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Regional Fisheries Management Organizations

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Global Challenges and the Law of the Sea

Abstract

Regional fisheries management organizations and arrangements (RFMO/As) can at present be regarded as the preeminent institutions of international fisheries law. This chapter examines their role in the implementation and development of the law of the sea. It sketches the origins of international fisheries law and RFMO/As, and offers an overview of the different types of RFMO/As and the distinctions between them, their key functions, and whether or not a body qualifies as an RFMO or an RFMA. As part of this latter aspect, several regional bodies are closely examined, in particular those relating to the Arctic and the Antarctic. It is argued that RFMO/As can perform additional roles besides conservation and management of fisheries resources. This ‘role-oriented approach to RFMO/As’ is supported by the rules and practices of several RFMO/As. Special attention is finally devoted to the mandate of RFMO/As to deal with free riders and their rules and practices aimed at safeguarding the interests of the ‘Founding Fathers’ that initiated the negotiation of the RFMO/As’ establishment. These issues are not only of critical importance to RFMO/As but are to a considerable extent also interrelated.

Writing this chapter was also facilitated by funding from the Netherlands Polar Programme, and the Research Council of Norway (project STOCKSHIFT). The views in this chapter are those of the author and not necessarily those of the Netherlands government. The author is very grateful for comments received from Nicola Ferri and Martijn Peijs on an earlier version.

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Notes

  1. 1.

    Takei (2013), pp. 14–16.

  2. 2.

    Convention for the Preservation of the Halibut Fishery of the North Pacific Ocean and the Bering Sea, Washington D.C., 2 March 1923. In force 23 October 1924 (32 LNTS 93).

  3. 3.

    Takei (2013), p. 25.

  4. 4.

    Pursuant to the ICRW (International Convention for the Regulation of Whaling, Washington D.C., 2 December 1946. In force 10 November 1948 (161 UNTS 72), as amended. Consolidated version available at https//iwc.int).

  5. 5.

    Convention on Fishing and Conservation of the Living Resources of the High Seas of 29 April 1958. In force 20 March 1966 (559 UNTS 285).

  6. 6.

    Arts 6(1) and 9. See, however, Resolution III ‘International fishery conservation conventions’ of 25 April 1958; and the International Law Commission (ILC)’s “Commentary to the articles concerning the law of the sea” (Yearbook of the International Law Commission, 1956, vol. II) 286–288, containing its Commentary on Art. 49 (which eventually became Art. 1(1) of the 1958 High Seas Fishing Convention), in particular paras 4, 9 and 19, which refer to earlier proposals involving international fisheries bodies. See Serdy (2015), pp. 11–13 for a fuller account.

  7. 7.

    United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982. In force 16 November 1994 (1833 UNTS 396).

  8. 8.

    Cf. Rayfuse (2015), p. 440. See Arts 63, 44, 66, 67 and 118.

  9. 9.

    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, New York, 4 August 1995. In force 11 December 2001 (2167 UNTS 3).

  10. 10.

    See Part III on ‘Mechanisms for International Cooperation Concerning Straddling Fish Stocks and Highly Migratory Fish Stocks’, and in particular Arts 8–13 and 17.

  11. 11.

    Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean, Ilulissat, 3 October 2018. Not in force; OJ 2019, L 73/3.

  12. 12.

    International Convention for the Conservation of Atlantic Tunas, Rio de Janeiro, 14 May 1966. In force 21 March 1969 (673 UNTS 63), as amended. Consolidated version available at www.iccat.int.

  13. 13.

    Report of the 2016 WECAFC Meeting, at para. 55.

  14. 14.

    See Harrison (2019), p. 81, who mentions the Central Eastern and South-Western Atlantic and a smaller gap in the North Pacific. A small gap also exists in the Indian Ocean.

  15. 15.

    Convention on the Conservation of Antarctic Marine Living Resources, Canberra, 20 May 1980. In force 7 April 1982 (1329 UNTS 47). See Art. II(3)(b) and (c).

