary positions are
expressed/represented.
Measures taken to promote balanced representation of (or otherwise ensure proper recognition of) the interests
of women, children, indigenous or traditional peoples and other affected and potentially underrepresented groups.
Rules governing the selection of Chairs, functioning of meetings, use of special committees and nature of
agreements agreed and properly communicated, including special agreements for special issues or situations
arising during the negotiation
Participants and delegates have adequate capacity (or are provided with training and other support) to enable
effective participation in negotiations
Language capabilities of Parties appropriately accommodated.
Countries place a high priority on adopting required legislation and meeting other commitments under the
instrument
Instrument’s objectives are served by national implementation
National objectives in implementing the instrument reflect the primary objectives of the instrument (at least in
part)
National implementation has a positive impact on national concerns relating to matters within the scope.
Where necessary to enable participation in or compliance with the instrument, implementing legislation of all
countries is submitted to or made known through appropriate mechanisms
The instrument is hosted / housed through an institution or Party which adequately enables prompt and effective
establishment of its organizational and administrative systems and components
Ratification/accession occurs at a reasonable rate. The instrument enters into force within a reasonable time.
Instrument is financially supported at sufficient levels to cover both administration and other necessary operations
mandated by the Parties.
Parties prioritise attendance at meetings of the various bodies created under the instrument (COP, MOP, GB,
etc.)
Appropriate technical support mechanisms are created or affiliated with the instrument and functional
mechanisms are developed for their operation.
A minimum number of negotiation matters are left for resolution after the adoption and entry into force of the
instrument. Such negotiations are given clear timetables.
168
Single-issue negotiations inhibit parties from coming to agreed or negotiated compromises (give and take) and
may discourage some countries or affected groups from participating, so that the negotiations are conducted
without input from critical groups or sub-sectors.
67
Stage in
instrument’s
“life cycle”
Characteristic
Possible Indicators
National:
Implementation
and Capacity /
Ability to
Implement
National adoption of implementing policy / law / institutions commences within a reasonable time following
signature, ratification or accession by each country.
Each Party commits an appropriate portion of national budget to instrument implementation.
Appropriate mechanisms for technical assistance are in place to enable or assist countries unable to implement
the instrument without external capacity building and other types of help and support.
Provisions to implement the instrument are legally possible, undertaken and documented/acknowledged in strict
legally valid ways, and do not conflict with other relevant international commitments, national organic laws or
other unchangeable or difficult provisions.
Implementation activities are sufficiently tied to overarching priorities that their value or importance is obvious to
ministries and parliamentary committees outside of the main sector (food, agriculture, forest, fisheries) that is
involved in or promoting the instrument.
Stage IV;
Evaluation and
Revision
Revision
processes in
place that are
implemented
Instrument includes clear mechanisms for review or revision on the basis of experience with instrument
operations.
Periodic review and revision processes clearly specify the limits of such revision (i.e., whether it re-opens the
entire purpose and contents of the instrument or only certain administrative elements.)
Revision dates are spaced sufficiently far apart to enable realistic assessment of prior performance.
Stage V: FAO
Participation in
instruments
and processes
Control and
oversight
agreed among
Parties and
FAO
Roles of FAO and other international organizations, as depository, as host institution, as administrator or in other
ways are clearly and effectively spelled out.
Integrates or operates in harmony with instrument operations or processes.
68
V.
FAO’s Role in the “International Regulatory Framework”
254.
As noted in Part I, Strategic Objective B’s call for “promoting developing and
reinforcing policy and regulatory frameworks,” and its recognition of their “ever more
crucial importance in an increasingly interdependent and globalized world economy” suggests
that international instruments are components of a single integrated framework. Increasingly,
countries have taken the position that the creation of more independent instruments is not
necessarily desirable, preferring to use or integrate existing instruments to increase their
collective impact and minimize the added negotiation and operation costs.169 This integrative
approach is the essential aspect of Strategic Objective B. Overall, it is directed at “promoting,
developing and reinforcing policy and regulatory frameworks … at international and national
levels”.170 It emphasises that FAO’s international instruments are integrated parts of
something bigger than FAO itself – the still nascent international policy and regulatory
framework.
255.
This part examines three key issues related to FAO’s overall responsibilities with
regard to those instruments and generally to its present and future contributions to the
international regulatory framework: (i) coordination within FAO in addressing international
regulatory needs and development; (ii) nature of FAO’s role or roles within that framework;
and (iii) some ideas expressed in this evaluation regarding the next areas for international
regulatory development in FAO.
A. Inter- and Intra-sectoral coordination within FAO
256.
Ultimately, Strategic Objective B-1 is strongly outward looking, as three of its five
component strategies address impacts beyond FAO and even outside of the food, agriculture,
forests and fisheries sectors. Still, the first two component strategies focus on activities
“within the spheres of FAO's competence” to “provide a forum for policy debate and
negotiations on the international regulatory framework at the global and regional levels,” to
“service international instruments as required,” and also to “develop international standards
and other measures for the implementation of the international regulatory framework”.
257.
Inherent in each of these obligations is the assumption that FAO is operating as a
unitary body composed of integrated and inter-functional sub-parts. They are expected to
collectively provide the range of technical and networked support that will enable work
within FAO to be a valued and valuable contribution to the international regulatory
framework, and better able to coordinate with other instruments within that framework, both
within and outside FAO’s core areas.
258.
In some aspects, this assumption presents hidden challenges for FAO, however. It is
not necessary here to reiterate the IEE’s finding regarding the “FAO silos” and the importance
of developing real communication and an understanding of the potential for each “silo” to
obtain real value through cooperation with the others.171 Within the realm of Strategic
Objective B-1, there may be an even greater need for and value of internal cooperation.
259.
International instruments constitute a firm base of national commitment and
consensus. They indicate to a variety of actors the issues on which there is a consensus-based
desire for action. In such areas, project-created systems and outputs can function and be
utilized beyond the usual project term and create a rallying point around which other critical
components of FAO’s work and objectives can be achieved. These facts should create a
strong interdependency and collaboration between instruments and FAO departments and
169
Strategic Framework, ¶ 54.
Strategic Framework, ¶ 52
171
IEE, ¶ 943 and elsewhere.
170
69
bodies, encouraging teamwork and interdependence. Each instrument’s secretariat and
governing body are normally the entities most clearly mandated to maintain an overview of
instrument implementation and support activities.
260.
Within FAO, several different approaches to coordination are being used. In some
cases, for example integration within FAO is direct, with key instruments integrated directly
into their respective FAO Departments. This is generally the situation in the FAO Committee
on Fisheries and through the FAO Fisheries Department, which integrate their work with
RFBs, the CCRF suite of instruments and other activities involving international instruments
as one of their core organizing concepts.
261.
In others, although the various instruments and units are structurally separated,
relationships exist which may in some cases have been formalized in international instruments
as well as internal relationships. For example the text of the ITPGRFA specifically references
and mandates the treaty’s relations to the Global Plan of Action on PGR (administrated by
FAO’s Plant Production and Protections Division),172 the International Agricultural Research
Centres of the CGIAR and the CGRFA.173 Similarly, the GCDT was established on the basis
of the specific understanding that the ITPGRFA Governing Body recognize the Trust as an
essential element of its funding strategy, and the commitment (constitutionally required) that
“the Trust will operate under the overall policy guidance of the Governing Body of the
International Treaty.”174 Integration among these various elements extends well beyond these
formal statements and has done since before adoption of the treaty.175 Many different factors
contribute to this coordination. One, which is sometimes overlooked, is in ITPGRFA Article
19.9, which calls on the treaty to hold meetings of its governing body back-to-back with
CGRFA meetings, when possible. When linked to the participation issues described in
Part IV.E.1 of this report, this provision may operate to encourage cooperation and overlap at
national level between the country’s commission member and its representative in the treaty
governing body.
