Due to the significant efforts by CCAMLR Members to implement and
operationalize the CAMLR Convention’s conservation objective, its de facto EAF
management, and the key role accorded to scientific research, more research is
carried out in the context of CCAMLR than in any (other) RFMO. Prominent
examples in this regard are the CCAMLR Ecosystem Monitoring Program—
which monitors key life-history parameters of a group of ‘indicator species’
(which includes various penguin species) to detect changes in the abundance of
harvested species—and the enormous amount of scientific research that has been
devoted to ensuring that CCAMLR’s network of marine protected areas (MPAs) and
individual MPAs are based on the best scientific evidence available. As noted in
Sect. 3.3, however, EAF management and the necessary science are now part of the
key functions of RFMO/As. Many RFMO/As have adjusted their formal mandates
accordingly, and have broadened and intensified the necessary science and data
gathering. Consequently, even though the ‘gap’ in implementation and application
with CCAMLR is still considerable, it could be argued that there is no fundamental
distinction on this issue with these RFMO/As.
The qualification of CCAMLR was also examined in two joined cases on which
the European Court of Justice (ECJ) ruled in November 2018.
55 The cases were
brought in 2015 and 2016 by the European Commission against the Council in
response to documents relating to proposals for MPAs, which were submitted to
CCAMLR by the EU and its Member States, rather than by the EU alone. At issue in
these joined cases was the distribution of competence between the EU and its
Member States in the areas of environmental policy and the common fisheries policy
(CFP). While the EU and its Member States share competence in the area of
environmental policy, the EU has exclusive competence in the area of the CFP.
The Court ruled that “the exclusive or main purpose or component” of the MPA
proposals and their envisaged measures “must be determined on the basis of
objective factors amenable to judicial review, namely the context, content and
aims pursued by the decisions at issue”.
56 As part of the context, the Court acknowledged that the CAMLR Convention assigns a number of tasks to CCAMLR related
to fishing, but also highlighted the CAMLR Convention’s broad objective and its
distinction from a normal fisheries management agreement.
57 The Court thereby
focused primarily on the overall objective of the CAMLR Convention and the more
specific objectives pursued by the MPA proposals. While the Court recognized that
the MPA proposals pay “particular attention [. . .] to regulation of the activity of
fishing vessels”, it concluded that “the very limited fishing opportunities provided
for by the [MPA proposals] are justified exclusively by environmental considerations.” It is submitted that the Court thereby ignored that, even though the CAMLR
Convention and CCAMLR have an objective and mandate that go well beyond that
of conservation and management of fisheries resources, this objective and mandate is
55 Joined Cases C-626/15 and C-659/16, Judgement of 20 November 2018.
56 Para. 87.
57 Paras 89–92.
94
E. J. Molenaar
operationalize the CAMLR Convention’s conservation objective, its de facto EAF
management, and the key role accorded to scientific research, more research is
carried out in the context of CCAMLR than in any (other) RFMO. Prominent
examples in this regard are the CCAMLR Ecosystem Monitoring Program—
which monitors key life-history parameters of a group of ‘indicator species’
(which includes various penguin species) to detect changes in the abundance of
harvested species—and the enormous amount of scientific research that has been
devoted to ensuring that CCAMLR’s network of marine protected areas (MPAs) and
individual MPAs are based on the best scientific evidence available. As noted in
Sect. 3.3, however, EAF management and the necessary science are now part of the
key functions of RFMO/As. Many RFMO/As have adjusted their formal mandates
accordingly, and have broadened and intensified the necessary science and data
gathering. Consequently, even though the ‘gap’ in implementation and application
with CCAMLR is still considerable, it could be argued that there is no fundamental
distinction on this issue with these RFMO/As.
The qualification of CCAMLR was also examined in two joined cases on which
the European Court of Justice (ECJ) ruled in November 2018.
55 The cases were
brought in 2015 and 2016 by the European Commission against the Council in
response to documents relating to proposals for MPAs, which were submitted to
CCAMLR by the EU and its Member States, rather than by the EU alone. At issue in
these joined cases was the distribution of competence between the EU and its
Member States in the areas of environmental policy and the common fisheries policy
(CFP). While the EU and its Member States share competence in the area of
environmental policy, the EU has exclusive competence in the area of the CFP.
The Court ruled that “the exclusive or main purpose or component” of the MPA
proposals and their envisaged measures “must be determined on the basis of
objective factors amenable to judicial review, namely the context, content and
aims pursued by the decisions at issue”.
56 As part of the context, the Court acknowledged that the CAMLR Convention assigns a number of tasks to CCAMLR related
to fishing, but also highlighted the CAMLR Convention’s broad objective and its
distinction from a normal fisheries management agreement.
57 The Court thereby
focused primarily on the overall objective of the CAMLR Convention and the more
specific objectives pursued by the MPA proposals. While the Court recognized that
the MPA proposals pay “particular attention [. . .] to regulation of the activity of
fishing vessels”, it concluded that “the very limited fishing opportunities provided
for by the [MPA proposals] are justified exclusively by environmental considerations.” It is submitted that the Court thereby ignored that, even though the CAMLR
Convention and CCAMLR have an objective and mandate that go well beyond that
of conservation and management of fisheries resources, this objective and mandate is
55 Joined Cases C-626/15 and C-659/16, Judgement of 20 November 2018.
56 Para. 87.
57 Paras 89–92.
94
E. J. Molenaar