Managing IUU Fishing in the Southern Ocean: Rethinking the Plight of the Patagonian Toothfish*

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  • *The authors would like to express their gratitude to three anonymous reviewers whose constructive comments and substantive suggestions made the completion of this article possible. Any errors of commission or omission are the responsibility of the authors. 1. In order to appreciate the nature of the problem and devise realistic strategies for dealing with it, an essential precondition is to understand the key concepts at hand. As with other finite common resources, fishers are exploiting certain species of marine life-namely, tunas, sharks, groundfish, including orange roughy, high seas cod, and Patagonian tooth fish-beyond permissible conservation measures by conducting "illegal," "unreported," and "unregulated" fishing activities. The concept of "illegal" fishing refers to fishing that is (1) conducted by national or foreign vessels in waters under the jurisdiction of a State, without the permission of that State, or in contravention of its laws and regulations; (2) conducted by vessels flying the flag of States that are parties to a relevant regional fisheries management organization but which operate in contravention of the conservation and management measures adopted by that organization and by which the States are bound or in contravention of relevant provisions of the applicable international law; or (3) in violation of national laws or international obligations, including those undertaken by cooperating States to a relevant regional fisheries management organization. Food and Agriculture Organization, International Plan of Action to prevent, deter and eliminate illegal, unreported and unregulated fishing. Rome, FAO. 2001,

  • available online: , at para. 3.1 (hereafter IPOA-IUU Plan). So-called "unreported fishing" refers to fishing activities that (1) have not been reported, or have been misreported, to the relevant national authority, in contravention of national laws and regulations; or (2) have been undertaken in the area of competence of a relevant regional fisheries management organization which have not been reported or have been misreported, in contravention of the reporting procedures of that organization: Id. at para. 3.2. In contrast, the notion of "unregulated fishing" refers to fishing that is (1) in the area of application of a relevant regional fisheries management organization, conducted by vessels without nationality, or by those flying the flag of a State not party to that organization, or by a fishing entity, in a manner that is not consistent with or contravenes the conservation and management measures of that organization; or (2) in areas or for fish stocks in relation to which there are no applicable conservation or management measures and where fishing activities are conducted in a manner inconsistent with State responsibilities for the conservation of living marine resources under international law. IPOA-IUU Plan, n. 1 above, at para. 3.3. 2. IUU fishing is sometimes called "high seas poaching" or "fish piracy," but these terms are not accurate in light of the international legal definition of piracy. See Organisation for Economic Cooperation and Development, "Why Fish Piracy Persists: The Economics of Illegal, Unreported and Unregulated Fishing" (2005) and OECD, "Making Sure Fish Piracy Doesn't Pay," Policy Brief (Jan. 2006), available online: . 3. High Seas Task Force, Closing the Net: Stropping Illegal, Fishing on the High Seas, Governments of Australia, Canada, Chile, Namibia, New Zealand, the United Kingdom, the WWF, the IUCN, and the Earth Institute at Columbia University at 18 (2006), available online: (hereafter High Seas Task Force). The Environmental Justice Foundation has estimated the cost of IUU fishing to developing countries at US$2-15 billion per year: Environmental Justice Foundation, Pirates and Profiteers: How Pirate Fishing Fleets Are Robbing People and Oceans (London: Environmental Justice Foundation, 2005). 4. See generally High Seas Task Force, n. 3 above. See also C.-C. Schmidt, "Economic Drivers of Illegal, Unreported and Unregulated (IUU) Fishing," The International Journal of Marine and Coastal Law 20 (2005): 479-507. 5. In 2006, the FAO reported that, as of 2005, about one-quarter of the stock groups monitored were "underexploited or moderately exploited ... whereas about half of the stocks were fully exploited.... The remaining stocks were overexploited, depleted or recovering from depletion": FAO Fisheries Department, The State of World Fisheries and Aquaculture, at 7 (2006), available online: .