262.
A third approach has been taken by the Right-to-Food Unit, which has operated in a
more informal way, creating a committed network of FAO staff from many units, keen to
“carry the RTF message,” as an adjunct to their other work. Through them, the unit hopes to
distribute and promote the voluntary guidelines around the world. At the same time, this RTF
network may have the impact of promoting integration of RTF concept and objectives across
a large number of FAO units and departments.
263.
To date, reports in some sectors and approximately 38 percent of all non-FAO staff
interviews suggest that the above mentioned integration approaches have been, at best,
sporadically effective, giving external stakeholders, including Member Governments, an
impression of internal competition and even in some cases distrust among the various
instruments and departments. In country visits and permanent representative interviews, a
substantial number of interviewees have indicated personal awareness of such disconnections.
When coupled with the general concerns about the intricacy and awkwardness of FAO’s
bureaucratic systems, these perceptions may have an overall negative impact on funding as
well as functionality. The disconnected work of numerous different components all acting
under the name of FAO may be one source of the perception communicated to the evaluation
172
ITPGRFA, Articles 13, 14 and 18.
ITPGRFA, Arts. 15.3 (endorsement of genebank standards), 17.3 (cooperation in periodically assessing the
state of the World’s GR and 19.9 (holding governing body back to back with CGRFA meetings, when possible.)
The Commission served as interim secretariat for the treaty prior to its entry into force and continues to contribute
to its operations, as well as moving forward in other areas.
174
Establishment Agreement of the GCDT, final preambular clause. GCDT Constitution, Arts. 1.4 and 1.5. Other
provisions of the GCDT Constitution and Establishment agreement further emphasise this connection and duty.
175
The various units involved in PGR have been keen for this evaluation to document these relationships in detail,
which was not possible within the terms of reference of the team. The various units involved may wish to request
or to commission an evaluation of their work and coordination.
173
70
at national level that FAO’s normative and advisory work is too scattered to be really
valuable.
264.
These perceptions are not universal. Among the focus areas, the fisheries experience
described elsewhere in this report documents a strong positive result from coordinated
promotion of FAO’s hard and soft instruments. In other areas,176 key national participants
were sometimes generally unaware of instruments and supporting structures provided in FAO
by various units working within a particular area.177
265.
The evaluation concludes that effective coordination among FAO instruments and
actors within a particular sector is a hallmark of the most effective use of international
instruments (soft and hard) in terms of promoting Strategic Objective B-1, and should thus be
a primary objective of all units and instruments
266.
Beyond this need for clear coordination of units working with the same instrument,
there is also a need to improve coordination among instruments. As an international body of
technical and professional experts, FAO is expected to be able to bring a broader
understanding and experience to each table at which it sits. This broader view would appear to
require integration among the departments.178 For example, examination of FAO’s website
discloses that FAO’s work in two major areas of international regulatory development appear
to be inconsistent at a basic level in addressing an identical issue – on-farm conservation of
species and varieties of plants, animals and micro-organisms. FAO’s website on climate
change specifically promotes “payment for environmental services”, and states that such
payments are necessary in order to encourage those activities, which cannot be expected to
occur without some kind of direct incentive system. In the area of PGR, these same concerns
are addressed through a process that specifically eschews any form of direct payment to the
farmers, communities or countries that have preserved a particular variety, in some cases
suggesting that such direct benefit-sharing is not possible. Some integrated thinking between
the two might, at minimum, eliminate the apparent contradiction, and may result in innovative
approaches and collaboration between the treaty and the FAO department(s) implementing
the PES approach to climate adaptation.
B. FAO’s role and Integration in Processes and Regulatory Framework
outside FAO
267.
External coordination, is far more difficult than internal, as shown by the final
component strategies of Strategic Objective B-1, to wit:
o ensuring that, with respect to natural resources, environment and trade, the specific
needs and concerns of the food, agriculture, fisheries and forestry sectors are
adequately reflected in international instruments, and that appropriate sectoral policy
advice is provided to the relevant fora; … and179
o improving Members' capacities, with particular reference to developing countries and
countries with economies in transition, to participate actively in negotiations in
relevant international fora dealing with natural resources, environment and trade.
176
Beyond the focus areas, the evaluation also received substantive information about other sectors – primarily
forests and pesticides, from at least 19 interviewees.
177
Cooperation among the standards bodies and FAO actors using or promoting the standards was frequently
mentioned in the course of this evaluation, by interviewees working directly with FAO in the focus areas. Most
frequently, but not exclusively, these points arose in interviews relevant to animal health and genetic resources.
Few member representatives mentioned this. In this evaluation’s processes, national-level coordination among
components of the PGR sector appeared to be incomplete, indicating a possible need for broader awareness of the
GPA-PGR and the ways that it can be applied.
178
IEE, ¶¶ 913, 943 (Recommendation 6.3).
179
As explained above, one of the five component strategies – addressing international trade aspects of B-1—was
excluded from this evaluation.
71
In connection with these components, the evaluation considered both the nature of FAO’s
involvement in international regulatory development, and the manner in which FAO
participates, as an advocate of its primary policy mandate in other international fora and
processes.
1. FAO’s Role, viewed internationally
268.
FAO’s role in the international regime ultimately raises a very important question –
shall FAO be the “lead agency” or take a different role? – as to each separate issue or
concept. This is a new and critical question that must be asked for every instrument, both
existing and proposed.
269.
In discussing this issue, it is important to be clear about the nature of “lead agency”
status. It is not limited to multi-sectoral instruments, but rather to a multi-sectoral approach to
their creation and operation. Thus, an implementing body hosting the development and
operation of an agricultural instrument would be a “sectoral” agency, if its processes and
negotiations involved or focused solely on agricultural/food agencies, entities and interests. It
will be a lead agency, if it recognizes that the concerns of other sectors and bodies
(environment, rural development, trade, consumer protection, etc.) are relevant, and is open to
the full participation of those sectors, accepting the fact that this may result in compromises
between the most agriculturally desirable provisions and provisions which also meet broader
needs and interests.
270.
It is also important to recognize that, should it choose not to be a lead agency, FAO
would be exercising a valid and useful option. There are situations in which any sectoral body
needs to create and promote instruments, which reflect the strongest possible sectoral
position. Such instruments and agencies can be very important as a tool for negotiating other
decisions, instruments and actions. In particular, the IEE has strongly recommended such an
advocacy focus, noting that
The concern is to ensure that global governance meets the needs of FAO’s
constituency, not necessarily that FAO takes the lead in every respect.180
271.
Additionally, it is important to remember that the creation of more instruments is not,
in itself a desirable action. FAO has made many important contributions to international
processes on the basis of its strong reputation for professional, technical and practical
expertise within its sectors. It has had a strong positive impact on the development of the
international regulatory framework from a position sometimes called a “junior partner.”