  16. 16.

    See in particular Arts 5(b) and (d)-(g) and 10(d).

  17. 17.

    See the Report of the 16th (1997) Annual CCAMLR Meeting, at para. 2.1 and Annex 5, paras 1.2 and 1.28.

  18. 18.

    International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing. Adopted on 2 March 2001 and endorsed on 23 June 2001; text available at www.fao.org/fi.

  19. 19.

    Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, Rome, 22 November 2009. In force 5 June 2016; text available at www.fao.org/Legal.

  20. 20.

    See, inter alia, the Report of the 37th (2018) Annual CCAMLR Meeting, at paras 3.24, 5.5, 9.14, 9.16 and 10.2.

  21. 21.

    See Molenaar (2016), pp. 441–445 for a more comprehensive discussion.

  22. 22.

    See the information at www.fao.org/fishery/topic/16800/en.

  23. 23.

    Billé et al. (2016), p. 29.

  24. 24.

    Agreement on the Conservation of Albatrosses and Petrels, Canberra, 19 June 2001. In force 1 February 2004 (2588 UNTS 257); as amended, consolidated version at www.acap.aq.

  25. 25.

    Memorandum of Understanding on the Conservation of Migratory Sharks, Manila, 12 February 2010; as amended. Consolidated version available at www.cms.int/sharks.

  26. 26.

    Convention on the Conservation of Migratory Species of Wild Animals, Bonn, 23 June 1979. In force 1 November 1983 (1651 UNTS 355).

  27. 27.

    See Barnes (1982).

  28. 28.

    Constitution of the Food and Agriculture Organization of the United Nations, Quebec City. Opened for signature and entered into force on 16 October 1945, as amended. Consolidated version available at www.fao.org/Legal.

  29. 29.

    See note 13 supra. The Report of the 2016 WECAFC Meeting, at para. 59, refers to the “challenges and experiences with RFMOs established under FAO’s Constitution”. See also ‘Discussion Paper in Support of the WECAFC Strategic Reorientation Process’, 8 October 2018 (on file with author), at Section 10. While the Regional Commission for Fisheries (RECOFI) has, pursuant to Art. III of the Agreement for the Establishment of the Regional Commission for Fisheries (approved by the FAO Council in November 1999; in force 26 February 2001; http://www.fao.org/legal), the mandate to adopt legally binding conservation and management measures, it does not seem to have used this mandate to date.

  30. 30.

    The most well-known are those in paras 66–71 of UNGA Res. 59/25, of 17 November 2004. See, for instance, the pro-active approach pursued by NEAFC pursuant to these UNGA Recommendations as described in Molenaar (2005), pp. 538–539.

  31. 31.

    The North Atlantic Salmon Conservation Organization (NASCO) and the North Pacific Anadromous Fish Commission (NPAFC) are excluded due to their prohibitions on high seas fishing.

  32. 32.

    For a detailed study see Molenaar (2019).

  33. 33.

    See Performance Review by Regional Fishery Bodies: Introduction, Summaries, Synthesis and Best Practices. Volume I: CCAMLR, CCSBT, ICCAT, IOTC, NAFO, NASCO, NEAFC (FAO Fisheries and Aquaculture Circular No. 1072 (FIPI/C1072): 2012), p. 5. The criteria are reproduced in Appendix 1.

  34. 34.

    See the Report of the Second (2016) ICCAT Performance Review, at Annex 2.

  35. 35.

    The author participated in all except the first of the six rounds of negotiations on the CAOF Agreement; some as the representative of the Netherlands in the delegation of the European Union (EU); some as a legal expert of the European Commission in the delegation of the EU.

  36. 36.

    See Molenaar (2020), at subsection 3.3 for an in-depth analysis.

  37. 37.

    Framework Agreement (Agreement between the Government of the Kingdom of Norway and the Government of the Union of Soviet Socialist Republics on Co-operation in the Fishing Industry, Moscow, 11 April 1975. In force 11 April 1975 (983 UNTS 7)).

