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Tracking Twenty-‐Four Years of Discussions About Transparency in International

Marine Governance: Where Do We Stand?

Jeff Ardron,*A Nichola Clark,B Katherine Seto,C Cassandra Brooks,D Duncan Currie,E

Eric GilmanF Transparency in governance has been recognized as a principal

tenet of democracy and a primary objective of governing actors for centuries. Discussions and analyses of the concept of transparency have been pervasive in the literature on international and multinational institutions. But to what degree is transparency being discussed by those international institutions charged with the management of marine resources? To gauge this discussion, this study tracked the use of transparency terminology in annual meeting reports of fourteen global and regional marine treaty bodies over twenty-‐four years, from 1990 to 2013. The study considered the contexts in which transparency was discussed, and whether transparency was associated with mandatory, obligatory, or *

A Institute for Advanced Sustainability Studies, Potsdam, Germany. B Corresponding author, Nicholas Institute for Environmental Policy Solutions, Duke University, Durham, NC, 27708, USA, [email protected]. C Department of Environmental Science, Policy, and Management, University of California, Berkeley, CA 94720, USA. D Emmett Interdisciplinary Program in Environment and Resources, Stanford University, 473 Via Ortega, Y2E2 Suite 226, Stanford, CA 94305, USA. E Globelaw, 7 Rangatira Terrace,St Andrews Hill, Christchurch New Zealand. F College of Natural Sciences, Hawaii Pacific University, Honolulu, Hawaii, USA. The Authors appreciate the support of sponsors for the Stanford Law School Symposium Emerging Perspectives on the Law, Science, and Policy of Dynamic Marine Conservation. We further extend great appreciation to Martin Hall and Margaret “Meg” Caldwell for their advice and input throughout the drafting of this article. We would also like to thank the Nicholas Institute for Environmental Policy Solutions for funding the research that inspired this paper.

168 STANFORD ENVIRONMENTAL LAW JOURNAL [Vol. 33:2

voluntary language. The results suggest that transparency has been discussed in highly varying ways and degrees amongst international marine bodies for at least twenty years, covering a wide breadth of topics, with some recurrent themes. Following an initial rise, transparency-‐related discussions leveled off and have remained relatively consistent for the last fifteen years. Obligatory wording such as “should” was most often used in these discussions. While it is likely that the international political stage has influenced the way that international maritime organizations discuss transparency, within marine institutions these discussions have remained relatively static. Furthermore, institutional documents reveal little evidence of a link between discussions of transparency and global commitments.

I. INTRODUCTION .................................................................................................... 168 II. BACKGROUND ...................................................................................................... 169 III. METHODS .............................................................................................................. 175 A. Keyword Abundance and Density Analysis ............................ 175 B. Compulsory Language and Context Analysis ......................... 178 IV. RESULTS ................................................................................................................ 179 A. How Frequently Was Transparency Mentioned? ................. 179 B. What Level of Compulsion is Associated with Transparency? ..................................................................................... 182 C. What International Commitments Are Associated with Transparency? ..................................................................................... 183 D. Suggestions and Impressions from Keyword Context ....... 185 V. DISCUSSION .......................................................................................................... 186

I. INTRODUCTION A key characteristic of a democracy is the continuing responsiveness of the government to the preferences of its citizens. -‐ R. DAHL, POLYARCHY: PARTICIPATION AND OPPOSITION1 Transparency has been long recognized as a basic tenet of

democratic governance, both in traditional state politics as well as

1. ROBERT A. DAHL, POLYARCHY: PARTICIPATION AND OPPOSITION 1 (1971).

2014] TRANSPARENCY IN MARINE GOVERNANCE 169

international institutions.2 Transparency is credited with enhancing cooperation among actors, allowing solutions to collective action problems,3 encouraging compliance,4 increasing accountability and responsiveness of governments,5 promoting information and participation,6 and preventing conflict.7 While transparency has permeated discussions of governance in such diverse arenas as human rights, fiscal policy, and security,8 the literature does not reveal to what degree the notion of transparency has influenced discussions regarding marine governance. Although transparency has been cited as a critical factor in successful marine resource management,9 few academic studies have investigated the adoption of the concept, in language or practice, within the marine realm.

Considering the diverse, but pervasive use of transparency terminology in marine and maritime agreements, this study set out to conduct a comprehensive analysis of transparency language in the annual reports of fourteen major marine treaty bodies. In addition to quantitative analysis concerning the frequency of usage, the study examined the context of the transparency language and whether the text conferred mandatory, obligatory, or voluntary actions on parties to the agreement.

II. BACKGROUND

“Transparency,” as applied to multilateral environmental agreements, can be described as being comprised of three sequential components of the decision-‐making process: (i) timely

2. See, e.g., James R. Hollyer et al., Democracy and Transparency, 73 J. POL. 1191, 1191-‐

1205 (2011); Joseph S. Nye, Jr., Globalization’s Democratic Deficit: How to Make International Institutions More Accountable, 80 FOREIGN AFF. 2, 2-‐6 (2001).

3. Conclusion: Power and Conflict in the Age of Transparency, in POWER AND CONFLICT IN THE AGE OF TRANSPARENCY 339, 339 (Bernard I. Finel & Kristin M. Lord eds., 2000).

4. Ronald B. Mitchell, Sources of Transparency: Information Systems in International Regimes, 42 INT’L STUD. Q. 109, 109-‐127 (1998).

