The CCAMLR Compliance Evaluation Procedure

ABSTRACT

The Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) has developed an institutional Compliance Evaluation Procedure (CCEP). The CCEP aims to enhance CCAMLR’s compliance enforcement capabilities by evaluating fisheries monitoring information, compliance control actions and CCAMLR Contracting Party (CP) cooperation. It appears to improve implementation of CCAMLR Conservation Measures (CMs) in meeting Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention) objectives. The legal responsibilities of CPs are considered in relations to the CCEP’s perceived performance in promoting responsible fishing within the CCAMLR Area. Various ideas on the CCEP’s future are offered.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes on contributors

Denzil is a professorial fellow at the University of Wollongong and Senior Adjunct Researcher at the University of Tasmania. He has been involved in Antarctic, marine science and governance for close to forty years. Denzil has served as CCAMLR Executive Secretary and Chair of its Scientific Committee, being awarded the South African Antarctic Medal (1995) and Duke of Edinburgh Conservation Medal (2007) for this work. He was inaugurated as a Member of the Order of Australia (2011) for his Antarctic and marine conservation efforts.

Elise is completing a PhD in Law at the University of Tasmania, while working for the Australian Federal Government on Commonwealth Marine Reserves. Elise’s career in marine governance has seen her attend the International Tribunal for the Law of the Sea in Germany, manage Australia’s foreign compliance efforts for the Australian Fisheries Management Authority and undertake stakeholder engagement for Australia’s offshore petroleum regulator.

Notes

1 Effective conservation includes sustainable resource use and optimises environmental yield to benefit current generations and meet the needs and aspirations of future generations (Anon 2014).

2 ‘Responsible fishing’ in the 1995 FAO Code of Conduct for Responsible Fisheries (FAO 1995) implies concern for fisheries resource conservation, management and development. By implication, fisheries that are not ‘responsible’ are ‘irresponsible’.

3 Non-compliance occurs represents a failure, or refusal, to abide by agreed pre-conditions, legal provisions, or contracts. <http://www.dictionary.com/browse/noncompliance> (2 July 2018).

4 Annex 6, paragraph 7 (CCAMLR 2009). (All official CCAMLR documents are accessible on the CCAMLR Website). <https://www.ccamlr.org/> (20 July 2018). <https://www.ccamlr.org/en/publications/publications> (8 August 2018).

5 Having signed the Convention (Article XXIX.3), CCAMLR Contracting Parties (CPs) meeting Article VII.1 conditions are eligible to become CCAMLR Members, participate in decision-making (Article XII) and contribute to the budget (Article XIX.3) (CCAMLR 2017a).

6 Convention Article VII imparts legal personality and capacity to the Commission to perform its functions and achieve the Convention’s purposes in the territory of each States Party. Under Article IX, giving effect to Article II objectives and principles is the Commission’s main function. This is achieved by facilitating scientific research, compiling relevant data, identifying conservation needs, formulating/adopting CMs, disseminating information and undertaking activities consistent with the Convention objective.

7 Convention Articles II.2 and II.3 (CCAMLR 2017a).

8 CCAMLR agreed (paragraph 113; CCAMLR 1987) that ‘rational use’ requires progressive refinement in conformity with sustainable-use elements outlined in paragraph 115 and as knowledge and understanding of the Antarctic marine ecosystem develop (CCAMLR 1987).

9 According to the authors –

The [ATCM] Working Group [on Marine Living Resources] agreed to include in its Report the understanding of the Group that the word ‘conservation’ as used in the draft Recommendation includes rational use, in the sense that harvesting would not be prohibited, but the regime would exclude catch allocation and other economic regulation of harvesting.

10 What constitutes ‘best available science’ is elaborated in Resolution 31/XXVIII (CCAMLR 2017a), with the Scientific Committee (SC-CAMLR)(Article XIV) tasked to provide scientific advice based on the best scientific evidence available (Articles IX.1.(f), and IX.4).

11 This includes the Treaty Area south of 60^oS.

12 Particularly Convention Articles III to V.

13 Previously known as the Standing Committee on Observation and Inspection (SCOI) between 1989 and 2002.

14 Rachel Baird (Baird 2004) credits CCAMLR with coining the phrase ‘IUU fishing’ and being the first organisation to generically acknowledge non-compliant fishing.

15 Paragraph 8.7 (CCAMLR 2011).

16 Given its unique and explicit links to the Antarctic Treaty, debate surrounds CCAMLR’s status as a Regional Fisheries Management Organisation (RFMO). It is customarily accepted that some Commission functions are RFMO-like, while CCAMLR’s objective is broader than most RFMOs.

