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WHATS THE CATCH? AN INTERROGATION OF REGIONAL FISHERIES MANAGEMENT ORGANIZATIONS USE OF CATCH DOCUMENTATION SCHEMES BY CHLOE DAVIS A Thesis Submitted to the Division of Social Sciences New College of Florida In partial fulfillment of the requirements for the degree Bachelor of Arts Under the sponsorship of Dr. Frank Alcock Sarasota, Florida May, 2009
i ACKNOWLEDGEMENTS Thank you to all of my friends and family for supporting me through this process. I would especially like to think Madison Shar ko for being by my side this entire year, whether it was physically at Perkins for 8 hour s straight, or emotiona lly there through all the self-doubt. I would also like to thank my roommates, Justin Boner and Michelle DiPietro, for being so supportiv e and comforting. Thank you also to my parents and my sister for visiting me and liste ning to my constant worrying, a nd to my dad especially for reading my thesis, no matter how uninteres ted he was in fish and international institutions. Thank you to my thesis sponsor, Dr. Frank Alcock, for struggling through this year with me, especially those last few months of last minute writing and revisions. Thank to my other committee members, Dr. Hick s and Dr. Mink, for making my Bacc so enjoyable, even fun. Thanks to Dr. Mink es pecially, for reading many sections of my thesis, and going above and beyond expectations.
ii CONTENTS ACKNOWLEDGEMENTS..i TABLE OF CONTENTS....ii ACRONYMS.iii FIGURES.v TABLES..v ABSTRACT...vi Chapter ONE INTRODUCTION...1 TWO THE WORLD TRADE ORGANIZATION AND MULTILATERAL ENVIRONMENTAL AGREEMENTS.17 Function of the Dispute Settlement Body. Interpretation WTO Provisions and Cases..25 Evaluation. THREE CASE STUDIES OF CA TCH DOCUMENTATION SCHEMES ICCAT..40 CCSBT.54 CCAMLR.65 FOUR CONCLUSION..75 BIBLIOGRAPHY......88
iii ACRONYMS BFT Bluefin Tuna BTSD Bluefin Tuna Statistical Document CBD Convention for Biological Diversity CCAMLR Commission for the Conservation of Antarctic Marine Living Resources CCSBT Commission for the Conserva tion of Southern Bluefin Tuna CDS Catch Documentation Scheme CITES Convention on Intern ational Trade in Endangered Species of Wild Flora and Fauna CPC Contracting Party to the Convention CTE Committee on Trade and the Environment (WTO) DDA Doha Development Agenda DSB Dispute Settlement Body (WTO) DWF Distant Water Fishing EC or EU European Comm unity or European Union ECJ European Court of Justice EEZ Exclusive Economic Zone EFP Experimental Fishing Program FOC Flags-of-convenience FAO-IPOA-IUU Food and Agricultural Organi zation International Plan of Action to Prevent, Deter and Eliminate Illega l, Unreported and Unregulated Fishing GATT General Agreement on Tariffs and Trade HSTF High Seas Task Force ICCAT International Commission for the Conservation of Atlantic Tuna IOP International Observer Program ITLOS International Tribunal for the Law of the Sea IUU illegal, unreported and unregulated MEA Multilateral Environmental Agreement MRAG Marine Resource and Fisheries Consultants MSY Maximum Sustainable Yield MT Metric Tonnes NGO Non-Governmental Organization PWG Permanent Working Group for the Improvement of ICCAT Statistics and Conservation Measures RFMO Regional Fisheries Management Organization SBT Southern Bluefin Tuna SCOI Standing Committee on Observance and Inspection SCRS Statistical Committee on Research and Statistics TAC Total Allowable Catch TED Turtle Excluder Device TIS Trade Information Scheme TRAFFIC Trade Records Analysis of Flora and Fauna in Commerce UNCLOS United Nations Convention on the Law of the Sea
iv UNEP United Nations E nvironmental Programme UNFAO United Nations Food a nd Agricultural Organization UNFSA United Nations Fish Stocks Agreement VCLT Vienna Convention on the Law of Treaties VMS Vessel Monitoring System WTO World Trade Organization WWF Worldwide Fund for Nature (International)
v ILLUSTRATIONS Figures 1.1 World catches of oceanic species occurring principally in high seas areas.............1 1.2 Global trends in the state of world marine stocks since 1974..2 Tables 2.1 Members of ICCAT... 2.2 Members of the European Community fishing in ICCAT Convention Area 2.3 Total reported catches 2.4 Members of CCSBT......55 2.5 Members of CCAMLR..68 2.6 Estimated IUU catches... 2.7 Overview of Organizations
vi WHATS THE CATCH? REGIONAL FISHERIES MANAGEMENT ORGANIZATIONS USE OF CATCH DOCUMENTATION SCHEMES Chloe Davis New College of Florida, 2009 ABSTRACT This thesis examines catch documentation schemes as a tool for three regional fisheries management organizations to redu ce illegal fishing. Global fishing has been increasing at a dramatic rate over the last half century due to increased industrial capabilities and changing instit utional structures, resulting in severely unsustainable practices. Catch documentation schemes, whic h target illegal fish ing by requiring that a document accompany each fish imported into contracting nations markets, could have a significant impact on global fishing pressures. Unfortunately, their adoption was delayed due to political hindrances. On e hindrance is that these measures may be incompatible with World Trade Organization (WTO) regulati ons, because they represent a barrier to international trade. An interrogation of re levant cases within the WTO found that these schemes have appropriately incorporated WTO la ws into consideration of these schemes. This thesis goes on to evaluate the process by which catch documentation schemes were ultimately adopted and makes conc lusions about the nature of the political obstacles which are restricting effective cons ervation. Political obstacles concerning the balance of national economic inte rests and the future health of particular fish stocks played an important part in the actions of participating me mbers. Information gathering and increased participation led these organiza tions into the position of adopting stricter
vii conservation measures when they could no longer delay. This pr ocess may have an interesting affect on the future of these schemes, which will now be reliant on proper enforcement of regulations. ___________________________ Frank Alcock Division of Social Sciences
1 Chapter 1: Introduction International fisheries management is facing the significant problems of overfishing and overcapacity, which have beco me central issues for many international organizations and multilateral agreements Concerns of sustainability, national territoriality and economic interests have contributed to these problems, affecting the negotiations in the international arena. Since fisheries impact the lives of so many individuals and the economic concerns of so many nations, it is crucial that these nations cooperate to manage fisheries sustainably and equitably. Industr ial and institutional changes can be demonstrated in the exponen tial expansion of the global fishing market, which was worth $8 billion in 1976, $58 billi on in 2002 and $78 billion in 2005. Half of this trade is harvested by de veloping states, while 72% is de stined for markets in the EU, USA or Japan.1 These changes in industrial and inst itutional systems have especially affected high seas fishing and the overexplo itation of many stocks (see figures 1 and 2). Figure 1.1: World catches of oceanic species occurring principally in high seas areas2 1 Marine Resources and Fisher ies Consultants (MRAG), Policy Brief 7: Fisheries and International Trade, http://www.mrag.co.uk/Recent_Publications.htm (accessed March 16, 2009), 1.
2 Figure 1.2 : Global trends in the state of world marine stocks since 19743 Founded in 1950, the United Nations Food and Agricultural Organization (UN FAO) collected global statistics on fisheries, which demonstrated the rapid growth in this industry. The FAO expanded their fisheries information gathering, conducting studies on the state of the marine fish stocks and fish eries since 1974. A joint study with the World Bank conservatively estimated the total ec onomic loss of national wealth to be $2.2 trillion between 1974 and 2008.4 This loss is due to the overcapacity of global fishing fleets, meaning there has been an ever-inc reasing fishing effort while catches have stagnated over the last 2 to 3 decades. This study estimated a loss of about $50 billion per year, which did not account for costs of fi sheries management, the costs of subsidies, losses due to recreational fishi ng, marine tourism, or losses at tributed to illegal fishing. 2 Food and Agricultural Organization (FAO), The State of World Fisheries and Aquaculture, (Rome: FAO, 2009), 14, Box 1. 3 The State of World Fishing, 33, fig 21. 4 World Bank and FAO, The Sunken Billions: The Economic Justification of Fisheries Reform, 2008, xiii.
3 The report argues that improved governance of marine fisheries c ould be the key to capturing a substantial part of this $50 billion annual economic loss. Global fishing trends have demonstrated a need for a reevaluation of the global governance structure since before World War II. They have been affected by a variety of factors including industrial cap acity and institutional developments that have changed international rules for fishing fleets. The i ndustrial changes in fish ing fleets began with the advent of trawling, which is referenced as far back as the 14th century,5 but the trawl industry expanded dramatically in the 19th century during the industrial revolution with increased population and food demands.6 This led to the invention and development of steam trawlers, which dramatically increased the fishing capacity of fleets compared to that of sailing trawlers.7 Changes in governance institutions over the last few centuries have also had important effects on the state of global fishing. Political negotiations began in the 17thcentury when nations adopted the freedom of the seas concept, which was proposed by Hugo Grotius as justification for the Neth erlands activities in the Indian Ocean.8 This concept held that all nations had jurisdic tion over approximately three nautical miles stretching from their coastline into the ocea n, a concept based on the cannon shot rule. The practice remained in operation until the 1930s when the Hague Conference on the 5 Engelhard GH (2008) One hundred and twenty y ears of change in fishing power of English North Sea trawlers, in Advances in Fisheries Science 50 years after Beverton and Holt, ed. Andy Payne, John Cotter, Ted Potter (Oxford: Blackwell Publishing, Ltd, 2008), 2. 6 Engelhard, 3. 7 Pauly, Watson and Alder, Global Trends in World Fisheries: Impacts on Marine Ecosystems and Food Security. Philosophical Transactions: Biological Sciences 360, no 1453 (Jan 2005): 6 8 Russ, Garry R., Dirk C. Zeller, From Mare Liberum to Mare Reservarum, Marine Policy 27, no 1(Jan 2003): 76.
4 Codification of International Law determined that it was acceptable for states to claim territorial waters. During this time, fishing practices had stalled for the World Wars, but industrialization continued to expand in th eir wake, when ships used for military purposes were released back into the commer cial sector. The development of diesel engines and power winches in the First World War were transferred to fishing vessels, as well as naval inventions in the Second Worl d War such as freezer trawlers, radar and acoustic fish finders.9 These innovations were made us eful during peacetime by their implementation into national fishing fleets, resulting in a dramatic increase in global catches in the 1950s and 1960s. The transfer of refrigeration to the fishing sector especially was instrumental in expanding a fl eet capable of taking enormous landings that could stay fresh for long trips. The expansion of industri al capabilities after World War II coincided with political conflicts over ocean resources. In 1945, Harry S. Truman, in the first move to extend national territory beyond the accepted range, responded to internal pressure from oil interests by unilaterally claiming territory over all natural resour ces on the continental shelf. As a result, some countries, such as those on the Medite rranean coast, began claiming national jurisdiction out to 12 miles, or even 200 miles, as was the case with Chile and Peru in 1947, and Ecuador in 1950. Competing territorial interests led to the first United Nations Conference on the Law of the Sea (UNCLOS I), held in Geneva, 9 Pauly, Watson and Alder, 6.
5 Switzerland in 1956. Four important treaties were concluded,10 but essential issues were left unresolved, and a second UNCLOS di d not result in any new agreements.11 Territorial disputes co ntinued through the 1960s, as oil exploration and technology expanded farther offshore, pollutio n concerns loomed larger, and coastal states attempted to limit the access of other nations distant water fishing (DWF) fleets from their coasts. The extension of territorial claims forced the DWF fleets farther off shore, which significantly altere d the structure of global fish ing, creating a need for more advanced technology for high seas fishing. Claims and countercl aims were producing sovereignty disputes that sometimes resulted in armed conflict. The famous cod wars between Iceland and the United Kingdom br ought out the British Navy when Iceland seized a vessel for fishing violations.12 The multitude of disputes erupting out of marine territory conflicts was disrupting international stability after World Wa r II, resulting, in 1967, in an appeal by Maltas UN Ambassa dor to the international community to evaluate their actions, and work to develop a regime for managing the sea beds and its resources. What resulted was a 15-year discussion and a multitude of signed treaties designed to settle disputes over the oceans. The Third United Nations Conference on the Law of the Sea (UNCLOS III) was convened in New York in 1973 and signed in Montego Bay, Jamaica, in 1982. The purpose was to establish a comprehensive treaty for managing the oceans. UNCLOS III is 10 Convention on the Territorial Sea and Contiguous Zone, Convention on the Continental Shelf, Convention on the High Seas, and Convention of Fishing and Conservation of Living Resources of the High Seas. 11 UN Environmental Program, Shelf Programme: Background to UNCLOS, http://www.continentalshelf.org/about/1143.aspx (accessed April 10 2009). 12 UN Environmental Program, United Nations C onvention on the Law of the Sea: A Historical Perspective. http://www.un.org/Depts/los/convention_agreement s/convention_historical_perspective.htm#Hist orical%20Perspective (accessed April 10, 2009).
6 widely considered to be the most comprehens ive global treaty in history, with 320 articles and 157 signatories.13 The treaty made significant pr ogress in several areas, including, but not limited to: a regime for transit passage through territorial waters; the world communitys interest in the conservation and utiliz ation of marine living resources; a regime for the preservation of the marine environment from pollution; a dispute settlement regime that allows for conciliatory resolutions or binding resolutions if disputing partie s can not resolve negotiations.14 It was in these treaties that territorial disputes were ultimately settled with the adoption of Exclusive Economic Zones (EEZs) of 200 nautical miles, which were instituted in the 1970s even though they were not officially adop ted until nearly a decade later. This institutional adjustment dramatically ch anged the practice of global environmental governance. Governments heavily subsidized their national fishing fleets to continue to fish in international waters and compete in global markets.15 In the last se veral decades of subsidization, developed countries poured m oney into their DWF fleets, paying for shipbuilding, fishing rents, and other related co sts. Consequently, fishing pressures in the 1950s through 1970s dramatically reduced global fish stocks in the 1980s, and left a situation in which there are too many boats fishing for too few fish. New industrial fishing vessels were then able to find fish stocks in loca tions that were previously 13 Devaney, Patricia Lee, Regional Fisheries Management Organizations: Bringing Order to Disorder. Papers on International En vironmental Negotiation 14 (2005): 2. 14 Koh, Tommy. A Constitution for the Oceans (statements made at the final session of the UNCLOS session, Montego Bay, Jamaica, December 6 and 11, 1982). http://www.un.org/Depts/los/convention_agr eements/convention_overview_convention.htm 15 Pauly, Watson and Alder, 6.
7 refuges, too far and deep for vessels to acce ss, but this only propelled the collapse of important fisheries.16 The dramatic transformation of the in stitutional dynamics of global governance brought 30% of the worlds oceans and 90% of the oceans resources under national jurisdiction.17 The remaining 10% of fisheries fa ll under the categor y high seas fish stocks and continue to cause political dile mmas due to their movement in and out of many national jurisdictions. High seas fish st ocks are divided into two main categories, highly migratory fish stocks and straddling fish stocks. North Atlantic bluefin tuna, which are highly migratory species, travel from the coast of the United States and Canada to the Mediterranean Sea every year. They pass through the EEZ of dozens of countries, making the intervention of international organi zations imperative. Many of the highly migratory species are also some of the most valuable fish, leading to high stakes in the trade sector. Bluefi n tuna have been known to weigh as much as 1400 pounds and cost $173,000 on the Japanese market.18 Another important step in the progression of institutional evolution was the 1995 Agreem ent Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UNFSA, also known as the 1995 Agreement). UNFSA was organized as a response to gr owing concerns over the imprecision of Article 63 of UNCLOS III, which created obligations for cooperation between coastal 16 Pauly, Watson and Alder, 1. 17 Russ, 76. 18 Kochevar, Randy, ,000 tags reveal mysteries of giant bluefin tuna, Bio-Medicine October 29, 2008. http://www.bio-medicine.org/biology-news-1/1-000-tags-reveal-mysteries-of-giantbluefin-tuna-5643-1/
8 and high-seas fishing states in rega rds to highly migratory fish stocks.19 The problem was that the 1995 Agreement was designed to provide jurisdiction fo r regional fisheries management organizations (RFMOs) over the enti re range of straddling fish stocks, both within and beyond national EEZs. It succeed ed in providing several guidelines for RFMOs, while also implementing the intern ational agreements arranged by UNCLOS III. In the area of RFMO geographical competence, Article 7 of the Agreement deals with the entire stock, effectively accepting that the agreement does not prevent an RFMO from establishing measures within an EEZ.20 Because of the broad nature of sovereignty rights within EEZs, RFMOs do not have the ri ght to impose measures within national territory, but members to the RFMOs, under UNFSA, can agree to delegate competence over those stocks to the regime. The 1995 Agreement also creates obligations concerning the compatibility of conservation measures between RFMOs and me mber states, as well as between coastal states and high seas fishing states. Orebech et al. discuss the dilemma within this Agreement over bargaining power between high seas fishing states and coastal states. The decision to form regimes that would operate with a bottom-up approach or a topdown approach, which would affect bargaining power of member states, was left to the individual organizations, because the 1995 Agre ement could not takes sides on the issue. The bottom-up approach gives coastal states a great deal of power because RFMOs must adopt measures based on what member states have already implemented or are capable of implementing. Under this appro ach, it is the responsib ility of high seas fishing states to 19 Orebech, Peter, Ketill Sigurjonsson, and Ted L. McDorman, The 1995 United Nations Straddling and Highly Migratory Fish Stocks Agreement: Management, Enforcement and Dispute Settlement. The International Journal of Marine and Coastal Law 13, no 2, 1998. 120. 20 Orebech, Sigurionsson, and McDorman, 127.