5. Alexandru Grigorescu, International Organizations and Government Transparency: Linking the International and Domestic Realms, 47 INT’L STUD. Q. 643, 644 (2003); Nye, supra note 2, at 2-‐6.

6. Grigorescu, supra note 5, at 651. 7. Jeffrey Ritter, Know Thine Enemy: Information and Democratic Foreign Policy, in

POWER AND CONFLICT IN THE AGE OF TRANSPARENCY, supra note 3, at 97. 8. Aarti Gupta, Transparency Under Scrutiny: Information Disclosure in Global

Environmental Governance, GLOBAL ENVTL. POL., May 2008, at 1, 1-‐7. 9. See, e.g., Robert Costanza et al., Principles for Sustainable Governance of the Oceans,

281 SCIENCE 198, 198-‐99 (1998); Ray Hilborn, The Dark Side of Reference Points, 70 BULL. MARINE SCI. 403, 405-‐06 (2002).


availability to members and the public of information used as inputs to decision-‐making;10 (ii) ability of the public to observe or participate in meetings and to review materials produced during the progression of decision-‐making processes;11 and (iii) access to outputs of decision-‐making, including findings on compliance via compliance reviews and performance assessments.12

In recent years, all three aspects of transparency have received substantial attention with regard to environmental governance. It has been pointed out that the concerns of civil society regarding greater involvement in environmental governance activities have been a driver of institutional changes towards greater transparency.13 This has played out in the marine environment, where established marine treaty bodies such as the 1946 International Whaling Commission (in force since 1948), long accustomed to closed decision-‐making, were approached by non-‐governmental organizations (NGOs) wishing to become involved. One of the most often-‐cited benefits of transparency in environmental governance, including in decision-‐making, is that it

10. Kristina M. Gjerde et al., Ocean in Peril: Reforming the Management of Global Ocean Living Resources in Areas Beyond National Jurisdiction, 74 MARINE POLLUTION BULL. 540, 542 (2013).

11. Convention on Access to Information, Public Participation in Decision-‐Making and Access to Justice in Environmental Matters, art. 3, ¶ 2, June 25, 1998, 2161 U.N.T.S. 447 [hereinafter Aarhus Convention].

12. Review Conference on the 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, N.Y.C., U.S., May 22-‐26, 2006 & May 24-‐28, 2010, Report of the Resumed Review Conference, ¶ 74, U.N. Doc. A/CONF.210/2010/7 (July 27, 2010) [hereinafter UNCLOS Review Conference]; Abram Chayes et al., Managing Compliance: A Comparative Perspective, in ENGAGING COUNTRIES: STRENGTHENING COMPLIANCE WITH INTERNATIONAL ENVIRONMENTAL ACCORDS 39, 41 (Edith B. Weiss & Harold K. Jacobson eds., 1998); Eric Gilman & Eric Kingma, Standard for Assessing Transparency in Information on Compliance with Obligations of Regional Fisheries Management Organizations: Validation Through Assessment of the Western and Central Pacific Fisheries Commission, 84 OCEAN & COASTAL MGMT. 31, 32 (2013); Gjerde et al., supra note 10, at 542.

13. KONRAD VON MOLTKE, INT’L INST. FOR SUSTAINABLE DEV., WHITHER MEAS? THE ROLE OF INTERNATIONAL ENVIRONMENTAL MANAGEMENT IN THE TRADE AND ENVIRONMENT AGENDA 30 (2001), available at http://www.iisd.org/pdf/trade_whither_meas.pdf; Vivek Ramkumar & Elena Petkova, Transparency and Environmental Governance, in THE RIGHT TO KNOW: TRANSPARENCY FOR AN OPEN WORLD 279, 280 (Ann Florini ed., 2007). But see Michael Mason, Transparency for Whom? Information Disclosure and Power in Global Environmental Governance, GLOBAL ENVTL. POL., May 2008, at 8, 9 (“[T]he linkage between transparency and democratic accountability is more problematic for global environmental governance where state sovereignty and high information costs present significant obstacles to those external individuals and groups seeking to hold domestic actors responsible for . . . environmental harm.”).


reveals non-‐compliance to the public and other parties. This in turn creates incentives for compliance so that members can avoid the adverse reputational and economic repercussions of breaking the rules.14

Acknowledgement of the value of public participation and transparency in environmental governance has developed alongside global awareness of environmental issues. Principle 10 of the 1992 Rio Declaration stipulates, among other provisions, “States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.”15 Twenty years later, at “Rio+20,” member states again stressed the “need [for] institutions at all levels that are effective, transparent, accountable and democratic.”16 Transparency was a recurring theme in the Rio+20 outcome document, The Future We Want, which underscored the importance of “governments taking a leadership role in developing policies and strategies through an inclusive and transparent process.”17 The entire framework for sustainable development, the outcome document stressed, “should be inclusive, transparent and effective,”18 and “enhance the participation and effective engagement of civil society and other relevant stakeholders in the relevant international forums, and in this regard promote transparency and broad public participation and partnerships to implement sustainable development.”19

The Almaty Guidelines, developed under the Aarhus Convention,20 similarly state that public participation should be as broad as possible.21 The Guidelines state that each Party should

14. Chayes et al., supra note 12, at 41-‐45; Gilman & Kingma, supra note 12, at 37. 15. United Nations Conference on Environment and Development, Rio de Janeiro,

Braz., June 3-‐14, 1992, Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/26/Rev.1 (Vol. I), Principle 10 (Aug. 12, 1992).

