New Zealand Yearbook of International Law
A rather unexpected contingency came to a head at the Twenty-Fourth Meeting of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR Commission), held in Hobart from 24th October to 5th November 2005. This was the formal realisation that southern bluefin tuna (SBT) were being harvested inside the Convention area without the knowledge of, far less authorisation by, the CCAMLR Commission, under authorisation by the Commission for the Conservation of Southern Bluefin Tuna (CCSBT Commission).
This situation raises a number of significant issues and questions. These include, inter alia: the robustness of both our knowledge of the distribution of commercially viable fish stocks and about fishing activities in remote high seas areas subject to particular agreements; the respective responsibilities and roles of the two conventions in regulating the activity; the awareness and stances of those States which are party to both the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) and the Convention for the Conservation of Southern Bluefin Tuna (CCSBT); and the standards of communication between the secretariats of CCAMLR and CCSBT. This paper, following closely on the heels of XXIV CCAMLR, offers only preliminary scoping of the issue.
CCAMLR applies to the marine living resources found south of 60° South latitude (the Antarctic Treaty Area), and within the area between 60° S and a defined northern boundary approximating the Antarctic Convergence. Any harvesting and associated activities within this area are to be conducted in accordance with the Convention – which mandates both the maintenance of ecological relationships for harvested, dependent and associated populations and establishes mechanisms for management, including catch authorisation and level setting via a Commission.
The Convention requires the Commission to cooperate with Contracting Parties exercising jurisdiction in areas adjacent to the CCAMLR area – essentially the marine areas appurtenant to metropolitan territory, including the subantarctic islands. This has, inter alia, had practical significance in relation to Patagonian toothfish (Dissostichus eleginoides) found both sides of the CCAMLR boundary. The Convention also anticipates the possibility of the entry into the CCAMLR area of species which are the responsibility of either the Antarctic Treaty or “existing fisheries commissions”, and the Commission is required to “take full account of any relevant measures or regulations established or recommended” so that “there shall be no inconsistency between the rights and obligations of a Contracting Party under such regulations or measures and conservation measures which may be adopted by the Commission”. Both the Commission and its Scientific Committee are enjoined to establish agreements and cooperation with other relevant organisations and entities.
Notwithstanding the formal recognition that other fisheries commissions – what we would now call Regional Fisheries Management Organizations (RFMOs) – might impinge on CCAMLR, until the present situation arose this appears not to have happened in practice. Whilst southern bluefin tuna are routinely referred to as having a range down to 50° S, this seems to have been taken as without practical consequence in the real world of fishable stocks in the CCAMLR area. Thus, to perhaps a greater extent than in other RFMOs, CCAMLR was seen as operating in a relatively hermetic environment. Its harvested species might also occur north of CCAMLR and therefore be subject to other regimes, but other regimes’ interests were unlikely to extend into the CCAMLR area.
CCSBT applies to southern bluefin tuna (Thunnus maccoyii) and has no specified geographical area of application. As with CCAMLR there is a Commission, an advisory Scientific Committee and a Secretariat. There are the usual non-derogation clauses and commitments to collaborate with other inter-governmental organisations.
Before XXIV CCAMLR in 2005 there were no indications from the published Final Reports of either CCAMLR or CCSBT annual meetings that fishing for tuna within the CCAMLR area had occurred. Both conventions send Observers to each others’ meetings, and there are no references in these Observers’ reports to either their ‘home’ or ‘visiting’ convention pertaining to tuna in the CCAMLR area. Within CCAMLR fora – the various scientific subgroups, the Scientific Committee and the Commission – there has been concern about seabird bycatch in fisheries adjacent to the CCAMLR area, since these are largely the same taxa and populations that CCAMLR’s own efforts are directed to protecting from fisheries-related risks, but this has been the only context in which CCSBT has been mentioned.
Notwithstanding the total absence of formal discussion of tuna harvesting within the CCAMLR area (or, insofar as I have been able to ascertain, any discussion at the Heads of Delegation sessions at CCAMLR) before 2005, there were rumours.