9 make their measures compatible with those of coastal nations. The top-down approach, on the other hand, gives high seas fishing stat es more bargaining power. Orebech et al. believe that the lack of reciprocity within a bottom-up approach is unsustainable and destined for failure.21 Several organizations have adopted the top-down approach because many developing states are high seas fishing states wieldi ng a lot of political power. On a theoretical level, the top-down approach is se en to be more conducive to sustainable management. Under previous international laws including UNCLOS, jurisdiction over enforcement of fishing vessels on the high se as was given to flag states, which was continued within UNFSA, but the Agreement at tempted to increase th e responsibilities of these states to enforce regulations. Article s 18 and 19 of the Agreem ent set out the duties of the flag states and are said to give teet h to the notion of flag state responsibilities22 by obligating them to investigate without dela y any allegations of violations to RFMO measures and take legal action if there is su fficient evidence of a violation. There is still considerable difficulty within international ma nagement when flag states are unwilling or unable to regulate their vessels. In an atte mpt to mitigate this problem, the Agreement also introduced the concept of the inspecting state, which gave coastal states the right to board and inspect vessels within their EEZ. It also gives much greater controls to port states to regulate vessels technical conditions, handling operations, landings and transhipments.23 21 Orebech, Sigurionsson, and McDorman, 129. 22 Orebech, Sigurionsson, and McDorman, 130. 23 Orebech, Sigurionsson, and McDorman, 132.
10 Despite developments in changing institutional structures, fisheries managers are still making efforts to solve burgeoning politi cal and economic problem s within fisheries. One of the most resent and dominant phenom enons that poses a si gnificant problem for stock sustainability is that of illegal, unr eported and unregulated (IUU) fishing. IUU fishing covers any activities that violate national or international laws, those that have not been reported or misreported, and those undertak en by vessels that are not authorized to fish within areas managed by RFMOs.24 Because so many activities can be qualified as IUU activities, it is a complicated issue to be undertaken, but must be addressed now. A significant concern within IUU fi shing is the emergence of Flags-ofConvenience (FOC). FOCs are fishing states with open registries, which offer vessels the opportunity to fish without having to abid e by national or international limits because they are either not members of internationa l regimes or do not enforce international regulations.25 In open registries, vessels from a ny country can apply to be registered under a different countrys registry. Often times, vessels flying FOCs are owned by nationals of developed countries operated by nationals of an other country, and registered under a third country, making this problem w ithin fishing truly global. Efforts by RFMOs to convince states with open registri es to cooperate with regional regimes have not been successful because it is easy for vessels to refl ag to other open registries, partially because they offer such low costs for registration.26 An abundance of organizations have become involved in tracking IUU fishing globally, including the RFMOs that regulate the trade of fish, as well as the FAO, the 24 FAO. International plan of action to prevent, deter and eliminate illegal, unreported and unregulated fishing (Rome, 2001), 3. 25 Elizabeth R. DeSombre, Flagging Standards: Globalization and Environmental, Safety, and Labor Regulations at Sea (Cambridge, Ma: MIT Press, 2006), 153. 26 DeSombre, 156.
11 Ministerial High Seas Task Force (H STF), Greenpeace, Traffic, and WWF.27 One organization, the Marine Resources and Fisher ies Consultants (MRAG) in particular, has published a number of studies that estimated IUU catches and the associated financial losses associated with them. MRAG is a consulting firm dedicated to promoting the sustainable utilization of natural resources The organization is accredited to conduct third-party fishery certifications and has considerable experience in sustainable fishery assessment. In their 2008 analysis of global IUU fishing, they asserted IUU fishing ranges from 11 to 19% of reported catches, wh ich for some years has been estimated to represent losses of up to $25 billion annually.28 Global IUU fishing is especially problematic within a few highly valuable species, such as Atlantic and Southern bl uefin tuna and Patagonian toothfish. These species fetch a very high market value, givi ng increased incentive for illegal operators to fish for them. It is especially lucrative within developing countries, where monitoring and enforcement are lower because of a lack of capacity. IUU fishing in developing countries also has a higher economic impact due to direct loss to the gross national product (GNP) as well as revenue that could be taken in the form of landings fees, license fees, taxes, etc.29 IUU fishing also impacts the suppl y chain upstream and downstream in the form of depressed demand fo r fishing gear, boats, and equipm ent. This situation that developing countries are in is mutually re inforcing because a lack of capacity for 27 Marine Resources and Fisher ies Consultants (MRAG), Policy Brief 7: Fisheries and International Trade http://www.mrag.co.uk/Recent_Publications.htm (accessed March 16, 2009). 1. 28 Policy Brief 7: Fisheries and International Trade 1. 29 Marine Resources and Fisheries Consultant s (MRAG), Review of the IUU fishing and developing countries: Synthesis repor t, under Recent Publications, http://www.mrag.co.uk/Recent_Publications.htm (accessed March 16, 2009), 5.
12 enforcement does not allow these countries to bring in needed revenue, and without this revenue they cannot bring up enforcement.30 The solution to IUU fishing has histor ically been addressed by RFMOs through implementing measures that target the point of harvest, such as setting catch quotas or relying on national enforcement mechanisms. This approach has become increasingly problematic due to the extension of fishing te rritories to the high seas and the industrial changes that have pushed fishing fleets farthe r from shore. Concerns of authority and enforcement have placed significant limita tions on national governments to police international waters as well as their own EEZs. These obstacles have lead to the reevaluation of strategies adopted for addr essing IUU fishing, resulting in a market access approach that utilizes a variety of ma nagement tools including trade restrictions. RFMOs have adopted new management t ools directed at reducing IUU fishing that encourage fishing nations to adopt e ffective conservation measures; stop vessels from catching fish beyond their quotas; an d prevent those catch es from reaching the markets. One of the most important tool s being used by RFMOs today is the catch documentation scheme (CDS). CDSs are a ty pe of conservation measure, designed to target IUU fishing as it reaches the market that requires contracting members of RFMOs to refuse to import fish products of certa in species that are not accompanied by a validated catch document. This requires accurate information on catch location, the fishing vessel that landed the catch, any vessels involved in tr ansshipments, the flag state, etc. CDSs were preceded by trade information schemes (TIS), which also required documentation of every product entering the market, but, because there were no 30 MRAG, Review of the IUU fishing and developing countries: Synthesis report 5.
13 associated mandates that RFMO members re fuse products without proper documentation, the schemes were ineffective and frequently inaccurate. CDSs have been adopted by RFMOs because they are anticipated to ha ve a better chance at lowering IUU fishing because they provide a strong disincentive for illegal fishing operations. They are also valuable to international or ganizations because they lower costs of enforcement. Managers believe that it will be easier to control what fish products are entering the market rather than policing th e vessels on the oceans. These schemes are associated with many other measures designed to acquire ac curate data on catches and to encourage compliance of regulations. Another tool, used in conjunction with CD Ss, is vessel monitoring system (VMS). Vessel monitoring involves the installation of a global positioning device that can transmit a vessels location anywhere in the world to a central receiver, controlled by either the vessels flag st ate or the regional governing body. Generally, VMSs are implemented by contracting parties who then transmit the information to the RFMO secretariat. Vessel monitoring systems ha ve been used by governments to track the location of fishing vessels, of ten to monitor time/closure fishing areas such as spawning grounds or marine reserves, known as monito ring, control and surveillance measures. RFMOs have adopted VMS measures for a sli ghtly different purpose, as a tool for verifying information on catch documents to combat cases of fraud. A problem associated with VMS is encouraging CPCs to fully implement the system on all authorized vessels. The system can be expe nsive for developing coun tries to implement, and achieving compatibility between RFMO m easures and domestic laws is a constant problem for fisheries management.
14 Tagging is a tool used by some RFMOs, wh ich requires vessels to tag every fish that is caught of a certain species with an authorized electronic tag with an individual identification number. This tool is used in association with documentation because the tag can verify the document of the indivi dual fish. Only a couple RFMOs have implemented comprehensive tagging programs, because some fisheries are much more extensive than others, which would make tagging programs more expensive. On the other hand, tagging is a conserva tion tool that does not rely on the capacity of domestic governments the way VMS programs do because is enforced by the port state, which could result in more successful implementation. White lists and black lists are another tool at the disposal of RFMOs. White lists are a compilation of all authorized vessels to fish in the convention area, created by contracting parties and sent to the Secretariat to keep an official list. Member states are directed to only accept fish by vessels on this list. Black lists are lists of vessels known to be operating in a manner that diminishes conservation measures.31 Black lists are less successful than white lists because vessels can change vessel names fairly easily. Sometimes RFMOs pass associated regulations that require me mbers to refuse landings from vessels flying known flags of conveni ence, which can be more successful. These schemes have a greater chance at ach ieving sustainability of international fisheries than previous measures that were ta rgeting fishing at sea, but there is a catch: trade restrictive measures adopted by multila teral environmental agreements (MEAs) represent a possible inconsistency with th e World Trade Organizations (WTO) objective of lowering trade barriers. RFMOs are be ing criticized both for not adopting strong 31 DeSombre, 163.
15 enough measures to effectively conserve impor tant fish stocks, and for adopting trade measures that could be against the laws of this overarching international body. The thesis will interrogate this paradox by examining the validity of these criticisms. The second chapter of this thesis will take an in-d epth look at the relationship between MEA regulations and WTO laws in order to pred ict whether catch documentation schemes will be allowed by the WTO Dispute Settlement B ody (DSB) as a valid approach to solving the problem of sustainability within interna tional fisheries. I will investigate previous cases within the DSB that have reviewed e nvironmental regulations, as well as attempts made by MEAs to bring trade restrictions clos er in line with WTO regulations. Several authors have speculated on this very issue, including Tarasofsky32, and Cameron and Gray33, among others. When I have addressed this potential hindrance, the third chapter will discuss the process by which three important organizati ons adopted catch documentation schemes, and to what end. These cases are the Inte rnational Commission for the Conservation of Atlantic Tuna (ICCAT), the Commission fo r the Conservation of Southern Bluefin Tunas (CCSBT) and the Commission for the Conservation of Anta rctic Marine Living Resources (CCAMLR). These three organiza tions were chosen for this study because they manage large fisheries that have dom inated the market for bluefin tuna and Patagonian toothfish, and have the most de veloped documentation schemes. Also, each organizations regulations have different specifications, allowing ea ch program to work differently and be affected by different f actors. This paper will compare these 32 Tarasofsky, Richard. Regional Fisheries Organizations and the World Trade Organization: Compatibility or Conflict (Cambridge, UK: TRAFFIC International, 2003). 33 Cameron, James, and Gray, Kevin. Princip les of International Law in the WTO Dispute Settlement Body. The International and Comparative Law Quarterly 50, No. 2 (Apr, 2001) 248298.
16 organizations side by side to describe the pr ocess by which each one came to adopt catch documentation schemes, and whether there are a ny important variables that facilitated the progression to stricter measures. Chapter 2: The World Trade Organizations and Multilateral Environmental Agreements
17 Several regional fisheries management or ganizations have turn ed to the use of catch documentation schemes (CDS) to achieve the management objectiv es established to protect fish stocks from overfishing and illegal fishing.34 These schemes provide the Commissions of the organizations with important information about imports and exports, which vessels are fishing for particular species, which coun tries are registering these vessels, and how much tonnage is being imported or expo rted. The schemes serve a further purpose of creating economic incentives to participate in legal fishing activities by creating a price differential between fish with a valid document and those without.35 A potential difficulty that arises from these sc hemes is the possible inconsistency between trade restrictions and the World Trade Organizations objective of lowering trade barriers. This chapter will describe the regulations of the WTO that impact regulations adopted by MEAs and will determine the lik elihood that a case brought up in the WTO against CDSs would succeed or fail. Anal yzing the cases within the WTO Dispute Settlement Body (DSB) and their relation with regulations of MEAs, I will demonstrate that trade measures issuing from RFMOs should be able to survive WTO challenges, based on assumptions within international law and rulings made by the DSB. The World Trade Organization is the only international organization created to deal with the rules of trade between nations.36 The purpose of this organization is to give countries a forum in which to negotiate trade related issues to ensure that trade flows smoothly and predictably.37 The WTO gives businesses and countries security in knowing that foreign markets will be availabl e to them by lowering trade barriers. By 34 Tarasofsky, 2. 35 DeSombre, 172. 36 World Trade Organization, What Is The WTO? World Trade Organization. http://www.wto.org/english/thewto_e/whatis_e/whatis_e.htm (accessed November 18, 2008) 37 Tarasofsky, 1.
18 providing this forum to negotiate trade, a more prosperous, peaceful and accountable economic world38 will emerge, ideally, and provide a dispute settlement process that will reduce the risk of trade disputes becomi ng political or military conflicts. The WTO also believes that by bringing down trade barriers, the system will break down other barriers between peoples and nations.39 The WTO was established in 1995 as the successor to the General Agreement on Tariffs and Trade (GATT), form ed after the Second World War.40 The WTO and GATT proclaim to have facilitate d the growth of world trade by 6% annually since 1950. The WTO has expanded the range of trade cove red under GATT, from that of goods to include services, intellectual property, procurement, invest ment and agriculture. The system-sponsored trade negotiations were first used to discuss tariff reductions, but they have since included discussions of antidumping and non-tariff m easures. The 1986-94 Uruguay Round resulted in the cr eation of the WTO. Today, there are 153 members of the WTO as of July 23, 2008. Each member has equal representation within the WTO and all major decisions are made by the member ship and are usually taken by consensus. This process, continued from the organiza tions predecessor, GATT, which allows all members to have their interests heard and considered. When a consensus cannot be achieved, the agreement allows for voting whic h is won with a majority of votes cast.41 When a decision has been made, it is up to th e members to ratify the agreement in their respective legislatures. 38 World Trade Organization, The World Trade Organi zation...In Brief, World Trade Organization, pg. 2 http://www.wto.org/englis h/thewto_e/whatis_e/i nbrief_e/inbr00_e.htm (accessed November 18, 2008). 39 The World Trade OrganizationIn Brief, 2. 40 The World Trade OrganizationIn Brief 3. 41 World Trade Organization, Understanding the WTO, World Trade Organization, http://www.wto.org/english/thewto _e/whatis_e/tif_e/tif_e.htm (accessed November 18, 2008).
19 Ministerial Conferences, meetings of the heads of state of all WTO members, are held at least every 2 years. The conferences carry out the functions of the WTO and have the authority to make decisions on any of the matters under the Multilateral Trade Agreements.42 There have been 6 important ministerial conferences since the establishment of the WTO, which are ofte n referred to as rounds due to the ongoing negotiations that follow thes e conferences. One of the most important rounds was the Doha Round. Initiated in 2000 by talks on agriculture and serv ices, the round was officially launched as a broader work progr am, the Doha Development Agenda (DDA) in Doha, Qatar, in November 2001. This negotia tion added issues such as non-agricultural tariffs, trade and environment, subsidies, inte llectual property, and many others that have been brought up by developing countries having difficulties implementing current WTO agreements.43 Continuing negotiations have been refi ned by work at Cancn in 2003, Geneva in 2004, and Hong Kong in 2005. Today, Progress has been made in important areas, such as agriculture and non-agricultural market access, but discussions are ongoing. Discussions in July of 2008 re sulted in a package of negotiated modalities that are being continually renegotiated, with the Ch airperson working as a mediator between delegates. While changes have been made, and members have come to a consensus in many areas, the area of environmental product s is still undefined. The discussions on trade and the environment are particularly applicable to catch documentation schemes because there are potential inconsistencies between the regulations of multilateral 42 Anupam Goyal, The WTO and International Environmental Law (California: Oxford University Press, 2006), 22. 43 The World Trade Organization...In Brief, 3.