Specifically, FAO’s collaboration with other fora and partners takes many forms, including:
(i) developing and submitting technical advice and expert inputs; (ii) sponsoring or hosting
the development of soft law instruments; (iii) sponsoring or hosting the negotiation of hard
law instruments; (iv) direct participation in negotiations; and (v) other activities outside any
of those four designations. When undertaking these activities FAO’s role has commonly been
one of the following:
o impartial provider of technical and technological expertise in speciality areas and
expertises within the food, agriculture, forests and fisheries sectors;
o strong advocate of food/agriculture/forests/fisheries positions and instruments;
o implementing agency, supporting national work under an instrument;
o lead agency in the development of global or regional consensus relevant to its core
areas.
While there are many measures of success in these endeavours, the evaluation has generally
noted that FAO’s contributions have been most well received and used (i.e. effective), where
it has chosen one of these roles and focused its activities on serving that role.
180
IEE, ¶ 28.
72
272.
FAO’s work in providing expert input, including in political negotiating fora has been
very positively received where that advice is offered neutrally, taking no position on political
questions. One example, is the recent provision of technical analyses of CITES listing
proposals relating to commercial fish species,181 where FAO’s detailed expert analysis
extended only to the provision of technical data, and the application of CITES listing criteria
to that data. This work has been overwhelmingly recognized as an excellent example of
FAO’s collaboration with political negotiations in non-FAO fora.182
273.
Similarly, when developing soft- and hard-law instruments, FAO’s strongest and
most solidly recognized contributions have been built on the inter-relationship between
FAO’s primary concerns and the primary concerns of other sectors and agencies. In such
cases, FAO sometimes provides a key link between a broader instrument and the particular
FAO sectors most impacted. The CCRF is a highly successful example of this type of
relationship, constituting, in essence the interface between the entire maritime sector
(encompassing shipping, delimitation, military, construction, research and other components
as well as fisheries) and national and regional fisheries implementation. Numerous other
examples exist in which FAO either participated in international development of broader
instruments or undertook parallel processes in conjunction with those broader international
processes. This work normally has involved a careful blend of the “sectoral advocacy” and
“lead agency” roles – under which FAO’s objectives within its core sectors are recognized to
be directly linked to acceptance and compliance with broader international debates and
agreements, which include other sectors and which have been negotiated in other
organizations.
274.
There is evidence that this careful blend has been or is being developed, even in
sectors or departments in which this type of integration has not been possible in the past. In
the area of animal health, for example, overlapping and duplicative efforts and funding were
formerly a source of difficulty between OIE and the relevant units of FAO and WHO
Secretariats. After careful negotiation, however, the three have recently come to an accord on
the various Secretariats’ respective spheres of action.
275.
The PGR sector faces a similar challenge, which may be much greater in scope. The
instrument itself (the ITPGRFA) is believed by some at national level to suffer because of
conditions outside of its control – specifically, the ambiguous nature of relevant provisions of
the CBD, which provides the broader framework. (The CBD’s internal ambiguities on genetic
resource issues – reflecting inter-sectoral compromise - are the reason the ITPGRFA was
created at all.) Unfortunately, ongoing negotiations in the CBD to resolve these ambiguities
have had a “chilling” impact on national adoption of measures for the treaty’s
implementation.183 Countries are, to a large extent, unwilling to adopt genetic resource related
measures until those negotiations are concluded.184 This challenge may be more difficult than
that faced by the animal health sector, given that: (i) the various instruments involved have
not adopted any agreement or “map” defining their coverage; and (ii) such a map will have to
gain approval from the governing bodies of both the ITPGRFA and the CBD, rather than only
the secretariats.
181
“Report of the 2nd FAO Ad Hoc Expert Advisory Panel for Assessment of Proposals to Amend Appendices
I&II of CITES Re: Commercially-Exploited Aquatic Species” Doc. UNEP/CITES/CoP/14/Inf/38.
182
The IEE refers to international instruments and processes as “an area where FAO’s neutrality can often provide
it an absolute comparative advantage.” IEE, ¶ 28, page 14. Ultimately it stated that “policy support must assist
countries and the global community to make their own informed decisions”
183
Concerns about the interrelationship between the ITPGRFA and CBD were expressed by all of the legal experts
on PGR interviewed in country visits and at international and regional meetings.
184
Statements on national implementation experience, CBOL Workshop on Non-Commercial Biodiversity
Research and Genetic Resources, 17 Nov 2008.
73
276.
In answer to this problem, the ITPGRFA secretariat has chosen a bold path of
interagency cooperation and consensus-building. It is assertively seeking to build and
maximize direct mutual involvement between the formerly mostly separate constituencies of
the two instruments. Early steps in this process have included: (i) scheduling an ITPGRFA
technical expert group addressing issues of interest to the CBD in Montreal, to coincide with
the meeting of the CBD’s Subsidiary Body on Scientific, Technical and Technological
Advice (SBSTTA); and (ii) offering to host a coming meeting of the CBD’s “ABS Working
Group” that will be crafting the CBD’s new instrument or document on ABS.185 This
approach contrasts with (but is not inconsistent with) the advocacy focus strongly
recommended throughout the IEE, as quoted above.
277.
The advocacy challenge is particularly difficult where FAO seeks to move beyond its
sectoral base and “take the lead” in the development of a broad-scoped international regime
on a particular topic. Normally, the lead agency in any intergovernmental development
process is expected to accept, even seek, the involvement of all interested sectors and
stakeholders, and to recognize that the final result will represent a compromise of their
various strongly held positions.
278.
FAO’s history both long and recent, suggests that, in the past, open willingness to
encourage all viewpoints from other sectors and to promote the compromise among them
have not been the Organization’s strongest characteristics. The value of a more integrating
role is increasingly apparent. Absent participation by a full range of stakeholders and sectoral
representation, however, an international instrument is barely distinguishable in impact from a
sectoral advocacy document.186 In promoting the adoption or implementation of such an
instrument, the agricultural, food, forest and fisheries sectors may need to create a broader
base of sectoral support. Hence, FAO appears to have two options -- either to take an
integrative approach or to provide advocacy within a forum that enables such integration.
279.
In this connection, FAO’s general situation could be quite similar to that of the UN
marine agencies. The traditional separation of marine policy and legal negotiators from other
international processes (including UNCED and the creation of the Rio Conventions) has
created a “free-fire zone” on crosscutting issues.187 Many advocates are currently taking
advantage of this grey area, seeking international-level statements from the one forum, which
they hope to use as a leverage in negotiations in other fora, and vice versa.
280.
Ultimately, it is not clear whether FAO should want, or would be able, to support the
“lead” in multi-sectoral international regulatory development processes or instruments.
Oriented around food, agriculture, forests and fisheries, many parts of FAO see the
Organization’s role to be promoting the highest interests of those sectors. When operating
from this perspective, it may be difficult for FAO to willingly sponsor and promote
compromise in the development of global instruments. Institutionally, it may be much easier
to take a sectoral, “junior partner” role as described above, serving as an advocate of the
needs of FAO’s constituency in food, agriculture, forests and fisheries in the negotiation and
support of multi-sectoral compromises created in those negotiations.
281.