From 2000, there were rumours that supposed ‘tuna’ fishers operating out of Montevideo were in fact catching Patagonian toothfish. The picture was very confused, and it was suggested that these operators were indeed catching SBT. From 2003 rumours of a similar sort started to be sourced from South Africa. In this case, Spanish longliners were said by sources to have been going into the CCAMLR area in search of tuna and swordfish for at least the last two or three years. All of these rumours were picked up incidentally in the course of enquiries focussed on toothfish IUU activity.
The first significant light to be thrown on the matter seems to have resulted from the detection of a number of longliners between Antarctica and the Australian subantarctic Heard and McDonald Islands by the Australian Fisheries and Customs Patrol Vessel Oceanic Viking in May 2005. None of these vessels were authorised by CCAMLR to fish for any species in the CCAMLR area. At least one of the three vessels flagged to Japan had been detected within the CCAMLR area, although the actual interdiction appears to have occurred outside CCAMLR waters. Two further vessels were flagged to Togo. Australian requests to the flag States for authority to board the vessels and ascertain what fishing activity they had undertaken were rejected by Japan, and unanswered by Togo. The limited response from the Japanese vessels included the assertion that they were fishing for tuna. Despite the initial Ministerial scepticism about the assertion, the fact that the Japanese vessels were not referred to in the context of IUU fishing for toothfish at XXIV CCAMLR suggests that Australia subsequently accepted this explanation.
The Twelfth Annual Meeting of the CCSBT Commission occurred just two weeks prior to the commencement of XXIV CCAMLR, with the Extended Commission being held 11-14 October in Taipei, and the Commission meeting on 15 October in Narita. The integrated report of these meetings refers to “CCAMLR” only three times and “Antarctic” only once. Two of the references to CCAMLR and the reference to the Antarctic were Australian and New Zealand referrals to observer and seabird-scaring standards found in the other convention. The only quasi-substantive reference occurs at paragraph 126 of the Extended Commission’s report:
126. The Extended Commission agreed that the CCSBT should have the primary responsibility for managing SBT throughout its range when there is an overlap in responsibility between RFMO’s. This principle has previously been agreed with the IOTC and ICCAT. The Extended Commission agreed that the Executive Secretary would correspond with both CCAMLR and the Western and Central Pacific Fisheries Commission (WCPFC) on this issue seeking their agreement that CCSBT have the primary management responsibility for SBT. It was noted that the vessels approved by the CCSBT to fish for SBT are recorded on the CCSBT authorised vessel list which is publicly available on the CCSBT web site. It is therefore a simple matter for other RFMOs to identify vessels that have been approved to fish for SBT. [Emphasis added.]
Presumably there was some sort of discussion at the meeting underpinning this agreement, although none is reflected in the report.
The Executive Secretary of CCSBT did indeed write to the Executive Secretary of CCAMLR in a letter dated 19 October, asking that CCSBT’s request for recognition of primacy in relation to fishing for SBT in the CCAMLR area be placed on the agenda of its forthcoming meeting. It was noted that an agreement of the sort already reached between CCSBT and the Western and Central Pacific Fisheries Commission (WCPFC) would mean that CCSBT would manage the catch of the vessels involved and report fully to CCAMLR on these activities.
Interestingly, Japan’s Fisheries Agency sent a letter on the same matter to the Executive Secretary of CCAMLR a week earlier (dated 11 October), which the Secretariat circulated to Commission Members. This letter sought the consent of both CCAMLR and CCSBT for SBT in the CCAMLR area to be managed “primarily” by CCSBT. If data sharing was considered necessary the two conventions could enter into discussion of a cooperative arrangement. The Japanese letter asserted that Japanese tuna longline vessels had been operating for SBT since the 1950s, prior to the establishment of either CCAMLR or CCSBT. Whereas operation was normally north of the Antarctic Convergence, there was “occasional” expansion to the south, depending on sea and fisheries conditions changing year by year. Accordingly, SBT fishing operations may take place in the CCAMLR area, “especially in the northern part of Area 58”. The letter noted that although both SBT and toothfish longlining may occur in this area, the operations are distinct and distinguishable and no authorised Japanese SBT longliner was licensed to longline for toothfish.