20 environmental agreements and those of the WT O. Because the environment is referenced as being of particular concern to the WT O, many members of the WTO, as well as observing organizations such as non-government al organizations (NGOs), would like to see this relationship clarified. This paper will consider the Dispute Settlement Understanding (DSU) that lays out the rules and procedures governing the settlement of disputes within the WTO along with specific cases that have been settled by this body.44 These cases will demonstrate the trend of dispute settlement concerning environmental trade regulations and allow predictions to be made about future cases that could be brought to the WTO concerning catch documentation schemes. Function of the Dispute Settlement Body The WTO Dispute Settlement Body (DSB) is the division of the organization designed to clarify trade oblig ations within the WTO Agreem ent. Article 3.2 of the DSU in Annex 2 of the WTO Agreement states that the dispute settlement system is a central element in providing security and predictability to the multilateral trading system.45 The system provides members a structure for addr essing complaints against another member that violates the obligations that it pledged to obey. The dispute se ttlement system is a two-tier system in which a panel assesses th e facts and comes to a legal conclusion.46 Article 3.2 in Annex 2 of the DSU further states that members recognize that this document serves to clarify the existing provisions of the covered agreements in accordance with customary rules of inte rpretation of public international law. 44 General Agreement on Tariffs and Trade, The Result of the Uruguay Round of Multilateral Trade Negotiations: The Legal Texts, (Geneva: GATT, 1994), 353. 45 The Result of the Uruguay Round, 354. 46 Goyal, 20.
21 The DSB under the WTO functions much more efficiently and effectively than the dispute settlement system under GA TT 1947. The new trade regime is not a collection of ad hoc agreements, Panel reports and understandings of the parties, as it had been, but is now a system in which members mu st accept the obligatio ns contained in all the WTO covered agreements.47 The previous system was plagued by a power-oriented diplomatic approach in whic h a losing party could block d ecisions because a consensus was required for the adoption of the decision.48 49 Under that arrangement, panels may have been influenced by the desire to reach a mutually accepted solution. Today, the DSB has moved to a rule-oriented approach of impartial dispute settlement. Under the current system, a panel report shall be adopte d unless there is an appeal or a reverse consensus, a consensus not to adopt the report.50 Cases that go to the Appellate Body must involve legal questions from the WTO ag reements that are disputed, and often raise important international questions. The two branches of this system are the dispute panels and the appellate body. The panels consist of 3 to 5 international trad e lawyers or trade policy officials, proposed by the WTO secretary, but may not be from one of the disputing parties.51 A party can call upon the dispute panels compulsory jurisdiction to settle a dispute. Either party then has the right to appeal the panels decision. The appellate body consists of three members for each case serving in rotation fr om a pool of seven permanent members. This body cannot assess the facts of the cas e or new facts; they may only assess the panels legal interpre tation of the facts. 47 Cameron and Gray, 248. 48 Cemeron and Grey, 249. 49 Goyal, 21. 50 The Result of the Uruguay Round, 363. 51 The Result of the Uruguay Round, 358.
22 The WTO settlement of disputes is an e fficient process, not allowing more than 18 months to pass from beginning to end.52 When a member files a request for consultation, the parties to the dispute have 60 days in which to come to an agreement or request a panel. This process can be expedi ted further in the case of perishable items. Panel procedures, including th e appointment of panelists, c onclude after 6-9 months. Rulings are to be made after one year of co mmencement of the panel, and the appeal of the panels decision is determined within 3 m onths. Confidence in this system is one of the WTOs greatest successes. The addition of an appellate body and also the efficiency under which this system operates have contribut ed to the sophisticat ion of international trade law, as these bodies develop a compila tion of jurisprudence that clarifies WTO members commitments for other members w ho are not parties to the disputes. The international dispute settlement system sees a higher volume of cases than ever seen under GATT 1947. These cases can be used as reference for future resolutions, whereas, connections between decisions under GA TT 1947 were simply coincidental.53 Interpretation The most fundamental issue for the DS B is the interpretation of WTO covered agreements. Disputes that arise within the WTO are often rooted in the understanding of particular provisions.54 This is made difficult for cases concerning multilateral or domestic environmental standards, because there are no comprehensive and sustainable 52 The Result of the Uruguay Round, 367. 53 Cameron and Gray, 251. 54 Cameron and Gray, 252.
23 provisions built in to the agreements to address these types of issues.55 Rather than using an ex ante approach, panels must rely on a caseby-case approach to interpretation. There are a few different approaches to settling environmental disputes within the WTO. For domestic environmental law, pane ls look to the generally phrased exceptions under Article XX GATT. For matters concer ning potential collisi ons with MEAs, the panel has adopted the Vienna Convention on the Law of Trea ties (VCLT) as an explicit text for interpreting these agreements. This treaty, developed in recognition of the ever increasing importance of treaties as a source of international law,56 lays out the proper approach for interpreting multiple treaties. Articles 31 and 32 express the general ru les of interpretation. Article 31(1) directs tribunals to interpret treaties in good faith in accordance with the ordinary meaning of a text and to consider the meaning in light of its object and purpose.57 This directive includes the use of the pream ble, annexes and other agreements made by all parties to the treaty.58 Article 32 describes supplemen tary means of interpretation, giving the tribunal the possi bility of looking at pre paratory work and the circumstances of its conclusion59 when the means of Article 31 are not sufficient for resolving the conflict. There is now an im portant link between articles 31 and 32 of the VCLT and article 3(2) of the DSU that ha s been entrenched in WTO law, and has become a standard for interpretation from which the panels cannot deviate.60 55 Khi V. Thai, Dianne Rahm and Jarrell D. Coggburn, Handbook of Globalization and the Environment (Boca Raton, Fl: Taylor and Francis Group, 2007), 203. 56 Vienna Convention on the Law of Treaties 1. 57 VCLT, 10. 58 VCLT, 10. 59 VCLT, 11. 60 Cameron and Gray, 255.
24 There are several other standards for inte rpretation that have been adopted by the WTO that are not necessarily laid out by the VCLT. Cameron and Gray list several of these standards that are common to internatio nal law. The first is the principle of effectiveness (ut res magis valeat quam pereat) This principle directs dispute settlement panels to read all WTO agreements harmonious ly. The concept applies to situations in which two interpretations can be drawn but one would have the affect of disabling the treaty from having th e appropriate effects.61 The doctrine of legitimate expectations is another tenet of international law, applied by the European Court of Justice (ECJ), which was developed as being a standard that traders could rely on. The ECJ used this principle to hold that conduct not explicitly prohibited by international law remained lawful.62 This principle is typically used in non-violation complaints and can be used to ascertain the intentions of the parties. The principle has been used by the DSB in cases such as European CommunitiesCustoms Classification of Ce rtain Computer Equipment .63 WTO Provisions and Cases The negotiations during the 1986-94 Uruguay Round th at established the WTO also included major revisions of the original GATT. GATT 1994 now refers to the trade of goods, explicitly, and the tr ade of services and intellect ual property, among others, are also within the purview of the WTO as a whole. GATT 1994 contains provisions that apply specifically to the trade of fish and fish products, making them the most applicable 61 Cameron and Gray, 257. 62 Cameron and Gray, 261. 63 Cameron and Gray, 262.
25 to the topic of catch documentation schemes. This section will discuss these provisions and the few cases within the WTO that relate to this topic. The articles that have been applied to fish and fish produc ts are Articles I, III, V, XI, and XX.64 The first four articles describe the rules that limit the use of trade restrictive barriers, while article XX outlines a set of general exceptions to the previous provisions. This last article is most ofte n used to defend the use of environmental standards. Article I is know n as the most-favored nation obligation in which all members are required to afford the same advantage, favour, privil ege or immunity to like products originating from any other contracting party.65 Article III, the National Treatment obligation, states that no member is to apply internal taxes or other charges to imports or domestic products that woul d afford protection to domestic production.66 Article V, which affords the freedom of transit to any WTO member through any other members territory,67 could be used for ships wishing to land or transship fish products before taking them to a third State;68 and Article XI, which relates very specifically to multilateral environmental agreements, provides for the general elimination of quantitative restrictions, stating that no prohibitions or restrictions...whether made through quotas, import or export licences or other measures, shall be instituted.69 This provision, however, outlines specific exceptions that could affect the outcome of a dispute over catch documentation schemes. 64 Tarasofsky, 8. 65 GATT, The Text of the General Agreement on Tariffs and Trade, (Geneva: GATT 1986), 2. 66 The Text of the General Agreement, 6. 67 The Text of the General Agreement, 8. 68 Tarasofsky, 8. 69 The Text of the General Agreement, 17.
26 Article XX is one of the most importan t provisions for environmental standards because it can provide standards that woul d otherwise be prohibited under WTO. The three most applicable exemptions read as follows: Subject to the requirement that such m easures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this agreement shall be construe d to prevent the adoption or enforcement by any contracting party of measures:... (b) necessary to protect human, an imal or plant life or health;... (d) necessary to secure compliance with laws or regulations which are not inconsistent with the prov isions of this Agreement... (g) relating to the conservation of exha ustible resources if such measures are made effective in conjunction with re strictions on domestic production or consumption.70 Countries brought to the DSB by complaints ab out environmental stan dards often try to use this article to prove their compliance wi th WTO covered agreements; and the panels and appellate body have settle d disputes that have in voked Article XX since the establishment of the WTO. These settleme nts give RFMOs an indication of how they might settle questions about catch documentation schemes. The first case, the Tuna-Dolphin case, was handled under the old GATT dispute settlement procedures but continues to receive a lot of attention for being the closest that the GATT 1947 panels got to addr essing the efficacy of MEAs.71 The Tuna-Dolphin case was brought to the WTO by Me xico against the US when the US refused imports of tuna from Mexico. The US Marine Mamm al Protection Act protected dolphins from being caught in purse seine ne ts, and set an embargo on imports from any country that could not prove to US authorities that they met US standards. Many other countries were affected by this case as intermediaries who processed or canned the tuna before it came 70 The Text of the General Agreement, 37-38. 71 Cameron and Gray, 264.
27 into the United States. These countries in cluded Costa Rica, Italy, Japan, Spain, France, the Netherlands, Antilles, and the United Kingdom, among others. Mexico made the complaint in 1991 under the GATT dispute settlement procedure.72 The US argued that their measure was just ified under Article XX (b), (d) and (g). The Panel stipulated that if the US demonstrated that they had exhausted all options reasonably available to them than they may have been able to justify Article XX, but they did not succeed in that demonstration. The Panel ruled that the US could not impose a unilateral regulation on another country ba sed on the way tuna was produced.73 This ruling termed the action extra-territoriality, and while the ruling was never adopted to become WTO law due to GATT 19 47 dispute settlement procedur es, the case is still used as an important example for the settlement of environmental disputes. In 1992, the European Union (EU) lodged a complaint of their own to represent the intermediary countries that were not represented under the first Tuna-Dolphin case The EU argued that the embargoes to both th e primary and intermediary nations were inconsistent with article XI(1) not article III, and were not covered by the exceptions of article XX. The Panel found on behalf of the EU, but this decision was also not adopted.74 In this settlement, the Panel considered MEAs in their decision, but ruled that MEAs that were not concluded by the partie s to GATT 1947 were not applicable to the interpretation of GATT 1947. The panel did, though, offer the po ssibility of interpretive significance to MEAs that outlined their rela tionship to the WTO, opening the door for future MEA regulations to be c onsidered valid under WTO law. 72 World Trade Organization, Environmental Disput es in GATT/WTO, World Trade Organization, http://www.wto.org/english/tr atop_e/envir_e/edis04_e.htm (accessed December 10, 2008). 73 Environmental Disputes, http://www.wto.org/english/tr atop_e/envir_e/edis04_e.htm 74 Environment Disputes, http://www.wto.org/english/tr atop_e/envir_e/edis05_e.htm
28 The United States Import Prohibition of Certain Shrimp and Shrimp Products case is another that has had significant aff ects for environmental standards in trade agreements. The case was brought to th e WTO by India, Mala ysia, Pakistan and Thailand against a ban imposed by the US on the importation of certain shrimp and shrimp products that were not caught in compliance with the US Endangered Species Act of 1973. The Act listed five species of sea tu rtle as endangered and prohibited their take within the US. The Act also required that US shrimp trawlers use turtle excluder devices (TED) in their nets to reduce turtle moralities. Like the Tuna-Dolphin cases, this dispute involved the US imposing environmental standards on the exports of other countries. While the US lost this case, it did not do so because of environmental protectionism. The Appellate Body, overturning the Panels decision that the ban imposed by the US was inconsistent with GATT Article XI and not justified under GATT Article XX, ruled that the US ban would qua lify under the exceptions of Article XX(g) but that the US ban had disc riminated between WTO members.75 The US had provided countries in the western hemisphere techni cal and financial assistance and had permitted longer transition time for the use of TEDs. It had not offered this assistance to other countries, including those that filed the complaint with the WTO. In this case, the Appellate Bodys ruling specifically rec ognized the right of governments under WTO rules to take measures to protect human, anim al or plant life and health and to conserve exhaustible resources. This ruling also allowed WTO panels to accept amicus briefs from NGOs or other interested parties. The World Wildlife Fund (WWF) wrote an unsolicited brief explaining that all states have an obligation to uphold international 75 WTO, United States-Import Prohibition of Certai n Shrimp and Shrimp Products, Part VI C 3, para 186.
29 agreements within their jurisdiction, including the Convention on Biological Diversity (CBD), and the Convention on the International Trad e of Endangered Sp ecies (CITES), yet the Panel did not address with re lationship between WTO rules and these agreements.76 This case has been instrumental in giving RFMOs a legal precedent for implementing trade sanctions. Evaluation The relationship between the WTO and MEAs is still undefined and has not been fully addressed by the DSB. It is currently on the list of trade topics to be settled under the most recent round of negotiations within the WTO, but no speci fic progress has been announced. In the area of environmental protec tion, there has been increasing pressure to bring trade rules in line with the protecti on of human, plant and animal health, and to address these issues along with other international organizations. While the relationship ha s not been specifically de fined, scholars and policy makers alike have looked to these agreements and the cases that have been settled to determine whether a case brought to the WTO against the implementation of catch documentation schemes could be made and how the DSB would d ecide. The progress that has been made in the area of environm ental disputes in the decisions of the WTO shows that CDSs have a good chance of st anding up to a challenge within the WTO.77 This type of case would be different than previous cases because it would involve an 76 Cameron and Gray, 266. 77 Tarasofsky, 28.
30 established multilateral agreement as opposed to unilateral decisions of contracting members. The Shrimp-Turtle dispute came th e closest to defining a role for MEAs and clarifying how regulations on trade that did not come from the WTO would fare. Language in the WTO decisions has demonstrated the desire for environmental protection and given members an ave nue for achieving just that. The Shrimp-Turtle decision specifically addressed environmental protection when it stated that they have not decided that sovereign stat es should not act together b ilaterally, plurilaterally or multilaterally, either within the WTO or in othe r international fora, to protect endangered species or to otherwise protect the e nvironment. Clearly, they should and do.78 This language demonstrated the Appellate Bodys ope nness to the use of tr ade restrictions on the grounds of environmental protection, but st ressed that it would only be permitted if it were applied fairly and in line with all other WTO regulations. This case specifically gave the use of multilateral agreements credence in regulating environmental standards, allowing catch documentation schemes to have international weight from that angle. In addition to ruling that trade restric tions within MEAs were possible, the DSB expressed encouragement for members to so lve environmental problems with multilateral agreements in several cases, including the implementation phase of the Shrimp-Turtle case. In this phase, Malaysia complained that the US had not fully implemented the recommendation of the Appellate Body to nego tiate an international agreement for the protection of sea turtles but the implemen tation panel ruled that the US had begun negotiations and was not requi red to conclude those negotiations in order to fully implement the recommendations. Negotiations for catch documentation schemes have 78 WTO, United States-Import Prohibition of Certain Shrimp and Shrimp Products, Part VI C 3, para 185.