In addition, FAO may have difficulty in addressing the practical and procedural needs
in order to enable widespread inclusion of other sectors and their stakeholders at a level that
185
This latter meeting has ultimately been relocated to UNESCO (although still hosted by the ITPGRFA), owing
to logistical problems, however the ITPGRFA secretariat remains its “host.”
186
One of the greatest challenges for the ITPGRFA arises from the fact that, although a broad stakeholder
contribution was encouraged, the instrument negotiations were undertaken in an international regulatory maelstrom
– the ongoing work in the CBD, WIPO and indigenous fora was not (is still not) able to develop a consistent
multisectoral interpretation of the basic meaning of the genetic resources framework.
187
One example is the marine/conservation suite of overlapping which are separately addressed by the UNCLOS
and the CBD with little integration.
74
encourages buy-in (i.e. more than token participation by other sectors, observers and others).
Multi-sectoral support, however, is a key element of any instrument that is truly global in
scope. When a country accedes to a convention that is not cross-sectorally supported, the lack
of such support for the instrument may translate into a lack of broad ministerial or political
support at the national level, and thus become an obstacle to its adoption or to effective
national implementation.
282.
It comes down to a choice between focusing on the development of positions in
FAO’s core sectors that strongly promote the needs of FAO’s constituency in that sector
(work that is normally best done by the sectoral representatives working separately, with a
relatively small number of carefully vetted observers) or taking the lead in development of
broad multi-sectoral solutions in which compromises among sectors, and the resolution of
inter-sectoral conflicts or inconsistencies can be achieved. Both are necessary, but cannot both
be done at once. FAO shows a tendency to place a high value on “the lead” without a careful
assessment of its capacity to assume this role and, sometimes, at the expense of the less
visible role of technical expertise provider, in which it has frequently been very effective. Its
main comparative advantages appear to be as provider of impartial expert/technical advice, as
analyst/interpreter of particular technical or sectoral elements of the issue, and as enabler of
integrated national level implementation.
RECOMMENDATION 5.1:
Future Strategy: In the development of international instruments, FAO should seek to build
on its apparent comparative advantages as provider of impartial expert/technical advice, as
analyst/interpreter of particular technical or sectoral elements of the issue, and as enabler of
integrated national level implementation. It should only seek the “lead” in development of an
international instrument after realistic assessment of the potential short- and long-term
implications, advantages and disadvantages and taking into account its position relative to
other stakeholders concerning the issue(s) to be addressed by the proposed international
instrument.
283.
Strategic Objective B-1 calls for both “ensuring that …, the specific needs and
concerns of the food, agriculture, fisheries and forestry sectors are adequately reflected in
international instruments, and that appropriate sectoral policy advice is provided to the
relevant fora" and “improving Members' capacities… to participate actively in negotiations in
relevant international fora.”188
284.
On this point, the IEE found serious deficiencies: “As a knowledge organization,
FAO’s job is to support Members in ensuring that the needs of the world in its area of
mandate are fully met – not necessarily to undertake each task itself. FAO must become more
of a facilitator and concentrate its actions as a doer in its areas of comparative strength..” In
this connection, however, it noted that “as with other aspects of FAO’s work, the priority to
advocacy was influenced by the country’s perception of FAO’s effectiveness as an advocate which was often seen as declining…. there are also disagreements from many developed
countries on the major policy messages for which FAO has advocated.”189
188
The Strategic Framework goes on to explain that the section refers specifically to direct actions in other fora:
“This will involve ongoing support, from a food and agriculture perspective, to secretariats of conventions (e.g. the
Convention on Biological Diversity, the Convention to Combat Desertification and the Convention on Wetlands of
International Importance, Especially as Waterfowl Habitat (also known as the Ramsar Convention). Cooperation
will also continue with the secretariats of the Convention on Climate Change and of the UN Convention on the
Law of the Sea, as will participation in negotiations under the aegis of UNEP on persistent organic pollutants
(POPs). Support on the rights related to food will continue to be provided to the Committee on Economic and
Social Rights and to the Office of the UN High Commissioner for Human Rights (UNHCHR).” These issues are
discussed in the IEE at ¶ 27, 273.
189
IEE ¶ 273. See also its discussion of FAO advocacy and promotion of policy messages, ¶¶ 289-327.
75
285.
It specifically stated that, in other (non-FAO) fora, FAO’s advocacy “must deliver
technical policy messages and help drive a global and corporate policy agenda. As the UN
agency charged to address a substantial sector, FAO has important (in some cases, essential)
messages that the world needs to hear but these are not being adequately heard. …FAO must
rebuild an authoritative and effective voice on behalf of rural people, the hungry and all those
who can benefit from agriculture playing its role in the economy, including consumers. FAO
is the only global organization to speak for this constituency.”190
286.
The IEE found that this outward-looking aspect of FAO’s responsibility is underaddressed, and that “all the committees tend to focus excessively on the work of the FAO
Secretariat and give inadequate attention to driving the global policy agenda.191 It strongly
recommends that FAO take active formal roles in the negotiation of instruments and decisions
in other agencies. The development of a “FAO position,” for purposes of advocacy in external
meetings can be tricky, however. The IEE notes that such positions must be officially
sanctioned, and that
As far as the IEE could ascertain, at no time have FAO Governing Bodies examined
draft texts of treaties and agreements being negotiated elsewhere than in FAO itself.
This deprives both national governments and the secretariats of other treaty-making
organizations of useful feedback from the agricultural and food perspective. FAO is
not alone in this. The IEE found no examples of other UN organizations doing this
either. Some of the summits have had lead agencies for different chapters but joint
work or examining the work of others in draft is not the norm, be it policy and
legislation for intellectual property or the oceans.192
287.
The related IEE recommendation, however, was that FAO bodies should “review
international instruments being drafted elsewhere in order to influence the decision-making
fora of those agencies.”193 Due to timing problems, this type of formal process may be
impractical, however, unless the FAO bodies are willing to hold special meetings for this
purpose between the date on which the other international body releases meeting documents
and the date of the meeting in which they are to be discussed or negotiated.
288.
More importantly, in the end these mandates appear to call on some person or persons
to take and advocate particular policy positions in international meetings, in the name of FAO.
In order to do this, that person must either: (i) obtain very detailed guidance from the
Conference, Council or other FAO body; or (ii) discern “FAO’s position” on the particular
issue or decision under consideration, based on the person’s knowledge of FAO’s related
actions and decisions and the individual’s own best efforts. In either case, the individual faces
two risks with regard to any such position s/he presents. First, his/her assessment may be
incorrect – the FAO Conference or other body may strongly oppose the position that he
espouses. Second, even if s/he has ascertained “FAO’s position” fairly, s/he will be acting in a
forum in which FAO member countries are represented by delegations from FAO member
countries who are not personally familiar with FAO’s decisions or issues. These delegations
may criticise FAO for taking a position opposing them as FAO Members.
289.
This challenge is not unique to FAO. Within the UN, it is very common at all levels,
so that a recent UNGA publication noted that
The Secretary-General would fail if he did not take careful account of the concerns of
Member States, but he must uphold the values and moral authority of the UN, … even
190
IEE, ¶ 27-8, adding that “There must be concentrated and sustained effort [directed at] bringing the tools of
advocacy to FAO’s main technical areas.” As noted below, this mandate is generally inconsistent with FAO’s role
in other contexts.
191
IEE, ¶708
192
IEE, ¶752.
193
IEE Recommendation 4.5, ¶ 753.