  • 6. M. Lack and G. Sant, "Patagonian Toothfish: Are Conservation and Trade Measures Working?," Traffic Bulletin 19, no. 1 (2001), available online: . 7. EJ. Molenaar, "CCAMLR and Southern Ocean Fisheries," The International Journal of Marine and Coastal Law 16 (2001): 465-500. 8. Compare Lank and Sant, n. 6 above, and "Spanish Magnate Faces US Trial for Illegal Toothfish Trade," Mercopress, June 30, 2006, available online: . 9. Convention on the Conservation of Antarctic Marine Living Resources, done at Canberra on 20 May 1980, entered into force 7 Apr. 1982, 1329 UNTS 47 (hereafter CCAMLR). In 2007, the following States were Parties to CCAMLR: Argentina, Australia, Belgium, Brazil, Bulgaria, Canada, Chile, China, Cook Islands, European Community, Finland, France, Germany, Greece, India, Italy, Japan, Korea, Mauritius, Namibia, Netherlands, New Zealand, Norway, Peru, Poland, Russia, South Africa, Spain, Sweden, Ukraine, United Kingdom, United States, Uruguay, and Vanuatu. See CCAMI,R's website, available online: . 10. See CCAMLR, "CCAMLR's Management Approach," available online: and R.P. Hewitt et al., "Setting a Precautionary Limit for Antarctic Krill," Oceanography 15 (2002), available online: .

  • 11. CCAMLR, n. 9 above, at art. II. 12. See D.G.M. Miller, E.N. Sabourenkov and D.C. Ramm, "Managing Antarctic Marine Living Resources: The CCAMLR Approach," International Journdl of Marine and Coastal Law 19 (2004): 317-366.

  • 13. L. Fallon and L. Kriwoken, "International Influence of an Australian Non- government Organization in the Protection of Patagonian Toothfish," Ocean Development and International Law 35 (2004): 221-266. 14. CSIRO, Patagonian Toothfish (CSIRO Marine Research Communications) (1998) and A. Cascorbi, Seafood Watch, Seafood Report: Chilenn Se�bass: Patagonian Toothjsh (Dissostichus eleginoides) and Antarctic Toothfish (Dissostichus mar�soni) (Draft Report No. 1 (2002)). 15. CCAMLR, Report of the Truenty First Meeting of the Commission (CCAMLR: Hobart, Australia, 2002). 16. K. Dodds, "Geopolitics, Patagonian Toothfish and Living Resource Regula- tion in the Southern Ocean," Third World Quarterly 21 (2000): 299. 17. See Lack and Sant, n. 6 above. 18. See Fallon and Kriwoken, n. 13 above.

  • 19. See Lack and Sant, n. 6 above. 20. Patagonian toothfish are also referred to as Mero (Japan), Butterfish (Mauritius), Robalo (Spain), Merluza Negra (Argentina), and Bacalao de Profundi- dad (Chile). Some of these names, such as Butterfish, are also used as generic descriptions of other species and can intentionally or unintentionally confound trade statistics and catch estimates. Chile was the first country to commercially export D. eleginoides to the United States, and for this reason the species is known as Chilean sea bass in the United States. See U.R. Sumaila, "The Cost of Being Apprehended Fishing Illegally: Empirical Evidences and Policy Implications," OECD Directorate of Food, Agriculture and Fisheries, Doc. AGR/FI/IUU (6 Apr. 2004), at 12, available online: . 21. See generally High Seas Task Force, n. 3 above. The Patagonian toothfish issue exemplifies problems encumbering natural resource management at the international level. Scientists estimated in 2000 that toothfish stocks around the Prince Edward Islands and Crozet Island decreased (supposedly from IUU fishing) to 10 percent and 25 percent, respectively, of their original biomass. Lack and Sant, n. 6 above. With stock levels so depressed, the number of Patagonian toothfish left in these areas may not be sufficient to repopulate the surrounding waters if the current fishing rate is maintained. 22. See Miller et al., n. 12 above; D. Vidas, "Emerging Law of the Sea Issues in the Antarctic Maritime Area: A Heritage for the New Century?," Ocean Development, and International Lam 31 (2000): 197-222.

  • 23. Antarctic and Southern Ocean Coalition, CCAMLR XXIV Meeting Report (Hobart, Australia, 24 Oct.-4 Nov. 2005) (February 2006), available online: . 24. CCAMLR, Report of the Twenty-Fifth Meeting of the Commission (Hobart, , Australia: 23 Oct.-3 Nov. 2006), p. 31, available online: .

  • 25. United Nations Convention on Law of the Sea, done at Montego Bay 10 Dec. 1982, entered into force 16 Nov. 1994, 1834 United Nations Treaty Series 396, available online: [Hereinafter UNCLOS]. 26. Id. at Part V, arts. 55-63. 27. Id. at art. 87.