16. G.A. Res. 66/288, ¶ 10, U.N. Doc. A/RES/66/288 (Sept. 11, 2012). 17. Id. ¶ 67. 18. Id. ¶ 75. 19. Id. ¶ 76(h). 20. Aarhus Convention, supra note 11, ¶ 7 (“Each Party shall promote the application

of the principles of this Convention in international environmental decision-‐making processes and within the framework of international organizations in matters relating to the environment.”).

21. Meeting of the Parties to the Convention on Access to Information, Public Participation in Decision-‐making and Access to Justice in Environmental Matters, Almaty, Kaz., May 25-‐27, 2005, Promoting the Application of the Principles of the Aarhus Convention in International Forums, ¶ 30, U.N. Doc. ECE/MP.PP/2005/2/Add.5 (June 20, 2005).


encourage international forums to make available the agenda, drafts, agreed resolutions, and reports in a timely manner; that the public should be allowed at all relevant stages of the decision-‐making process, subject only to specific and transparent exclusions; and that stakeholders are entitled to access of all documents relevant to the decision-‐making process, to circulate written statements, and to speak at meetings.22

Regarding the management of marine resources, the voluntary Food and Agriculture Organization (FAO) Code of Conduct for Responsible Fisheries urges, “States and subregional or regional fisheries management organizations and arrangements should ensure transparency in the mechanisms for fisheries management and in the related decision-‐making process.”23 Similar language is included in the binding 1995 United Nations Fish Stocks Agreement (UNFSA), which says that “States shall provide for transparency in the decision-‐making process and other activities of subregional and regional fisheries management organizations and arrangements,”24 a sentiment reiterated in recent UN General Assembly Resolutions.25

Some parties have noted the need for increased transparency at annual regional fisheries management organization or agreement (RFMO/A) meetings over the past ten years.26 The 2006 UN review of UNFSA recommended RFMO/As to “undergo performance reviews on an urgent basis, . . . encourage the inclusion of some element of independent evaluation in such reviews; and ensure that the results are made publicly available.”27 Since that time, most RFMO/As have carried out performance reviews. In almost all of these institutions, transparency is flagged as an issue. For example, the International Commission for the Conservation of Atlantic Tunas (ICCAT) review of 2009 noted that, “[t]here are concerns about

22. Id. ¶ 34. 23. U.N. FOOD & AGRIC. ORG., CODE OF CONDUCT FOR RESPONSIBLE FISHERIES, art. 7 (1995),

http://www.fao.org/docrep/005/v9878e/v9878e00.htm (last visited Mar. 11, 2014). 24. Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, N.Y.C., U.S.,

July 24-‐Aug. 4, 1995, 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., art. 12, ¶ 1, U.N. Doc. A/CONF.164/37 (Sept. 8, 1995).

25. G.A. Res. 64/72, ¶ 101, U.N. Doc. A/RES/64/72 (Mar. 19, 2010). 26. COMM’N FOR THE CONSERVATION OF ANTARCTIC MARINE LIVING RES., REPORT OF THE

FIFTEENTH MEETING OF THE COMMISSION ¶ 1.80 (1996); INT’L COMM’N FOR THE CONSERVATION OF ATL. TUNAS, REPORT FOR THE BIENNIAL PERIOD 1995-‐1997 ¶ 19.2 (1996); NW. ATL. FISHERIES ORG., ANNUAL REPORT 61 (1994).

27. UNCLOS Review Conference, supra note 12, ¶ 32(j).


transparency within ICCAT both in decision making and in resource allocation.”28

Despite the calls for transparency, creating more transparent marine management institutions in practice has been rife with challenges. There have been few transparency assessments by independent third parties—that is, actors neither financed nor otherwise linked to the marine governance body. Gilman and Kingma reviewed the public availability of information on how member compliance aligned with RFMO/A obligations.29 This assessment of the Western and Central Pacific Fisheries Commission (WCPFC), one of the five tuna RFMOs, considered one component of transparency related to the public availability of information on Member and Cooperating Non-‐member compliance. The RFMO was found to have ample room for improvement, with a lack of transparency for four of eleven relevant elements.30 No open access information was available on research-‐grade observer data, domestic legislation and regulations to implement RFMO controls, surveillance, or identified infractions. Partial transparency was identified for 36% of relevant elements, with partial open access information available on compliance with monitoring requirements, enforcement actions, outcomes of enforcement actions, and reporting information on national implementation and compliance.31

28. INT’L COMM’N FOR THE CONSERVATION OF ATL. TUNAS, REPORT OF THE INDEPENDENT PERFORMANCE REVIEW FOR ICCAT 2 (2009), available at http://www.iccat.int/Documents/Other/PERFORM_%20REV_TRI_LINGUAL.pdf.