76
at the risk, from time to time, of challenging or disagreeing with those same Member
States.194
While recognized to be a difficult problem at the highest level of the Organization, the role of
FAO staff to respond to FAO’s “policy advocate” responsibilities is infinitely more difficult
the further one gets from the Director-General.
290.
In interviews, there was a strong tendency by approximately half of the persons
interviewed with experience in national delegations (both staff and member representatives)
to dismiss this problem by noting that, in international situations, many voices speak for FAO.
This is undeniably true. The very first line of the FAO Constitution states the objective of
“further[] separate and collective action on their part.” The right of sovereign nations to take
separate action is not questioned. In addition, however, FAO offers many mechanisms for
collective action, including the FAO Conference, FAO Council, FAO’s Commissions, FAO’s
staff (operating through multiple programmes, units, instruments and entities) and FAO’s
Members, all of which “speak to the world” through different mechanisms.
291.
The multiplicity of voices can be a problem, whose first solution, it appears, is
national. As expressed many times throughout this evaluation, by international instrument
staff members, national delegates, and other persons interviewed during country visits, in
speaking about FAO’s institutional participation in international fora:
In the end, it’s the same countries really. It is their [the countries] job to ensure that
the international instruments and processes get the same message and work toward
the same goals. Unfortunately, most countries’ delegation to FAO is very different
from that one attending the CBD, for example. Even if the same ministries are
participating in the delegation to FAO and to the CBD, a different ministry will be
making the decisions of the points and positions the country will present.195
292.
For FAO to take a particular advocacy role in non-FAO fora, it must designate
particular persons to “speak with FAO’s voice.” Presently, some non-FAO fora are very
broad in scope, covering more than one of FAO’s core areas or seeking to interact or integrate
with more than one FAO instrument or body. It has frequently been necessary for many
different components of FAO to be individually represented in such fora.196 Although direct
evaluation of FAO’s participation in international meetings was generally not possible,197 the
evaluation team has focused on the nature of these relationships, noting that FAO appears to
be widely participating in non-FAO processes and present in many different fora. This type of
participation is generally limited, however, to: (i) attendance of FAO staff and representatives
of FAO instruments, programmes and units, providing descriptions of specific activities that
they are undertaking and building essential contact with participants; (ii) specific
interventions on FAO’s involvement or concerns by national delegations (FAO Members);
and (iii) ensuring that the final decisions do not refer to FAO incorrectly or call for services or
support that FAO is not able or willing to provide.
293.
This restrained approach has sometimes resulted in inconsistencies with various FAO
Members taking inconsistent positions on the key topics, all citing FAO as authority. This
may put FAO “in the centre” between various FAO Members, with some claiming that a
194
UN web-page, Office of the Secretary General at http://www.un.org/sg/sgrole.html. The specific authorizing
language regarding the Secretary-General is found in the UN Charter at Chapter XV, Art. 98. The FAO
Constitution’s provisions on this point do not express these responsibilities as clearly. FAO Constitution, Art. VII.
195
This concise statement was made by a national delegate who is part of his country’s delegations to FAO, the
CBD, and UNESCO fora. Numerous others made the same points.
196
In the recent CBD COP and Cartagena Protocol COP-MOP (May 2008), at least seven different units of FAO
headquarters and FAO-hosted instruments were represented. Delegations of FAO member countries made over
100 interventions directly mentioning FAO and/or advocating action by FAO in sessions observed by the team
leader.
197
The evaluation team was able to attend parts of three such meetings (the Latin American FAO Regional
Conference, the COP-MOP of the Cartagena Protocol, and the 9th COP of the CBD.)
77
particular issue should be given to FAO entirely (because the matter has an impact on food or
agriculture). Recently, many FAO Members and entities have indicated that they expect the
FAO Secretariat to take the labouring oar in promoting FAO policies and mandates,
especially with regard to non-FAO fora and instruments. Others have stated that advocacy of
FAO policies in other organizations’ processes is generally beyond the mandate and authority
of FAO staff. As an Organization of over 190 sovereign country members, FAO’s reach
includes dozens or hundreds of issues, which are potentially impacted by international
decision-making in other fora. To adequately participate, FAO spokespersons must be well
prepared regarding messages objectives and critical issues in negotiations. Such preparation
appears possible only through a coordinating unit charged specifically with this mandate.
Without coordination, advocacy by FAO could engender controversy within FAO.198
294.
Many (non-FAO) institutions and instrument governing entities recognize FAO’s
technical expertise in food and agriculture, as well as fisheries and forests. They may
specifically call upon FAO to serve in expert capacities or to integrate FAO’s work with that
of the other organization. These contributions are often effective and well received.
RECOMMENDATION 5.2:
a. Future Strategy: FAO Conference and Members should exercise care that new
international instruments are developed either: (i) in coordination with, and/or building
consensus with, all relevant sectors and international actors; or (ii) in a manner that can be
consistently applied with all other instruments in the international policy and regulatory
framework involving or affecting food, agriculture, forests and fisheries. Particular
attention should be given to enhancing coordinated national implementation and to
repeating FAO’s successes with developing instruments that operate to facilitate and
guide that implementation.
b. Immediate Action: In preparing to advocate sectoral interests on behalf of FAO, FAO
staff should focus on aligning positions with the priorities set out in the Organization’s
strategic and medium-term plans, approved by Members, and with specific and focused
priorities arising from Recommendation 6.1 (below) to enable focused concentration of
resources. Maximum use should be made of ongoing efforts in the Organization to
enhance transparency in order to gain information about relevant activities in other
departments and units and to offer information to them. This should be supplemented by
resources dedicated to enabling focused inter-departmental cooperation, as necessary, and
by cooperation with other relevant stakeholders.
c. Immediate Action: FAO should develop a mechanism for determining the contents and
authorization of those undertaking formal advocacy of those positions in non-FAO fora.
C. Suggestions on Regulatory Needs of the Immediate Future
295.
Identification of areas where there are regulatory needs which can be met by
international instruments requires substantive inquiry into: (i) the political, technical and
practical ripeness of each issue for action; (ii) the adequacy of existing regulatory instruments
and those in process of negotiation; or (iii) the nature and extent of “value added” by the
creation of a new international instrument or regulatory process in any of these areas.
296.
Nevertheless, various interviews yielded pointers from various levels about the
potential next needs for international instrument development. The following list reports
198
Best expressed by one FAO staff member: Of course, each country has a different view of what the adopted
position of FAO is, and how it should fit with the other international bodies. In the end, no single position is put
forward on behalf of FAO, unless it comes from staff and then it is usually the staff member’s or unit’s position,
because the “FAO position” on a particular point or concern is not easily identified…
78
points identified by at least three unrelated persons. It is provided as input to FAO’s ongoing
strategic planning process, subject to the above caveats.
- Fisheries: Within the fisheries area, respondents often stated that additional instruments
were inadvisable, because efforts of FAO and national/regional implementing agencies are
overstretched already trying to implement the instruments that already exist. Suggestions
for future priorities included:
o the development of regional CCRFs (in the manner that SEAFDEC has developed
one for south-east Asia) and model approaches;
o the development of special guidance on best practices relating to artisanal fisheries
and their governance/management;
o further development of regional fisheries compliance mechanisms;
o stronger regulatory authority for RFBs to act in addition to or in conjunction with
regulation by the vessel's flag state, or where that state is not acting;
o further instrument development to strengthen (create) a clear operative linkage
among the various RFBs, coupled with additional development of relevant RFBs
to fill “gaps in the geographic scope of the straddling stocks regime.”
