RFMO policies and their approach towards both CPs and NCPs are essential to the effectiveness of the regional system of fisheries management.321 Without guidelines to determine how the individual RFMO will deal with CPs and NCPs differently, there can be no common and consistent approach to the manner in which the organisation conducts itself. As such, policies and approaches play a large role in determining how individual RFMOs will tackle the problem of non-compliance by different parties. While RFMO policies and approaches govern a vast array of matters, including transparency and new and exploratory fisheries,322 this section is specifically concerned with the manner in which an RFMO, by adopting a strict approach, can minimise non-compliance.
3.4.1.1 Cooperative policies
Cooperation is the foundation of regional fisheries management.323 It is through cooperation that RFMOs seek to enforce their mandate and implement their regime. By encouraging both CPs and NCPs to cooperate with the objectives of an RFMO, the instances of non-compliance will be minimised. In the alternative, a lack of cooperation from flag States reduces the control
exercised by a RFMO, particularly when trying to impose restrictions on a flag State that is not a party to the relevant RFMO.
The importance of cooperation arises as a result of the duty to cooperate contained in the LOSC. The LOSC determines that States are ‘to cooperate to establish subregional or regional fisheries organisations’324 in the interests of conservation, and therefore one of the purposes of an RFMO
318
FAO Expert Workshop, above n 124.
319
Denzil Miller, 'Regional Fisheries Management Organisations and Implementation of Flag State Performance Criteria and Actions' (Paper presented at the FAO Expert Consultation on Flag State Performance, 23 - 26 June 2009).
320 FAO Expert Workshop, above n 124.
321 Implementation of the IPOA-IUU, above n 312. 322
A Willock and M Lack, Follow the Leader: Learning from Experience and Best Practice in Regional Fisheries Management Organisations (2006) 16.
323
Lodge et al, above n 289, 1.
is to act as a forum for negotiations between States on conservation matters. 325 As such, many RFMOs have formulated policies directly relating to cooperation between and amongst CPs, NCPs and CNPs.
The manner in which policy can be used to encourage cooperation can be demonstrated by the conservation measures of the Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR). The CCAMLR has sought to overcome the threat posed by NCPs to its effectiveness by adopting a ‘Policy to Enhance Cooperation between CCAMLR and Non- Contracting Parties’.326 This policy codifies the duty to cooperate contained in the LOSC and extends awareness of the need for NCPs to accede to the convention. The aim of the Policy is to encourage and build the capacity of NCPs to cooperate and to keep them informed of developments in conservation measures.327 The Policy requires the Chairman of the CCAMLR to write to NCPs to, inter alia, ‘invite and encourage non-Contracting Parties to attend as observers at meetings of the Commission’328 and ‘request non-contracting Parties to prevent their flag vessels from fishing in the Convention Area in a manner which undermines the effectiveness of measures adopted by CCAMLR’.329
In another example of how cooperative policies can target non-compliance, certain RFMOs have moved to make policies more effective by including provisions that provide positive incentives for cooperation. The framework provisions of the Commission for the Conservation of Southern Bluefin Tuna (CCSBT) and the North-East Atlantic Fisheries Commission (NEAFC) expressly refer to ‘cooperation quotas’ implying that if States choose to cooperate their catch quotas will be increased.330
In other cases, the treaty establishing a RFMO can refer to the benefits to be derived from cooperation. It is the policy of both the Western and Central Pacific Fisheries Commission (WCPFC) and the South East Atlantic Fisheries Organisation (SEAFO) that non-parties ‘shall enjoy benefits from participation in the fishery commensurate with their commitment to comply with … conservation and management measures in respect of the relevant stocks’. In this way, cooperative policies can encourage compliance from NCPs and reduce the incentive for States to operate outside RFMO regimes.
325
Tore Henriksen, 'Revisiting the Freedom of Fishing and Legal Obligations on States Not Party to Regional Fisheries Management Organizations' (2009) 40(1) Ocean Development & International Law 80 , 87.
326 The Policy to Enhance Cooperation between CCAMLR and Non-Contracting Parties was Adopted at CCAMLR-XVIII and
amended at CCAMLR-XXV. Available on line <http://www.ccamlr.org/Pu/e/cds/policy-to-enhance.pdf>
327
Lodge et al, above n 289, 64.
328
Policy to Enhance Cooperation, above n 326.
329
Ibid.
3.4.1.2 Non-contracting parties
One of the primary challenges facing RFMOs and their ability to implement conservation
measures effectively is the problem of incomplete membership. Many States continue to operate outside of the relevant fisheries regimes, threatening the conservation and management goals of RFMOs.331 Significant damage can result from the activities of NCPs, with the conservation measures of the ICCAT, for instance, frequently undermined by ships registered in non-member States.332 In fact, it is estimated that about 10 percent of the total catch in ICCAT fisheries is undertaken by vessels flagged to non-member States333 which can thereby diminish incentives to comply with the RFMO.
As such, many RFMOs have designed compliance policies and approaches targeting the activities of NCPs, their nationals and their vessels. For instance, the Indian Ocean Tuna Commission (IOTC) has a scheme to promote compliance by the vessels of NCPs whereby any evidence that such vessels have been fishing contrary to IOTC regulations should be reported to the authorities. Similarly, CCAMLR’s Resolution 14/XIX urges all NCPs not participating in the CCAMLR Catch Documentation Scheme (CDS) to implement it fully. By implementing a single approach towards the actions of NCPs, RFMOs are able to achieve consistency and promote a consistent message to non-compliant States, their vessels and nationals.
3.4.1.3 Contracting parties
While the control or regulation of NCPs is one of the key objectives of any RFMO, achieving compliance by those parties that have agreed to implement RFMO mandates is not a given. Indeed, the performance reviews of certain AusRFMOs recently noted low levels of compliance by contracting parties as one of the major problems facing the effectiveness of the individual RFMO.334 As such, achieving compliance by those parties that have committed to implementing conservation measures as well as empowering those States to achieve compliance from their nationals is crucial to the functionality of all RFMOs.
In an example of a policy approach directed at CPs, the Commission for the Conservation of Southern Bluefin Tuna (CCSBT) recently implemented their ‘Resolution on action plans to ensure compliance with Conservation and Management Measures’. This Resolution requires CPs and CNPs to submit an action plan to the Secretariat concerning, inter alia, how the State will certify catch data and information on ecologically related species. Further to this the CCAMLR has adopted Conservation Measure 10-08 requiring CPs to take measures to deprive IUU fishing
331
Willock and Lack, above n 322, 1.
332 Elizabeth R. DeSombre, 'Fishing Under Flags of Convenience: Using Market Power to Increase Participation in International
Regulation' (2005) 5(4) Global Environmental Politics 79.
333
Ibid.
334
Anonymous (2009). Report of the IOTC Performance Review Panel: January 2009. Indian Ocean Tuna Commission. See also Commission for the Conservation of Southern Bluefin Tuna, Report of the Performance Review Working Group, Canberra, Australia, July 2008. Available on line at <http://www.ccsbt.org/docs/pdf/meeting_reports/ccsbt_15/report_of_PRWG.pdf>
operators of the benefits obtained from their behaviour. This approach requires that the flag State act to achieve compliance by nationals and vessels with the conservation mandate of the RFMO.