17 Document CCAMLR-XXVII/44, Annex. 5, paragraph 2.42 (CCAMLR 2008a). (Paper available from CCAMLR on request).

18 Paragraph 7.30 (CCAMLR 2006). The group was tasked with considering compliance elements identified by the CCAMLR Secretariat (Documents-CCAMLR-XXV/37 and SCIC-06/10)(Papers available from CCAMLR on request). Subsequent deliberations elaborated compliance evaluation criteria and a standardised evaluation procedure model to consistently evaluate vessel CM compliance.

19 Paragraph 8.7 (CCAMLR 2011) and CM 10-10 (CCAMLR 2012, 2017b).

20 Annex 6, paragraph 2.42 (CCAMLR 2010).

21 CCAMLR Document DOCEP-09-04 (CCAMLR 2009). (Paper available from CCAMLR on request).

22 Annex 6 (CCAMLR 2009).

23 CMs 10-06 and 10-07 – Unless indicated, all CMs referenced are from the current schedule of measure in force for 2017/18 (CCAMLR 2017b).

24 Annex 6, Appendix 5 (CCAMLR 2009). <https://www.ccamlr.org/en/ccamlr-xxviii> (17 August 2018).

25 Inherent risk precedes control, while residual risk remains after control is applied. <http://www.afma.gov.au/wp-content/uploads/2017/05/National-Compliance-Risk-Assessment-Methodology-2017-19.pdf> (17 August 2018).

26 As Endnote 5 elaborates, only CPs meeting Article VII.2 requirements become Commission Members, participate in decision-making (Article XII) and contribute to CCAMLR’s budget (Article XIX.3). Usually, most CMs are taken to apply to Members (Article IX) only, but it is also assumed that CPs are bound to CCAMLR-agreed CMs where relevant (Articles IX.5, X.2 and XI) (CCAMLR 2017a).

27 The Agreement was unanimously approved by the 27th Session of the FAO Conference in November 1993. It entered into force on 24 April 2003. <http://www.fao.org/fileadmin/user_upload/legal/docs/012t-e.pdf> (10 September 2018).

28 Tables 1 and 2, Paper DOCEP 09/04 (CCAMLR 2009) list elements, sub-elements, attached actions and measures associated with CAMLR CP compliance performance. Table 2 in this paper only illustrates higher order elements. WG-DOCEP used both DOCEP 09/04 Tables 1 and 2 to provide a comparative inventory of compliance elements for 12 RFMOs.

29 The 12 RFMOs compared were CCAMLR, the Commission for the Conservation of Southern Bluefin Tuna (CCSBT), General Fisheries Commission for the Mediterranean (GFCM), Inter-American Tropical Tuna Commission (IATTC), International Commission for the Conservation of Atlantic Tuna (ICCAT), Indian Ocean Tuna Commission (IOTC), North Atlantic Fisheries Organisation (NAFO), North Atlantic Salmon Conservation Organization (NASCO), North East Atlantic Fisheries Commission (NEAFC), South East-Atlantic Fisheries Organisation (SEAFO) and the Western and Central Pacific Fisheries Commission (WCPFC).

30 Page 3, CCAMLR Document DOCEP-09/04 and Annex 6,Appendix II (CCAMLR 2009).

31 Fishery access controls were initially confined to certain Dissostichus fisheries and the crab fishery. Transhipment regulations were limited to particular Dissostichus fisheries, as well as the Icefish (Champsocephalus gunnari) and crab fisheries. International scientific observation was initially confined to finfish fisheries and did not include the krill fishery. Trade reporting and catch certification were limited to Dissostichus fisheries. In all iterations, the CCAMLR Catch Documentation Scheme (CDS) (CM 10-05) includes both certification and documentation provisions. With centralisation of the CCAMLR Vessel Monitoring System (VMS), fishing vessel positions are reported directly to CCAMLR, or via the Fisheries Authority of the CP concerned (CM 10-04).

32 Paragraph 12.9 (CCAMLR 2010) extended CM 10-04 to the krill fishery. Footnote 4 was removed from the previous CM version with paragraph 10 and all paragraphs thereafter, except paragraphs 15 and 24, not applying to the krill fishery. <https://www.ccamlr.org/en/system/files/all_13.pdf > (23 July 2018).

33 Annex 6 (CCAMLR 2009).

34 Reference to observers means ‘scientific observers’ designated under the CCAMLR Scheme of International Scientific Observation (SISO) (Part 10 of CCAMLR (2017a)). <https://www.ccamlr.org/en/science/ccamlr-scheme-international-scientific-observation-siso> (28 July 2018).