Japan noted CCSBT’s authority to manage SBT throughout its range, and CCAMLR’s authority to manage marine living resources within the CCAMLR area; therefore both conventions could establish management measures for SBT within the CCAMLR area. Like the CCSBT Executive Secretary, Japan referred to supposed parallel situations of duplication of responsibility between CCSBT and other tuna commissions, where CCSBT had been granted primary responsibility for SBT. The letter argued that application of relevant CCAMLR conservation measures to SBT activity in the CCAMLR area may cause “inconsistencies” between obligations under CCSBT and CCAMLR, and that it would be technically difficult to avoid these.
It seems a reasonable (and unsurprising) conclusion, given the dates attached to these various documents, that Japan was the driving force for the argument first at CCSBT and thereafter in relation to CCAMLR that CCSBT have primacy in the management of SBT in the CCAMLR area.
The Commission amended its Provisional Agenda in light of the approach from CCSBT, adding sub-item “(iv) Cooperation with CCSBT” to its Agenda item 15 “Cooperation with international organisations”. In addition to the letters tabled by the CCAMLR Secretariat, a report from the CCAMLR Observer to the 12th CCSBT meeting (Australia), including three paragraphs on the discussion of SBT management in the CCAMLR area consistent with the text of the CCSBT Report and CCSBT Executive Secretary’s letter to the CCAMLR Executive Secretary, were tabled under this agenda item.
The discussions around SBT fishing in the CCAMLR area, and the respective responsibilities of CCSBT and CCAMLR were considered sensitive, and accordingly the core issues were referred to the Heads of Delegation meetings, for which no public record exists. The sensitivities appear to include a divide between Japan (possibly supported by Korea) and fellow CCSBT members Australia and New Zealand; between Japan and a wider group of CCAMLR Members; and (although it is difficult to assess its relative significance) in relation to discussing matters relating to an agreement that includes Taiwan in front of China, which was an invited Observer to CCAMLR (but not present in the sessions of the Heads of Delegation of Commission Members).
The resulting CCAMLR report language can therefore be seen as particularly carefully drafted. It welcomed the letters from CCSBT and Japan and recognised the overlap of responsibilities between the two conventions. The Commission therefore believed an agreement should be concluded between the conventions to define their respective responsibilities with SBT within the CCAMLR area. Discussions should be initiated, and CCAMLR should set out its required measures in the interim. To that end, it was important to ensure that SBT fishing was carried out in accordance with relevant CCAMLR conservation measures. However, the Commission noted that CCAMLR did not have all the necessary conservation measures to mitigate incidental mortality of seabirds in the CCAMLR area due to SBT fishing. It was important to develop further measures in cooperation with CCSBT. The report language concluded with the Commission’s agreement that CCAMLR’s Executive Secretary should reply to CCSBT, proposing an ad hoc working group of Commission and CCSBT Members to progress the issue intersessionally. The aim was conclusion of an agreement as soon as possible.
The drafting of the letter to CCSBT was not left to CCAMLR’s Executive Secretary, but drafted by the Commission, and attached to the Report of the Twenty-Fourth Commission. After reprising the elements of the Report language, this letter laid out the interim measures required by CCAMLR:
(i) CCSBT will advise the CCAMLR Secretariat of the names, Flag States, owners, operators, call signs and Lloyds/IMO numbers of all vessels licensed by CCSBT Parties to fish for southern bluefin tuna;
(ii) CCSBT will not license any vessels on the CCAMLR IUU Vessel Lists to fish for southern bluefin tuna (and CCAMLR will reciprocate should CCSBT adopt such lists);
(iii) CCSBT will require all vessels licensed to fish for southern bluefin, in respect of fishing activities for southern bluefin tuna within the Convention Area, to:
(a) submit automatic satellite-linked VMS reports in accordance with Conservation Measure 10-04 to the CCSBT Secretariat;
(b) apply Conservation Measure 25-01 on use and disposal of plastic packaging bands;
(c) apply Conservation Measure 25-02 (minimisation of incidental mortality of seabirds), except those provisions relating to line weighting;
(d) submit to the CCSBT Secretariat data on catch, by-catch and incidental mortality of seabirds in a manner consistent with the data requirements of CCAMLR;
(e) comply with the CCAMLR System of Inspection, including allowing compliance inspections at sea within the CAMLR Convention Area;
(iv) CCSBT will forward to the CCAMLR Secretariat all reports received under paragraph (iii) above.