-
Genetic Resources: International development in this area currently focuses on
completion of broader international negotiations (ongoing outside FAO) of the
“international regime” on genetic resources, in a way that clarifies the respective roles
and requirements of genetic resources for used food and agriculture, and those used in
other ways. Connected to this, several parties and other interviewees expressed a wish for
tools to clarify and enable implementation of the ITPGRFA. Numerous interviewees
expressed a strong need and desire for:
o agreed provisions or understandings to enable clear, legally verifiable legislative
provisions for national implementation; or
o at minimum, a clear understanding of the relationship between the primary
international instruments relevant to genetic resources (ITPGRFA, CBD, Cartagena
Protocol and IPPC, as well as many other soft and hard documents), either:
(i) providing a method for rationalizing their disparate requirements, terminology
and conceptual approaches into a single integrated system: or
(ii) providing an agreed and objective basis for determining which instrument
applies in each individual factual or legal situation.199
-
Standard Setting: Suggestions have focused on addressing problems of participation and
capacity and the proliferation of more stringent standards by developed countries.200
These suggestions did not recommend specific new standards,201 nor proposed making
standards more rigid,202 but many suggested that:
o international mechanisms (global or regional) could help empower developing
countries to comply with the relevant standards in their export programmes, such as
creating tools to make it easier and more effective to select relevant standards,
enabling them to comply with the special standards set by some trading partner (EU,
US or Japan) or, if the partner has set no higher standard, with Codex;
199
Many persons stated that last year’s adoption of the Global Plan of Action on Animal Genetic Resources was
the first step in developing an international treaty on these genetic resources, similar to the ITPGRFA. Virtually no
person who had attended the meetings negotiating the GPA- AnGR said this. The majority of these respondents
(delegates and FAO staff) stated rather that no treaty was planned, and hopefully none would be needed.
200
Discussed in ¶ 154. Many of those suggesting the following new instrument development described those issues
differently or placed the emphasis differently than shown in the cited paragraphs.
201
All persons contacted were generally comfortable with the existing process for proposing new standards.
202
In its current form, the Codex Alimentarius is non-binding, so that no compliance mechanism is possible. The
IPPC’s standards are thought to be relatively adjustable in their impact on developed countries which posses
sufficient capacity to “scientifically justify” the use of stricter standards, but to be less adjustable for developing
countries who might have trouble providing sufficient scientific justification.
79
o
o
o
international mechanisms (global or regional) could enable more effective domestic
use of Codex safety standards;
regional cooperation and other global assistance could enable developing countries to
apply IPPC standards more effectively, and could identify particular pest, disease and
other susceptibilities on a regional or sub-regional level;
FAO’s help in developing direct or de facto systems for accreditation of those who
apply standards, particularly in relation to sanitary and phytosanitary matters.
-
Compliance: Compliance discussions in five of the focus areas203 have suggested a variety
of different approaches, including (besides those described under “fisheries”):
o enhanced collaborative compliance mechanisms to enable and encourage more
complete implementation of existing instruments (a comment which cuts across all
focus areas, as well as instruments of peer organizations, and instruments generally
discussed only in terms of the “horizontal” analysis of this evaluation);
o particular mechanisms that do not conflict with “no-tracking” provisions of the
ITPGRGA,204 but still enable the treaty secretariat and/or parties to know about use of
genetic resources and obtain relevant benefits (either through the Treaty’s Article-18
Fund, or direct access to genetic material or in other ways.)
-
Other suggestions relevant to other subject areas include:
o incorporation of some provisions of the International Code on the Distribution and
Use of Pesticides into legally binding instruments;
o development of a standard for responsible biofuel production based on, inter alia, its
impact on agricultural production and used to certify biofuel as a commodity;
o “a multilateral agreement for Desert Locust control be developed for the formal
permanent engagement and support of all key stakeholders”205.
VI.
Conclusions and Recommendations
297.
Overall, it appears that FAO’s work in international instruments and the development
of the international regulatory framework has made a significant contribution, enabling
progress in relation to FAO’s objectives. Such progress, particularly at the international
normative level, has been notable. FAO’s substantial body of international instruments
includes many which have proved extremely durable and productive. FAO’s work at the level
of national implementation is generally under-recognized, but when identified, has received
mixed reviews.
298.
Responding to the questions specifically investigated in this evaluation:
o How and to what extent has FAO utilized international instruments as tools for
achieving its strategic objectives? As explained in detail above, FAO has utilized
a very broad variety of different approaches, including many different types of
soft and hard instruments and Article VI bodies, with varying levels of
effectiveness in helping to achieve FAO’s objectives. FAO’s activities in the
implementation and application of international instruments, although mostly
well received individually, are globally and substantively so diverse that they are
sometimes perceived to be minimal.
203
None of the discussions of Right to Food suggested a need for a compliance mechanism, possibly recognizing
the impact of the Special Rapporteur on Right to Food’s contributions to the Human Rights Council and UNGA’s
work at the international level. The RTF project generally seeks to encourage countries to adopt legislation that
will promote national-level compliance with this national issue.
204
Many commenters noted that the ITPGRFA’s specific provision against the tracking of genetic resources
creates a gap in compliance; others note a similar gap within the SMTA where an exception excuses virtually all
users from the duty to pay a share of proceeds into the Article 18 Fund.
205
Recommended under the Desert Locust programme evaluation, at Recommendation 57(c), page 88.
80
o
o
o
To what extent are the procedures and processes involved in creating and
implementing international instruments fair, effective and appropriate to FAO’s
objectives? Many FAO instruments currently face serious challenges to fair and
effective operation, especially in the areas of participation and national
implementation. Particularly with regard to administrative resourcing and
authority, these issues may have a determinative influence on the success or the
international instrument in achieving its declared objectives. Although questions
of instrument autonomy have arisen and need to be clearly resolved, FAO retains
a high level of involvement in and control relative to instruments adopted under
its umbrella, and can attempt to ensure that they remain “on message” and
continue to promote food, agriculture, forests and fisheries objectives.
To what extent should FAO’s work in international instruments be coordinated
with that of other institutions, sub-sectors and sectors? Coordination with other
sectors appears to be an area of pre-existing deficiency, but also an area of current
evolution and growth within FAO. To the extent that FAO wishes to “take the
lead” in any global regulatory area (an objective which the evaluation team
neither recommends nor discourages), it must do so in an atmosphere of enhanced
cross-sectoral cooperation, including maximizing inclusion of participants and
observers from outside of FAO’s core areas. As provider of expertise to other
sectors, FAO’s undisputed professional expertise gives it an important role in
interpreting the provisions of international instruments which have specific
impact on or relevance to the food, agriculture, forests and fisheries sectors, and
assisting countries to integrate them at the national level. These activities
maximize the ability of national agencies and private actors to comply with
international regulatory requirements and enable relevant international regulatory
bodies to address or recognize the needs of those sectors.