35 Updated papers SCIC-06/10 (CCAMLR 2010) and DOCEP-09/5 (CCAMLR 2009). (Papers available from CCAMLR on request).

36 Annex 6 and Appendix 5 (CCAMLR 2009). <https://www.ccamlr.org/en/ccamlr-xxviii> (17 August 2018).

37 Annex 6, Appendix 5, Table 2 (CCAMLR 2009).

38 Paragraph 4 of CM 10-10 (CCAMLR 2017b).

39 As per paragraph 1.(i) of CM 10-10 (CCAMLR 2017b).

40 A full summary of CCEP evolution is available from the authors on request.

41 Annex 6, paragraph 71 (CCAMLR 2013).

42 Paragraph 3.13 (CCAMLR 2014).

43 Paragraphs 3.23, 3.24 and 3.25 (CCAMLR 2017c).

44 Paragraphs 3.9 and 3.10 (CCAMLR 2014).

45 Annex 6, paragraph 44 (CCAMLR 2009).

46 Annex 6, paragraphs 8.11 and 65 to 67 (CCAMLR 2016). The Commission endorsed SCIC advice to include a reference in CM 10-10 to Part D of SISO to facilitate consideration of observer-reported compliance issues (CCAMLR 2017a).

47 Annex 6, paragraph 43 (CCAMLR 2009).

48 For example – Annex 6, Appendix I (CCAMLR 2016).

49 Annex 8, paragraphs 3.22 to 3.50 (CCAMLR 2017c).

50 Annex 6, paragraphs 25 and 26 (CCAMLR 2014).

51 This includes decisions by all CCAMLR subsidiary bodies such as SC-CAMLR, SCIC, the Standing Committee on Administration and Finance (SCAF) and various working groups (WGs).

52 As per CM 10-06, paragraphs 8 to 11 (CCAMLR 2017b).

53 Paragraphs 9.39, 9.40 and 9.52 (CCAMLR 2006).

54 Paragraph 10.56 (CCAMLR 2007).

55 Annex 5, paragraphs 3.28 and 3.27 (CCAMLR 2007).

56 Annex 5, paragraph 3.29 (CCAMLR 2007).

57 Paragraph 10.66 (CCAMLR 2007).

58 Paragraph 10.67 (CCAMLR 2007).

59 For example – Annex 6, paragraph 6 and Appendix II (CCAMLR 2013).

60 Paragraph 10.57 (CCAMLR 2007).

61 For example – paragraph 12.22 (CCAMLR 2006).

62 This provision requires CPs to take appropriate measures within their competence to ensure compliance with the Convention’s provisions and adopted CMs.

63 Paragraph 100 and Criterion 3.32. (CCAMLR 2008b). The Review Panel stated that –

situations where CMs cannot be applied, or applied in a consistent way, throughout the Convention Area potentially undermine pursuit of the objectives of the Convention, although whether this actually occurs depends on the research, monitoring and management regime applied in those areas (paragraph 100).

The Panel recommended consistent harmonisation of management, monitoring and research throughout the Convention Area (Criterion 3.32).