Without prejudice to further development of the agenda for the working group, CCAMLR would also wish to discuss the following issues, with a view to concluding a final agreement as soon as possible:
(i) effective measures to reduce the incidental mortality of seabirds, appropriate to the methods used to fish for southern bluefin tuna;
(ii) observer coverage;
(iii) illegal, unregulated and unreported fishing.
The concerns at CCAMLR appeared to fall into two main classes – political concerns about a loss of regional hegemony, and practical concerns about CCSBT’s standards of management.
Concerns about the apparent loss of hegemony over “CCAMLR’s” waters are perhaps part of a more deeply embedded sense that the Antarctic Treaty System (ATS) is the proper and sufficient basis for regional management. On this view, accepting a significant role (let alone “primacy”) in relation to resource management in the area for a non-ATS instrument would be seen as a diminution of the standing of the ATS. There may be additional concerns on the part of claimant States, particularly those which are not presently parties to CCSBT, about devolving particular rights in the Antarctic area to a non-ATS forum.
The practical management concerns are based on the fact that CCAMLR as a regional agreement has much broader ecosystem maintenance obligations that ordinarily found in fisheries agreements. Unlike CCSBT, its raison d’être is not just fishing for a single taxa. Over the 24 years of its existence, CCAMLR has developed sophisticated approaches to managing harvested taxa and monitoring and maintenance of the Antarctic marine environment. There certainly have been shortcomings, but on any fair comparative basis, CCAMLR is at the leading edge of RFMOs when it comes to protection of the marine environment. To take one issue – whereas CCAMLR seems to have been able to substantially reduce seabird bycatch in its authorised fisheries in recent years, such evidence as there is shows high levels of seabird bycatch in the SBT fisheries and no significant change in a decade.
These practical management-record concerns seem to be behind the comments by the heads of delegation of some significant States that no SBT fishing should occur unless and until it can meet CCAMLR’s standards. Such sentiments – and one may presume that even stronger positions may have been put in the Heads of Delegation sessions – are not, of course, reflected in the Commission’s Report.
Notwithstanding the apparent surprise around this particular case within the CCAMLR community, something along these lines has been predictable for some time. Where once the Antarctic was not only remote and exposed to very little activity but protected by a great band of ocean north of the Antarctic Convergence in which very little activity bar whaling occurred, this has now changed. Technological advance, and the inexorable search for resources further and further afield, has meant that Antarctic regional and extra-regional (including global) regimes are increasingly rubbing against each other. The isolation of Antarctica, and de facto control of some 10% of the surface of the earth by specifically Antarctic instruments, is ending.
It can be assumed that CCAMLR and CCSBT will develop joint arrangements for the regulation of SBT in the CCAMLR area. The texts of both conventions anticipate such collaboration and cooperation, and with one mandated to regulate a particular taxa, and the other an area, no easy priority may be possible. CCAMLR is of course a little older than CCSBT and it is interesting to note that Japan’s letter to CCAMLR traced the origins of its activity substantially prior to either, in the 1950s. A modus vivendi that involves joint scrutiny and reporting seems inevitable. Whether this can be achieved in one intersessional period is an interesting question. Certainly in CCAMLR circles such is hoped for.