29. Gilman & Kingma, supra note 12, at 31-‐39. 30. Id. at 33-‐35. The elements were as follows: (1) “Is there open access to information

on compliance with prescribed onboard observer coverage rates?”; (2) “Is there open access to research-‐grade observer program data?”; (3) “Is there open access to information on domestic enabling legislation and rules for Members and Cooperating Non-‐members to implement RFMO binding controls?”; (4) “Is there open access to information on surveillance methods and effort by Members and Cooperating Non-‐members?”; (5) “Is there open access to information on infractions identified by Members and Cooperating Non-‐members?”; (6) “Is there open access to information on enforcement actions taken by Members and Cooperating Non-‐members in response to identified infractions?”; (7) “Is there open access to information on outcomes of enforcement actions taken by Members and Cooperating Non-‐members?”; (8) “Is there open access to information on payment of dues?”; (9) “Is there open access to information on Member and Cooperating Non-‐member compliance with observer data reporting requirements?”; (10) “Is there open access to information on whether Members and Cooperating Non-‐members submitted complete required information on, e.g., fisheries, research, statistics, management, and compliance?”; (11) “Is there open access to information on RFMO employment of penalties against Member and Cooperating Non-‐member noncompliance?”. Id.

31. Id. at 35.


The inconsistent and incomplete nature of transparency practices within RFMOs has repeatedly been raised in international forums. United Nations Resolution 66/6832 addressed concerns that arose during the United Nations General Assembly (UNGA) workshop on bottom trawling about assessments not being made publicly available.33 The workshop noted that despite the progress made, the urgent actions called for in the relevant paragraphs of the 200634 and 200935 bottom fishing resolutions had not been fully implemented.36 The UNGA called upon States and RFMO/As, among others, “to make their activities more publicly available and for assessments to be conducted more frequently . . . as well as the need to ensure that assessments were properly conducted.”37 In paragraph 130 of the 2009 fishing resolution, the UNGA had already noted that not all impact assessments had been made publicly available, and called upon States, consistent with domestic law, and RFMO/As to publish all assessments without delay.38

The 2012 Sustainable Fisheries Resolution of the UNGA reflects what is becoming standard text on the subject:

122. Urges regional fisheries management organizations and arrangements to improve transparency and to ensure that their decision-‐making processes are fair and transparent, rely on the best scientific information available, incorporate the precautionary approach and ecosystem approaches, address participatory rights, including through, inter alia, the development of transparent criteria for allocating fishing opportunities which reflects, where appropriate, the relevant provisions of the Agreement, taking due account, inter alia, of the status of the relevant stocks and the respective interests in the fishery.39

The above examples echo previous calls over the past two decades.

32. G.A. Res. 66/68, ¶ 129, U.N. Doc A/RES/66/68 (Mar. 28, 2012). 33. Workshop to Discuss Implementation of Paragraphs 80 and 83 to 87 of Resolution

61/105 and Paragraphs 117 and 119 to 127 of Resolution 64/72 on Sustainable Fisheries, Addressing the Impacts of Bottom Fishing on Vulnerable Marine Ecosystems and the Long-‐Term Sustainability of Deep-‐Sea Fish Stocks, in Letter Dated Oct. 27, 2011 from the Moderator of the Workshop to the President of the General Assembly, ¶ 25, U.N. Doc. A/66/566 (Nov. 18, 2011).

34. G.A. Res. 61/105, ¶¶ 72-‐73, U.N. Doc. A/RES/61/105 (March 6, 2007). 35. G.A. Res. 64/72, supra note 25, ¶ 101. 36. U.N. Doc. A/66/566, supra note 33, ¶ 8. 37. Id. ¶ 25. 38. G.A. Res. 64/72, supra note 25, ¶ 130. 39. G.A. Res. 67/79, ¶ 122, U.N. Doc. A/RES/67/79* (Apr. 20, 2013).


It has been unclear, however, to what degree such global calls for transparency are heard and carried forward into the discussions of the relevant treaty bodies—a question that this paper set out to address.

III. METHODS

A. Keyword Abundance and Density Analysis

This study considers the annual reports from a range of sectoral, regional, and global governance bodies to see if there is an internal dialogue on transparency, and if so, how it may be evolving. Keyword searches for “transparency” and “transparent” were conducted for all publicly available annual reports, both those intended to be public summaries and those more targeted at the contracting parties.40 All available years were downloaded. Both global and regional organizations were included, the latter category mostly comprising RFMO/As, and the former including UN meetings as well as the bodies charged with natural resource management (Table 1). The intention was to include the three main maritime sectors—fishing, mining, and shipping—as well as the United Nations. However the relevant documents of the International Maritime Organization (IMO) are not publically available, thus precluding the inclusion of international shipping transparency in this analysis.

40. The Convention for the Protection of the Marine Environment of the North-‐East

Atlantic (OSPAR) and the North East Atlantic Fisheries Commission (NEAFC) were the only two of the organizations studied to have two annual reports—one of which is directed specifically to the public.


Table 1: List of Organizations and Processes Considered Through an Examination of Their Annual Reports, When Available

Short Name

Full Name Available Reports

Comments

Global Agreements / Bodies

IMO International Maritime Organization

none Lack of public access to meeting documents precluded analysis

ISA International Seabed Authority 2000-2013

IWC International Whaling Commission

1950-2013

Some documents not formatted such that the text could be read by software, so they were converted to a readable format using optical character

recognition (OCR).

UN Oceans res. & UN Fisheries res. (combined)

United Nations General Assembly Resolution on Oceans and the Law of the Sea. Sustainable Fisheries, Including Through the 1995

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, and Related Instruments

1991-2012 Resolutions’ text treated as per meeting reports.