  • 28. A. Pardo, "An Opportunity Lost," in B. Oxman, D.D. Caron, and C.L.O. Buderi, eds., Laru of the Sea: f7.& Policy Dilemma (San Francisco: Institute for Contemporary Studies, 1983), p. 19. 29. See Marine Resource Assessment Group, Review of Impacts of Illegal, Unreported and Unregulated Fishing on Developing Countries: Synthesis Report (July 2005), available online: . See also T. Scovazzi, "Marine Protected Areas on the High Seas: Some Legal and Policy Considerations," International Journal of Marine and Coastal Laru 19 (2004): 1-18. 30. The Antarctic Treaty, done 1 Dec. 1959, entered into force June 23, 1961. 12 U.S.T. 794, TIAS No. 4780, 402 United Nations Treaty Series 71. For discussion of the Antarctic Treaty System, see "Governance Structures," in C. Joyner, Governing the Frozen Commons: The Antarctic Regime and Environmental Protection (Colombia: University of South Carolina Press, 1998), pp. 54-83 and Scientific Committee on Antarctic Research, The Antarctic Treaty System: An Introdnction, available online: . 31. CCAMLR's Ecosystemic Approach, available online: . See generally Miller, n. 12 above.

  • 32. CCAMLR, n. 9 above, at art. 11(1). 33. Id. at art. II (2). 34. The ecosystem approach does not focus on any one species fished. Rather it aims to diminish the risk of fishers adversely affecting "dependent and related species," that is, those species for which humans compete for food. Regulating large and complex marine ecosystems such as the Southern Ocean, however, is a monumental task for which both sufficient knowledge and adequate tools are lacking. Instead, CCAMLR's approach is to regulate human activities (i.e., fishing) so that damaging alterations in the Antarctic ecosystems are avoided. Application of the ecosystem approach allows CCAMLR to deal with the entire complexity of marine ecosystems by "designating species considered to be most important in the food chain (so-called 'indicator' species), or by focusing on stocks within somewhat arbitrarily defined geographic regions or management areas." W.K. de la Mare, "CCAMLR's Management Tasks and the Definition of its Operational Objectives," available online: . 35. Article I of CCAMLR provides for the jurisdictional boundary of the agreement to runs as follows: 4. The Antarctic Convergence shall be deemed to be a line joining the following points along parallels of latitude and meridians of longitude: 50°S, 0°; 50°S, 30°E; 45°S, 30°E; 45°S, 80oE; 55°S, 80°E; 55°S, 150'E; 60°S, 150°E; 60°S, 50°W; 50°S, 50°W; 50°S, 0°. CCAMLR, n. 9 above, at art. 1(4).

  • 36. As provided for in Article VI, The provisions of the present treaty shall apply to the area south of 60° South Latitude, including all ice shelves, but nothing in the present treaty shall prejudice or in any way affect the rights, or the exercise of the rights, of any State under international law with regard to the high seas within that area. Antarctic Treaty, n. 30 above, at art. VI. 37. The Commission is established under Article IX of the Convention and aims to implement the conservation objectives and management principles set out in Article II of the Convention. Members of the Commission currently include Argentina, Australia, Belgium, Brazil, Chile, the European Community, France, Germany, India, Italy, Japan, Korea, Namibia, New Zealand, Norway, Poland, Russia, South Africa, Spain, Sweden, Ukraine, the United Kingdom, the United States, and Uruguay. Ten CCAMLR Parties are not members of the Commission: Bulgaria, Canada, Cook Islands, Finland, Greece, Mauritius, the People's Republic of China, the Netherlands, Peru, and Vanuatu. See "Official member contacts," available online: . 38. All Members of the Commission are also Members of the Scientific Committee. CCAMLR, n. 9 above, art. XIV. The Scientific Committee furnishes a forum for consultation and cooperation on the collection, study and exchange of information necessary for the Commission to make prudent decisions. To this end, it advises the Commission on harvesting levels and other management measures deduced from consultation and the application of advanced scientific techniques. See Scientific Committee, available online: . 39. "CCAMLR's Management of the Antarctic," Convention on the Conserva- tion of Antarctic Marine Living Resources, available online: .