31 occurred within many organizations and thes e negotiations have b een concluded, with ongoing adjustments to the programs. Th e significance of the WTOs ruling about multilateral negotiations is that it should work for countries that are already members of the MEA and those that are not. The Shrimp-T urtle Appellate ruling demonstrated that it was the responsibility of the US to particip ate in multilateral agreements, as the importing country. For the significant RFMOs, the large importing countries are already members of the Commissions, such as the US, Japan, the EU and China. The catch documentation schemes in question have incorporated other standards of international law into their agreements and have included la nguage specifically addressing the WTO. The Southern Bluefin Tuna Statistical Document Program includes directions that implementation of this Progr am shall be in conformity with relevant international obligations.79 Other phrases such as consistent with the rules of the WTO are used in the resolutions that give rise to trade measures and include the substantive WTO rules as well as the exceptions included in WTO law.80 This language does not make RFMO regulations impervious to a WTO challenge, but it does demonstrate the organizations efforts to work with the WTO on matters of environmental protection. Another telling factor for environmental agreements is in the Shrimp-Turtle case concerning arbitrary discrimina tion. If the US had applied the ban equally against all states, the environmental standard would have stood up under the excep tions of Article XX. When looking at the different catch documentation schemes, an eye must be trained 79 Commission for the Conservati on of Southern Bluefin Tuna. Report of the Sixth Annual Meeting Part 2. Australia: CCSBT Executive Secretary, 1999. 35. 80 Tarasofsky, 28.
32 to the implementation and whether the standard s are being applied fairly to all importing and exporting vessels. This aspect of the sche mes requires a closer l ook at all the players involved in international fishing, including members of the RFMOs, states that are members of the WTO, and an even closer l ook at states that are not members of the RFMOs that have an interest in the trade of fish covered by the agreements. Fishing vessels have actually become mo re important than the countries that they are registered under because, in the case of CDSs, individua l vessels can participate in the program while the registering co untry is not a member. When considering the possibility of a case being brought up in the WTO, it would seem most plausible for a country that is not party to the existing MEA to be interested in this type of case, due to the fact that it would be those countries that would most likely be hurt by trade restrictive meas ures. The WTOs rulings th ough demonstrate that those countries are also responsible for participat ing in multilateral negotiations, in addition to those importing countries that would be rest ricting trade. The WTO should not appease exporting states that have not made the same e fforts at settling trade disputes as the large importing states. This is especially rele vant because members of RFMOs have made considerable efforts to bring t hose countries into negotiations. Catch documentation schemes generally include requirements that members not trade with non-members. This alone woul d be problematic for compliance with WTO rules and regulations except that the MEAs involved have gone to great efforts to encourage membership and participati on in negotiations. The ICCAT Commission
33 demonstrated their interest in the compliance of non-members.81 The members have made efforts to communicate with countries whose vessels are not complying with the regulations recommended by the Commission. B ecause these countries are not members, they do not contribute financially, but can b ecome observers to negotiations and provide the Commission with data. One of the most difficult aspects of the situation of non-compliance is the development of flags-of-convenience (FOC). This is the practic e of ship owners choosing a flag in order to avoid conservation related regulations, such as fish quotas set by RFMOs. Vessels that partic ipate in international fishing can choose to register with countries that are not parties to these agreements, and are th erefore unregulated by them. These countries offer open registries in wh ich vessels from other nations can apply. Many large maritime countries offer open registri es as a second registry to the first, which is closed.82 Open registries have lower envi ronmental and labor standards, and oftentimes offer lower registration fe es, tonnage taxes and inspection fees.83 FOC vessels were estimated at 10% of all fishing vessels in 2002, and the number has continued to increase.84 The top four open registry states are Belize, Panama, Honduras, St. Vincent and the Grenadines. The international orga nizations with an interest in fishing vessel compliance have spent the last several years to get these countries to become members or to become observers of the organizations. Some countries, such as Japan, have passed laws that require their nationals to obtain permission from the government before they can work on non-Japanese-flagged vessels 81 International Commission for the Conservation of Atlantic Tuna, 1993 Report for the Biennial Period 1992-93, Part II, (I) (Madrid: ICCAT, 1994), 34. 82 DeSombre, 45 83 DeSombre, 46 84 DeSombre, 151
34 for Atlantic and Southern bluefin tuna.85 Within those countries that do not have an interest in compliance, it is still very easy for vessels to reflag. These countries are difficult to bring into compliance, bu t one organization, ICCAT, has gone to great lengths to encourage participation. A resolution was passed by the Commission regarding Belize and Honduras, and another regarding Panama, in 1996. The resolutions referenced past actions over many years to encourage [these countries] to cooperate and were passed in response to th e sighting of vessels of those countries in the Mediterranean during the closed season wh en the bluefin tuna were spawning. It called for all Contracting Partie s to prohibit the import of A tlantic bluefin tuna and its products in any form.86 The resolution regarding Pana mas non-compliance established a ban on all Atlantic bluefi n tuna products, unless Panama demonstrated that it had brought its fishing practi ces...into consiste ncy with ICCAT conservation and management measures.87 Some countries, such as Equatorial Guinea, responded well to pressure from ICCAT, by canceling all fishing vessels lic enses, while others have not responded satisfactorily. These organizations are work ing together with many member nations and even non-member cooperating nations to brin g fishing vessels into compliance, and demonstrating to the WTO that they are making every effort at nondiscrimination. Efforts by these organizations have gone even further in the incorporation of them, and organizations like then, as observers of the Committee on Trade and Environment (CTE) within the WTO. The CTE has invited a number of MEA 85 DeSombre, 154 86 ICCAT, Report for the Biennial Period 1996-97, Part I, (I), 90. 87 ICCAT, Report for the Biennial Period 1992-93, Part I, (I), 93.
35 Secretariats to partic ipate in a total of eight Inform ation Sessions from 1997 to date.88 Several MEAs have been granted obse rver status, includ ing ICCAT and CITES as well as other organizations like the UN Environmental Program (UNEP). Observer status entitles international organizations to receive WTO documents.89 These organizations, plus others that have not yet been granted observer st atus such as CCAMLR, have participated in workshops and information sessions along with the CTE to increase the transfer of information between the secretar iats of the WTO and MEAs. These efforts show that all countries and vessels are given the opportunity to partic ipate in negotiations of trade restrictive measures, which shoul d satisfy the WTO DSBs requirements for nonarbitrary discrimination and multilateral negotiations. Under paragraph 31 of the Doha Declar ation, the CTE is ma ndated to enhanc[e] the mutual supportiveness of tr ade and environment which includes negotiations on the relationship between existing WTO rules a nd specific trade obligations set out in multilateral environmental agreements.90 Under this mandate, several countries have submitted communications on this topic, detaili ng their own perspectives about the state of the relationship and where to go in the future. Thes e submissions have all shown support for the elaboration and enhancement for this relationship and their interest in continuing the transfer of information be tween the MEA Secretariats and the WTO committees. No country has yet submitted a communication about the illegal nature of the trade restrictive measures of MEAs. These submissions have shown faith in the 88 WTO, Committee on Trade and Environment, Special Session, Continued Work Under Paragraph 31(II) of the Doha Ministerial Decl aration: Communication from the United States, (Geneva: WTO, 2007), TN/TE/S/2/Rev.2. 89 WTO, Continued Work Under Paragraph 31(II) WT/CTE/W/191. 90 WTO Ministerial Conference: Fourth Session. Ministerial Declaration (Geneva: WTO, 2001), 6.
36 direction of the MEAs and their efforts at filling the mandates within the Doha Declaration towards the protection of the environment and sustainable growth. Chapter 3: Case Studies of Catch Documentation Schemes Illegal, unreported and unregulated (I UU) fishing is a serious global problem, partially responsible for the inability of orga nizations to achieve su stainable fisheries. IUU fishing encompasses a number of differ ent types of fishing efforts, which are defined by the United Nations Food and Agri cultural Organization (FAO) International Plan of Action to Prevent, Deter and Elim inate Illegal, Unreported and Unregulated Fishing. Illegal fishing is classified as ac tivities in violation of national laws or international obligations, including those undert aken by cooperating States to a relevant RFMO. Unreported fishing activities h ave not been reported or have been misreported to the relevant national or international au thority, in cont ravention of national or international regul ations. Unregulated fishin g is undertaken by vessels without nationality, or by those flying the flag of a State not party to an RFMO with jurisdiction over an area or fish stock, or by ve ssels in areas where such fishing activities are conducted in a manner inconsistent with State responsibilities for the conservation of
37 living marine resources. 91 The wide ranges of operations that take the form of IUU fishing make managing this problem very difficult for RFMOs. IUU fishing was not recognized as a significant problem until the global community had negotiated UNCLOS III, which established an institutional structure that gave regional organizations th e authority and the tools for observing and regulating global fishing. It was in the late 1980s that organizations began to acknowledge the high levels of catch es made by vessels of non-member states, which diminished that effectiveness of thei r regulations. This unregulated fishing was what drove organizations to begin the process toward more comprehensive and encompassing conservation measures. This process led to the adoption of trade restrictions, which have become the most pr omising tools for decreasing IUU fishing. By targeting market access, fishing products may be monitored in the port rather than at sea, allowing for stronger control measures and easier enforcement. Catch documentation schemes are one of the most salient trade measures being put into effect today. They are designed to se rve several regulatory purposes. Roheim and Sutenin outline the intentions as being fourfold: to provide the management authorities with data to meet the management objectives; identify the origin of the fish entering the markets of importers (who are also contracting parties to the RFMO); determine whether the fish were caught in a manner consistent with the conservation measures of the fisheries management agreement; and to reinforce the already-adopted fisheries 91 Food and Agricultural Organization. International Plan of Action to Prevent, Deter, and Eliminate Illegal, Unreported and Unregulated Fishing (FAO IPOA-IUU) Rome: FAO. 2001, Para 3.
38 management measures.92 Documents should be attached to landings at the time of harvest and include information such as the name of the vessel, th e home port, national registry, name of the vessel owner, the locat ion of the landing, and more. The documents require detailed information and have strict requirements for completion. Without a complete document that has been validated by the vessels flag state, fish products are not to be accepted into the market. This chapter will discuss the evolution of policy making by three different regional fisheries management organizations to a ddress IUU fishing. The organizations being studied are the International Commission for th e Conservation of Atla ntic Tuna (ICCAT), the Commission for the Conservation of Southern Bluefin Tunas (CCSBT) and the Commission for the Conservation of Antarc tic Marine Living Resources (CCAMLR). Each organization will be disc ussed separately, with regard to their process towards the adoption of trade restrictive measures. Within these organizations, there is a general progression from policies that provide the orga nizations information on the fisheries, to encouraging participation, and then to adop ting more severe compliance measures. These schemes can be very simple, singular re gulations, or can, and often are, taken in conjunction with other regulatory m easures. It is difficult, if not impossible, to parse out the effect these regulations have on illegal fishing when they are not viewed as a network of comprehensive regulations, which is why this chapter will attempt to lay out the progression of policies associated with each organizations catch documentation scheme. These case studies are important for anal yzing the achievements of RFMOs through 92 Roheim, Cathy and Jon G. Sutenin, Trade and Marketplace Measures to Promote Sustainable Fishing Practices (Geneva: International Centre for Trade and Sustainable Development and High Seas Task Force, 2006), 2.
39 trade measures (viz. catch documentation schemes) because they are similar in many wayseven modeled after one anotherbut also diverge in certain important aspects, allowing a productive comparison. Despite these organizations interest in different fish species, they are comparable insofar as each organization manages highly migratory species with very high market value. There is significant incentive for IUU fishing with these species because of their market value; the management of these species is both difficult and necessary for the objective of sustainable management. Comparing these three organizations is in structive because for different variables any two might be very similar to one another, while the third can be contrasted, but the pairings shift. For example, ICCAT a nd CCSBT both manage bluefin tuna, while CCAMLR manages Patagonian toothfish, but ICCAT and CCAMLR both manage very large fisheries, between 40,000 to 80,000 metr ic tonnes depending on the year, whereas CCSBT manages a much smaller fishery with fe wer flag states fishing for less fish. The alternation of these pairings helps to highlight variables that can demonstrate factors leading to the success or failu re of conservation measures. ICCAT The International Commission for the Cons ervation of Atlantic Tuna (ICCAT) was the first organization to adopt a scheme for combating IUU fishing. ICCAT was established in the 1960s when increased fishing capacity was coupled with a noticeable drop in Atlantic bluefin tuna populations. Th e Commission arose out of an international Conference on Plenipotentiaries in Rio de Janeiro in 1966, coming into force in 1969 with the required number of signatories. The geographical scope includes all waters of the Atlantic Ocean and adjacent seas without specific definiti ons of longitude or latitude,
40 except for the longitude of 20E which is used to distinguish betw een the Atlantic and Indian Oceans for scientific purposes. The species includes Atlantic bluefin, yellowfin, albacore and bigeye tuna; swordfish; billfishes such as white marlin, blue marlin, sailfish and spearfish; mackerels such as spotted Sp anish mackerel and king mackerel; and small tunas such as skipjack, black skipjack, frigate tuna and Atlantic bonito. Table 1: Members of ICCAT Country Joined Bluefin Tuna Fishing Interest (2007)93* UNFSA United States 1967 758 W Yes (1996) Japan 1967 1612 E, 466 Med, 277 W Yes (2006) South Africa 1967 Yes (2003) Ghana 1968 No Canada 1968 491 W Yes (1999) France (St. Pierre et Miquelon) 1968 Yes (1996) Brazil 1969 Yes (2000) Morocco 1969 2418 E, 641 Med No Rep. of Korea 1970 Yes (2008) Cote DIvoire 1972 No Angola 1976 No Russia 1977 Yes (1997) Gabon 1977 No Cape Verde 1979 No Uruguay 1983 Yes (1999) Sao Tome E Principe 1983 No Venezuela 1983 No Guinea Ecuatorial 1987 Yes (2005) Guinee Rep 1991 No United Kingdom 1995 Yes (2001) Libya 1995 No Peoples Rep. of China 1996 72 E No Croatia 1997 821 Med (1139.21 imported for growth) No European Community 1997 (see Table 2) 34% of all tuna catches Yes (2003) Tunisia 1997 2195 Med No Panama 1998 Yes (2008) 93 ICCAT, Report for the Biennial Period 2008-09, Part 1, (II) 108-109.
41 Trinidad and Tobago 1999 Yes (2006) Namibia 1999 Yes (1998) Barbados 2000 Yes (2000) Honduras 2001 No Algeria 2001 1511 Med No Mexico 2002 7 W No Vanuatu 2002 No Iceland 2002 Yes (1997) Turkey 2003 918 Med No Philippines 2004 No Norway 2004 (prohibited catch of BFT) Yes (1996) Nicaragua 2004 No Guatemala 2004 No Senegal 2004 Yes (1997) Belize 2005 Yes (2005) Syria 2005 No St. Vincent and the Grenadines 2006 No Nigeria 2007 No Egypt 2007 No Albania 2008 No Sierra Leone 2008 No Mauritania 2008 No Chinese Taipei 200394No Guyana 2003 No Netherlands Antilles 2003 Yes (2003) Total Reported Catches 34,030 *All measurements given in metric tones (mt); E = eastern Atlantic, W = western Atlantic, Med = Mediterranean Table 2: Members of the European Communi ty fishing in ICCAT Convention Area Country Joined Quota UNFSA Spain 1969-1997* 3269 E, 2414 Med Yes (2003) France 1968-1997* 634 E, 10,157 Med Yes (2003) Portugal 1969-1997* 29 E Yes (2003) Italy 1997-1997* 4621 Med Yes (2003) Greece 1997 285 Med Yes (2003) Cyprus 2003-2004** 1 Med Yes (2002) Ireland 1997 1 E Yes (2001) Malta 2003-2004** 334 Med Yes (2001) Members of ICCAT until the access of the EC as a member. ** Members of ICCAT until their access as a member of the EC. The purpose of the Commission is to manage tuna stocks at levels that would 94 2003 was the first year that the Commission outlin ed the procedures for cooperating non-CPC status.
42 permit the maximum sustainable yield, which lead to the creation of a scientific component for analyzing fish stocks. This body of the Commission is called the Standing Committee on Research and Statistics (SCRS) and it oversees four main sub-committees: species groups, subcommittee on statistics, subcommitt ee on the environment, and subcommittee on bycatch. These committees make recommendations to the Commission, which is the main decision-making body that is composed of all members. Recommendations from the SCRS are signif icant to the operations of the Commission because they give valuable information about how tuna and tuna-like stocks are responding to fishing pressure and ICCAT regulations, and whether policies need to be changed or strengthened. Yet, oftentimes, member states of the Commission have disregarded those recommendations. In 1992 the organization was receiving internat ional as well as internal pressure to develop more severe policies for the western bluefin tuna stock.95 The Commissions scientific committee had reporte d in 1991 that the West Atla ntic breeding population had declined 24% in the previous 12 months, and projected a c ontinued decline if fishing pressures remained the same. Discussions about international trade dr iving the interest in harvesting and over-harvesting bl uefin tuna were brought up in the context of CITES, the Convention on International Trade in Endangere d Species of Wild Flora and Fauna, with heavy pressure from Sweden to lis t bluefin tuna on CITES appendix 1.96 The Commissions response was to develop the Bl uefin Tuna Statistical Document (BTSD) Program to preempt the CITES process and develop a more comprehensive statistical 95 Kim Blankenbeker, interview by Chloe Davis, Sarasota, FL, March 5, 2009. 96 Safina, Carl, Bluefin Tuna in the West At lantic: Negligent Management and the Making of an Endangered Species, Conservation Biology 7, no. 2 (Jun 1993): 230.