Regional Agreements

CCAMLR Convention for the Conservation of

Antarctic Marine Living Resources 1982-2012

CCSBT Commission for the Conservation of Southern Bluefin Tuna

1995-2013

IATTC Inter-American Tropical Tuna Commission

1996-2013

Some documents were not formatted such that the text

could be read by software, so they were converted to a readable format using optical character recognition (OCR).


The qualitative analysis software NVivo41 was used to count

the total number of times that the primary keywords (transparent and transparency) appeared in the documents (“hits”), as well as their density as compared to the total number of words in the document. When considering the frequency of transparency terms, results were stratified according to organization, per year. If there were special meetings of the general commission of the organization and the summary records were available on their website, then they were also included. Summary records of subcommittee meetings were not included in the analysis if they were published separately from a general annual report(s). The numbers of hits for the primary keywords of all annual documents were summed together for each organization for each year. The density of the keywords

41. NVIVO (QSR International Pty Ltd., version 10, 2012).

ICCAT International Commission for the Conservation of Atlantic Tunas

1970-2013 The longest continuous time series of any organization considered in this study.

IOTC Indian Ocean Tuna Commission 1996-2013

OSPAR Convention for the Protection of the Marine Environment of the North-East Atlantic

1997-2013

Both the annual report (written for the public) and summary record (written for the Contracting Parties). OSPAR annual reports were unavailable

online for 1998, 2004, and 2005.

NAFO Northwest Atlantic Fisheries Organization

1979, 1980; 1991-2012

Annual reports for NAFO were suspended between 1981 and 1990, and were therefore not analyzed.

NEAFC North East Atlantic Fisheries Commission

1998-2012

SEAFO South East Atlantic Fisheries Organization

2004-2012 Short time series because SEAFO came into force in 2003.

SPRFMO South Pacific Regional Fisheries Management Organization

2013 Short time series because SPRFMO came into force in 2012.

WCPFC Western and Central Pacific Fisheries Commission

2004-2012 Short time series because WCPFC came into force in 2004.


was calculated using NVivo by dividing the total number of hits by the total number of words in the documents. However, if there was more than one annual document, and some had no keyword hits, those documents without hits were not included. The resultant density is thus a conservative measure that looks only at those annual documents where transparency was discussed, providing “the benefit of doubt” that it was not a relevant topic for the other annual documents. But, if there were no hits in any annual documents, then the score was set to zero. Use of a density measure corrects for the differences in verbosity across organizations, whereby some secretariats may use more succinct wording, and hence shorter texts with fewer hits, than others. On the other hand, in very short statements, a single keyword hit can cause a relatively high density measure, as is seen in early UN resolutions. Therefore, it was necessary to look at both the number of hits and their density.

Years for which documents were not publicly available for a given organization were removed from the analysis and were not counted in the overall mean measures. Because only one body (ICCAT) consistently posted documents prior to 1990 (Table 1), the analysis start date was set to 1990, with an end date of 2013. Because the analysis took place in October and November 2013, not all organizations had yet posted reports for this year.

B. Compulsory Language and Context Analysis

To examine trends in the context in which transparency was discussed, secondary keywords suggesting compulsion were searched for each passage in which there was a transparency hit. The context of the keyword usage was considered through excerpting text by exporting reference results using from the NVivo “transparent OR transparency” query, using the “broad” setting for each hit. For example, was a contracting party calling for more transparency? Was the organization itself establishing transparency standards? To analyze the degree of compulsion associated with transparency, key words were analyzed in three levels: those indicating voluntary compliance (“may” or “could”), those indicating obligatory compliance (“should,” “need to,” or “needs to”), and those indicating mandatory compliance (“shall” or “must”). To reduce the effects of inter-‐annual variability, six four-‐year groupings were used to capture the twenty-‐four-‐year range from 1990 to 2013. For each four-‐year period, the number of secondary keywords found in the passages associated with transparency was divided by the number


of total hits for “transparen” (capturing “transparency” and “transparent”) in that four-‐year period. The result describes the relative frequency that the secondary keywords occur, per occurrence of “transparen,” allowing for comparisons across year groups.

To gain a subjective sense of the context in which transparency was mentioned, the passages associated with it were excerpted from NVivo, compiled, and read. Mention of external governance bodies or commitments was counted using keyword searches. With one exception (discussed below), those found more than ten times were tabulated. External agreements (such as the Code of Conduct for Responsible Fisheries) and external organizations (such as the FAO) were included, even though they partially overlapped, as this allowed for considering how both were associated with transparency.

IV. RESULTS

A. How Frequently Was Transparency Mentioned?

There was a sharp increase in hits and density over the first half of the 1990s, and as more documents became available, the increase continued through to the late 1990s (Figure 1). After a slight peak in 1998/99, the values then dip and level out, with variability between the organizations (Figures 2a & 2b). However, the number of organizations that have documents for the first half of the 1990s is low (two to five), and fewer still before then, when there was one hit for CCAMLR (1985; range: 1982-‐1989), and none for ICCAT (1970-‐1989) or NAFO (1979, 1980).

* The number of organizations and the number of hits share the vertical axis. For the density series, the actual values were multiplied by a constant so as to scale with the other two measures, allowing for visual comparison. The white line represents the arthmetic mean (“average”) number of hits per organization per year; the black line represents the average density of hits per organization per year; the gray shading respresents the number of organizations analyzed.