How can FAO maximize the value and benefit to the Organization and its
Members with regard to its use of international instruments? FAO has achieved
its greatest B-1-related successes by providing expertise and respected technical
advice on matters within its competences. Its most significant deficiencies have
been in the areas of financial and organizational administration. Over the long
term, without giving up its commitment to hard-law instruments, where
appropriate and necessary, FAO should consider increasing its influence through
a greater balance of technical bodies and soft-law instruments, which normally
(i) involve a higher level of technical analysis and advice, (ii) can be equally (or
more) useful to Members and (iii) present fewer administrative demands, than do
hard law instruments.
299.
It is clear that there are ways in which FAO’s work under Corporate Strategic
Objective B-1 could be refined to increase its value over both the long and short term in order
to (i) maximize FAO’s value-for-effort in this work, (ii) better utilize FAO’s comparative
advantages and (iii) increase FAO’s international profile in this area, improving the
perceptions of Members and the awareness of other sectors and stakeholders regarding FAO
and its work and competences.
A. Areas of Comparative Advantage and Weakness
300.
The evaluation team identified many areas of comparative advantage with regard to
international instruments and their implementation, including
o Expertise: FAO is widely believed to “find the best minds” in a multitude of expert
and technical fields, and to allow them relatively unfettered ability to work and advise
in their technical areas as they see fit.
o Global experience: FAO participates in regional and national development processes
every day, and provides Members and the public with a high level of access to the
experiences derived from that participation, and to the products of technical
81
o
o
o
o
assistance, through in-country services, database development, and publications
(guidelines, manuals, and other information tools). In learning from these past
experiences, countries may avoid having to ‘reinvent the wheel’ in each specialized
activity.
Human capacity building: In addition to publications and workshops, FAO applies its
technical assistance as a tool for improving technical competence of national
counterparts and others in areas necessary to full understanding and implementation
of their international commitments.
Proactive role in global agenda-setting: FAO is highly regarded for its willingness to
step in and act where there are gaps in the international regulatory system or where it
is ambiguous or problematic in ways that affect food, agriculture, forests and
fisheries.
“State of” information: Within their respective sectors, FAO’s “State of…” Reports
are widely respected for providing information on trends, techniques and new
resource management instruments, and facilitating planning and response to key
challenges.
Facilitation of regional/international meetings and communication.
301.
In some sectors, FAO is recognized for its neutral credibility as well. It is perceived
as an independent and impartial body given that it has no economic interest and its objectives
are directed at promoting general welfare and the primary sectoral industries. In this
evaluation, this attitude was prevalent in the fisheries and food sectors, while in other areas,
interviewees felt that FAO was taking a specific “side” in particular controversial issues. This
led to a wide split in expressed views of FAO’s credibility and exclusiveness.
302.
Another area in which FAO sometimes received strong acclaim was enabling and
supporting regional activities. Here also, however, there was a mix of responses, with some
claiming that FAO’s work at global level is overly associated with the interests and concerns
of developed countries, but others noting that the resulting instruments and other outputs can
be developed as regional instruments, focused on particular issues of greatest concern in each
region. In addition, FAO’s action at regional level in and support for regional bodies and their
operations has been variously castigated as too controlling and commended as being the
primary source of expertise and other support for those bodies.
303.
In addition, this evaluation has identified weaknesses, which arise from a few
organization-wide problems:
o lack of an institutionally overseen strategic view of the international regulatory
framework and the areas in which FAO’s efforts can be most effectively used to
address gaps or improve implementation;
o tendency to develop instruments and proposals with insufficient consideration of the
full cost implications at national and international levels (including the level of
support to be provided by FAO), if the instrument is to be effective in achieving the
objectives for which it is created;
o untransparent, slow and highly bureaucratic financial administration, including
administration of international instruments administered within FAO as separate
entities;
o insufficient clarity in relationships between particular instruments and FAO
Secretariat;
o Weak internal communication and cooperation among FAO departments, and even
within departments in some cases (the silos);
o Weak external coordination and cooperation between FAO and other
intergovernmental and international actors and instruments (FAO as a “super-silo);
o Insufficient attention to the needs of national implementing bodies in food,
agriculture, forests and fisheries sectors, when those sectors or agencies are already
called to implement multiple international commitments.
82
B. Overall Assessment by Strategic Objective Component
304.
The Strategic Framework identifies five component areas under Strategic Objective
B-1, which FAO should emphasize in 2000-2015. Four of these were included in the TOR of
this evaluation:
a) Within the spheres of FAO's competence, providing a forum for policy debate and
negotiations on the international regulatory framework at the global and
regional levels, and servicing international instruments as required;
b) Developing international standards and other measures for the implementation of
the international regulatory framework, in the areas of food, agriculture,
fisheries and forestry;
c) Ensuring that with respect to natural resources, environment and trade, the
specific needs and concerns of the food, agriculture, fisheries and forestry sectors
are adequately reflected in international instruments, and that appropriate
sectoral policy advice is provided to the relevant fora;
... and
e) Improving Members' capacities, with particular reference to developing countries
and countries with economies in transition, to participate actively in negotiations
in relevant international fora dealing with natural resources, environment and
trade.”
These components appear to be targets for primary attention within the strategic objective,
and have been evaluated as such. This evaluation has noted significant progress and
achievement, as well as challenges in all of these areas. The following sections briefly
summarize earlier discussions.
1.
Forum for policy debate / servicing international instruments
305.
This double element resulted in two fairly separate conclusions. First, there are high
levels of awareness and apparent approval of FAO’s performance of that function, at global
and regional levels.
306.
Second, while many individual points of concern or improvement have been
identified, it is indisputable that FAO has expended intensive effort in (i) creating relevant
and effective substantive and technical bodies (such as the CGRFA, JEMRA, JECFA and
JMPR, among others); (ii) enabling them to produce necessary outputs to support FAO
instruments and the international regulatory framework; and (iii) setting up instrument
secretariats, governing bodies and internal processes for supporting, promoting and otherwise
servicing the FAO instruments.
2.
Developing international standards and other measures
307.
Codex Alimentarius and the IPPC have been the centrepieces of FAO’s suite of
global international instruments over a very long segment of its history. FAO’s contribution to
and use of standards of other standard-setting bodies (OIE and ISO) have been notable
contributions to the global standard-setting framework. In addition to setting standards and
participation in that process, however, FAO has been very active in the application of
standards – converting the paper standard into realistic normative and substantive guidance to
governmental actors and other persons and entities operating within the food, agriculture,
forests and fisheries sectors.
308.
Within its standard-setting and use activities, FAO is confronted by two challenges,
which have not yet been addressed. The first is the evolution of FAO standards caused by the
SPS designation of Codex, IPPC and OIE standards, as “reference standards” to be used by
83
WTO tribunals. As a result of this designation, many changes have been perceived in the
standard-setting environment and it may be contributing to a reduction in the extent to which
Codex and IPPC standards are legislatively adopted by Members.
309.
The second major challenge relates to the adoption of higher standards by OECD
countries, which impairs the Codex objective of facilitating international movement of
agricultural commodities, with primary impact on developing countries.
310.
Finally, the IPPC appears, for the present, to be a “technology forcing” instrument. It
promotes continued improvement in countries that are currently almost completely unable to
apply IPPC standards, rather than primarily unifying existing efforts.
3.
Reflecting the FAO’s core needs and concerns in other instruments
and processes
311.