  38. 38.

    Molenaar (2016), p. 444.

  39. 39.

    See Molenaar (2016), pp. 438–441. For a recent assertion of JNRFC’s competence in the Arctic Ocean, see the Protocol of the 48th (2018) Annual JNRFC Session, at p. 19.

  40. 40.

    This distinction was still used in the version of the list dated 2 July 2014 used for the publication by Billé et al. (2016).

  41. 41.

    Art. 5(1) of the CAOF Agreement.

  42. 42.

    An early postulation of this argument by this author can be found in Molenaar (2016). A similar conclusion is embraced by Schatz et al. (2019).

  43. 43.

    Molenaar (2020), at subsection 6.3.

  44. 44.

    See note 35 supra.

  45. 45.

    Art. VII(1) of the CAMLR Convention.

  46. 46.

    Cf. Art. 1(e) of the Madrid Protocol (Protocol on Environmental Protection to the Antarctic Treaty; Annexes I-IV, Madrid, 4 October 1991. In force 14 January 1998; Annex V (adopted as Recommendation XVI-10), Bonn, 17 October 1991. In force 24 May 2002; Annex VI (adopted as Measure 1(2005)), Stockholm, 14 June 2005. Not in force. All texts available at www.ats.aq.

  47. 47.

    See, inter alia, the Preamble and Arts II–IV and IX of the Antarctic Treaty (Washington D.C., 1 December 1959. In force 23 June 1961 (402 UNTS 71)).

  48. 48.

    Art. VII(2)(b) and (d) of the CAMLR Convention. For other linkages, see the Preamble and Arts III–V.

  49. 49.

    For instance Belgium, Brazil, Germany, India, Italy, Namibia, Sweden and the United States.

  50. 50.

    See Molenaar at subsection 5.2.

  51. 51.

    Art. 2 of the SPRFMO Convention (Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean (Auckland, 14 November 2009. In force 24 August 2012; www.sprfmo.int)).

  52. 52.

    See http://web.unep.org/regionalseas/.

  53. 53.

    This is confirmed by the Preamble and many provisions (e.g. Arts II(3), V, VI, IX and XXIX(1)). Moreover, CCAMLR has taken measures to prevent impacts by fishing vessels and scientific research vessels on Antarctic marine living resources by adopting measures relating to maritime safety, vessel-source pollution and the introduction of alien species (see, e.g. CCAMLR Conservation Measures 24-04 (2017), para. 16; 26-01 (2018); 91-03 (2009), para. 3; and 91-04 (2011), para 6; 91-05 (2016), para. 10, and CCAMLR Resolutions 20/XXII (2003), 23/XXIII (2004), 28/XXVII (2008), 29/XXVIII (2009), 33/XXX (2011) and 34/XXXI (2012)).

  54. 54.

    E.g. the mandate of the OSPAR Commission established under the OSPAR Convention (Convention for the Protection of the Marine Environment of the North-East Atlantic of 22 September 1992 (2345 UNTS 67, as amended, consolidated version available at www.ospar.org)) vis-à-vis fisheries and maritime transport pursuant to Art. 4 of Annex V.

  55. 55.

    Joined Cases C-626/15 and C-659/16, Judgement of 20 November 2018.

  56. 56.

    Para. 87.

  57. 57.

    Paras 89–92.

  58. 58.

    Opinion of Advocate General Kokott of 31 May 2018, at para. 94.

  59. 59.

    See note 53 supra.

  60. 60.

    Para. 95.

  61. 61.

    Treaty on the Functioning of the European Union (consolidated version available at http://eur-lex.europa.eu/collection/eu-law/treaties.html).

  62. 62.

    Judgement, at paras 128 and 130. The Court relies in this regard on Arts V(1) and (2), VII(2)(c) and XXIX(2) of the CAMLR Convention.

  63. 63.