43 program that would produce information on al l the actors involved in fishing for bluefin tuna. It was this political pr essure on the members of the Commission to a dopt stricter regulations that spurred action, rather th an recommendations from the scientific committee. The BTSD was a trade information sc heme designed to provide the Commission with more accurate information on fishing pressure than they were receiving, by requiring that a document accompany all landi ngs of bluefin tuna during importation. The recommendation specifically sited fish ing by vessels of non-ICCAT members as being the greatest consideration of this program.97 The BTSD program was first applied to frozen product until the program was functioning properly, and then in 1994 was applied to all bluefin tuna products.98 ICCAT required that all bluefin tuna entering the territory of a Contracting Party or a re gional economic organizat ion be accompanied by an ICCAT Bluefin Tuna Statistical Docu ment, which must be validated by a government official of the flag state of the ve ssel that harvested the tuna. The resolution recommend that validation be given to any member of the Commission in good standing which over the preceding 36 months provided ICCAT with statistical information consistent with ICCAT requirements, but it is important to note that this program did not require that Contracting Parties refuse im portation by all non-Contracting Parties. The program was devised only to gain data a nd encourage participation. The Commission also convened the Permanent Working Group for the Improvement of ICCAT Statistics and Conservation Measures (PWG), which woul d meet regularly to consider ways to ensure that members and non-me mbers do not take tuna and t una-like species in a manner 97 ICCAT, Report for the Biennial Period 1992-93, Part 1, (I), 67. 98 ICCAT, Report for the Biennial Period 1994-95, Part 1, (I), 92.
44 inconsistent with ICCAT recommendations. These measures could take the form of quotas, trade measures, a nd non-trade measures. The BTSD program initially succeeded in achieving both objectives of providing the Commission with information on the fish ery and encouraging non-members to join the organization. The information provided by the BTSD program included a list of countries involved in harvesting bluefin t una, those that were not members of the organization and also those that were members but were not reporting what they were catching. In 2002, the FAO IPOA-IUU uncove red unreported landings totaling 10% of reported landings.99 With that information, the Comm ission was able to encourage nonContracting Parties to join the Commission in order to gain the bene fits of having their tuna imported by Contracting Parties. The involvement of Japan as a member and leading proponent of this program was a crucial factor for th e programs success. Nearly all of the bluefin tuna ca ught in the ICCAT convention area were imported into the Japanese market, and Japan provided valuable data to the Commission on the countries exporting to their market, beginning September 1, 1993. According to their report to the PWG, Japan imported a total of 3,069 MT (pro duct weight) of blue fin tuna or 1,787 MT of live weight between September 1 and Oc tober 31, 1993. Of those imports, 48% were imported from non-Contracting Parties. Th e non-members were Italy, Malta, Panama and Taiwan.100 Between the early s and early s membership hovered around 20 CPCs. As of December 31, 1992, when these measures were fi rst adopted, there were 22 Contracting 99 FAO, IPOA-IUU, Art. 16 100 ICCAT, Report for the Biennial Pe riod 1992-93, Part II, (I), 74.
45 Parties. By 2002, 15 more countries had join ed as members, and today there are 48 members plus 3 cooperating non-members.101 At the same time that the trade information scheme succeeded at increas ing participation, the members of the Commission made some poor political decisions that co mpromised the efficacy the scheme. One such decision occurred when th e organization resolved to increase the total allowable catch (TAC) with increased me mbership, rather than decreasing each members individual quota.102 South Africa described the phenomenon in their opening statement to the Commission in 2002 as being a disturbing trend th at leads to nothing less than ICCAT-sanctioned over-fishing, in complete violation of our convention.103 The trend is demonstrated by the 1991 TAC of 24,000 MT,104 which included eastern and western stock harvests, while the total TAC for eastern stock alone for the years 2002 through 2006 was 32,000 MT.105 The existing BTSD program also ineff ectively managed farming practices. Tuna caging, fattening and farming are practices that occur mainly in the Mediterranean Sea. The process entails rounding up tuna into seining nets and then funneling them into cages in the water. Tuna are kept in farms for up to a year, when they are removed and sold for a higher price due to their higher fat conten t. It many cases, vessels from several different flag states catch tunas and de posit them in massive farms owned by one company. This process made it impossible to determine whether a fish being removed 101 ICCAT, Contracting Parties, http://www.iccat.int/en/contracting.htm (accessed March 10, 2009). 102 Lodge, Michael W., David Anderson, and Terje Lobach, Recommended Best Practices for Regional Fisheries Management Organizations: Report of an Independent Panel to Develop a Model for Improved Governance by Regional Fisheries Management Organizations (London: Royal Institute of International Affaires, 2007), 16. 103 ICCAT, Report for the Biennial Period 1992-93, Part I, (I), 79. 104 ICCAT, Report for the Biennial Period 1992-93, Part I, (I), 153. 105 ICCAT, Report for the Biennial Period 2002-03, Part I, (I), 179.
46 from the cage was caught in compliance with ICCAT regulations.106 Farming tuna became a much wider practice in the years fo llowing the adoption of the BTSD program, and have had to be dealt with in more comprehensive regulations. Problems associated with ineffective measures continued to encourage new management strategies. Several countries pe rsisted in fishing in non-compliance with ICCAT regulations for some years after the BTSD program was adopted, and due to the nature of this type of trade measure it wa s unable to force compliance. ICCAT then adopted stronger measures for encouraging specific countries to participate in the compliance regulations, which could have been due to international pressure surrounding the UN Fish Stocks Agreement adopted the previous year. In 1996, the Commission passed legally binding recomme ndations on its members calli ng for the restriction of imports of regulated species from non-member states regularly fish ing in the convention area. These restrictions app lied specifically to Panama, Be lize, Honduras and St. Vincent and Grenadines.107 108 They were the most assertive regulations used by any RFMO, and succeeded in getting many of these countries to become members of the organization. Equatorial Guinea responded by canceling all fishing vessels licenses of concern, demonstrating the reality of the impact that these market pressures could have on nonmembers.109 In the decade and a half since the adoption of the use of trade measures, ICCAT has adopted supplemental regulations th at work in conjunctio n with it, and must 106 Kim Blankenbeker, interview by Chloe Davis, Sarasota, FL, March 5, 2009. 107 ICCAT, Report for the Biennial Period 1996-97, Part I, (I), 10. 108 Because Japan was the only country importing a lot of these products, they only agreed to adopt these unilateral regulations if other developed countries such as the US and the EU agreed to pass domestic regulations in solidarity. (Kim Blankenbeker, Interview, Davis). 109 DeSombre, 162.
47 be considered to determine the full functionality of the trade measures. These supplemental regulations took the form of a w hite list and a black list in 2002 which is a running list maintained by the Executive S ecretary of the Commission of vessels that are known to either be fishing in a manner c onsistent with the conservation measures of the fisheries management agreement, or thos e vessels that are know n to be engaged in IUU fishing,110 respectively. These lists are updated regularly through submissions by flag states to the Secretariat. Both lists are being utilized becau se they offer both an incentive for compliance and a disincentive for non-compliance. Vessels can change their names if they are blacklisted, but the threat of blacklisting can still be valuable. ICCAT adopted a Vessel Monitoring Sy stem (VMS) in 2003, which was to be implemented by November 1, 2005. The recommendation was adopted after an initial pilot program that was implemented by very fe w countries and fisheries. The regulation calls for each flag CPC, and cooperating non-CPC to implement a VMS for its commercial fishing vessels exceeding 20 meters between perpendiculars or 24 meters in length. The VMS was expected to transmit a message to the land-based Fisheries Monitoring Center of the flag CPC that woul d allow the vessels position to be tracked continuously.111 The recommendation was adopted duri ng the inter-sessional meeting of the Working Group to Develop Integrated Mo nitoring Measures in May 2003. VMS had been initially adopted by a few developi ng countries under a pilot program, while developed countries, such as Japan, resisted the adoption. Tagging is another tool used by RFMOs to target illegal fishing that works in conjunction 110 ICCAT, Report for the Biennial Period 2006-07, Part I, (I), 147. 111 ICCAT, Report for the Biennial Period, 2002-03, Part II, (I) 153.
48 with the trade schemes. Unfortunately, ta gging in ICCAT is not required of vessels fishing for bluefin tuna, but several countri es have voluntarily started tagging programs that contribute to the effectiveness of ICCAT regulations. The US in particular, with cooperation from Canada, has a diligent program run by the US National Marine Fisheries Service, which requires tagging for all western Atlantic bluefin tuna. The eastern Atlantic population is not included in a comprehensive program yet. These regulations stayed in place for many years while quotas continued to rise and statements from the scientific committee c ontinued to report drops in stock population. Several organizations were di scussing the state of the worlds fisheries and calling for better conservation and management performa nce. Pressure came from the 2006 United Nations Fish Stocks Review Conference, the FAO Committee on Fisheries, the 2005 St Johns Conference on the Governance of Hi gh Seas Fisheries and High Seas Task Force.112 This pressure had an important effect on the members of the Commission, who had been resisting more significant regulatio ns. It was in that same year that the Commission agreed to adopt a 15-year stock recovery plan for eastern Atlantic and Mediterranean bluefin tuna, which would enact more comprehensive management techniques, including the development of a catch documentation scheme. The catch documentation scheme is incorporated into the 15-year stock recovery plan explicitly under Market measures, but a more complete catch documentation scheme was not adopted by ICCAT until 2007. The 2006 market measures require that: Consistent with their rights and obligati ons under international law, exporting and importing CPCs shall take the necessary measures: 112 Lodge, Anderson, and Lobach, vii.
49 to prohibit domestic trade, landing, imports exports, placing in cages for farming, reexports and transhipments of eas tern Atlantic and Me diterranean bluefin tuna species that are not accompanied by accurate, complete, and validated documentation required by this Recommendation. to prohibit domestic trade, imports, landing s, placing in cages for farming, processing, exports, reexports and the transhipment within their jurisdiction, of eastern and Mediterranean bluefin tuna species caught by fi shing vessels whose fl ag State either does not have a quota, catch limit or allocation of fishing effort for that species, under the terms of ICCAT management and conservation measures, or when the flag State fishing possibilities are exhausted. to prohibit domestic trade, imports, landing s, processing, exports from farms that do not comply with the Recommendation by ICCAT on Bluefin Tuna Farming [Rec. 0607].113 This regulation incorporates the aspect of the scheme that was previously the trade information scheme, but it was strengthened to include landing, imports, exports, placing in cages, etc., for the purpose of the multi-a nnual recovery plan, and contributed to the overall scheme of regulations and enforcement. There are too many aspects of this multi-an nual recovery plan to include in this description of ICCATs CDS, but there are se veral important regulations that must be discussed. First, the Committee agreed to take steps to lower the TAC for the eastern bluefin tuna stock from 32,000 mt to 25,500 mt by 2010. This was a radical reduction compared to previous attempts to lower quot as. The next important component of this action plan includes several parts of the s ection on control measures which covers the ICCAT record of vessels authorized to fish BF T, the record of tuna traps authorized for fishing BFT, and the list of authorized ports for landing BFT. The record of vessels and traps were first prepared in 2002114 but have been updated in this recovery plan. The control measures also direct the masters of authorized fishing vessels to keep a bound or 113 ICCAT, Report for the Biennial Period, 2006-07, Part I, (I), 138. 114 ICCAT, Report for the Biennial Period, 2002-03, Part I, (I) 186.
50 electronic logbook of their operations, indicating particularly the quantities of bluefin tuna caught and kept on board, whether the ca tches are weighed or estimated, the date and location of such catches and the type of gear used.115 The 15-year plan also included severa l enforcement and compliance regulations relating to the effectiveness of the regime The Commission developed a scheme of joint international inspection, which, for the first time, will allow for inspections by one contracting party of any contractin g partys vessel on the high seas.116 This tool was made possible by the 1995 UNFSA, which gave states party to that agreement the authority to board and inspect vessels flyi ng the flag of another country which is another member to that agreement, whether or not they were a member of the regional organization.117 The Commission decided to adopt a provisional arrangement, for the purpose of the recovery plan, until the Co mmission adopted a monitoring, control and surveillance scheme based on the results of the Integrated Monitoring Measures Working Group.118 Finally, the ICCAT commissi on, as part of the 15-year rebuilding plan, included: the registration of all vessels fishing for bluefin tuna as well as of all traps, thus allowing for a clear picture of the fishing capacity. an extension of the ban on the use of aircraft to spot a ggregations of bluefin tuna from one month (June) to all year. a ban on transhipment of bluefin tuna at s ea for the purse seiners. In addition, all 115 ICCAT, Report for the Biennial Period, 2006-07, Part I, (I) 135. 116 European Commission, Press Corner: Commission ICCAT decisive measures offer realistic chance for sustainable fisheries of bluefin tuna, under Fisheries, http://ec.europa.eu/fisheries/pr ess_corner/press_releases/ar chives/com06/com06_88_en.htm (accessed February 12, 2009). 117 United Nations Agreement for the Implementation of the Provisions of the United Nations Convention of the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks a nd Highly Migratory Fish Stocks (UNFSA) (New York: UN, 1995), 20. 118 ICCAT, Report for the Biennial Period, 2006-07, Part I, (I), 139.
51 landings of bluefin tuna or transfers to cages will be subject to prior notification and strict control measures. recreational fisheries will now be regulated, allowing for only one bluefin tuna per fishing trip. These regulations contribute to a comprehensive effort to increase enforcement, which is designed to close any loopholes that would a llow illegal fishing operations to persist. The scheme must include these regulations on transhipments and tuna traps because those have, between the adoption of the TIS and th e multi-year recovery plan, been used as avenues for operating around regulatory measures. Since the 2006 adoption of the comprehens ive action plan, ICCAT has held several inter-sessional meetings for improving the ma nagement of bluefin tuna, including the 4th Meeting of the Working Group to Review Statistical Monitoring Programs (Raleigh, North Carolina, USA July 19-21, 2007), th e Joint Meeting of Tuna RFMOs (Kobe, Japan January 22-26, 2007) and the Join t Tuna RFMO Working Group on Trade and Schemes (Raleigh, North Carolina, USA July 22 To 23, 2007). These meetings discussed the state of ICCATs catch docum entation schemes, which generally were regarded as having not yet been fully implemented.119 The updated recommendation on catch doc umentation was adopted as Rec. 07-10, in 2007. It incorporates fish that are not only landed at the CPC s ports, but also all bluefin tuna delivered to and harvested from their farms. This aspect of the scheme directly addressed the increase in farming th at occurred after the adoption of the BTSD. New measures are placed on the farming of bl uefin tuna to improve the efficacy of the catch documentation program, such as the requirement under Rec. 07-10 that CPCs shall 119 ICCAT, Report for the Biennial Period, 2006-07, Part II, (I), 86
52 not place bluefin tuna from different years or CPCs in the same cages unless effective measures are in place to determine the CPC of origin and catch year when the bluefin tuna are ultimately harvested from the farm.120 Also in the updated documentation scheme are the requirements of validation and options for domestic tagging pr ograms. The validation of a bluefin tuna catch document by an authorized government offi cial, is required for all bluefi n tuna products, but is only permitted under very specific circumstances in which all of the information in the document has been verified as accurate and the accumulated validated amounts have been determined to be within the flag states quot as or catch limits. The only circumstance under which a validated document is not required is when the tuna av ailable for sale are tagged by the flag state of the harvesting vessel or tuna trap. Under this recommendation, tagging is not required of CPCs but is offered to them as a possible requirement for their own vessels or traps. The recommendation sugges ts that a tag be atta ched to the fish at the time of kill, but no later than the time of landing, and that the tags have unique country specific numbers.121 Because the most recent regulations by ICCAT have not yet been fully implemented, there are no statis tics for how successful they have been. The most recent statistical analysis by ICCATs Standing Co mmittee on Research and Statistics (SCRS) took place in 2008, only two years after the rec overy plan was adopted and a year after the catch documentation program was adopte d. In 2007, the SCRS reported that catch data showed that when the Commission fixed the TAC for eastern BFT at 32,000 mt, 120 ICCAT, Report for the Biennial Period, 2006-07, Part II, (I) 161. 121 ICCAT, Report for the Biennial Period, 2006-07, Part II, (I), 163.