Relevant to its participation in a wide range of instrument negotiations and processes,
FAO’s performance has been mixed. One limiting element may be the uncertainty of FAO’s
direct representatives regarding whether and how to “ensure that the needs and concerns of
[FAO’s primary] sectors are adequately reflected” in those proceedings.
312.
In general, FAO’s most effective work relating to non-FAO international fora, has
been of two types:
o providing “sectoral policy advice” to other fora. This activity has been well received
where it has reflected FAO’s undeniable technical and technological expertise and
knowledge, but perhaps less welcomed where it shades into policy advocacy. This
suggests that, while FAO-provided advice should make recommendations, it may be
more welcome when it is non-political – limited to specific technical matters;206
o initiation of parallel proceedings or discussions within FAO. Another FAO response
to international developments in other sectors has involved the development of
instruments of various sorts within FAO, to clarify or develop principles and
concepts for the application of the instruments and decisions of other sectors in the
specific contexts of food, agriculture, forests and fisheries. This work has been most
successful when closely coordinated with the operations of other fora and where the
substance of the instrument specifically integrates national obligations that cut across
the entire range of relevant international instruments, and focuses on enabling
national regional and other bodies to implement them all. Where these coordination
and delineation functions have not been possible or have not been attempted, results
have met with greater resistance.
4.
Building member capacity to participate effectively
313.
FAO, particularly through FAO's international instruments, has devoted significant
efforts to increasing Member capacity to participate in international fora. Although
participation levels are still not optimum, those efforts have yielded notable results. The main
actions and results, however, have addressed financial restraints faced by developing
countries in sending representatives to relevant meetings, and the primary mechanism that has
been used to date is almost purely financial – the development of special funds to support
these costs. It has not yet been financially possible to develop specific mechanisms to enhance
206
As a clarifying example: In the provision of advice to CITES, it was entirely proper not only to undertake the
technical analysis of various factors in proposed listings of commercially fished species, but also to take the step of
fitting the results into the CITES listing criteria and stating the conclusion regarding whether the species should be
listed and how. Although there were some opposite views, the overwhelming input received from national
delegations by this evaluation was support for FAO’s work and the way it was presented. By contrast, in some
fora, FAO inputs have been seen as “promoting FAO’s internal policy agenda” and many FAO members state that
FAO should not be taking positions contrary to its Members in other fora – especially as to matters not yet decided
by Conference.
84
the technical capacity of delegations, nor to ensure that sponsored and unsponsored delegates
actually attend all relevant sessions. Full, qualified and technically-supported participation are
essential elements of fair and effective international governance processes and negotiations,
and should be specifically considered in evaluating the pros and cons (costs and benefits) of
creating any additional international instrument.
C. Final Recommendations: Improving Overall B-1 Performance
Strategic approach and Global view
314.
The linchpin factor that will improve FAO’s contribution to the international
regulatory framework is the development of some institution-wide awareness and oversight of
that framework and FAO’s components within it. This approach could help bridge the internal
silos and the various inconsistencies and overlapping efforts created where parts of the
Organization take action guided only by their partial view of international needs, gaps and
opportunities. It can also help empower individuals representing FAO in non-FAO fora to
advocate relevant concerns, without fear of overstepping their authority.
RECOMMENDATION 6.1:
Immediate Action: FAO, at all levels, should ensure that all aspects of its work and
involvement in the international policy and regulatory framework are integrated, to the
greatest extent possible in a clearly expressed analysis and strategy. Linking this strategic
planning to the overview described in Recommendation 3.1 will ensure that FAO stays
abreast of developments across all parts of the international framework that affect or are
affected by FAO’s core areas. Such awareness and integration is critical, even where it has
determined to go forward with parallel processes, rather than participating in other
organizations’ primary negotiations.
Cost Factors
315.
The costs of international instruments are not adequately reflected in the decision to
develop new instruments. Approximately 85% of the global FAO instruments and 43% of the
regional ones rely on FAO Regular Programme funds for part of their annual budget. In the
majority of cases examined, this contribution does not cover basic operational costs. In
evaluating minimum funding needs, however, it is important to remember that there are some
types of additional expenses that are essential for fair international governance. Of these,
support for effective participation by all Parties is perhaps the most important, and is not yet
well achieved.
316.
FAO’s contribution to regional instruments appears to be intentionally declining.
Nearly all regional instruments receiving a direct Regular Programme contribution are very
old (adopted in the 1940s and 1950s). At global level, there is no similar trend, with most
instruments receiving some percentage of RP funding, except the GCDT, which is free of
direct financial dependence on FAO.
RECOMMENDATION 6.2:
Immediate Action: FAO should give priority to placing its existing international instruments
on a firm financial footing and ensuring that they can operate fairly and effectively, including
with a fair balance of competent (or technically supported) national delegations, recognising
that the level of support needed for the newest instruments may be higher in formative stages
than it will be later, once operations reach “steady state.”
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FAO’s Role
317.
Internationally, FAO plays two roles – (i) advocate of the needs and best interests of
the food, agriculture, forests and fisheries sectors and (ii) supporter and contributor to overall
international action and consensus, including the development of international instruments.
Whether leading or contributing to negotiations, however, it must recognise that compromise
with other sectors is part of the task. Even when working entirely within its core sectors, FAO
can only take the lead in international instrument development, where it is able to recognise
that other sectors have an interest, to accept their participation in the instrument’s
development and to realise that international negotiations may lead to a compromise that may
not reflect FAO’s view of the “best outcome for food, agriculture, forests and fisheries.”
Activities and participation of bodies like the CGRFA may often have the ability to fill both
advocate and lead roles and to move back and forth between the two, depending on need.
Neither the FAO secretariat nor any instrument secretariat has such institutionally recognised
flexibility. (See Recommendation 5.1)
Hard or Soft Law?
318.
Although often focusing primarily on hard law, FAO has significant experience as a
developer of soft-law instruments of various types, which has been generally positive. There
is some evidence that, where soft instruments are effectively and actively promoted, they can
have an impact on national and international policy and action, which is as great as or greater
than the impact of FAO’s hard-law instruments. There is evidence to suggest that active
promotion of soft-law instruments (normally as part of the work of a standing department or
unit) can be much less costly than the creation of a new hard-law instrument. It is increasingly
clear that the apparent prejudice in favour of hard-law over soft-law development is not a
correct or realistic appraisal in many ways, especially for FAO as a technical agency.
319.
FAO’s reputation and history in financial administration and bureaucracy also
suggests that at present it should avoid taking on responsibility for the hosting, management
and administration of additional hard-law instruments, where possible. (See Recommendation
4.1.)
National Implementation
320.
FAO’s actions and activities in the creation, operation, dissemination, support and
implementation of international instruments are extremely broad, as is the coverage of the
instruments functioning under the FAO umbrella. This breadth, however, frequently gives the
impression that FAO is not a major actor in any particular area, and prevents those providing
support and other services (through FAO or through the instruments themselves) from
building on a cohesive set of relevant experience throughout the organisation, or from
obtaining “economies of scale” by building on other work.
RECOMMENDATION 6.3:
Immediate Action: FAO Secretariat and the existing FAO Instruments should develop a
focused plan for providing support to national implementation and regional activities under
each international instrument. This should encompass international instrument development,
dissemination and implementation, as well as technical assistance activities, with the aim of
concentrating on a more focused substantive range of activities in each core sector, enabling
greater cooperation within FAO, and enhancing FAO’s international profile and reputation.
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