    The Netherlands became an Acceding State to the CAMLR Convention in 1990. While the Netherlands intended to apply for membership in 2018 (Report of the 36th (2017) Annual CCAMLR Meeting, paras 2.4 and 12.15), its application was put on hold to await the ECJ’s Judgement in Joined Cases C-626/15 and C-659/16. The Netherlands eventually applied for membership on 9 September 2019 and became a Member on 8 October 2019.

  64. 64.

    Report of the 21st (2002) Annual CCAMLR Meeting at 88 (para. 15.2).

  65. 65.

    Report of the 14th (1995) Annual CCAMLR Meeting at 70 (para. 15.2).

  66. 66.

    Cf. PP 2 and Art. I of the Antarctic Treaty and PP 9 and Art. III of the CAMLR Convention.

  67. 67.

    Note 25 supra and accompanying text.

  68. 68.

    See in this regard Billé et al. (2016), who focus on regional seas programmes, RFBs, and large marine ecosystem (LME) mechanisms.

  69. 69.

    See Molenaar (2012).

  70. 70.

    See the 2018 Report of the Working Group on Seals and Section 6 of the Joint Russian-Norwegian Scientific Research Program on Living Marine Resources in 2019, attached as Appendices 8 and 10 to the Protocol of the 48th (2018) Annual JNRFC Session.

  71. 71.

    Note 4 supra.

  72. 72.

    Protocol of the 48th (2018) Annual JNRFC Session, at section 18.1 and Appendix 8, section 5.1.

  73. 73.

    Framework Agreement, note 37 supra, at Art. I(1).

  74. 74.

    Convention for the Conservation of Antarctic Seals, London, 1 June 1972. In force 11 March 1978 (1080 UNTS 176).

  75. 75.

    Cf. Art. VI of the CAMLR Convention.

  76. 76.

    Agreement for the Establishment of a General Fisheries Council for the Mediterranean, Rome, 24 September 1949. In force 20 February 1952 (GFCM Agreement; 126 UNTS 239), as amended. Consolidated version available at http://www.fao.org/treaties/results/en/?search=adv&subj_coll=ArticleXIV. See Art. 2(2).

  77. 77.

    Recommendations GFCM/41/2017/5, GFCM/36/2012/1 and GFCM/35/2011/2.

  78. 78.

    Art. 2(2) of the GFCM Agreement. This species does not fall within the definition of ‘fish’ laid down in Art. 1(1)(c) of the Fish Stocks Agreement, which only includes molluscs and crustaceans. Note the interesting definition of ‘fishery resources’ in Art.1(1)(f) of the SPRFMO Convention (note 51 supra), which includes “other living marine resources as may be decided by the Commission”.

  79. 79.

    Recommendation GFCM/41/2017/1 and Resolutions GFCM/41/2017/1 and GFCM/41/2017/2 and GFCM/36/2012/1.

  80. 80.

    Decision GFCM/30/2006/1.

  81. 81.

    See in particular ICCAT Recommendation 06/07.

  82. 82.

    Resolution on the Establishment of a Record of Authorised Farms, as adopted in 2008, and amended in 2010.

  83. 83.

    Art. 3(2) of the Convention for the Conservation of Salmon in the North Atlantic Ocean, Reykjavik, 2 March 1982. In force 1 October 1983 (1338 UNTS 33).

  84. 84.

    Doc. CNL(98)46.

  85. 85.

    Doc. CNL(01)51.

  86. 86.

    Doc. CNL(06)48 (consolidated version).

  87. 87.

    Doc. CNL(04)55. See also Dahl (2016) and the Scoping Policy Analysis for Aquatic Genetic Resources (FAO doc. CGRFA-14/13/Inf.24; 2013), at pp. 10 and 14.

  88. 88.

    While a definition of ‘port State’ can be easily deduced from Art. 218(1) of the UNCLOS and Art. 3(1) of the PSM Agreement, this is more difficult for the definition of ‘market State’. As noted by Churchill (2019), p. 321, fn 11, the IPOA-IUU deals with port State measures in paras 52–64 and internationally agreed market-related measures in paras 65–76. However, some of the former (e.g. paras 56 and 63) are clearly trade measures. He concludes that a State “that prohibits a foreign fishing vessel from landing its catch in that State’s ports for the purpose of sale is both a port State and a market State.”