One “silver-lining” could be that in the process of reaching accommodation with CCAMLR, CCSBT improves its own environmental standards. Australia and New Zealand may not now be left arguing the appropriateness of CCAMLR standards to sceptical fellow member in both conventions, Japan. Presumably the Trans-Tasman pair will have allies in the wider CCAMLR membership.
The possibly more uncertain question is whether or not CCSBT will find CCAMLR’s expectations in the interim acceptable. Although one might suppose that in a consensus-based system the inclusion of these demands in the CCAMLR letter suggested their acceptability to Japan, States show a remarkable ability to decouple their stances in differing fora when they see this as necessary.
The circumstances of this “discovery” of SBT fishing in the CCAMLR area are fascinating. According to senior delegates to XXIV CCAMLR, this was the first formal intimation that fishing for SBT was occurring in the CCAMLR area. Yet, here we have two Conventions whose Secretariats are in the same country (Australia), where four States (Australia, Japan, Korea and New Zealand) are members of both conventions, where there is cross representation, where there were some rumours about “tuna” activity going back at least five years – and despite this we did not see anything come to a head until 2005. Given the repeated expressions of concern at both CCAMLR and CCSBT by Australia and New Zealand about the serious incidental catches of albatross and other seabirds occurring in the SBT fishery immediately north of the CCAMLR area, and the need in a scientifically managed regime to have reliable information about all the activities occurring, one might have thought it appropriate for Japan (or any other State engaged in the activity) to at least notify CCAMLR that it was sometimes fishing for SBT inside the CCAMLR area.
The public record does not suggest how long (since the entry into force of CCAMLR) SBT fishing has been underway in the CCAMLR area, nor indicate the total annual catch. These data are not publicly available from CCSBT sources. This would be a worthwhile subject for further enquiry.
[∗] Senior Fellow, Gateway Antarctica Centre for Antarctic Studies and Research, University of Canterbury, resident in Canberra. Email: firstname.lastname@example.org.
 The author attended CCAMLR XXIV as the Representative of the Antarctic and Southern Ocean Coalition (ASOC), an invited Observer organisation. His attendance was made possible by support from the National Environmental Trust (NET) in Washington D.C. The opinions expressed in this paper do not necessarily reflect the views of either ASOC or NET.
2 Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR), opened for signature 1 August 1980, 19 ILM 841 (entered into force 7 April 1982).
2 CCAMLR, art I.
 CCAMLR, art II(3).
 CCAMLR, art VII, VIII, and IX.
 CCAMLR, art XI.
 See eg Erik J Molenaar, ‘Unregulated Deep-Sea Fisheries: A Need for a Multi-Level Approach’ (2004) The International Journal of Marine and Coastal Law 19, 223 and 237.
 CCAMLR, art IX(5).
 CCAMLR, art XXIII.
 See, for example, About Southern Bluefin Tuna at the CCSBT website: ‘SBT are found throughout the southern hemisphere mainly in waters between 30 and 50 degrees south…’ online: <http://www.ccsbt.org/docs/about_s.html> (last accessed on 1 December 2005).
 Indeed, when a number of longliners were detected close to the CCAMLR area in May 2005, the Australian Fisheries Minister rejected the proposition that these were tuna vessels, saying this was “most unlikely as tuna are not cold water fish”: see Joint Statement of the Australian Minister for Fisheries, Forestry and Conservation and the Australian Minister for Justice and Customs, ‘Viking shadows illegal fishermen’, DAFF05/089MJ,
9 May 2005, online: <http://www.mffc.gov.au/releases/2005/05089mj.html> (last accessed on 22 November 2005).
 See text and references in Erik J. Molenaar, ‘Southern Ocean Fisheries and the CCAMLR Regime’ in Alex G Oude Elferink and Donald R Rothwell (eds), The Law of the Sea and Polar Maritime Delimitation and Jurisdiction (Martinus Nijhoff Publishers, 2001) 297-298.
 Convention for the Conservation of Southern Bluefin Tuna (CCBST), opened for signature 10 May 1993, 1819 UNTS 359 (entered into force on 20 May 1994), art 1.
