in the context of the obligations in Article 6(6) of the Fish Stocks Agreement just
mentioned above.
42
Moreover, as argued in detail elsewhere
43
—based on the author’s participation in
the negotiations on the CAOF Agreement
44
—even if, during the initial stages of the
negotiations on the CAOF Agreement, many or most of the delegations were in fact
fully aware that the negotiations were aimed at establishing something else than an
RFMA, this is unlikely to have had much influence—if at all—on the substance of
the negotiations. More importantly, it is submitted that, during the more advanced
stage of the negotiations—in particular the 4th Meeting in Tórshavn—all delegations eventually recognized that (limited) commercial fishing could also occur
pursuant to conservation and management measures adopted by the MOP under
Article 3(1)(b) of the CAOF Agreement. This even led one delegation to explicitly
state that the draft text had developed into an RFMA. While no other delegation took
the floor to respond to this statement, there was a clear sense in the room that the
delegations’ perception of—or even position on—the nature of the instrument they
were negotiating, had significantly changed.
3.4.4 CCAMLR
The best known debate on the qualification as an RFMO/A relates to CCAMLR. The
debate on this between its Members has been ongoing for a considerable period of
time, and continues up until today. CCAMLR was established as an intergovernmental organization under the CAMLR Convention.
45 This means that the CAMLR
Convention does not qualify as an RFMA.
It is evident that CCAMLR is not a typical RFMO, if an RFMO at all. The
CAMLR Convention, CCAMLR and its actions (e.g. conservation measures and
resolutions) are part of the ATS,
46 and thereby directly linked to the unresolved
question on title to land territory south of 60
South, and the key role of scientific
research in Antarctica; both of which are reflected in the Antarctic Treaty.
47 Such
linkages are also directly incorporated in the CAMLR Convention, including the
entitlement to become a Member of CCAMLR on account of engagement in
“research [. . .] activities in relation to the marine living resources to which this
42 An early postulation of this argument by this author can be found in Molenaar (2016). A similar
conclusion is embraced by Schatz et al. (2019).
43 Molenaar (2020), at subsection 6.3.
44 See note 35 supra.
45 Art. VII(1) of the CAMLR Convention.
46 Cf. Art. 1(e) of the Madrid Protocol (Protocol on Environmental Protection to the Antarctic
Treaty; Annexes I-IV, Madrid, 4 October 1991. In force 14 January 1998; Annex V (adopted as
Recommendation XVI-10), Bonn, 17 October 1991. In force 24 May 2002; Annex VI (adopted as
Measure 1(2005)), Stockholm, 14 June 2005. Not in force. All texts available at www.ats.aq.
47 See, inter alia, the Preamble and Arts II–IV and IX of the Antarctic Treaty (Washington D.C.,
1 December 1959. In force 23 June 1961 (402 UNTS 71)).
92
E. J. Molenaar
mentioned above.
42
Moreover, as argued in detail elsewhere
43
—based on the author’s participation in
the negotiations on the CAOF Agreement
44
—even if, during the initial stages of the
negotiations on the CAOF Agreement, many or most of the delegations were in fact
fully aware that the negotiations were aimed at establishing something else than an
RFMA, this is unlikely to have had much influence—if at all—on the substance of
the negotiations. More importantly, it is submitted that, during the more advanced
stage of the negotiations—in particular the 4th Meeting in Tórshavn—all delegations eventually recognized that (limited) commercial fishing could also occur
pursuant to conservation and management measures adopted by the MOP under
Article 3(1)(b) of the CAOF Agreement. This even led one delegation to explicitly
state that the draft text had developed into an RFMA. While no other delegation took
the floor to respond to this statement, there was a clear sense in the room that the
delegations’ perception of—or even position on—the nature of the instrument they
were negotiating, had significantly changed.
3.4.4 CCAMLR
The best known debate on the qualification as an RFMO/A relates to CCAMLR. The
debate on this between its Members has been ongoing for a considerable period of
time, and continues up until today. CCAMLR was established as an intergovernmental organization under the CAMLR Convention.
45 This means that the CAMLR
Convention does not qualify as an RFMA.
It is evident that CCAMLR is not a typical RFMO, if an RFMO at all. The
CAMLR Convention, CCAMLR and its actions (e.g. conservation measures and
resolutions) are part of the ATS,
46 and thereby directly linked to the unresolved
question on title to land territory south of 60
South, and the key role of scientific
research in Antarctica; both of which are reflected in the Antarctic Treaty.
47 Such
linkages are also directly incorporated in the CAMLR Convention, including the
entitlement to become a Member of CCAMLR on account of engagement in
“research [. . .] activities in relation to the marine living resources to which this
42 An early postulation of this argument by this author can be found in Molenaar (2016). A similar
conclusion is embraced by Schatz et al. (2019).
43 Molenaar (2020), at subsection 6.3.
44 See note 35 supra.
45 Art. VII(1) of the CAMLR Convention.
46 Cf. Art. 1(e) of the Madrid Protocol (Protocol on Environmental Protection to the Antarctic
Treaty; Annexes I-IV, Madrid, 4 October 1991. In force 14 January 1998; Annex V (adopted as
Recommendation XVI-10), Bonn, 17 October 1991. In force 24 May 2002; Annex VI (adopted as
Measure 1(2005)), Stockholm, 14 June 2005. Not in force. All texts available at www.ats.aq.
47 See, inter alia, the Preamble and Arts II–IV and IX of the Antarctic Treaty (Washington D.C.,
1 December 1959. In force 23 June 1961 (402 UNTS 71)).
92
E. J. Molenaar