  • 40. D. Bialek, "Sink or Swim: Measures under International Law for the Conservation of the Patagonian Toothfish in the Southern Ocean," Ocean Develop- ment and Interrcational Law 34 (2003): 105-137. 41. See UNCLOS, n. 25 above, at art. 116. This provision reads as follows: "All States have the right for their nationals to engage in fishing on the high seas subject to: (a) their treaty obligations; (b) the rights and duties as well as the interests of coastal States provided for, inter alia, in article 63, paragraph 2, and articles 64 to 67; and (c) the provisions of this section." 42. Id., art. 117. This provision reads as follows: "All States have the duty to take, or to cooperate with other States in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas." " 43. The seven States that claim portions of Antarctica as their national territory are Argentina, Australia, Chile, France, New Zealand, Norway, and the United Kingdom. 44. In full, Article IV of the Antarctic Treaty provides that: Nothing contained in the present Treaty shall be interpreted as: a. a renunciation by any Contracting Party of previously asserted rights of or claims to territorial sovereignty in Antarctica; b. a renunciation or diminution by any Contracting Party of any basis of claim to territorial sovereignty in Antarctica which it may have whether as a result of its activities or those of its nationals in Antarctica, or otherwise;

  • c. prejudicing the position of any Contracting Party as regards its recognition or non-recognition of any other State's rights of or claim or basis of claim to territorial sovereignty in Antarctica. No acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica. No new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force. Antarctic Treaty, n. 30 above, at art. IV. 45. In full, Article IV of CCAMLR provides: 1. With respect to the Antarctic Treaty area, all Contracting Parties, whether or not they are Parties to the Antarctic Treaty, are bound by Articles IV and VI of the Antarctic Treaty in their relations with each other. 2. Nothing in this Convention and no acts or activities taking place while the present Convention is in force shall: (a) constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in the Antarctic Treaty area or create any rights of sovereignty in the Antarctic Treaty area; (b) be interpreted as a renunciation or diminution by any Contracting Party of, or as prejudicing, any right or claim or basis of claim to exercise coastal state jurisdiction under international law within the area to which this Convention applies; (c) be interpreted as prejudicing the position of any Contracting Party as regards its recognition or non-recognition of any such right, claim or basis of claim; (d) affect the provision of Article IV, paragraph 2, of the Antarctic Treaty that no new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the Antarctic Treaty is in force.

  • 46. See C.C. Joyner, Antarctica and the Larn of the Sea (The Hague: Martinus Nijhoff, 1992), pp. 17-28.

  • 47. See CCAMLR, "Convention Area Map," available online: . 48. "CCAMLR's Management of the Antarctic," Convention on the Conserva- tion of Antarctic Marine Living Resources, available online: . 49. See Schedule of Conservation Measures in Force 2006-2007, available online: . 50. Closure of the fishing season in some areas also occurs on the basis of seabird breeding seasons. 51. Moreover, there is the problem of weak flag State control of fishing vessels, which undercuts CCAMLR's ability to enforce its fishing conservation measures. See C.C. Joyner, "Compliance and Enforcement in New International Fisheries Law," Terreple Internationnl and Comparative Law Journal 12 (1998): 271. 52. See Lack and Sant, n. 6 above, at 5. 53. CCAMLR, Report of the Twenty-Fifth Meeting of the Commission, at 31. 54. Id.

  • 55. Id. at 37. 56. Schmidt, n. 4 above, 479. 57. Id. 58. See J. Swan, Fishing Vessels Operating under Open Registers and the Exercise of Flag .State Resfionsibility: Information and Options, FAO Fisheries Circular No. 980, FIPL/C980, Appendix I, at 43. 59. M. Gianni and W. Simpson, The Changing Nature of High Seals Fishing: How Flags of Convenience Provide Cover four Illegal, Ilnrefiorted and Llnregulated Fishing