 Both Secretariats are in Australia: CCAMLR’s in Hobart; CCSBT’s in Canberra.
 CCSBT, art 4.
 CCSBT, art 12.
 Even at XXIV CCAMLR, the Scientific Committee only addressed these sorts of issues: see paragraphs 5.30 and 5.31 of the Report of the Twenty-Fourth Meeting of the Scientific Committee (2005).
 The author is grateful to Alistair Graham, Tasmanian Conservation Trust, Hobart for this information, provided in emails to the author dated 22 and 24 November 2005.
 Australian Ministerial Statement, above n 11, and media reports: ABC Radio The World Today, ‘Japanese vessels suspected of illegal fishing’, 10 May 2005, online: <http://www.abc.net.au/worldtoday/content/2005/s1364243.htm> and ABC Radio PM, ‘Japan and Australia in stand-off over fishing inspection’, 10 May 2005, online: <http://www.abc.net.au/pm/content/2005/s1364461.htm> (both last accessed on
22 November 2005).
 Above n 11.
 Note particularly the absence of discussion of the incident in the ‘Report of the Standing Committee on Implementation and Compliance (SCIC)’ (2005) CCAMLR-XXIV/44.
 The Commission comprises Australia, Japan, New Zealand and the Republic of Korea. The Extended Commission comprises these States plus “The Fishing Entity of Taiwan” (as expressed in the list of delegates in Appendix 3 to the CCAMLR Report of the Twelfth Annual Meeting of the Commission (2005)), with the Philippines as a Cooperating Non-Member and Indonesia as an Observer.
 CCAMLR, Report of the Twelfth Annual Meeting of the Commission (2005).
4 CCAMLR Secretariat, ‘Letter from CCSBT on cooperation with CCAMLR in the management of blue fin tuna in the CCAMLR area’ (2005) CCAMLR-XXIV/BG/43 Rev. 1.
23 Despite its omission from the title, this letter and the cover note for its circulation to Commission Members (Comm Circ 05/77) were also included in CCAMLR-XXIV/BG/43 Rev. 1.
 ‘Provisional Annotated Agenda for the Twenty-Fourth Meeting of the Commission for the Conservation of Antarctic Marine Living Resources’ (2005) CCAMLR-XXIV/2.
 CCAMLR, Report of the Twenty-Fourth Meeting of the Commission (2005).
 Above n 22.
 CCAMLR Observer (Australia), ‘Report from the CCAMLR Observer to the Twelfth Annual Meeting of the Commission for the Conservation of Southern Bluefin Tuna 11-14 October 2005, Taipei, Taiwan’ (2005) CCAMLR-XXIV/BG/49.
 Annex 9 – Letter from CCAMLR Secretariat in reply to CCSBT Letter of 19 October
29 Similar concerns may be discerned in relation to bioprospecting in Antarctica – see Alan D Hemmings, ‘A Question of Politics: Bioprospecting and the Antarctic Treaty System’ in Alan D Hemmings and Michelle Rogan-Finnemore (eds) Antarctic Bioprospecting (2005), 127.
 The present author has been a critic – see Beth C Clark and Alan D Hemmings, ‘Problems and prospects for the Convention on the Conservation of Antarctic Marine Living Resources Twenty Years on’ (2001) 4 Journal of International Wildlife Law and Policy 47-62; and Alan D Hemmings, ‘Managing the Southern Ocean – the 2003 meeting of the Commission for the Conservation of Antarctic Marine Living Resources  NZYbkIntLaw 11; (2004) 1 New Zealand Yearbook of International Law 199-205.
 CCAMLR, Report of the Twenty-Fourth Meeting of the Scientific Committee (2005), paras 5.30, 5.31 and 5.53 (xiii).
 Alan D Hemmings, ‘Stresses and Pressures on the Antarctic Regime’ (2001) Research Seminar delivered at the Institute of Antarctic and Southern Ocean Studies and the Antarctic Cooperative Research Centre at the University of Tasmania, 12 April.
 Personal communications to the author during, and following, XXIV CCAMLR.