How objections work and improve assessments — MSC
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How objections work and improve assessments

In the MSC system, an “objection” is a formal appeal by a stakeholder on a certification decision made by an independent certifier. Will Martin, former MSC Board Chair, explains how it works and what its benefits are.

Overview

The MSC standard is a comprehensive measure of fisheries sustainability, and fisheries are assessed against it through a transparent, third-party process led by independent experts (certifiers) whose work is further peer-reviewed. A mechanism for appeals (called objections) is part of the assessment process and is based on globally-accepted administrative law. The objections procedure provides a formal, independent review of the scoring decisions made by the certifier, and whether the scores awarded were reasonable and not arbitrary.

What is the objections procedure?

The objections procedure is one component of the MSC’s fisheries assessment process. Certification under the MSC’s program is based on a science-based audit that scores a fishery against the MSC’s standard for sustainability, measuring the fishery against defined performance indicators. Scores determine whether a fishery passes or fails. During the evaluation and scoring process, multiple opportunities for comment and engagement are available to stakeholders, and there is an independent peer review of the draft assessment and scoring before it is released for public comment. Following peer review and public comment, the independent third party certifier makes a determination on whether the fishery can be certified. 

If, after participating in the assessment process, a stakeholder believes that the certifier’s determination and scoring based on MSC’s standard is flawed to the extent that a certification decision is incorrect, the stakeholder may file an objection within 15 working days after the final report is published.

Purpose of the procedure

The purpose of the objections procedure is to provide an orderly, transparent and independent review on specific points of disagreement as to the scores assigned by the certifier. When an objection is made, an Independent Adjudicator (an experienced lawyer) is appointed by the MSC, and the Adjudicator determines whether, based on the evidence, the scores awarded by the certifier were “arbitrary or unreasonable”, and if so, whether these errors were of such materiality that the fishery should not have passed the required minimum score(s). The “arbitrary or unreasonable” standard is the classic standard used in administrative law by courts around the world in the review of a governmental agency’s decision.

The "reasonable person" test

If the Adjudicator believes that a score has been unreasonably or arbitrarily made by the certifier, a remand is made and the certifier is required to examine the matter and reconsider the score. This process is repeated until the Adjudicator believes that a “reasonable person” would or would not conclude the scores (or revised scores) are supported by the evidence. 

When this process finishes, the resulting scores may or may not result in a change in whether the fishery passes, or if it does pass, whether it must agree to make certain improvements (called "conditions to certification"). It is important to note that Adjudicators do not tell the certifier what the score should be, nor are they empowered/qualified to do so. Adjudicators simply require the certifier to reconsider the scores until the "reasonable person" test is satisfied.

What the objections procedure is not

The objections procedure is not a re-evaluation of the fishery by the Adjudicator, nor a subjective conclusion as to the "sustainability" of the fishery. The Adjudicator is not a scientific expert who makes a new assessment. Instead, the Adjudicator examines the scoring of specific indicators to decide if the certifier undertook the assessment in accordance with the MSC’s rules and in accordance with the MSC’s standard and its performance criteria. Some people (e.g. Christian et al. (2013)) have challenged the process without fully understanding the objection procedure or its basis in administrative law.

Costs of objections

An objection has costs because it involves the time of many parties and the fees of the Adjudicator, an independent lawyer. Because the United Nations Food and Agriculture Organization’s guidelines for fisheries certification require the objector to pay the costs of an objection, MSC does require that certain, but not all, costs be borne by the objector, but these costs are capped at $7500 (reduced from $15000 since 2010). And, MSC rules provide that the requirement can be waived entirely if an objector can demonstrate appropriate financial hardship. The costs to the objector go purely to fund the legal process, and do not cover MSC’s internal staff costs, or the additional costs to the fishery and the certifier.

Changes through objections

As of March 2013 one certification decision has been completely overturned by an objection. It is worth quoting the final conclusion of the Adjudicator on this occasion: "I uphold the objection on the grounds that that the Certification Body’s scoring decision in relation to Performance Indicator 3.1.1 was unreasonable in the sense that no reasonable certification body could have reached such a decision on the evidence available to it." As a result, the certifier did not certify this fishery.

The fact that no other objections have led to an outright certification failure simply demonstrates the integrity of the certifications.

However, over half of the objections raised during the life of the MSC program have resulted in changes in scores that fisheries received on various performance indicators. In some cases, these adjustments to the scoring brought the score of an indicator to the level where the subject fisheries were required as part of their certification to agree to take improvement actions (conditions to certification) in order to be certified. Some fisheries that have been through the objections procedure have been required to deliver improvements such as additional data collection to demonstrate acceptable ecosystem impacts in both Antarctic krill and South Georgia toothfish fisheries, and clear milestones for engagement with management authorities to improve harvest control rules in the New Zealand Albacore fishery.

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