53 reported catches were slightly below that level for 2003 and 2004, but in 2005 were substantially higher. The committees eval uation was that substantial under-reporting was occurring, and it estimated that the actual catches for 2005 and 2006 were close to the levels reported in the mid-1990s, around 50,000 mt.122 The SCRS demonstrated hope that the multiple elements of the 15-year recovery would improve the quality and quantity of catch data in the near future.123 Table 3: Total reported catches Year 1989 1991 1993 1995 1997 1999 2001 2003 2005 2007 Total catches 20952 26429 34268 47291 47151 32456 34605 31163 35845 32398 Unfortunately, the committee also reported that current measures are unlikely to fully fulfill the objective of the plan to rebui ld to the MSY level in 15 years with 50% probability. It was estimat ed that there is a 50% proba bility of rebuilding by 2023 under the current regulations only if implementation is perfect. The SCRS believes this will be unlikely because it is not feasible to avoid di scard mortality of small fish in excess of tolerance, but it is obvious from past experience and studies on developing country enforcement capacities that full implem entation and enforcement is unfeasible. Consequently, the 2008 stock analysis concluded that there is substantial underreporting occurring despite the strengthened trade restrictions and that present catches are well above TAC.124 The SCRS explained that, wh ile preliminary reported catches were at 32,398 t, estimates of the actual cat ches are closer to 61,000 t for 2007, including 122 ICCAT, Report for the Biennial Period, 2008-09, Part II, (II) 103. 123 ICCAT, Report for the Biennial Period, 2008-09, Part II, (II) 104. 124 ICCAT, Report for the Biennial Period, 2008-09, Part II, (II) 103.
54 unreported catches. This is over 10,000 t higher than the estimated catches for 2006. CCSBT Southern bluefin tuna (SBT), like Atlantic bluefin tuna, are hi ghly valuable in the Japanese market and have been exploited for more than 50 years, with the height of fishing reaching 81,000 tonnes in the early 1960 s, 78,000 tonnes of which were harvested by the Japanese longline fishery. Australia, New Zealand, the Fishi ng Entity of Taiwan, Indonesia and Korea have also been heavily i nvolved in this fishery. As a result, a significant decline in the number of mature fish and the annual catch necessitated action by the three heaviest fishing nations, Austra lia, Japan and New Zealand. These three countries began to apply strict quotas to their fishing fleets beginning in 1985 and ultimately organized to develop a more comp rehensive structure for bringing SBT fishing to a sustainable level. The governments of Australia, Japan and New Zealand, on May 20, 1994, formally adopted the Commission for the Conservation of Southern Bluefin Tuna (CCSBT).125 Table 4: Members of CCSBT Country Joined Bluefin Tuna Fishing Interest (2007)*126UNFSA Japan 1994 3000 mt Yes (2006) Australia 1994 5265 mt Yes (1999) New Zealand 1994 420 mt Yes (2001) Republic of Korea 2001 1140 mt Yes (2008) Fishing Entity of Taiwan 2002 1140 mt No Indonesia 2008 750 mt No Philippines 2004** 45 mt No 125 CCSBT, About the Commission: Origins of the Convention, CCSBT, http://www.ccsbt.org/docs/about.html (accessed March 28, 2009). 126 CCSBT, Management of SBT: Catch Levels, CCSBT, http://www.ccsbt.org/docs/management.html (accessed March 28, 2009).
55 South Africa 2006** 40 mt Yes (2003) European Community 2006** 10 mt Yes (2003) Total Quota 11,770 mt *Quota assigned to Japan for to 2011 and for all other members to 2009. ** Joined as Cooperating Non-Members. At the fourth meeting of the Commission, Japan, Australia and New Zealand failed to reach agreement on a TAC for the 1997-1998 fishing year, because Japan wanted to increase the quota by 3000 tonnes, while Austra lia and New Zealand wished to follow the precautionary approach and keep the TAC at the same level.127 Reports of the lowest levels of SBT in the histor y of the stock assessments,128 and significant levels of nonmember catches of 15-30% of SBT129 demonstrated that new efforts needed to be taken to manage the stock. Disagreements among the Commissions three members on whether the stock was rebuilding and how to approach the problem led to Japans unilateral adoption of an Experimental Fi shing Program (EFP). The program, first proposed by Japan in 1996, was rejected by Australia and New Zealand because it involved the additional harvest by 65 vessels off the coast of Australia as a method to assess the stock.130 Japan intended to operate this pr ogram outside of the framework of the Commission, and outside of its national quot a. Australia and New Zealand responded by submitting the dispute to arbitration by the International Tribunal for the Law of the Sea (ITLOS). Australia and New Zealand saw this unilateral action as representing a failure to conserve SBT and cooperate within the Commi ssion, and therefore requested, 127 R. Robin Churchill, and Malcolm D. Evans. Inter national Tribunal for the Law of the Sea the Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan): Order for Provisional Measures of 27 August 1999. The International and Comparative Law Quarterly 49, no. 4 (October 2000): 981. 128 Howard S. Schiffman, The southern Bluefin t una case: Itlos hears its first fishery dispute. Journal of International Wildlife Law and Policy 2, no. 3 (1999): 319n5. 129 DeSombre, 166. 130 Schiffman, 323.
56 in July 1999, that ITLOS prescribe provisi onal measures, before the pending arbitral tribunal in 2000, that Japan immediatel y cease unilateral experimental fishing.131 While there was disagreement over the jurisdiction of ITLOS in the case of southern bluefin tuna, ITLOS decided that prescriptions of provi sional measures under Article 290(5) were met, and went on to prescribe 6 measures, on August 27, 1999. The important prescriptions were the third thr ough fifth, which stated: the parties shall ensure, unless they agree otherwise, that their annual catches do not exceed the quotas last set by the SBT Commission; the partie s shall each refrain from conducting any unilateral Experimental Fishing Programme; the parties should resume negotiations without delay with a view to reaching agreement on conservation and management measure for southern bluefin tuna.132 While the tribunal ultimat ely ruled in August 2000 that they lacked jurisdiction to hear the merits of the case,133 they originally sited the depletion of the stock as a reason to prescribe provisional measures, which were sufficient to provoke an agr eement among the principle members of CCSBT to adopt stricter measures. At the 6th Annual Meeting of the Commission on the 29th and 30th of November, 1999, the Commission agreed to adopt a trade information scheme, called the Southern Bluefin Tuna Statistical Document Progr am, which was much like ICCATs BTSD program. As a result of the international scrutiny to CCSBTs management arrangements, the members agreed that measures needed to be taken to track all traded 131 Shiffman, 325. 132 Churchill and Evans, 983. 133 Churchill and Evans, 990.
57 SBT to complement traditi onal surveillance measures.134 Also in this year, the Commission recognized that key fishing entities still remained outside of the Commission,135 as discussed in New Zealands open ing statement, such as Indonesia, Korea, South Africa and Taiwan. Therefor e, the program was designed to track the importation of all southern bluefin tuna into the territory of a member by requiring that a CCSBT Document accompany all tuna. The prog ram specifies that there is no waiver of this requirement.136 The first adoption of this program inco rporated many specifica tions learned from the experience of ICCAT. The program laid out exactly what information is required, and explains that the standard form s hould be adopted as far as possible and no information item may be omitted from the standard form.137 This clause was a reaction to the difficulty that ICCAT had when count ries were importing fish with incomplete documents. The purpose of this clause wa s to encourage countries not to validate incomplete documents so that the Co mmission would receive the most accurate information possible. Another feature of the measure designed to target complete information collection instructed the Execu tive Secretary to request the non-Members which are major importing countries/fishing en titiesto cooperate with implementation of the Program and to provide the Commission data obtained from such implementation.138 There is also an important section on the treatment of farmed t una. Paragraph 2.2, 134 CCSBT, Report of the Sixth Annual Meeting Part 1, 25. 135 CCSBT, Report of the Sixth Annual Meeting Part 1, 23. 136 CCSBT, Report of the Sixth Annual Meeting Part 1, 36. 137 CCSBT, Report of the Sixth Annual Meeting Part 1, 36. 138 CCSBT, Report of the Sixth Annual Meeting Part 1, 38.
58 section (c) lays out exactly how each field of the statistical document should be filled out for farmed tuna. For example, the name of the export country/f ishing entity should replace the Flag Country/Fishi ng Entity of Capture Vessel and the name of the Tuna Farm should replace the Name of Vessel and Registration Number. The reason for the name of the exporting country/ fishing entity for BFT farming is that it is an easier process for the Commission to follow than to figure out the flag Country of the vessel that brought the fish to the farm. The Comm ission is then able to hold the exporting country accountable for farming practices. Other fields do not need to be filled in at all, such as Time of Harvest and Area of Catc h. Instead, the program specifies that the tuna farms are required to keep information from the fishing vessels which catch the tuna for farming, including: the name of the vessel flag country/fishing entity of the vessel, the gear code, the amount and original size of the catch, the area of catch, the date of reception of tuna, and growth rate and mortality rate of fish through farming.139 The farm is responsible for submitting this information to CCSBT through its government to the Secretariat.140 One of the initial shortcomings of this trade information scheme that was discussed at the meeting of the commission was whethe r the landing of SBT in Japan caught by Japanese fishing vessels would be subject to the TI S. Japan argued th at these landings did not fall under the category of exports, and were therefor e not subject to the mandates of the TIS. Australia, in the meeting to adopt the TIS, stressed the importance of collecting trade information from all SB T catching/exporting and importing/consuming 139 CCSBT, Report of the Sixth Annual Meeting Part 1, 37. 140 CCSBT, Report of the Sixth Annual Meeting Part 1 37.
59 countries to demonstrate transparency.141 New Zealand stated that the WTO had made a clear statement that domestic catch must be subject to substantiall y equivalent reporting requirements. Between 2000 and 2006, the Commission focuse d its attention on learning as much from the TIS as it could about which countri es were fishing for SBT. Japan reported every year on who was exporting into their markets, which in 2001 included Australia, New Zealand, the Republic of Ko rea, Taiwan, Philippines, th e Republic of Indonesia, and the Kingdom of Tonga. In that same year, New Zealand noted a reduction of exports of SBT from non-members, citing the TIS as the leading cause.142 With the adoption of the trade information scheme, the Commission had already succeeded in encouraging Taiwan, South Africa and the Republic of Korea to participate as observers. The Republic of Indonesia was brought in by 2001 as an observer due to its importance as being a spawning area for southe rn bluefin tuna, and expressed interest in cooperation, but cited budgetary and financ ial constraints for not becoming a full member. The Commission agreed to put pressure on Indonesia to eventually become a participating member, and to work inter-sessionally to improve data collection as a result of Japans report that TIS data received from Indonesia was quite poor. In this same year, the CCSBTs Acti on Plan identified Cambodia, Republic of Equatorial Guinea, Republic of Honduras, and Belize as non-members whose vessels had been catching SBT in a manner that diminish ed the effectiveness of the Commissions conservation and management measures. Th e Commission agreed to take no action at 141 CCSBT, Report of the Sixth Annual Meeting Part 1 25. 142 CCSBT, Report of the Seventh Annual Meeting Part 1, 5.
60 that time, but to continue monitoring these countries. In October of 2001, the Commission decided to put together a list of IUU fishing vessels, under the Action Plan, instead of targeting specific countries, expecting the TIS to assist in the compilation of this list.143 The Action Plan did provide new measures that would inform Belize, Cambodia, and Equatorial Guinea that if they di d not respond to the Commission in a satisfactory way, by the next annual meeting of the Commission, that it would consider imposing trad e-restrictive measures to prevent non-members from continuing to conduct fishing activities for SBT.144 This position was held by the Commission for several years, until 2003 when the countries that were in conflict with the conservation measures stopped fishing for BFT, and were therefore no longer a concern.145 Today, there are 6 members to the Convention: Japan, Australia, Republic of Korea, Fishing Entity of Taiwan, New Z ealand and Indonesia. There are also 3 cooperating non-members: Philippines, Sout h Africa, and the European Community. While the Commission made considerable efforts to incor porate all countries fishing for SBT into the management of the st ock, they also conti nued developing greater management measures to improve informa tion-gathering techniques. Japan began a national tagging program using long-lini ng vessels in 1999, and encouraged other members of the CCSBT to develop their own programs. A Workshop was held in Canberra on 2-4 October 2001 to develop a multi-national tagging program that would provide age-specific estimates of fishing mo rtality and natural mortality with associated 143 CCSBT, Report of the Eighth Annual Meeting Part 1, 4. 144 CCSBT, Report of the Eighth Annual Meeting Part 1, 50. 145 CCSBT, Report of the Tenth Annual Meeting Part 1, 4.
61 estimates of uncertainty, for as many SBT cohorts as possible.146 The program defined immediate objectives to tag large numbers of juvenile SBT to estimate fishing mortality rates147 and provide continuing informa tion as the fish matured. Also in 2003, several members of the Commission expressed an interest in moving towards a catch information/documentation scheme that was not restricted to trade. This was a direct result of Japans resistance to documenting catches that were not specifically labeled trade because they never left the country. A catch documentation scheme would require a strict account ing of all catches, not just those that were traded internationally. Within this year, the Comm ission also discovered expanding markets for SBT, such as Indonesian product being exported to the EU.148 In 2004, the Extended Scientific Committee reported to the Extended Commission that the current assessment suggests the SBT spawning biomass at a low fraction of its original biomass, well below the level that produces MSY. They also reported that a management structure that held an annual catch of 15,000 mt would mo st likely result in a further decline of the stock. As a result, the Commission conti nued their effort to advance their trade measures adopting a re solution proposed by Japa n to amend the IUU Resolution on the Record of Vessels over 24 me ters to remove the size limit, requiring the Secretariat to maintain a much longer IUU list. The Commission acknowledged that this would place a higher administrative bur den on Australia and New Zealand who have larger fishing fleets than other members. At this meeting, the Secretariat presente d a paper providing 5 options for a catch 146 CCSBT, Report of the Tagging Workshop Australia: CCSBT Executive Secretary, 2001, pg. 1 147 CCSBT, Report of the Ninth Annual Meeting Part 1 8. 148 CCSBT, Report of the Eighth Annual Meeting Part 1, 81.
62 monitoring system. While no consensus was reached, members expressed their preferences for the Commissions direction in dealing with IUU fishing. Japan expressed their willingness to keep the status quo, while other members prefer red to increase the catch reporting frequency to a monthly basis because they argued that the fishery needed to be monitored more closely for reas ons additional to scientific purposes.149 New Zealand and Korea both expressed a desire to develop a catch documentation scheme that would be compatible with other RFMOs. In the 2005 and 2006 annual meetings, the Commission discussed increasing support for a comprehensive catch documentation scheme, but several concerns kept them from adopting this type of system. Concerns included practicality, complexity and costs, and many members felt that there needed to be a demonstrated requirement for a CDS before they would agree to implement it.150 The Commission organized a technical working group to consider the Commissions principles for the CDS, which include: providing an accurate and timely record of the catch of Member and cooperating NonMember States; providing traceability of legitim ate product flow to the point of first sale (including auction) for domes tic markets; providing tools to restrict the trade of nonmembers; including port documentation an d transfer/transshipping documentation capable of being traced back to catching vessels. Australia discussed the necessity of an international observe r program (IOP) to ensure transparency and to demonstrate that the data are accurate a nd a true reflection of what is happening to the fishery. Several members agreed that this would be important 149 CCSBT, Report of the Eleventh Annual Meeting Part 1 9. 150 CCSBT, Report of the Twelfth Annual Meeting Part 1, 22.
63 but presented concerns of cost and language ba rriers that would diminish the practicality of this type of program. The Extended Commission agreed that the Secretariat would prepare a discussion paper on th e issues relevant to an IOP.151 Also at the 12 Annual Meeting of the Commission in 2005, the Compliance Committee was activated, after being adopted at the 4th Meeting of the Commission in 1997. This activation demonstrated the Commissions enhanced desire to adopt a comprehensive enforcement policy along with the measures for a CDS, tagging and IOP. At the first meeting of the compliance committee, the Chair presented a report that advised the Commission that extensive levels of unr eported catch demanded an immediate improvement of the measures for monitoring catch and encouraging compliance. Several members of the Exte nded Committee proposed measures that would increase monitoring, control and surveill ance (MCS) measures, and the Committee agreed to focus on four important ones: CDS and tagging of individual fish as a cornerstone, VMS, Independent Observer Pr ogram, and Regulation of transshipment.152 The Compliance Committee spent the next several years coming up with draft proposals for these four important measures and ultimately, in 2008, presented measures to be adopted by the Commission on a CDS, VMS, and transshipment.153 The Commission adopted the measures at the October 2008 meeting, and is now in the process of implementing them. The measures are more comprehensive and encompassing than any other measures adopted by the Commission. The Catch Documentation Scheme is designed to ach ieve harmonization of Catch Documentation 151 CCSBT, Report of the Twelfth Annual Meeting Part 1 23. 152 CCSBT, Report of the Thirteen Annual Meeting Part 1, 5. 153 CCSBT, Report of the Fifteenth Annual Meeting Part 1, 4.