  89. 89.

    Report of the 37th (2018) Annual CCAMLR Meeting, at paras 3.5 and 13.10.

  90. 90.

    Vienna Convention on the Law of Treaties, Vienna, 23 May 1969. In force 27 January 1980 (1155 UNTS 331), Art. 34. On this topic, see Ferri (2015).

  91. 91.

    One famous exception are the Southern bluefin tuna cases instituted by Australia and New Zealand against Japan under the UNCLOS (see https://icsid.worldbank.org/en/Pages/about/Southern-Bluefin-Tuna-Case%2D%2D-Australia-and-New-Zealand-v.-Japan.aspx).

  92. 92.

    See, inter alia, Harrison (2019), pp. 89–92, and the Report of the Second (2016) ICCAT Performance Review, pp. 55–59. So far, there have been two such review panels, both pursuant to the SPRFMO Convention (note 51 supra). See Permanent Court of Arbitration (PCA) Cases Nos 2013-14 and 2018-13.

  93. 93.

    PCA Case No. 2013-19, Award on Jurisdiction and Admissibility dated 29 October 2015, at para. 1083.

  94. 94.

    Art. 21.

  95. 95.

    See Rayfuse (2004).

  96. 96.

    Arts 8(3) and 17(1).

  97. 97.

    Some RFMOs use different terminology; see Molenaar (2019), Table 2 at pp. 116–118.

  98. 98.

    Arts 8(4) and 17(2).

  99. 99.

    See Marel (2019), pp. 303–306.

  100. 100.

    See, for instance, CCAMLR Conservation Measure 10-07 (2016), at para. 22. See also Marel (2019), p. 302.

  101. 101.

    These are the Swordfish case between the then European Community and Chile (WTO Dispute No. DS193), and the Atlanto-Scandian herring case between Denmark (in respect of the Faroe Islands) and the EU (WTO Dispute No. DS469). For a discussion, see Churchill (2019), pp. 340–341, and Serdy (2016), pp. 432–438.

  102. 102.

    See Churchill (2019), who also notes at p. 337 that as RFMO/As are not Members of the WTO, the challenges must be directed at Members or CNPCs implementing actions by RFMO/As. See also Ferri (2015), at Ch 5, and the text accompanying note 118 infra.

  103. 103.

    Arts 4(1)(b) and 18(3).

  104. 104.

    See the practice by CCAMLR, ICCAT, NAFO and NEAFC examined by Honniball (2018), subsection 5.3.5.

  105. 105.

    See Honniball (2018), subsection 5.3.1.2.

  106. 106.

    E.g. ICCAT Recommendation 18-02, para. 71.

  107. 107.

    See, e.g. NAFO Conservation and Enforcement Measures 2019, Arts 38(1)(p)(i) and 43(1); and NEAFC Scheme of Enforcement 2019, Arts 21 and 29(f).

  108. 108.

    See, e.g., Art. 10(1) of the CAOF Agreement, and Art. 37(1) of the SPRFMO Convention, note 51 supra. See also Molenaar, p. 119.

  109. 109.

    GC Doc. 99/9, Annex 13.

  110. 110.

    Report of the 22nd (2003) Annual NEAFC Meeting, at p. 27. The ‘Guidelines for the expectation of future new Contracting Parties with regard to fishing opportunities in the NEAFC Regulatory Area’ are available at http://www.neafc.org/becomingacp.

  111. 111.

    See, e.g. NPFC Conservation and Management Measure 2019-07 ‘for Chub mackerel’, para. 4.

  112. 112.

    See Art. 24(2) of the NPFC Convention (Convention on the Conservation and Management of High Seas Fisheries Resources in the North Pacific Ocean, Tokyo, 24 February 2012. In force 19 July 2015; text available at www.npfc.int); and Art. 10(2) of the CAOF Agreement.