Figure 1: Frequency Analysis Results from 1990 to 2013


Figure 2a: Number of Keyword ‘Hits’ for Transparency and Transparent

Figure 2b: Density of Keyword ‘Hits’ for Transparency and Transparent


From Figure 2b, it is apparent that most of the density ‘surge’ seen in the late 1990s came from the two North Atlantic fisheries bodies (NAFO & NEAFC) and the UN resolutions. However, a look at the raw number of hits (Figure 2a) shows that it was NAFO that was by far the most verbose (18-‐64 hits from 1995-‐1999), with the other two bodies having much lower numbers of hits but in relatively short reports. Notably, from 2000 onward most organizations included transparency language within their reports, but with significant variability: ISA seldom or never mentioned transparency, whereas the five tuna RFMOs (CCSBT, IATTC, ICCAT, IOTC, WCPFC) had clearly made transparency a part of their discussions by the mid-‐to-‐late 2000s.

Because some of the earlier IATTC and IWC documents were scanned, optical character recognition (OCR) was required to convert them into a format readable by NVivo. OCR, though fairly accurate, is not perfect, and therefore it is possible that a few occurrences of transparency/transparent could have been incorrectly converted and hence missed, leading to false negatives. On the other hand, it is very unlikely other words were mistakenly converted into “transparency,” and hence the rate of false positives is assumed to be close to or equal to zero.

B. What Level of Compulsion is Associated with Transparency?

As described above, words suggesting three general levels of compulsion—voluntary, obligatory, and mandatory—were searched in the passages where transparency was mentioned (Figure 3). The early to mid-‐1990s show a general ramping up in the usage of the compulsion keywords alongside transparency. However, as above, due to the low sample sizes, these results should be interpreted with some caution. From the late 1990s through to present, there is a relatively steady occurrence of words associated with all three levels of compulsion. However, there is no apparent trend indicating either lower or higher compulsion over time. In general, moderate words such as “should” are used at least twice as frequently as either voluntary or mandatory compulsion words, and there is little indication that this pattern has changed much since the late 1990s.


C. What International Commitments Are Associated with Transparency?

The Food and Agriculture Organization of the United Nations is mentioned most often in the context of transparency (sixty-‐four hits; Table 2). Based in Rome, the FAO adopts some binding and some non-‐binding fisheries related agreements, serves as secretariat for some (non-‐regulatory) regional fisheries bodies, and provides advice to all. Of the times it was mentioned, about one third of them were in the context of its voluntary 1995 Code of Conduct for Responsible Fisheries (nineteen hits).42 Interestingly, much of the discussion occurred about ten years after it had been adopted, in a wide variety of RFMOs.43 (However, it must be borne in mind that there are more organizational documents available for

42. See generally U.N. FOOD & AGRICULTURE ORGANIZATION, supra note 23. 43. For the period 2006-‐2009, the Code was mentioned twelve times in the context of

transparency: NEAFC (two hits), CCAMLR (one), CCSBT (one), IOTC (one), WCPFC (one), IATTC (one), ICCAT (three), NAFO (one), SEAFO (one).

Figure 3. Relative usage of words of compulsion in passages that had one or more transparency hits. Axis labels: [x] Year; [y] Relative occurrence.

Figure 3: Relative Usage of Words of Compulsion in Passages that Had One or More Transparency Hits


these later years.) Tied in third place with the Code of Conduct, the UN General Assembly was also mentioned nineteen times, usually in the context of the UNFSA (thirteen hits).44 In second place was the combined General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO), which superseded the GATT in 1995 (fifty-‐four hits). The context was transparency in trade arrangements and sanctions concerning fisheries.45

Other international commitments or conservation agreements were seldom mentioned. For example, the Convention on Biological Diversity (CBD), which has actively encouraged inter-‐sectoral cooperation and transparency,46 was found in just eight instances (out of 1482 passages). It was nevertheless included in Table 2 because the CBD is the world’s largest conservation treaty.47 The Convention on Migratory Species (CMS)48 was mentioned twice (1998)—presented by Japan at the IWC in the context of bodies that allowed for secret ballots. The UN World Summits on Sustainable Development (WSSD; 1992 Rio de Janeiro, 2002 Johannesburg, 2012 Rio de Janeiro), which represent the largest state-‐level meetings on global conservation and sustainable development, were in the context of transparency also mentioned just twice (2000 and 2013).49

44. See generally Conference on Straddling Fish Stocks and Highly Migratory Fish

Stocks, supra note 24. 45. For example, one body noted that “[t]he Commission shall develop transparent

and non-‐discriminatory criteria and procedures to adopt restrictive trade measures consistent with international law, including World Trade Organization agreements and other applicable trade agreements, to promote compliance in the EPO.” Inter-‐Am. Tropical Tuna Comm’n, Minutes of the 79th Meeting, Proposal C1, ¶ 10 and Proposal C3, ¶ 13 (Nov. 6-‐7, 2008), available at http://www.iattc.org/PDFFiles2/IATTC-‐79-‐Nov-‐2008-‐Minutes.pdf.

46. For example, in December 2011, the CBD Secretariat convened a joint expert meeting to review the extent to which biodiversity concerns are addressed in existing assessments of fisheries stocks. This meeting brought together representatives of RFMOs, the Fisheries Expert Group of the International Union for the Conservation of Nature’s Commission on Ecosystem Management and other relevant organizations, processes and scientific groups. See generally, Convention on Biological Diversity, Report of Joint Expert Meeting on Addressing Biodiversity Concerns in Sustainable Fisheries, UNEP/CBD/SBSTTA/16/INF/13 (Mar. 5, 2012).