64 Schemes across Regional Fisherie s Management Organizations.154 Many of the modalities of this system were based on ICCATs scheme, including measures that require documentation for tran sshipments, landings of domestic product, exports, imports, re-exports and transfers in to and between farms. The scheme also prohibits the sale of fish caught by recrea tional fishers. It requires the Executive Secretary to keep a record of all authorized farms and vessels, and any farms or vessels not on this list are not considered to be va lid. There are five authorized documents associated with this scheme. They are the: farm stocking form, farm transfer form, catch monitoring form, catch tagging form, and re-e xport form. There are instruction sheets associated with each form and no information field may be omitted from the standard form, as with ICCATs scheme. The harmonization of these schemes is very important for implementation and enforcement because authorities responsible for validating and regulating the importation of bluefin tuna ar e required to perform the same duties for either species, creating a situation in which it less likely that information is incomplete or tampered with. Unfortunately, the schemes have not been fully harmonized yet, because CCSBTs scheme is now gone further than ICCATs ve rsion. The two main differences now are the tagging program, and the VMS. While ICCAT adopted a VMS program to be implemented in 2005, it is still very sparse ly implemented. CCSBT, on the other hand, has included tagging within its catch docum entation scheme, obligating all Members and Cooperating Non-Members to require that an SBT tag be attached to each whole SBT at 154 CCSBT, Report of the Fifteenth Annual Meeting Part 1 70.
65 the time of kill.155 The only exceptions to this rule are in the case of farming operations, or when a vessel does not have sufficient tags on board, and in this case, the tag may be attached at landing. CCAMLR The Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) is managed very differently th an ICCAT and CCSBT. The Convention has the purpose to conserve marine living resour ces with the objective of maintaining the ecological relationship between harvested, de pendent and related populations and the restoration of depleted populations. This objec tive is very different from that of ICCAT or CCSBT because it includes not only mortalit y of the population in question, such as Patagonian toothfish, but also any unintentional mortality of sea birds from fishing practices, meaning the Commission tends to fo cus more on ecological repercussions of conservation measures than economic or social concerns, putting more emphasis on regulations of gear type than the other or ganizations do. This discussion of CCAMLR will focus on the management structure to pr otect Patagonian toothfish, otherwise known as Chilean seabass. In addition to an ecosystem approach to management, CCAMLR also relies heavily on the precautionary approach, which hopes to minimize the possibility of long-term adverse effects on marine liv ing resources, which means th at CCAMLR collects the data it can, then weighs up the extent and effect of the uncertainties and gaps in such data. This approach was adopted due to high levels of uncertainty in the convention area, 155 CCSBT, Report of the Fifteenth Annual Meeting Part 1, 72.
66 because so much of the territo ry is uninhabited and difficult to monitor. While all three organizations in this study are managing hi ghly migratory species internationally, CCAMLRs convention area is difficu lt for these compounding reasons. The organization arose out of the Antarctic Treaty System, which includes the Antarctic Treaty and related agreements, adopted to regulate international relations with respect to Antarctica, due to it being the planets only continent without a native human population. The Treaty establishes that An tarctica shall be used for peaceful purposes only, prohibiting military activity or territorial sovereignty claims. Treaty-state observers are allowed to use the land and seas for scien tific studies and observations. Associated agreements adopted at treaty consultative meetings included CCAMLR, the Convention on the Regulation of Antarctic Mineral Resource Activities, and the Protocol on Environmental Protection to the Antarc tic Treaty, among others. CCAMLR was discussed and opened for signat ures on May 5, 1980, and entered into force on April 7, 1982. The organization was establis hed in a response to an incr ease in krill catches that would have a significant effect on krill populations and other species that feed on krill, including sea birds, seals, and fish. The Commission operates in a particular convention area (south of 60 South latitude and the area between that latitude and the Antarctic Convergence), covering all marine living re sources of the area, not including seals and whales, because there are separate organizations managing those species.156 The Commission began operation with 12 si gned members, and two observers. The Scientific Committee was used to determine which states were operating in the fisheries 156 Commission for the Conservation of Antarctic Marine Living Resources, Text of the Convention of Convention on the Conservation of Antarctic Marine Living Resources, Part 1 Australia: CCAMLR Execut ive Secretary, 2008, 4.
67 that were non-members, and under Article XX of the Commissions basic documents, the scientific committee may request any statisti cal, biological and other information it may require in the exercise of their functi ons from members of the Commission. In conjunction with the Scientific Committees f unction, the Contracting Parties agreed to adopt a system of observation and inspection as a component of the basic documents. This system is designed to verify compliance with measures adopted under the Convention through inspections by observers and inspectors designated by Members of the Commission, who remain subject to the jurisdiction of the CPC. Table 5: Members of CCAMLR Country Joined* Patagonian Toothfish Fishing Interest (06/07)157 (tons) UNFSA Australia 1982 1,956 Yes (1999) Chile 1982 345 No European Community (Spain) 1982 Yes (2003) Germany 1982 Yes (2003) Japan 1982 112 + 99** Yes (2006) New Zealand 1982 442 +1160 Yes (2001) Russian Federation 1982 586 Yes (1997) South Africa 1982 466 + 51 Yes (2003) United Kingdom 1982 1663 + 474 Yes (2001) United States 1982 Yes (1996) Argentina 1983 199 No Belgium 1983 Yes (2003) Norway 1983 267 Yes (1996) Brazil 1984 Yes (2000) France 1984 3,771 Yes (2003) Poland 1984 Yes (2006) Spain 1984 369 + 316 Yes (2003) Sweden 1984 Yes (2003) India 1985 Yes (2003) Rep. of Korea 1985 213 + 786 Yes (2008) Uruguay 1986 361+ 274 Yes (1999) Greece 1987 Yes (2003) Peru 1987 No Italy 1989 Yes (2003) 157 CCAMLR, Report of the Twenty-sixt h Meeting of the Scientific Committee (2007), 109.
68 Finland 1990 Yes (2003) Netherlands 1990 Yes (1999) Bulgaria 1992 Yes (2006) Canada 1994 Yes (1999) Ukraine 1994 Yes (2003) Namibia 2000 112 Yes (1998) Vanuatu 2001 No Mauritius 2004 Yes (2007) Cook Islands 2006 Yes (1999) Peoples Rep. of China 2006 No Total reported catches 14,023 *First year that the country was present at the meeting of the Commission, because several countries remained observers for many years. **Divided into two different species of toothfish The observation and inspection system is very important to the operation of CCAMLR because it is widely used and allo ws the Commission to hear reports from Members on illegal fishing operations within the Convention Area and within Member EEZs. The Secretariat keeps cl ear and detailed records of all illegal operations, including vessel names, flag states, charges and cr iminal proceedings. The Commission, in establishing this system, also requested th at the Scientific Committee offer suggestions for modes of operation in which observers would be helpful to the Scientific Committee in accomplishing the objectives of the Commission. The Commission developed their obser vation and inspection system while encouraging flag states operating within the Convention Area to jo in the Commission, or to bring their operations into accordance w ith CCAMLR regulations. During the first several years of CCAMLRs operation, the Comm ission had to prohibit fishing for most finfish species or impose strict catch limits.158 In the mid-1980s, long-lines were introduced to catch Patagonian toothfish around South Georgia and the Kerguelen 158 CCAMLR, CCAMLRs Management of the Antarctic Australia: CCAMLR Executive Secretary, 2008, 1.
69 Islands. The species is also fished outsid e of the Convention Area along the Chilean and Patagonian slopes, parts of which lie within the Argentinean and Chilean EEZs.159 By the 1990s, the Commission had successfully brought in the states that were fishing for krill and other important fish stocks, until pressure noticeably shifted to Patagonian toothfish. Illegal fishing for Patagonian toothfis h was discussed in Commission meetings by Member states when they discovered in creased illegal fishing through regular observations and inspections of their na tional EEZ and the CCAMLR Convention Area around it. During the 12th meeting of the Commission in 1993, Chile proposed that member states use remotely sensed automa tic position fixing systems (VMS) to help the Commission achieve management objectives, including the improvement of the reliability of fine-scale data collection.160 The Commission agreed that this would be beneficial to the Commission, but it took several years for countries to begin implementing such a system. In 1997, the Commission received reports of high levels of illegal fishing for Patagonian tooth fish by the Scientific Comm ittee. The organization discovered that IUU fishing exceeded reported fishing by at least twice161 and other organizations, such as TRAFFIC, have estimated the number to be cl oser to four times that of legal fishing.162 Of those vessels found to be engaged in ille gal, unregulated, and unreported fishing, more 159 CCAMLR, Understanding CCAMLRs Approach to Management: finfish Australia: CCAMLR Executive Secretary, 2008. http://www.ccamlr.org/pu/e/e_pubs/am/p5.htm#(b)Finfish (accessed April 4, 2009). 160 CCAMLR, Report of the Twelfth Meet ing of the Commission (1993), 22. 161 DeSombre, 169. 162 DeSombre, 169n70.
70 than half were found to be flyi ng flags of CCAMLR members states,163 such as Uruguay which is known for its low capacity for enforcement,164 and many others were found to be re-flagged from member states to fl ags-of-convenience. Many member states remarked at the gravity of the situation and the difficulty it would take to manage the IUU fishing on such a scale. Australia estim ated the total wholesale value of the IUU catch of toothfish to be around half a billion dollars (A$).165 Between 1996 and 1999, the Commissi on adopted a number of conservation measures designed to target IUU fishing of Patagonian toothfish, which was seen to be increasingly undermining the effectiven ess of existing CCAMLR measures. New measures included: a Flag state licensing re quirement for all vessels in the fisheries; conservation measures fixing fishing levels fo r all toothfish fisherie s in the Conventions waters; mandatory VMS; port inspections of landings and transshipments; and marking of vessels and fishing gear.166 Along with this variety of measures, the Commission, in 1999, adopted a Catch Documentation Scheme, which required that a completed Catch Document accompany all landings, transshipments and importations of toothfish into the territories of CPCs. This organizations scheme was not pre ceded by a formalized trade information scheme, unlike the other two organizations, although the Scientific Committee required a lot of information from contracting partie s that together resembled one. The Catch Documentation Scheme became operative on May 4, 2000, and was open to all Flag States, whether they were members of the Convention or no t. The Commission 163 CCAMLR, Report of the Sixteenth Meeti ng of the Commission (1997), 9. 164 DeSombre, 170. 165 CCAMLR, Report of the Sixteenth Meeti ng of the Commission (1997), 10. 166 CCAMLR, Report of the Eighteenth Meeting of the Commission (1999) 167.
71 encourages participation by non-Contracting Parties, beca use the Scheme compels the importation authorities of CPCs to require a document to accompany all imports of toothfish, irrespective of whether they ar e caught inside or outside of the CCAMLR Convention Area.167 Flag states are required by the measure to issue the authorized Catch Document to authorized vessels fishing for toothfish and t hose authorized to receive transshipments. Vessels are expected to apply to the flag state for authorized documentation, and with it receive a unique flag state confirmation number. Documents are required to be countersigned by a Port State official as we ll as the person receiving the catch. If the catch is divided on landing, signatures are required by all receiving parties, and the master of the fishing vessel must supply copies of the document to all parties. Originals of all copies of the document are then to be returned to the flag state, which will provide copies to the CCAMLR Secretariat.168 Each year after the implementation of the Scheme, the Commission reviewed member state reports of all in spections of fishing and scien tific research vessels in the Standing Committee on Observation and Inspection. The SCOI reviewed these inspections in light of how conservation meas ures were being implemented and followed, and made recommendations to the Commission for adjustments to standing conservation measures. Consequently, the Commission regular ly revised the CDS to be as effective as possible. One of the most unique measures adopted by CCAMLR was the institution of the CDS Special Fund in 2000. This fund is financed by the fines and confiscations 167 CCAMLR, Report of the Eighteenth Meeting of the Commission (1999) 169. 168 CCAMLR, Report of the Eighteenth Meeting of the Commission (1999) 169.
72 resulting from violations of conservation m easures collected by member states; and is used to fund activities for implementing and strengthening the CDS. For instance, the fund has been used to subsidize the vessel monitoring system in developing countries.169 In addition to revising the CDS, or mo re accurately, in reference to it, the Commission adopted very specific measures to manage fishing practices in subareas of the Convention Area, such as a measure in 2006 /07 that limited the exploratory fishing in Subarea 48.6 to Japanese, Korean, New Zealand and Norwegian flagged vessels using longlines only, and limited vessels to one per country fishing at any one time.170 There was also a strict catch limit for Patagonian toothfish and by-catch species placed on this fishery, along with measures on gear type. This measure directs scientific research vessels in the in collecting data on catch ra tes to determine whethe r the set catch limit was appropriate based on the precautionary principle. The catches collected in 2007 were significantly lower than the set catch limit, demonstrating to the Commission that the standing catch limit was no longer precautionary.171 These measures and practices demonstrate the Commissions commitment to the precautionary approach and the use of scientific data to conserve Patagonian toothfish, and their efforts toward revision of appropriate conservation measures. Table 6: Estimated IUU catches 169 Nico Schrijver, Friedl Weiss, and Bruno Simma International law and sustainable development: principles and practice (Amsterdam: Martinus Nijhoff Publishers, 2004) 484. 170 CCAMLR, Appendix D: Fishery Reports: Exploratory fishery for Dissostichus spp. In Subarea 48.6 1. 171 CCAMLR. Appendix D: Fishery Reports: Exploratory fishery for Dissostichus spp. In Subarea 48.6 7.