  • (Australian Department of Agriculture, Fisheries and Forestry, International Transport Workers' Federation and WWF International (2005): 15. 60. Id., at 26. "Reflagging" involves a situation in which nationals of a State flag their vessel under the jurisdiction of another State that is not fulfilling its flag State responsibilities, with the aim of avoiding compliance with conservation and management measures adopted by a RFMO. One startling example illustrates this practice: the San Rafael 1, originally flagged to Belize, changed its name to the Sil after an encounter with a fisheries patrol around South Georgia in December 1999, and was then renamed the Anyo Maro 22, and finally the Amur, flagged to Sao Tome e Principe, before it sank off Kerguelen Island on October 9, 2000. See DJ. Agnew and G.P. Kirkwood, "A Statistical Method for Analyzing the Extent of IUU Fishing in CCAMLR Waters: Application to Sub-Area 48.3." CCAMLR WG-FSA-02/4 (2002). 61. See Gianni and Simpson, n. 59 above, at 26-27. 62. Of these vessels, those registered as FOCs were to St Vincent (two), Belize (three), Panama (two), and Bolivia (four). Id. at 29. 63. A.K. Sydnes, "Regional Fishery Organizations: How and Why Organization- al Diversity Matters," 32 Ocean Developnrent and International Law 349 (2001). 64. See Sumaila, n. 20 above, and Bialek, n. 40 above, at 105.

  • 65. D. Freestone and KM. Gjerde, "Unfinished Business: Deep-Sea Fisheries and the Conservation of Marine Biodiversity Beyond National Jurisdiction," International Journal of Marine and Coastal Law 19 (2004): 209-222. 66. Agreement to Promote Compliance with International Conservation Mea- sures by Fishing Vessels on the High Seas, opened for signature in Rome 24 Apr. 1993, entered into force 24 Apr. 2003. 2221 United Nations Treaty Series 120, available online: . 67. United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation of Straddling Fish Stocks and Highly Migratory Fish Stocks, done at New York on 4 Aug. 1995, entered into force 11 Dec. 2001. 2167 United Nations Treaty Series 88, available online: (hereafter UN Fish Stocks Agree- ment). 68. Food and Agriculture Organization of the United Nations Code of Conduct for Responsible Fisheries, adopted at Rome 31 Oct. 1995, available online: . See also the Code of Conduct special website, available online: . 69. IPOA-IUU Plan, n. 1 above.

  • 70. Compliance Agreement, n. 66 above, at art. III ( 1 ) . 71. Id. at art. III(2). 72. Id. at art. III(5). 73. Id. at art. III(7). 74. Id. at art. III(8). 75. Id. at art. IV. 76. As of October 2006, the following parties to CCAMLR are also parties to the FAO Compliance Agreement: Argentina, Australia, Canada, Chile, European Community, Japan, Mauritius, New Zealand, Norway, the Republic of Korea, Sweden, the United States, and Uruguay. 77. UNCLOS, n. 27 above, Part VII (high seas), Part VII section 2 (conservation and management of living resources of the high seas), and Annex I (highly migratory species).

  • 78. UN Fish Stocks Agreement, n. 67 above, arts. 5 and 6 and Annex II. 79. Id. at art. 8(1). 80. Id. at art. 9. 81. Id. at art. 10. 82. Id. at art. 17(1). 83. Id. at art. 17(2).

  • 84. See UN Fish Stocks Agreement, n. 67 above, at art. 8. 85. Indeed, paragraphs 1 and 2 of Article 17 in the Fish Stocks Agreement stipulate that: 1. A State which is not a member of a subregional or regional fisheries management organization or is not a participant in a subregional or regional fisheries management arrangement, and which does not otherwise agree to apply the conservation and management measures established by such organization or arrangement, is not discharged from the obligation to cooperate, in accordance with the Convention and this Agreement, in the conservation and management of the relevant straddling fish stocks and highly migratory fish stocks. 2. Such State shall not authorize vessels flying its flag to engage in fishing operations for the straddling fish stocks or highly migratory fish stocks which are subject to the conservation and management measures estab- lished by such organization or arrangement. Fish Stocks Agreement, n. 67 above, art. 17, paras. 1 and 2. 86. CCAMLR Members who are also parties to the Straddling Stocks Conven- tion include: Australia, Belgium, Brazil, Canada, Cook Islands, the European Community, Finland, France, Germany, Greece, India, Italy, Japan, Mauritius, Namibia, the Netherlands, New Zealand, Poland, the Russian Federation, Spain, Sweden, Ukraine, the United Kingdom, the United States, and Uruguay. Signatory CCAMLR States include Argentina, China, and Vanuatu. 87. FAO Code of Conduct for Responsible Fisheries, n. 68 above. The background chronicling the Code's development is contained in Annex I attached to the Code.

