New Zealand Yearbook of International Law
Alan D Hemmings*
The Twenty-Second Meeting of the Commission for the Conservation of Antarctic Marine Living Resources was held in Hobart, Tasmania from 24 October to 7 November 2003.
The annual weeklong meeting of the Commission is charged with giving effect to the objectives and principles of the 1980 Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR). It is preceded by a weeklong meeting of the Scientific Committee established by article XIV of the Convention, and other technical or administrative working groups which advise the executive Commission. The annual meetings are always held in Hobart, home to the CCAMLR Secretariat.
CCAMLR aims to be a scientifically underpinned and ecosystem-focused regime, although at its heart is the annual allocation of allowable catch in each of the Food and Agriculture Organization (FAO) statistical sub-areas within the Convention Area (figure 1, below). The majority of Commission Members are also fishing states.
In 2003, all 24 current Members of the Commission, four other Contracting Parties, eight inter-governmental or non-governmental Observers, and four non-party state Observers attended the meeting.
A substantial number of issues were addressed in Hobart in 2003, and the technical reports from the meeting comprise many hundreds of pages. Many of these documents are publicly accessible at CCAMLR’s website.1 This paper identifies merely the most significant issues, largely in relation to the key activity — longline fishing for toothfish species, particularly Patagonian toothfish, Dissostichus eleginoides.
CCAMLR’s Scientific Committee reported that a total of 15,931 tonnes of toothfish had been caught in the Convention Area during the previous year (2002-03), 629 tonnes more than in the 2001-02 year.2 The total Illegal, Unreported and Unregulated (IUU) catch for 2002-03 was estimated at 10,070 tonnes, a slight reduction on the previous year’s estimate but still judged “much higher than was sustainable given the current knowledge of toothfish populations in the Convention Area”.3
For 2003-04, CCAMLR XXII received 30 notifications for exploratory longline fisheries for toothfish species from 14 Member states.4 The Scientific Committee commented on the workload posed by this large number of notifications.
The part of the CCAMLR Area of particular interest to New Zealand, the Ross Sea (falling within the area claimed as the Ross Dependency) and divided between statistical sub-areas 88.1 and 88.2 (figure 1, below) was the subject of substantial fishing interest at XXII CCAMLR. Twelve states (Argentina, Japan, South Korea, New Zealand, Norway, Russia, South Africa, Spain, Ukraine, United Kingdom, United States and Uruguay), and 25 vessels, were authorised to fish for a total toothfish catch of 3,250 tonnes in 88.1 in the period 1 December 2003 – 31 August 2004.5 Although the permitted catch level is lower than the previous year (3,760 tonnes)6 the rising number of participants and vessels reflects a dramatic increase in activity from the one or two vessels (solely New Zealand) with which the fishery in this sub-area opened less than a decade ago. With conditions that included a seabird bycatch limit of three seabirds per vessel, daylight setting of longlines was also authorised.7 In adjacent sub-area 88.2 a similar pattern was evident, with seven states (Argentina, South Korea, New Zealand, Norway, Russia, South Africa and Ukraine), and 18 vessels authorised to catch 375 tonnes of toothfish over the same period.8 New Zealand was authorised to use six vessels in each sub-area, which makes it the largest operator in either sub-area. New Zealand officials were instrumental in securing agreement to high operating standards for all vessels in Conservation Measures 41-9 and 41-10, including a prohibition on fishing within 10 nautical miles of the ecologically and scientifically important Balleny Islands in the northern Ross Sea which New Zealand is working to establish as a Protected Area under the Protocol on Environmental Protection to the Antarctic Treaty.9
In 1999, CCAMLR introduced its Catch Documentation Scheme, a system for tracking the source and bona fides of toothfish through its landing and subsequent trade. The system has been amended subsequently, but a continuing limitation has been the use of fraudulent documents. Accordingly, a number of states (led by the US) have sought the introduction of electronic catch documents (eDCD). The meeting saw a presentation by the US on a pilot project that had been operated over the previous year. Despite general support, it was not possible to convert this to agreement to introduce eDCDs formally, although the pilot project will be continued for another year, with voluntary participation. The US announced that only fish accompanied by an eDCD would be admitted for sale in its market, and this will probably improve the take up.