  113. 113.

    See Molenaar (2019), pp. 122–123.

  114. 114.

    Id., pp. 116–118.

  115. 115.

    E.g. WCPFC Conservation and Management Measure 2009-11 ‘Cooperating Non-Members’.

  116. 116.

    E.g. the difficulties experienced by Vietnam in renewal of CNM status by WCPFC in 2012–2015 due to the construction of large-scale tuna fishing vessels in Vietnam (e.g. Report of the 12th (2015) Annual WCPFC Session at paras 65–66).

  117. 117.

    Namely the Southern bluefin tuna cases, note 91 supra, the Atlanto-Scandian herring cases, note 101 supra and PCA Case 2013-30, and the review panels under the SPRFMO Convention, note 92 supra (PCA Cases Nos 2013-14 and 2018-13).

  118. 118.

    See also note 102 supra.

  119. 119.

    There are some precedents for simultaneously bringing multiple cases that are (largely) identical, for example the cases brought by Yugoslavia—which was succeeded by Serbia and Montenegro during the course of the proceedings—against Belgium, Canada, France, Germany, Italy, Netherlands, Portugal, Spain, United Kingdom and United States before the International Court of Justice (Information available at https://www.icj-cij.org/en/case/105).

  120. 120.

    Report of the 26th (2007) Annual CCAMLR Meeting, at para. 2.3.

  121. 121.

    In particular the objective of the CAMLR Convention laid down in its Art. II, among other things in light of CCAMLR’s actions on MPAs.

  122. 122.

    Cf., e.g., Rühlig (2018). See also the Final Report (2018) of the International Law Association (ILA) Committee on Baselines under the International Law of the Sea (available at http://www.ila-hq.org ), at footnotes 246 and 264, and p. 33 by which Committee member Yee takes the view that “the regime of continental States’ outlying archipelagos as units is already established under customary international law” referring in this regard to the study by the Chinese Society of International Law “The South China Sea Arbitration Awards: A Critical Study” (2018) 17 Chinese Journal of International Law 207, 475–552.

  123. 123.

    Art. X(2) of the ICRW, note 4 supra.

  124. 124.

    Agreement on Cooperation in Research, Conservation and Management of Marine Mammals in the North Atlantic, Nuuk, 9 April 1992. In force 8 July 1992 (1945 UNTS 3).

  125. 125.

    Art. 10(2).

  126. 126.

    Information available at https://iwc.int/statement-on-government-of-japan-withdrawal-from-t. For a discussion, see Guggisberg (2019).

  127. 127.

    See the Statement by the Chief Secretary of the Cabinet of the Prime Minister of Japan, available at https://japan.kantei.go.jp/98_abe/decisions/2018/_00008.html.

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Authors and Affiliations

  1. Netherlands Institute for the Law of the Sea (NILOS), Utrecht Centre for Water, Oceans and Sustainability Law (UCWOSL), Utrecht University, Utrecht, The Netherlands

    Erik J. Molenaar

  2. Norwegian Centre for the Law of the Sea (NCLOS), UiT The Arctic University of Norway, Tromsø, Norway

    Erik J. Molenaar

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  1. Faculty of Law, University of Porto, Porto, Portugal

    Marta Chantal Ribeiro

  2. Faculty of Law, University of Lisbon, Lisbon, Portugal

    Fernando Loureiro Bastos

  3. Faculty of Law, UiT The Arctic University of Norway, Tromsoe, Norway

    Tore Henriksen

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Molenaar, E.J. (2020). Regional Fisheries Management Organizations. In: Ribeiro, M., Loureiro Bastos, F., Henriksen, T. (eds) Global Challenges and the Law of the Sea. Springer, Cham. https://doi.org/10.1007/978-3-030-42671-2_5

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  • DOI: https://doi.org/10.1007/978-3-030-42671-2_5

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