  • 88. Id. at art. 1. As provided for in Article 1 of the Code, This Code is voluntary. However, certain parts of it are based on relevant rules of international law, including those reflected in the United Nations Conven- tion on the Law of the Sea of 10 December 1982. The Code also contains provisions that may be or have already been given binding effect by means of other obligatory legal instruments amongst the Parties, such as the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, 1993, which, according to FAO Conference resolution 15/93, paragraph 3, forms an integral part of the Code. 89. Id. at art. 2. The FAO Code applies to all fisheries, including fisheries on the high seas, within EEZs, in territorial waters, and inland fisheries, even when located within shared waters.

  • 90. Ill. at art. 6. 91. IPOA-IUU, n. 1 above. IPOA-IUU was developed within the framework of the Code of Conduct for Responsible Fisheries as a voluntary instrument, in response to a call for action by the 23rd Session of the FAO Committee on Fisheries. The initial draft text for IPOA-IUU fishing was elaborated at an Expert Consultation (in Sydney, Australia, in May 2000) and adopted by consensus at the 24th Session of the FAO Committee on Fisheries in March 2001. See W. Edeson, "The International Plan of Action on Illegal, Unreported and Unregulated Fishing: The Legal Context of a Non-Legally Binding Instrument," The International Journal of Marine and Coastal Law 16 (2001): 603-624. 92. IPOA-IUU, n. 1 above, at art. III. 8. 93. Id. at arts. IV.18-19. 94. Id. at arts. IV.21-24.

  • 95. Id. at arts. IV.36-41. 96. Id. at art. IV.51. CCAMLR did this on its own initiative. 97. Id. at art. IV.69. CCAMLR did this on its own initiative. 98. Id. at art. IV.73.

  • 99. Dodds, n. 16 above. 100. CCAMLR Resolution 12/XVI (1997), which was incorporated into Conservation Measure 148/XVII (1998). In 2007 VMS is being implemented through Conservation Measure 10-04 (2006): Automatic satellite-linked Vessel Monitoring Systems. See . 101. The Catch documentation scheme was adopted in 1999 through Conser- vation Measure 170/XVII (1999) and became binding on CCAMLR members on 7 May 2000 by Conservation Measure 10-05 (2006), available online: . 102. Conservation Measures 10-06 and 10-07 (2006) (CP-IUU Vessel List). See Schedule of Conservation Measures in Force 2006/07, available online: .

  • 103. See Bialek, n. 40 above, at 105-137. 104. High Seas Task Force, n. 3 above, at 27. See EJ. Molenaar and M. Tsamenyi, Satellite Based Vessel Monitoring Systems: Interizational Legal Aspects & Developments in State Practice (FAO Legal Papers Online #7) (April 2000), available online: . Contracting parties must have installed VMS on their toothfish fishing vessels by 31 December 2000. 105. Conservation Measure 10-04 (2006), n. 100 above, para. 1. 106. Id. at para. 3. 107. This exception came at the insistence of Japan, Poland, the Republic of Korea, and Ukraine. Vessels from these States are involved in commercial krill fishing in the CCAMLR Area, and, reportedly, their governments used the consensus-based decision making process of CCAMLR to this end. See T. McDor- man, "Implementing Existing Tools: Turning Words Into Actions-Decision-Mak- ing Processes of Regional Fisheries Management Organizations (RFMOs)," Interna- tional Journal of Marine and Coastal Law 20 (2005): 423-457. 108. High Seas Task Force, n. 3 above, at 28.

  • 109. This was the case of the Viarsa I, detected fishing illegally in the Australian fishing Zone off Heard Island and arrested some 2,000 miles off Cape Town following a three-week-long hot pursuit across the Southern Ocean in August 2003. Australia's research vessel, the Aurora Australis, caught two vessels fishing off the Antarctic coast when their VMS systems indicated they were beyond CCAMLR's jurisdiction, some 600-1,000 miles to the northwest. Id. at 85, at n. 12. 110. Id. at 28. These GPS devices sell in the range of US$900-$2,600, a small price to pay for harvesting a fishery that can bring in a hundred times that amount in profits. See Furuno NavPiolot 500/, available online: and ... 111. High Seas Task Force, n. 3 above, at 28-29. 112. Provisions on Secure a Confidential Treatment of Electronic Reports and Messages transmitted Pursuant to Conservation Measure 10-04, Annex 10-04/B, available online: . 113. Conservation Measure 10-04, n. 100 above, at para. 11. 114. CCAMLR Resolution 17/XX.

