CCAMLR qualifies as ‘more than an RFMO’, Sect. 3.4.5 discusses the so-called
‘role-oriented approach to RFMO/As’.
3.4.2 JNRFC
Qualification as an RFMO or an RFMA can also trigger special entitlements. One
example is related to the abstention from commercial fishing on the high seas portion
of the central Arctic Ocean, as laid down in Article 3(1)(a) of the CAOF Agreement.
This abstention is nevertheless subject to several exemptions. One of these concerns
commercial fishing pursuant to existing RFMO/As. During the negotiations on the
CAOF Agreement,
35 consensus existed among the delegations that NEAFC qualifies
as an RFMO and that fishing by NEAFC Members pursuant to NEAFC’s conservation and management measures in the area of overlap between the NEAFC
Convention Area and the high seas portion of the central Arctic Ocean would
therefore be covered by this exemption. At the same time, however, some delegations were not convinced that JNRFC also qualifies as an RFMO or an RFMA, and
felt that JNRFC should at any rate not be covered by an exemption. They therefore
made efforts to ensure that the CAOF Agreement would not amount to international
recognition of JNRFC as an RFMO or an RFMA, and that JNRFC would not be
covered by an exemption. This led, inter alia, to the phrases “[be] established and
[are] operated in accordance with international law” in the Preamble and Article 3(1)
(a) of the CAOF Agreement.
36
While JNRFC was established by means of a treaty,
37 the fact that the Commission is not served by a secretariat, and that its two Members appear not to intend the
Commission to have a ‘will of its own’, are strong indications that it is not an
intergovernmental organization. This suggests that its two Members regard it as an
RFMA.
38 The diverging views on the status of JNRFC during the negotiations on the
CAOF Agreement must be understood in the light of JNRFC’s geographical competence in the high seas portion of the central Arctic Ocean by virtue of the absence
of an explicit geographical mandate in its constitutive instrument as well as the
explicit assertions of such geographical competence by its two Members, and their
unorthodox regulation of fishing in the high seas pocket in the Barents Sea (the
so-called ‘Loophole’). The latter includes encouraging third States and entities
(i.e. the European Union (EU)) to discontinue, or not to commence, fishing for
particular species in the Loophole and thereby not to exercise their entitlements
35 The author participated in all except the first of the six rounds of negotiations on the CAOF
Agreement; some as the representative of the Netherlands in the delegation of the European Union
(EU); some as a legal expert of the European Commission in the delegation of the EU.
36 See Molenaar (2020), at subsection 3.3 for an in-depth analysis.
37 Framework Agreement (Agreement between the Government of the Kingdom of Norway and the
Government of the Union of Soviet Socialist Republics on Co-operation in the Fishing Industry,
Moscow, 11 April 1975. In force 11 April 1975 (983 UNTS 7)).
38 Molenaar (2016), p. 444.
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E. J. Molenaar
‘role-oriented approach to RFMO/As’.
3.4.2 JNRFC
Qualification as an RFMO or an RFMA can also trigger special entitlements. One
example is related to the abstention from commercial fishing on the high seas portion
of the central Arctic Ocean, as laid down in Article 3(1)(a) of the CAOF Agreement.
This abstention is nevertheless subject to several exemptions. One of these concerns
commercial fishing pursuant to existing RFMO/As. During the negotiations on the
CAOF Agreement,
35 consensus existed among the delegations that NEAFC qualifies
as an RFMO and that fishing by NEAFC Members pursuant to NEAFC’s conservation and management measures in the area of overlap between the NEAFC
Convention Area and the high seas portion of the central Arctic Ocean would
therefore be covered by this exemption. At the same time, however, some delegations were not convinced that JNRFC also qualifies as an RFMO or an RFMA, and
felt that JNRFC should at any rate not be covered by an exemption. They therefore
made efforts to ensure that the CAOF Agreement would not amount to international
recognition of JNRFC as an RFMO or an RFMA, and that JNRFC would not be
covered by an exemption. This led, inter alia, to the phrases “[be] established and
[are] operated in accordance with international law” in the Preamble and Article 3(1)
(a) of the CAOF Agreement.
36
While JNRFC was established by means of a treaty,
37 the fact that the Commission is not served by a secretariat, and that its two Members appear not to intend the
Commission to have a ‘will of its own’, are strong indications that it is not an
intergovernmental organization. This suggests that its two Members regard it as an
RFMA.
38 The diverging views on the status of JNRFC during the negotiations on the
CAOF Agreement must be understood in the light of JNRFC’s geographical competence in the high seas portion of the central Arctic Ocean by virtue of the absence
of an explicit geographical mandate in its constitutive instrument as well as the
explicit assertions of such geographical competence by its two Members, and their
unorthodox regulation of fishing in the high seas pocket in the Barents Sea (the
so-called ‘Loophole’). The latter includes encouraging third States and entities
(i.e. the European Union (EU)) to discontinue, or not to commence, fishing for
particular species in the Loophole and thereby not to exercise their entitlements
35 The author participated in all except the first of the six rounds of negotiations on the CAOF
Agreement; some as the representative of the Netherlands in the delegation of the European Union
(EU); some as a legal expert of the European Commission in the delegation of the EU.
36 See Molenaar (2020), at subsection 3.3 for an in-depth analysis.
37 Framework Agreement (Agreement between the Government of the Kingdom of Norway and the
Government of the Union of Soviet Socialist Republics on Co-operation in the Fishing Industry,
Moscow, 11 April 1975. In force 11 April 1975 (983 UNTS 7)).
38 Molenaar (2016), p. 444.
90
E. J. Molenaar