47. Convention on Biological Diversity, Dec. 29, 1993, 79 U.N.T.S. 1760. 48. See generally Convention on the Conservation of Migratory Species of Wild

Animals, June 23, 1979, 33 U.N.T.S. 1651. Key words: “CMS” (two hits) or “migratory species” (zero).

49. Search words used: “World Summit on Sustainable Development,” “Earth Summit,” “Rio Declaration,” “Agenda 21,” “Rio+20.”


Table 2: Frequency with Which External International Bodies or Agreements Are Mentioned in Association with Transparency (Sorted from High to Low)

Keywords 1990-1993 1994-1997

1998-2002

2003-2006

2007-2010

2011-2013 TOTAL

FAO 0 0 10 15 23 16 64

GATT/ WTO 6 0 0 22 18 8 54

Code of Conduct 0 1 5 1 11 1 19

General

Assembly 0 0 0 1 1 17 19

Fish Stocks

Agreement 0 0 6 1 3 3 13

CBD / Biological

Diversity 0 0 0 1 2 5 8

1

* Expansions of keywords : FAO (Food and Agriculture Organization of the United Nations); GATT (General Agreement on Tariffs and Trade), WTO (World Trade Organization); WTO (World Trade Organization); Code of Conduct (FAO Code of Conduct for Responsible Fisheries); General Assembly (United Nations General Assembly); Fish Stocks Agreement (The United Nations 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); CBD (Convention on Biological Diversity).

D. Suggestions and Impressions from Keyword Context

Over the twenty-‐four-‐year period, across the fourteen organizations, there were approximately 1500 occurrences of transparency/transparent.50 Reading the excerpted passages, it becomes clear that the words were used in a wide variety of contexts. Some once-‐important themes have faded away (e.g., the debate concerning proposed secret voting procedures in IWC), whereas others have persisted (e.g., catch quota allocation, catch and landings, operations and secretariat expenses, non-‐governmental observers, and review procedures). Consistent with Figure 3, there is little indication that there is a move towards more stringency in the language, with “should” being the most prevalent

50. 1672 occurrences in 1484 excerpted passages.


terminology. Furthermore, while it is clear that some progress has been made, it appears that transparency remains an issue across most, if not all the organizations.

V. DISCUSSION

The increase in hits and density over the first half of the 1990s could suggest that transparency became a topic of discussion around that time. However, the first half of the 1990s had very low sample sizes, ranging from two to five organizations, and hence these results have high uncertainty and should be interpreted with caution. The very low number of hits in the years before 1990 suggests that transparency was not commonly discussed in those earlier years—at least for the three bodies included in the sample during this period. However, it cannot be ruled out that transparency was discussed in other bodies for which earlier reports are unavailable. Alternatively, transparency could have been more a topic for discussion amongst the new organizations that came into operation in the 1990s.51 Regardless, the increasing trend through the late 1990s and then leveling out following the 1998/99 peak suggest that transparency was, or became, a continuing topic of discussion most years for most organizations.

In the current analysis, it is not possible to attribute cause and effect to the transparency abundance and density analyses above. Limitations in the sample size of documents in the early 1990s and the diversity of agreements examined, amongst a myriad of other possibly confounding factors, restrict the study’s ability to postulate causal connections; however, a few issues are worth noting. A significant amount of literature has argued that the 1992 Earth Summit and Agenda 21 had a marked influence on regional and international environmental agreements.52 The apparent rise in the use of transparency language the early 1990s occurred in this context of rising international concern regarding the environment more generally, and specifically, the commitments made in Rio de Janeiro. All the more puzzling then that the Earth Summits and Agenda 21 did not feature more prominently in the text of the

51. For example, CCSBT 1993 (in force 1994), IOTC 1993 (in force 1996), OSPAR 1992

(in force 1998). 52. See, e.g., Per-‐Olof Busch et al., The Global Diffusion of Regulatory Instruments: The

Making of a New International Environmental Regime, 598 ANNALS AM. ACAD. POL. & SOC. SCI. 146, 146-‐167 (2005); Peter H. Sand, International Environmental Law After Rio, 4 EUR. J. INT’L L. 377 (1993).


meeting documents. Perhaps the influence they had on the sectoral management bodies was more subtle and normative, or perhaps it was simply less than scholars have suggested. However, much clearer is the influence of the sector-‐specific UN Straddling Fish Stocks Agreement and FAO Code of Conduct for Responsible Fisheries, which are directed specifically at the RFMO/As. Both texts (binding and voluntary, respectively) were adopted in 1995, around the same period that marks the beginning of a plausible upward trend in the number of hits for transparent/transparency in Figure 2.

Due to the low occurrence of discussions on transparency at the International Seabed Authority (ISA), it is difficult to conclude if it is a recognized issue with regard to seabed mining. However, transparency surrounding Secretariat operations expenses and reporting was one issue that came up in the ISA documents. The International Maritime Organization (IMO) does not give public access to its meeting documents, and so it was not included in the analysis. Prima facie, it would appear that the international governance of shipping is not up to international transparency expectations.