  • 115. "CCAMLR's Management of the Antarctic," Convention on the Conserva- tion of Antarctic Marine Living Resources, available online: . In opera- tion since 2000, the CDS now counts three non-Contracting Parties to CCAMLR (China, Seychelles, and Singapore) as Members, as well as three acceding States (Canada, Mauritius, and Peru). By September 2005, the total number of documents (landing, transshipment, export and import exchanges) totaled over 30,000. Report of the Twenty-Fourth Meeting of the Commission (Hobart, Australia, 24 October-1 November 2005), para. 2.8, available online: . See generally DJ. Agnew, "The Illegal and Unregulated Fishery for Toothfish in the Southern Ocean and the CCAMLR Catch Documenta- tion Scheme," Marine Policy 24 (2000): 316-361. 116. L.A. Chaves, "Illegal, Unreported and Unregulated Fishing: WTO-Consis- tent Trade Related Measures to Address IUU Fishing," FAO doc. DOCUMENT AUS:IUU/2000/16 (2000), available online: .

  • 117. Although the EC was in contravention of the binding CCAMLR conserva- tion measure for some twelve months, EU Member States became bound to the CDS on 20 June 2001 through Council Regulation No. 1035/2001. Each Member State implemented this resolution though its own domestic legislation that sets out penalties for various types of fishing violations. Id. at 10. 118. See Molenaar, n. 7 above, at 489. 119. Id. In reaction to this finding the CCAMLR adopted Resolution 17/XX. See CCAMLR Resolution 17/XX, Use of VMS and Other Measures for the Verification of CDS Catch Data for Areas outside the Convention Area, in particular,

  • in FAO Statistical Area 51, available online: . 120. As provided for in Conservation Measure 10-06 (2006): Scheme to Promote Compliance by Contracting Party Vessels with CCAMLR Conservation Measures, available online: . But compare High Seas Task Force, n. 3 above, at 29. 121. See Lack and Sant, n. 6 above, at 11. 122. CCAMLR Observation and Inspection System (OIS), art. I. The genesis of this system goes back to 1984, when it was first raised by the United Kingdom. See CCAMLR, Report of the Third Meeting of the Commission (1984), para. 26. With strong input by the United States, the Scientific Committee eventually fashioned an accepted scheme by 1988, which was adopted by the Commission. See CCAMLR, Report of the Seventy Meeling of the Commission (1988), paras. 124-129. The system was activated for the 1989-1990 season.

  • 123. OIS, n. 122 above, at art. I (d). 124. Id. at art. III (c). 125. Id. at art. III(b). 126. Id. at Arts. V and VI. 127. Id. at art. VIII. 128. Id. at art. IX. 129. Id. 130. Id.

  • 131. See CCAMLR Doc. "Operation of the System of Inspection and Compli- ance with Conservation" in Report of the Standing Committee on Observation and Inspection (SCOI), Annex 5 (2000-2001), available online: . 132. CCAMLR, Report of the Twenty fourth Meeting of the Comrreission, Annex 5 ("Report of the Standing Committee on Implementation and Compliance," (2005) at 146, available online: . 133. W. Hardin, "Cargo Inspection: Imaging Solutions Wait for Governments Call," Machine Vision Online, available online: . More recent statements sug- gested that in 2006 the figure for all containers may have improved to 5 or 6 percent. See "Democrats Ask, Do You Feel Safer?" FactCheck.org (18 August 2006), available online: . 134. High Seas Task Force, n. 3 above, at 56.

  • 135. Id. at 29-30. 136. Id. at 29. 137. Resolution 15/XXII, Use of ports not implementing the Catch Documen- tation Scheme for Dissostichus spp., available online: . 138. Scientific Committee Report 24 (2005). SC-CCAMLR-XXIV. Annex 5. New and Exploratory Fisheries, available online: .

  • 139. CCAMLR Conservation Measure 41-01 (2006), available online: . 140. Scientific Committee Report 24 (2005). SGCCAMLR-XXIV. Annex 5. New and Exploratory Fisheries, available online: . 141. CCAMLR Conservation Measure 41-01. 142. CCAMLR Conservation Measure 41-01. 143. Report of the CCAMLR Workshop on Marine Protected Areas (Silver Spring, MD, 29 August-1 September 2005), available online: .