64 Annex 8 and paragraphs 3.22 to 3.50 (CCAMLR 2017c).

65 Paragraph 3.50 (CCAMLR 2017c).

66 Paragraph 3.9 (CCAMLR 2014).

67 Paper CCAMLR-XXXIII/BG/27 (CCAMLR 2014).

68 Paragraphs 3.18 and 3.19 (CCAMLR 2014).

69 Paragraph 3.21 (CCAMLR 2014).

70 Annex 8, paragraphs 97 to 104 (CCAMLR 2014).

71 Paragraphs 3.13, 3.14 and 5.63 to 5.68 (CCAMLR 2014).

72 Annex 6, paragraph 6, 6, 11 and11 (CCAMLR 2014).

73 Annex 6, paragraph 40 (CCAMLR 2015).

74 Annex 6, paragraph 44 (CCAMLR 2015).

75 Annex 6, paragraph 21 (CCAMLR 2014).

76 Paragraph 21 and Annex 6, paragraphs 18 to 19 (CCAMLR 2014).

77 Annex 6, paragraph 107 (CCAMLR 2013).

78 Annex 6, paragraphs 23 and 24 (CCAMLR 2014).

79 Annex 6, paragraph 27 (CCAMLR 2014).

80 Annex 6, paragraph 28 (CCAMLR 2014).

81 Annex 6, paragraphs 31 and 32 (CCAMLR 2014).

82 Annex 6, paragraphs 33 and 34 (CCAMLR 2014).

83 Annex 6, paragraph 44 (CCAMLR 2014).

84 Annex 6, paragraphs 45, 46 and 47 (CCAMLR 2014).

85 Annex 6, paragraph 64 (CCAMLR 2014).

86 Annex 6, paragraphs 67, 68 and 69 (CCAMLR 2014).

87 Annex 6, paragraphs 72, 72 and 73 (CCAMLR 2014).

88 Annex 6, paragraph 62 (CCAMLR 2015).

89 Annex 6, paragraph 11 (CCAMLR 2015).

90 Annex 6, paragraph 12 (CCAMLR 2015).

91 CM 10-09, attached footnote and paragraph 2 (CCAMLR 2017b) and Annex 6, paragraph 24 (CCAMLR 2015).

92 Annex 6, paragraph. 25 (CCAMLR 2015).

93 Annex 6, paragraph 30 (CCAMLR 2015).

94 Annex 6, paragraph 31 (CCAMLR 2015).

95 Annex 6, paragraph 45 (CCAMLR 2015).

96 Annex 6, paragraph 62 (CCAMLR 2015).

97 Annex 6, paragraphs 56, 57, 58 and 59 (CCAMLR 2015).

98 Annex 6, paragraphs 41, 42, 43, 44, 45, 46 and 47 (CCAMLR 2016).

99 Annex, 6, paragraphs 48, 49 and 50 (CCAMLR 2014).

100 Annex 6, paragraph 5 (CCAMLR 2015).

101 Annex 6, paragraph 10 (CCAMLR 2016).

102 Annex 6, paragraph 44 (CCAMLR 2015).

103 Annex 6, paragraph 49 (CCAMLR 2016).

104 Annex 6, paragraph 46, 50 and 52 (CCAMLR 2015).

105 Annex. 6, paragraphs 64 to 66 (CCAMLR 2014) and Annex 6, paragraph 60. (CCAMLR 2015).

106 Annex. 6, paragraphs 13 and 14 (CCAMLR 2016).

107 Annex. 6, paragraphs 15 and 16 (CCAMLR 2016).

108 Annex. 6, paragraphs 20, 21 and 22 (CCAMLR 2016).

109 Annex. 6, paragraph 26 (CCAMLR 2016).

110 Annex. 6, paragraphs 25 (CCAMLR 2016).

111 Annex. 6, paragraphs 27 and 28 (CCAMLR 2016).

112 Annex. 6, paragraphs 38, 39 and 40 (CCAMLR 2016).

113 Annex. 6, paragraph 57 (CCAMLR 2016).

114 Paragraphs 3.7 and 3.8 (CCAMLR 2014).

115 Annex 6, paragraphs 84 to 87 (CCAMLR 2014).

116 Paragraph 7.9 (CCAMLR 2014).

117 Annex 6, paragraph 47 (CCAMLR 2014).

118 Annex 6, paragraphs 172 and 173 (CCAMLR 2015).

119 Paragraph 8.17 (CCAMLR 2015).

120 Annex 6, paragraph 25 (CCAMLR 2015).

121 Annex 6, paragraph 70 (CCAMLR 2015).

122 Paragraph 8.11 and Annex 6, paragraphs 58 to 64 (CCAMLR 2016).

123 Paragraph 8.11 and Annex 6, paragraphs 167 and 168 (CCAMLR 2016).

124 Paragraph 8.12 and Annex 6, paragraphs 65 to 67 (CCAMLR 2016).

125 Paragraph 8.13 (CCAMLR 2016).

126 Annex 6, paragraph 55 (CCAMLR 2016).

127 Section (c) above and paragraph 3.26 (CCAMLR 2017c).

128 Paragraphs 3.26 to 3.48 (CCAMLR 2017c).

129 Annex 6 (CCAMLR 2009).

130 Appendix I, Annex 6 (CCAMLR 2014).

131 Paragraph 7.9 (CCAMLR 2014).

132 Annex 6. paragraphs 84 to 87 (CCAMLR 2014).

133 Paragraph 7.9 (CCAMLR 2014).

134 Paper CCAMLR-XXXIV/36, Rev. 2. (CCAMLR 2014). (Paper available from CCAMLR on request).

135 Annex 6, paragraph 54 (CCAMLR 2015).

136 Annex 6. paragraphs 48 to 73 (CCAMLR 2015).

137 Annex 6 (CCAMLR 2009).

138 Paragraphs 3.5 and 3.6 (CCAMLR 2014).

139 Annex 6, Paper DOCEP-09/04, Table 3 (CCAMLR 2009). (Paper available from CCAMLR on request).

140 Annex 8 (CCAMLR 2016).

141 Paper SCIC-10/03 (CCAMLR 2010). <https://www.ccamlr.org/en/scic-10/03> (10 August 2018). (Paper available from CCAMLR on request).

142 Paper CCAMLR-XXXIV/17 (CCAMLR 2015). (Paper available from CCAMLR on request).

143 Executive Summary and paragraph 16.(g) (WCPFC 2018).

144 Paragraph 3.25 (CCAMLR 2017c).

145 For example, Dissostichus eleginoides fishing in one season may be extended, subject to a three seabird catch limit, for vessels demonstrating full compliance with CM 25-02 in the preceding season. <https://www.federalregister.gov/documents/2005/01/26/05-1223/office-of-oceans-affairs-new-conservation-measures-for-antarctic-fishing-under-the-auspices-of#h-62> (7 October 2018).

146 Annex 6, paragraph 19 (CCAMLR 2009).