Formal measures imposed by CCAMLR are referred to by the Commission as ‘Conservation Measures’, with each measure allocated a number and a title.433 Informal measures, however, may be referred to either as ‘Regulations’ or ‘Policies’. For instance, CCAMLR has a Resolution to the effect that States must require, as a condition of granting a vessel a license to fish for Patagonian toothfish,434 that vessels only land catches in ports that are fully implementing the CCAMLR Catch Documentation Scheme (CDS). While this measure appears to be a strict compliance enforcement mechanism, as a Resolution, this requirement is not binding on CPs or NCPs.
4.3.2.1 Formal measures
In a measure aimed at promoting compliance by the vessels of NCPs, CCAMLR’s Conservation Measure 10-07 provides for the development of an ‘IUU vessel list’ to name and shame non- compliant vessels and their flag States. As outlined in Chapter 3, IUU vessel lists are a key compliance enforcement mechanism adopted by many RFMOs to tackle the problem of IUU fishing. Conservation Measure 10-07 provides that at each annual meeting, the Commission
431
Convention on the Conservation of Antarctic Marine Living Resources, opened for signature 20 May 1980, 1329 UNTS 48, (entered into force 7 April 1982) article XXI.
432
Ibid.
433 For instance, the CCAMLR ‘Scheme to promote compliance by non-Contracting Party vessels with CCAMLR conservation
measures’ may also be referred to as ‘Conservation Measure 10-07’.
identify NCPs whose vessels are engaged in IUU fishing in the Convention Area.435 On approval of a vessel list, the Executive Secretary of the CCAMLR is required to place the list on the public section of the CCAMLR website and communicate the list to other RFMOs.436
Further to the formal CCAMLR IUU vessel list, Conservation Measure 10-02437 was passed in 2010 to require all CPs to ensure their vessels are licensed to fish in the Convention Area. This measure provides that a CP may only issue a licence to fish if it is satisfied of its ability to exercise its responsibilities under the Convention. Conservation Measure 10-02 specifies the monitoring requirements a flag State must be able to exercise over its vessels.
The taking of action that is consistent with international law to address non-compliance is a common thread among CCAMLR conservation measures. However, a clause is often included to ensure that there is no abuse of the use of sanctions, penalties or other trade-related
measures. Conservation Measure 10-07 provides that CPs should not take any trade-related measures or other sanctions against vessels as a result of their inclusion on this list. This provision is without prejudice to the rights of States to take proper action consistent with international law.438 This provision foresees the potential for States to incorrectly use the IUU Vessel List as an indication of proof of non-compliant activities by those vessels listed. Under Conservation Measure 10-07, CPs are still able to cooperate to adopt trade-related measures, consistent with their obligations to the World Trade Organisation (WTO), to prevent, deter and eliminate IUU fishing. It states that such measures may be used, to support
cooperative efforts to ensure that trade in Patagonian toothfish does not encourage IUU fishing or diminish the effectiveness of CCAMLR’s conservation measures.439 Additionally,
Conservation Measure 10-05 states that the Commission is committed to taking steps, consistent with international law, to ensure that fish was caught in a manner consistent with CCAMLR conservation measures.
Conservation Measure 10-08 also recognises the right of flag States to take action in response to acts of non-compliance by CP nationals. It states that CPs shall take measures to effectively deprive any participants in IUU fishing of the benefits obtained from their behaviour. Furthermore, Conservation Measure 10-03 entitled ‘Port inspections of vessels carrying toothfish’ provides that in the event that a vessel has fished in contravention of CCAMLR conservation measures, the CP will cooperate with the flag State of the vessel to take appropriate action and, if necessary,
435 CCAMLR Conservation Measure 10-07, ‘Scheme to promote compliance by non-Contracting Party vessels with CCAMLR
conservation measures’ paragraph 2.
436 Ibid paragraph 23. 437
CCAMLR Conservation Measure 10-02, ‘Licensing and inspection obligations of Contracting Parties with regard to their flag vessels operating in the Convention Area’, paragraph 1.
438
CCAMLR Conservation Measure 10-07, above n 435, paragraph 26.
apply sanctions to the vessel.440 Finally Conservation Measure 10-04 was adopted in 2010 to require CPs to ensure that their flagged vessels are equipped with automated satellite-linked VMS.441
4.3.2.2 Informal measures
The informal measures adopted by CCAMLR are generally aimed at expressing agreement within the Commission on matters of significance. Many of CCAMLR’s informal measures, or ‘Resolutions’, are aimed at urging non-compliant States, vessels or nationals to comply with CCAMLR provisions. For instance, Resolution 14/XIX urges all CCAMLR Acceding States442 and NCPs not participating in the CDS to implement it as soon as possible. Resolution 15/XXII builds from this to urge all CPs to require that their vessels should land catches in States that are fully implementing the CDS. Resolution 19/XXI contains a more general provision that urges all CPs and NCPs to take measures or cooperate to ensure that their nationals do not engage in or support IUU fishing.
The difference in wording adopted in CCAMLR formal and informal measures is due to the difference in the strength of these provisions. Informal measures can only ‘request’, ‘urge’ or ‘encourage’ States to act in a certain manner, whereas formal measures can require States to comply with their provisions. Resolution 25/XXV,443 for instance, urges all CPs to pursue diplomatic and other action, in accordance with international law, to encourage NCPs to recognise CCAMLR conservation measures. Such diplomatic action, as explored in Chapter 3, could be achieved via the imposition of diplomatic demarches, requests or entering into
negotiations with the flag State/s concerned.444
Finally, the ‘Policy to Enhance Cooperation between CCAMLR and Non-Contracting Parties’ (the CCAMLR Policy) is a unique approach adopted by the CCAMLR to improve compliance. Neither a regulation nor a conservation measure, the CCAMLR Policy requests the Executive Secretary
to, inter alia:
• invite and encourage NCPs to attend as observers at CCAMLR meetings, • encourage NCPs to accede to the Convention, and
• encourage NCPs to participate in the CCAMLR Catch Documentation Scheme.
440
CCAMLR Conservation Measure 10-03, ‘Port inspections of vessels carrying toothfish’, paragraph 3.
441
CCAMLR Conservation Measure 10-04, ‘Automated satellite-linked Vessel Monitoring Systems’.
442 The CCAMLR has 9 acceding States including: Bulgaria, Canada, Cook Islands, Finland, Greece, Mauritius, Netherlands,
Peru and Vanuatu. Full membership list available on line at <http://www.ccamlr.org/pu/e/ms/contacts.htm#States>
443
CCAMLR Resolution 25/XXV, ‘Combatting illegal, unreported and unregulated fishing in the Convention Area by the flag vessels of non-Contracting Parties’.
444
Rosemary Rayfuse, 'Countermeasures and High Seas Fisheries Enforcement' (2004) LI Netherlands International Law Review 41.