  • 144. CCAMLR, art. IV, available online: . 145. Report of the Twenty-Fifth Meeting of the CCAMLR Commission, Item 12: Conservation Measures. 146. Convention on Biological Diversity, 1992, Decision VI/26, available online: . 147. Protocol on Environmental Protection to the Antarctic Treaty, Ilth Special Consultative Meeting in Madrid, Doc. XI ATSCM/2 June 21, 1991, adopted 4 October 1991, Annex V. 148. Id. 149. Id. 150. Australian Government Antarctic Division. HIMI Marine Reserve Man- agement Plan. 2005, available online: .

  • 151. See Report of the CCAMLR Workshop on Marine Protected Areas, n. 143 above, at 14-15. 152. Id. at 15, para. 76. 153. Id. at para. 77. 154. Id. at para. 130.

  • 155. Id. at paras. 83-91. 156. Id. at paras. 93-104. 157. Id. 158. Id. 159. Id. at paras. 107-143. 160. CCAMLR Report of the Twenty-Fifth Meeting of the Commission (2006) Item 6: Marine Protected Areas, available online: .

  • 161. CCAMLR Policy to Enhance Cooperation between CCAMLR and Non- Contracting Parties, available online: . 162. Id. 163. Resolution 25/XXV, "Combating Illegal, Unreported and Unregulated Fishing in the Convention Area by the Flag Vessels of Non-Contracting Parties," available online: . 164. CCAMLR Report of the 25th Meeting of the Commission (2006). Item 9: IUU Fishing, available online: . 165. Conservation Measures 10-06 and 10-07 (2006) (CP-IUU Vessel List). See Schedule of Conservation Measures in Force 2006-2007, available online: .

  • 166. Id. 167. Id. 168. The Russian vessel Volna is a prime example. Several Commission members feel that there is overwhelming evidence that the Volna engaged in IUU fishing inside Subarea 88.1 from 22 Jan. until 1 Feb. 2006. Russia opposed the inclusion of its vessel on the CP-IUU Vessel List, claiming that the vessel was in the area to reposition for longlining sets in other areas and that the fishing gear found had broken free and drifted in from another area. The issue was not resolved and the Commission decided to postpone a decision regarding the inclusion of the vessel until CCAMLR XXVI. Russia's refusal to admit involvement in alleged IUU activities and the postponement of the Volna's inclusion on the IUU list do not send a positive message to the wider community about CCAMLR's ability to deal with its own illegal vessels. See CCAMLR Report of the 25th Meeting of CCAMLR (2006). Item 9: IUU Fishing, available online: . 169. "Australia Sends Armed Ship to Protect Patagonian Toothfish," 17 Dec. 2003, available online: ; BBC World News, "Australia charges toothfish crew," 13 Feb. 2004, available online: ; and BBC World News, "High-Seas Chase Nets Fish Poachers," 13 Apr/2001, available online: . See also Fallon and Kriwoken, n. 13 above, and R. Baird, "Coastal State Fisheries Management: A Review of Australian Enforcement Action in the Heard and McDonald Island Australian Fishing," Deakin Laru Review 9 (2004): 91-120.

  • 170. See Coalition of Legal Toothfish Operators (COLTO), available online: and "Media Updates," available online: . 171. Coalition of Legal Toothfish Operators (COLTO), 2004, available online: Camuoco, Panama v. France ITLOS, Press release 35, no. 7, Feb. 2000. See also Organisation for Economic Cooperation and Development, "Fish Piracy: Combating Illegal, Unregulated and Unreported Fishing," OECD, Environ- ment and Sustainable Developments 11 (2004): 9-19. 173. High Seas Task Force, n. 3 above, at 33.

  • 174. See, e.g., The M/V "Saiga" Case: Judgment (Saint Vincent and the Grenadines v. Guinea), Application for Prompt Release, Case No. 1 (December 1997), available online: ; The "Camuoco" Case: Judgment (Panama v. France), Application for Prompt Release, Case No. 5, available online: (7 February 2000); The "Monte Confurco" Case: Judgment (Seychelles v. France), Application for Prompt Release, Case No. 6, available online: . 175. See ITLOS Press release 35, no. 7 February2000, "Tribunal Delivers Judgment in the `Camuoco' Case (Panama v. France)," available online: . This trend became more evident after the Volga case in 2002. See ITLOS/Press 75 - 23 December 2002, "Judgment delivered in the `Volga' Case," available online: .

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