In 1998, CCAMLR agreed on the need for a Vessel Monitoring System, mediated by national authorities. The difficulty has been that some of the vessel positions subsequently passed on to the CCAMLR Secretariat and other Members have been false. This issue came to a head in 2002, when several Members demonstrated that reported positions of some other Member’s fishing vessels were quite fraudulent. As a response to this, a tamper proof Centralized Vessel Monitoring System (cVMS) was proposed. This would require Members to use satellite monitoring of transponders on their vessels, and send the positional information directly to the CCAMLR Secretariat.
At XXII CCAMLR the Standing Committee on Implementation and Compliance (SCIC) discussed an Australian, New Zealand and US proposal for cVMS. Despite general support for it, consensus on its adoption was not achieved, due to vetoing by Argentina. A trial of cVMS with voluntary participation was all that could be agreed. The US, Australia, New Zealand, South Africa, Chile and Uruguay will participate in the voluntary system.
Conservation Measures 10-06 and 10-07 adopted at CCAMLR XXI in 2002, sought the annual identification of vessels that had participated in IUU fishing activities within the Convention area, with the intention of creating a blacklist. At XXII CCAMLR a provisional blacklist was examined by the SCIC. The provisional list included vessels flagged by several Commission Members. Adoption of the list was vetoed by Russia, whose vessels figured prominently. The list was referred to the Commission, where again Russia vetoed it until all its vessels were removed. The list is thus not particularly useful.
In 2002, Australia had proposed the listing of Patagonian toothfish on Appendix II of the Convention on International Trade in Endangered Species (CITES) as a means of addressing the IUU trade in these species. This was roundly rejected by other CCAMLR Members, with the exception of New Zealand which supported the proposal there and at the subsequent CITES meeting in Chile. Australia re-ran its arguments, albeit with less conviction, at CCAMLR XXII, and faced similar opposition. Appendix II listing does not appear to be a prospect in the short-term.
From the notifications received at CCAMLR XXII, the target catch through 2004 may be 30% higher than the previous year. If that trend continues, the fishery could reach the 620,000 trigger level for a new form of management in 5-6 years.
A new industry activist group — the Coalition of Legal Toothfish Operators (COLTO) — was an Observer at CCAMLR XXII. This largely Australian coalition brings a new economic pressure to bear on CCAMLR. What COLTO’s appearance signals is that for the authorised fishing industry, the continued existence of a very large IUU fishery poses a substantial economic cost, both in meeting performance standards that their IUU competitors do not face, and in the actual and potential loss of fish to IUU operators. Their report, Rogues Gallery, identified 45 vessels engaged in IUU fishing for toothfish, and 12 states, including a number of Commission Members, believed to be involved in this activity. Following objections from Commission Members implicated in COLTO’s report, it was withdrawn. Given that many other Members clearly believed the report to be basically correct in its assertions, the withdrawal simply reflects political pressure.
CCAMLR XXII achieved very little substantive progress on the issue identified by CCAMLR Members themselves as a key current challenge – rolling back IUU fishing activities within and adjacent to the Convention Area. The consensus based decision-making process across the Antarctic Treaty System often means slow decision-making, and frequently frustrates particular Parties. But in recent years at CCAMLR, and most clearly in 2003, a more fundamental difficulty has arisen. This is that the system has great problems agreeing anything when the measures proposed are in fact directed to controlling the performance of Commission Members themselves. The brutal fact of the matter is that a number of Commission Members — but most particularly Russia and Uruguay — are, seemingly, regularly breaching CCAMLR obligations. If the agreement of these states is then required in order to address such breaches, the system is on the horns of a dilemma.