73 Fishing Season 97/98 98/99 99/00 00/01 01/02 02/03 03/04 04/05 05/06 IUU Catch 15,106 5,868 7,644 8,802 11,857 10,070 2,622 2,584 3,405 Total catch 28,518 19,531 25,214 22,598 27,198 26,877 15,929 14,074 17,012 IUU % catch 53.0 30.0 30.3 39.0 43.6 37.5 16.5 18.3 20.0 The Commission reported estimates of IUU fishing be tween 1996/7 and 2006/7, showing a steady decline in IUU fishing, as catch es and as a percentage of total catches. While the IUU fishing steadily decreased, so did the total toothfis h catches, showing success of CCAMLRs conservation measures, especially their catch documentation scheme. There is evidence that immediately following the implementation of the scheme the price paid for toothfish at the point of la nding in the ports of CPCs was double that of non-parties. Table 7: Overview of Organizations Organization ICCAT CCSBT CCAMLR Size of Fishery Reported) 2007 ( 3 4,030 mt 1 1,770 mt 14,023 mt Main Harv esters United States, Japan, Morocco, Tunisia, EC Japan, Australia, New Zealand, Korea, Taiwan, ndonesia I Australia, New Zealand, nited Kingdom, France, orea U K Primary Markets Japan Japan United States, EC, Japan Leading States US, Canada, Sweden y Norwa Australia, New Zealand Australia, New Zealand Veto States Japan, EC Japan, Indonesia IUU Trends Estimates by scientific committee have increased to 30,000mt Est. 15% of fish were unregulated; trade w/ nonmembers decreased sig.. Reduced from 15,000mt in 1996 to 3,000mt in 2006 Time: 1992 1995 1998 2001 2004 2007 2010 -TIS -Restricted Imports from non-members -White and black lists -Adopted VMS -Implemented VMS -Inspection scheme -CDS -Tagging (West stock only) -TAC of 25,500 mt -TIS (ITLOS case) -Japan tagging program -Black list/Action Plan -White list -Est. Compliance Comm. -CDS/VMS/Tag/Inspection (Inspection/Sci. Com) -Adopt VMS -VMS -CDS -CDS Fund -Update CDS/White list
74 Chapter 4: Conclusion Trade restrictive measures present todays policy makers with an interesting paradox: do these measures provide us with an effective tool for managing highly migratory species or do they simply function as a means for countries to restrict trade between nations against WTO regulations? Ar e they an invaluable measure that can solve the problem of collapsing fish stocks or are they simply a false hope that will be ruled as illegal in the intern ational realm? Through the exploration of these management techniques, we can draw certain conclusions about what the future may look like for these organizations. As was discussed in the second chapter, multilateral environmental agreements have come under some criticism for adopting tr ade restrictions, representing a barrier to trade, which is in direct opposition to the goals of the WTO. Although the relationship between the WTO and MEAs is currently bei ng negotiated, there are predictions that can be made based on the rulings of the WT Os DSB in previous cases relating to environmental standards. The most significant aspect of these rulings was the DSBs encouragement of multilateral negotiations. The Body expressed a willingness to allow trade restrictive measures that have been multilaterally discussed, because it is the unilateral applications of environmental standards that is problematic to international trade. MEAs, especially those discussed in this thesis, have dem onstrated a willingness to bring in as many players invol ved in the trade of fish prod ucts as possible, which both
75 shows an eagerness to bring their measures in to compliance with the WTO, as well as to effectively govern the harvest of these fisheries. It is constructive to note that these orga nizations are operating with very similar actors. Japan, the US, the EC, Canada, Aust ralia, New Zealand and others are active and important members or at least participating non-members of these organizations. It is valuable to see these countries operating in these three different organizations, because they sometimes stress different concerns or delay measures for particular reasons in each organization. This can be usef ul to look at because it can point to other situations within the institution that is affecting members behavior s. It is apparent th at each country has its own objectives within each organization, whic h perhaps has to do with their fishing capacity within each fishery, but the dyna mic within the overall institution can demonstrate important motivations. In par ticular, Japan is a necessary component of these organizations as the destination for a large proportion of products. This member provides a considerable amount of data on im portations, and has a significant amount of negotiating power in deciding which measures to adopt and how to implement them. Within CCSBT, Japans resistance to the a doption of a catch documentation scheme was one of the most significant reas ons for the delay in its adoption. There are a few means for evaluating th e adoption of catch documentation schemes within these organizations. One way to interpret these po licies is by looking at the process that all three organizations followe d. The process is significant for these RFMOs because they all followed a very si milar path to the adoption of a catch documentation scheme. All three organizations began the process with an information gathering phase, followed by, or sometimes overlapping with, a pha se for increasing
76 participations, and finally re sulting in trade measure adop tion phase. A look at this overall process can be useful for understandi ng what these organizations found to be the necessary existing conditions fo r the adoption of trade restrictive measures. This process might even be seen in other multilateral environmental agreements. All three organizations began the manageme nt process by first gathering as much information on the fisheries as possible. Ea ch organization had a vested interest in understanding the fishing problem in order to persuade contracting parties to adopt progressive conservation measur es and implement them within their own states. This required effective statistical bod ies that could acquire reliab le and demonstrative data on fisheries, fishing pressu re, and relevant actors. The information gathering stage of this process was prompted for each organization when widespread stock deplet ion and IUU fishing were di scovered either by their own stock assessment bodies or when it was brought to the attention of the Commissions by international organizations. For ICCAT, the immediate trigger for the adoption of a TIS was the threat of a CITES listing of bluefin tuna. The Commission responded to international pressure for increased conser vation with the BTSD in 1992, which would gain information from trade about the level of fishing without requiring that CPCs refuse imports from non-CPCs. Several years later, in 1999, CCSBT implemented their TIS, which was largely modeled after ICCATs expe rience. CCSBT actually received internal reports of serious stock depletion in addition to the international attention for having the first fishing case in the International Tri bunal for the Law of the Sea. While this prompted members to finally agree to adopt a trade information scheme, disagreements over accurate scientific data persisted, and played an important role in delaying the
77 adoption of a trade scheme that would gather complete and accurate data for SBT. This was in the interest of Japa n because it allowed them to conceal a significant amount of tuna catches that were not c onsidered trade. In fact, the Commission discovered in 2007 that Japan had under-reported 100,000 mt of SBT, worth around $6 billion, over the previous 20 years.172 This demonstrates the pervasiveness of scientific information in the organizations negotiations. It was used by members both for delaying important measures and for collecting valuable informa tion on which vessels and flag states were operating within the fisheries. It is impor tant to note, though, that the major fishing nations did not resist the trade information scheme used by ICCAT in the same way that Japan resisted it in CCSBT. This could perh aps have been because the CITES listing was a strong enough threat against th e interests of those nations. CCAMLR also received significant re ports of illegal fishing, serving as a significant impetus for the adoption of stri ct trade measures, but their information gathering system was already established in a way that the information they were receiving was enough to warrant a catch do cumentation scheme. The Scientific Committee, designed when the organization bega n, had a high level of control to request data from member states. CCAMLR was also different from the ot her two organizations because of the emphasis the members placed on the precautionary approach in their founding principles. The orga nization used this approach to encourage members to willingly adopt more progressive conservation measures and demonstrate that scientific trends should be taken more seriously b ecause they often pointed to very serious problems with fish populations. 172 The Global Extent of Illegal Fishing, 7.
78 They also organized the Observation and In spection system within just a few years, which encouraged member states to actively carry out vessel inspections. As discussed earlier, the SCOI was very important for the organizations in formation gathering because it produced a lot of data on illegal pr actices taking place in the Convention Area. These specialized bodies and specific c onservation measures were adopted and implemented sooner than those of ICCAT a nd CCSBT. For example, the VMS, adopted by CCAMLR in 1994, was not adopted in ICCAT until 2003 and then not implemented until 2005; it was not adopted in CCSBT until 2008. The early adoption of the VMS allowed the organization to fully implement it before developing th e catch documentation scheme, which proved to be greatly faci litated by the vesse l monitoring system. The collection of accurate information fo r the Commission was demonstrated as a necessary step in order for CPCs to ha ve confidence that other members of the Commission would faithfully implement any measures that were negotiated. The structure of the organizations, especial ly CCAMLR and ICCAT, was useful in negotiations because they had established comm ittees to deal solely with the acquisition of accurate data, so that members had mini mized opportunity for concealing data. This was ultimately a significant hurdle for CCSBT because Japan was able to conceal its own catch statistics due to the nature and size of its tuna markets. The next step in the process of managing these fish stocks, followed by each organization, was encouraging widespread participation. Once enough information was gathered, the commissions of each organizat ion brought the states actively fishing for bluefin tuna or Patagonian toothfish into c ooperation with the Commissions. They used the Secretariat, through negotia tions or trade pressure, in the case of ICCAT, into non-
79 member cooperation or full membership. All th ree organizations were largely successful at this step, but showed va rying degrees of pressure. ICCAT made the most effort towards this goal when they enacted trade restrictions on those flag states that did not willingly join the Commission.173 ICCAT took this action against several flag states, succeeding in bringing each into pa rticipation with the organization. CCSBT adopted an Action Plan specifically to discuss flag states operating in non-compliance and how to bring those stat es into participation. This organization threatened trade restrictions against those states, but ultimately did not have to adopt them because the states opted to stop fishin g for southern bluefin tuna rather than participate with the organization. The low number of members to the CCSBT in relation to ICCAT (9 to 51, respectively) demonstrat es both the size of I CCATs bluefin tuna fishery compared to CCSBTs and the greater effort that ICCAT put in to bringing states into cooperation. CCAMLR also encouraged participation of flag states operati ng in the convention area, but tended to spend more effort inspecting i ndividual vessels fishing in the area. This was achieved by bringing them into criminal proceedings if they were not in compliance, or encouraging flag states to provide vessels with authorized catch documentation even if the state was not a participating member.174 The Commission did succeed in increasing membership to 25 states with 9 cooperating non-members, but the higher number of cooperating non-members to th is organization shows the lack of vested interest in full, official membership. 173 Tarasofsky, 4. 174 As discussed in the second chapter, this as pect of the regulation was designed both to encourage participation by vessels fishing illegally but was also included in the scheme to make trade restrictive measures more compatible with WTO laws.
80 The process of encouraging widespread par ticipation fits into the managerial school of thought for how to best achieve enforcement of international environmental law. This school believes that enforcement can best be ac hieved by the use of in centives rather than sanctions. One of the major tenets of this school of thought is an emphasis on cooperative instead of punitive approaches to enforcement.175 A cooperative process of treaty making will encourage states to comply with their obligations especially if the enforcement mechanisms are seen to be fair These RFMOs have incorporated the idea of a cooperative process into their manageme nt, demonstrating the positive effects that can be gained from this approach but the pers istence of IUU fishing demonstrates that the method of only using carrots and no sticks is less than effectiv e, suggesting the need for an approach that wi ll utilize both methods.176 The last step in the process was the a doption of effective trade measures and the implementation phase. All three organizati ons have adopted and begun to implement a catch documentation scheme along with suppl emental conservation regulations to bring about full observance of these measures, yet each organization cam e to the adoption of these measures differently and at their own pace. The interests that individual member stat es have for the sustainability of these stocks is important within these RFMOs b ecause it has a direct impact on how quickly organizations adopt necessary conservation m easures. This is applicable for these organizations in that powerful fishing nations such as the EU and Japan, must have an interest in conservation if they are going to agree to adopt effec tive measures. CCSBTs 175 Michael Kakaire-Kirunda, More Sanctions, More Incentives or Both? The Enforcement of International Environmental Law in Sub-Saharan Africa, (PhD proposal, 2006), 16. 176 Kakaire, 19.
81 case demonstrated this fact when Japan conti nued to resist a scheme that would trace fish within its own country, showi ng that they actually had mo re concern for their fishing quota than for a transparent and effective doc umentation scheme. Often times in global environmental politics, states have demonstrat ed a propensity to act out their interests, placing their actions into part icular categories as leading states, supporting states, swing states or veto states.177 In these internationa l fishing regimes, each state often occupies the same role in all three organizations, even though they do not always appear to be playing that role at all times. Japan, fo r example, sometimes appears to be in a supporting role, offering to pr ovide Commissions with inform ation on their markets, but this state is frequently responsible for sl owing the adoption of conservation measures. The consistent leading states in these fisheries have been the US, and Sweden in ICCAT, and Australia and New Zealand in CCSBT and CCAMLR, along with a few other important states such as Norway, acti ng in leading and supporting roles. While many theories on international polit ics, even within environmental regimes, suggest that only powerful states can be major players in affecting negotiations, developing countries have been seen to play an important role in nego tiations if they have a critical impact on the fish ery. For example, Indonesia has a powerful position within the southern bluefin tuna fishery because a significant area of spawning grounds lay within the Indonesian EEZ. Due to established soverei gnty laws that extend into territorial waters, Indonesia was able to leverage this increa sed control over the population of bluefin tuna to participate as a cooperating non-member to CCSBT for several years. It is significant that Indone sia became a full contrac ting party in the same 177 Pamela S. Chasek, David L. Downie, and Janet Welsh Brown, Global Environmental Politics, 4th Ed. (Boulder: Westview Press, 2006), 41.
82 year that the Commission adopted the catch documentati on scheme. The concept of concern within this framework demonstrates that countries do not have to just be developed in order to have an effect on nego tiations within these organizations, but they do have to hold some sort of negotiating power. Yet, the relevance of development to international fisheries, because illega l fishing hurts many developing nations disproportionately, and the problem of concern w ithin this context are linked with that of interest and capacity. The time sequence is an important variable to the discussion of CDSs. ICCAT and CCSBT both adopted their versions of the CDS very recently (2006 and 2008, respectively), while CCAMLR adopted theirs much earlier (1999). As mentioned in the case study, CCAMLR did not a dopt a trade information scheme before ultimately agreeing to a CDS, but instead moved toward th e stricter measures. This may have been due to the objective of the Convention to a pply the precautionary approach to fisheries management, or due to extremely high leve ls of reported IUU fishing on the stock compared to that of ICCAT and CCSBT. We can not determine whet her one or both of these situations was necessary for the organizat ion to adopt the trade restrictions before the other two organizations, but it is clear that the situat ion for CCAMLR allowed this scheme to be implemented and analyzed ov er the past several years. ICCATs and CCSBTs schemes have not been operating long enough to determine whether or not they succeeded in terms of decreasing IUU fishing, but they can be discussed in a way that highlights the objectives of each organizatio n and the process by which they try to achieve them. With the prediction that these measures will be allowed to endure, we can now
83 make some recommendations for their strengthe ning to fulfill the objective of sustainably managing these stocks. Severa l studies have been done that evaluated regional fisheries management organizations, each concluding with recommendations for the organizations. Several of these recommendations are valuable for RFMOs but were not directly related to this analysis. Consider the recommenda tions made by Cathy Roheim and Jon Sutinen, from their evaluation, which focused on the mark et side of this pr oblem. They suggest that catch documentation schemes could be improved by the institution of independent, third-party certification of chain-of-cust ody systems because this could decrease government corruption and the easily forged documentation scheme that are allowing illegally caught products into the markets.178 Another important recommendation from this study is for RFMOs to make more of an effort to bring China into the management discussions because China is playing an increasing role in seafood processing and trade.179 Oftentimes, seafood products are importe d into China and then re-exported out to other markets, which adds to the difficulty of traceability.180 China is a member of ICCAT and CCAMLR, but is not a member or a cooperating non-member of CCSBT, which is responsible for the SBT being imported into and re-exported out of China. It would be beneficial to the management of bluefin tuna in particular if the powerful countries within these RFMOs put pressure on China to sign the Fish Stocks Agreement and participate more actively in these programs. Other weaknesses identified by Roheim and Sutinen include: 178 Roheim and Sutinen, 39. 179 Roheim and Sutinen, 40. 180 Roheim, interview, Davis interview.
84 double counting, when parts of the same fi sh are exported to different countries with separate documents reports of processed weight and product weight not using standardized conversion factors non-parties to the international agre ement do not have to participate tampering w/ data records of VMS wrong location reduces efficacy of management policy for time/area closures. flags of convenience failure of member states to comply mingling of certified and uncertified fish are impossible to detect.181 So far, these problems continue to be e xperienced, but CCSBT is making a significant effort to mediate some of the problems by requiring that all documents be submitted electronically, in real time.182 The organization believes th at this will minimize fraud because documents can be verified at port in relation to documents submitted when the fish were landed, and information submitted by VMS. The more up-to-date the information is, the easier it will be for port officials to detect fraud. Many of their recommendations are designe d to solve practical problems associated with the implementation of these schemes. This paper, alternatively, has focused on the political situations that contributed to the negotiations of th ese measures. My recommendations are focused on the structures of these organizations that could be improved to allow for more successful nego tiations. The first recommendation is that ICCAT and CCSBT should inco rporate the precautionary principle into their management plan. The adoption of this prin ciple could solve the problem of scientific uncertainty that arose in both organizati ons negotiations. Members of CCSBT used disagreements over stock assessments to delay adopting important measures, while CCAMLR members did not have that option at their disposal. The precautionary 181 Roheim and Sutinen, 3. 182 Roheim interview.
85 principle is appropriate for these organizations because questions over scientific precision will always affect negotiations. Erring on the side of caution is the best option for these organizations to effectiv ely reach their objectives. The next recommendation for adopting more effective measures is for ICCAT and CCSBT to develop a fund associated with th e scheme, such as the CDS Fund adopted by CCAMLR. Their Fund was developed for the purpose of providing financial assistance to developing countries for a dopting costly measures such as VMS and tagging programs. The fund is directly linked to the inspec tion system instituted by CCAMLR because the money for the CDS Fund is acquired from the confiscation of illegal fishing vessels and illegally caught fish products. If ICCAT and CCSBT develop their inspection systems in conjunction with a fund for implementing im portant measures, they will be able to advance more effective management regimes. These developments have several benefits because they would provide the organizations with a valuable disincentive for illegal fishing, due to the threat of confiscation, as well as an inventive for member states to adopt more effective measures, because the costs would be mitigated. In ICCAT and CCSBT, it has typically been the developed countries that resist costly measures, particularly the EU in ICCAT who has been resisting a comprehensive tagging program in the east Atlantic. In these organizations, a CDS fund could be used as an incentive for developing and developed countries. The last point in this argument is not as much a recommendation as an observation. All three organizations ultimately adopted strict conservation measures because of intense international pressure and focus on the state of highly migrator y fish stocks under their management. This pressure affected ICCAT in their 1992 adoption of a TIS and
86 their 2006 adoption of catch documentation sc heme; it affected CCSBT in the 1999 when they adopted their TIS and in 2008 with their CDS; and it affected CCAMLR when they adopted their CDS in 1996. Therefore, it is absolutely ne cessary for the international community to continue to put pressure on these organizations. All three have now adopted catch documentation schemes, but as has been demonstrated, there is still a lot of work to be done to implement these schemes effectively.
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