The ICCAT’s fluctuating, but overall high, mention of transparency may reflect their efforts and emerging success at becoming more transparent. ICCAT is considered one of the top tuna-‐RFMOs in having built-‐in transparency mechanisms such as thorough reviews and access to meetings by accredited observers.53 (However, it ranks at the bottom of the tuna-‐RFMOs when assessed for performance in other governance elements, including mitigating problematic bycatch and surveillance, enforcement and outcomes of enforcement actions.54)

Regarding the level of compulsion associated with transparency, it appears that after the initial ramping up of discussions, it has not changed much over the years. However, the proximity word search technique can miss important nuances. While it is an efficient way to

53. See generally INT’L COMM’N FOR THE CONSERVATION OF ATL. TUNAS, supra note 28; MICHAEL W. LODGE ET AL., RECOMMENDED BEST PRACTICES FOR REGIONAL FISHERIES MANAGEMENT ORGANIZATIONS 84-‐90 (2007), available at http://www.oecd.org/sd-‐roundtable/papersandpublications/39374297.pdf.

54. CLEO SMALL, REGIONAL FISHERIES MANAGEMENT ORGANISATIONS 23-‐29 (2005); Eric Gilman, Kelvin Passfield, & Katrina Nakamura, Performance of Regional Fisheries Management Organizations: Ecosystem-‐Based Governance of Bycatch and Discards, FISH AND FISHERIES 9-‐10 (forthcoming 2014) (early online version available at http://onlinelibrary.wiley.com/doi/10.1111/faf.12021/abstract).


sift through hundreds of passages and detect contextual trends, not all the words indicating compulsion are necessarily about transparency; rather, they may apply to other related issues under discussion. In manually reading passages, it is clear that transparency is often just one of several topics in the passage, which may be associated with the words of compulsion. Furthermore, proximity searches say little about what the key topics were and if progress had been made. Nonetheless, if the discussion surrounding transparency had become markedly more (or less) concerned with compulsion, that trend should have been detected. This was confirmed subjectively by manually reading through the passages, where there was no noticeable trend towards stronger (or weaker) language.

This analysis of transparency provides but a first indication of the status of discussions within the international treaty bodies. The use of a term on paper does not necessarily correspond to actual practices. As with any content analysis study, the results should be evaluated and tested further to assess their validity as a reflection of reality. According to Krippendorff, “a content analysis is valid if the inferences drawn from the available texts withstands the test of independently available evidence, of new observations, of competing theories or interpretations, or of being able to inform successful actions.”55 To further test the validity of this paper’s findings, additional research should measure variables of transparency for each of the institutions. Such indicators could include access to data (which would allow for the peer-‐review of scientific advice), access to meeting documents, rules concerning the participation of civil society observers, and access to compliance and performance measures.

Doubtless, progress has been made in certain areas that were outside the scope of this analysis. For example, the negotiations of the Agreement on the International Dolphin Conservation Program (AIDCP),56 which evolved separately out of discussions that began in IATTC, were an inclusive and transparent process, and have resulted in a reduction of dolphin mortality by over 99%.57

55. KLAUS KRIPPENDORFF, CONTENT ANALYSIS: AN INTRODUCTION TO ITS METHODOLOGY 329 (2012).

56. Agreement on the International Dolphin Conservation Program, Aug. 15, 1997, 11 Stat. 1122, 1999 O.J. L132.

57. See NOAA, OFFICE OF INT’L AFFAIRS, INTERNATIONAL AGREEMENTS CONCERNING LIVING MARINE RESOURCES OF INTEREST TO NOAA FISHERIES 40 (2013) available at http://www.nmfs.noaa.gov/ia/resources/2013_int_agr_book.pdf (“The observed mortalities


This paper’s focus on language concerned with improving transparency accords with goals of international law, as well as high-‐level political and policy statements. However, in some cases there are obstacles to transparency arising from legitimate concerns of user groups and States, which need to be considered and weighed against the overall value to society of making such information available. These concerns include: (a) the desires of fishing companies and captains to maintain secrecy about their fishing grounds; (b) the desires of nations to restrict information on their flag vessels fishing in other nations’ exclusive economic zones (perhaps without the corresponding permits) so as to avoid diplomatic complications; and (c) possible violations that happened in an area of dispute between countries, where the jurisdiction is not yet fully settled.

Notwithstanding the above, judging from the ongoing discussions over the past twenty or more years, there is still much that could be done to improve the transparency of international maritime governance. One troubling aspect of this research is that many themes recur, sometimes over decades, suggesting that they have not yet been satisfactorily resolved. Another concern is the apparently limited awareness within marine management bodies of marine conservation agreements or indeed global commitments in the context of transparency. Rather, the recorded discussions are often dominated by more prosaic matters, such as transparency in resource quota allocations, trade restrictions, or Member State financial contributions. While reading through the meeting reports does suggest some progress in the three aspects of transparency (information, process, results), one is also left with the strong impression that any such progress has to date been limited.

The benefits of transparency in governance have been the subject of scholarship and analysis for centuries, with particular attention paid to multinational environmental institutions over the last few decades. However, despite the fact that marine degradation and resource depletion present some of the greatest environmental challenges of the twenty-‐first century, discussions of transparency in marine governance are relatively new and implementation of transparency measures has only begun to take shape. One purpose of this research was to determine how the dialogue on transparency might be evolving. However, there is little in our results to indicate in 2010 and 2011 both represent a total reduction in dolphin mortality of greater than 99% compared to 1986 levels.”).


that it is evolving in a measurable way. Rather, the associated language has for approximately twenty years suggested, very reasonably, that international maritime governance institutions should become more transparent.