The consequences of this are already evident. Several Southern hemisphere states are depending more upon unilateral or collective action outside CCAMLR, than on CCAMLR itself, to address IUU fishing. Australia is the most striking example, with its regular apprehension (often with military force) of vessels operating illegally within the Heard and MacDonald Islands Exclusive Economic Zone — and it is, after all, both the Depository State for CCAMLR and the host for its Secretariat and annual meetings. New Zealand’s primary area of fishing (and sovereignty) interest has hitherto had some protection against IUU activity because of remoteness and the high latitude (and consequential environmental severity) of the Ross Sea. New Zealand’s deployment of Orion maritime surveillance aircraft (and the deployment of RNZN Te Kaha in summer 1998-99) to statistical areas 88.1 and 88.2 suggests it takes seriously the risk of IUU activity.10 Similar patterns of response are evident with France, South Africa and the United Kingdom (although in the last case, this is often at the cost of exacerbating the already vexed relationship with Argentina over the Falklands/Malvinas and South Georgia questions). The United States is also increasingly using domestic legal mechanisms to shut off access to toothfish from uncertain sources — and the denial of its market is plainly a powerful measure.
These responses may be effective, and many will hope that they can be. But the prognosis for CCAMLR may not be encouraging. Whilst all these states continue to formally engage with CCAMLR, the shift to a greater dependence on extra-CCAMLR approaches to address issues that CCAMLR itself seems unable to get traction on is surely a matter for concern.
MAP OF THE CONVENTION ON THE CONSERVATION OF ANTARCTIC
MARINE LIVING RESOURCES (CCAMLR)
THE CONVENTION ON THE CONSERVATION OF ANTARCTIC MARINE LIVING RESOURCES
The Convention applies to all marine living resources (except seals and whales in general) inside the area where the northern boundary is roughly delineated by the mean position of the Antarctic Polar Front (Antarctic Convergence). In this respect it differs from other Antarctic Treaty instruments, whose northern boundaries are at 60 degrees south.
The Convention Area consists of all waters bounded by the Antarctic continent to the south and divides naturally into three sectors: Atlantic Ocean section (Statistical Area 48), Indian Ocean section (Statistical Area 58) and the Pacific Ocean section (Statistical Area 88). Each Statistical Area is divided up into sub-areas and divisions. The waters of the Ross Sea region fall entirely with Area 88. Area 88 is defined as, “The waters bounded by a line starting at 60oS, 150oE; thence due east to 70oW longitude; thence due south to the Antarctic Continent; thence westwards along the coast of the Antarctic Continent to 150oE longitude; thence due north to the starting point.”11
* Senior Fellow, Gateway Antarctica Centre for Antarctic Studies and Research, University of Canterbury. Dr Hemmings was a delegate at XXII CCAMLR for the Antarctic and Southern Ocean Coalition (ASOC). The opinions expressed in this article do not necessarily reflect the views of ASOC.
1 Commission for the Conservation of Antarctic Marine Living Resources, URL <http://www.ccamlr.org/> at 26 April 2004.
2 Para 4.40, Report of the Twenty-Second Meeting of the Commission.
3 Para 8.2, Ibid.
4 Para 9.8, Ibid.
5 Conservation Measure 41-09 (2003) Limits on the Exploratory Fishery for Dissostichus spp. In Statistical Sub-area 88.1 in the 2003/04 Season.
6 Conservation Measure 41-09 (2002) Limits on the Exploratory Fishery for Dissostichus spp. In Statistical Sub-area 88.1 in the 2002/03 Season.
7 Para 10.55, Report of the Twenty-Second Meeting of the Commission.
8 Conservation Measure 41-10 (2003) Limits on the Exploratory Fishery for Dissostichus spp. In Statistical Sub-area 88.2 in the 2003/04 Season.
9 J Burgess, E Waterhouse, A D Hemmings & P Wilson (2003) “Declaration of Marine Protected Areas – The Case of the Balleny Islands Archipelago, Antarctica” pp 196-202 in J P Breumer, A Grant & D C Smith (eds) Aquatic Protected Areas: What Works Best and How do we Know? Proceedings of the World Congress on Aquatic Protected Areas, Cairns, Australia – August 2002. Australian Society for Fish Biology (689p).
10 See CCAMLR map, figure 1, below.
11 The above information was obtained from the CCAMLR website, above n1.
Conservation of Antarctica Marine Living Resources
New Zealand Yearbook of International Law