of non-target species or impacts on vulnerable benthic habitats. Such behavior not
only harms the status of target species and the broader marine environment, but also
creates a competitive advantage over those that comply with costly conservation
measures (no level playing-field).
States can avoid applicability or fail to ensure compliance with these rules by
acting in various capacities, for instance as a coastal State with regard to fishing
activities in its own maritime zones; as a flag State with regard to its vessels
operating on the high seas or in the maritime zones of other States; as a port State
with regard to foreign vessels in its ports; as a market State with regard to imported
fish; or with regard to natural and juridical persons bearing its nationality.
88 Just like
the well know notion of ‘flags of convenience’, it is therefore possible to speak of
‘ports of convenience’ or ‘markets of convenience’. CCAMLR, for example, experiences increasing difficulties due to trade in toothfish (Dissostichus spp.) by
non-Members.
89
Dealing with both forms of free riding-behavior—non-applicability and
non-compliance—is complicated by the consensual nature of international law. As
reflected in the fundamental principle of pacta tertiis, a State is not bound by a rule of
international law unless it has in one way or another given its consent to it.
90 Within
RFMOs, the two forms of free riding-behavior raise different issues and require
different responses. The problem of non-compliance by Members with applicable
rules has so far been mainly addressed by compliance assessment schemes, which
can lead to withholding benefits or imposing penalties within some limited scenarios. While dispute settlement procedures are often available, these are only rarely
resorted to in practice.
91
The problem of non-applicability exists in relation to Members as well as
non-Members of RFMOs. An example of the former occurs when Members exercise
their right to ‘opt out’ of adopted decisions to ensure that these will not become
applicable to them. The constitutive instruments of the more recently established
RFMOs include constraints on the use of opt-out procedures, for instance by making
them subject to ad hoc review or expert panels.
92
88 While a definition of ‘port State’ can be easily deduced from Art. 218(1) of the UNCLOS and Art.
3(1) of the PSM Agreement, this is more difficult for the definition of ‘market State’. As noted by
Churchill (2019), p. 321, fn 11, the IPOA-IUU deals with port State measures in paras 52–64 and
internationally agreed market-related measures in paras 65–76. However, some of the former
(e.g. paras 56 and 63) are clearly trade measures. He concludes that a State “that prohibits a foreign
fishing vessel from landing its catch in that State’s ports for the purpose of sale is both a port State
and a market State.”
89 Report of the 37th (2018) Annual CCAMLR Meeting, at paras 3.5 and 13.10.
90 Vienna Convention on the Law of Treaties, Vienna, 23 May 1969. In force 27 January 1980 (1155
UNTS 331), Art. 34. On this topic, see Ferri (2015).
91 One famous exception are the Southern bluefin tuna cases instituted by Australia and
New Zealand against Japan under the UNCLOS (see https://icsid.worldbank.org/en/Pages/about/
Southern-Bluefin-Tuna-Case%2D%2D-Australia-and-New-Zealand-v.-Japan.aspx).
92 See, inter alia, Harrison (2019), pp. 89–92, and the Report of the Second (2016) ICCAT
Performance Review, pp. 55–59. So far, there have been two such review panels, both pursuant
5 Regional Fisheries Management Organizations
99
only harms the status of target species and the broader marine environment, but also
creates a competitive advantage over those that comply with costly conservation
measures (no level playing-field).
States can avoid applicability or fail to ensure compliance with these rules by
acting in various capacities, for instance as a coastal State with regard to fishing
activities in its own maritime zones; as a flag State with regard to its vessels
operating on the high seas or in the maritime zones of other States; as a port State
with regard to foreign vessels in its ports; as a market State with regard to imported
fish; or with regard to natural and juridical persons bearing its nationality.
88 Just like
the well know notion of ‘flags of convenience’, it is therefore possible to speak of
‘ports of convenience’ or ‘markets of convenience’. CCAMLR, for example, experiences increasing difficulties due to trade in toothfish (Dissostichus spp.) by
non-Members.
89
Dealing with both forms of free riding-behavior—non-applicability and
non-compliance—is complicated by the consensual nature of international law. As
reflected in the fundamental principle of pacta tertiis, a State is not bound by a rule of
international law unless it has in one way or another given its consent to it.
90 Within
RFMOs, the two forms of free riding-behavior raise different issues and require
different responses. The problem of non-compliance by Members with applicable
rules has so far been mainly addressed by compliance assessment schemes, which
can lead to withholding benefits or imposing penalties within some limited scenarios. While dispute settlement procedures are often available, these are only rarely
resorted to in practice.
91
The problem of non-applicability exists in relation to Members as well as
non-Members of RFMOs. An example of the former occurs when Members exercise
their right to ‘opt out’ of adopted decisions to ensure that these will not become
applicable to them. The constitutive instruments of the more recently established
RFMOs include constraints on the use of opt-out procedures, for instance by making
them subject to ad hoc review or expert panels.
92
88 While a definition of ‘port State’ can be easily deduced from Art. 218(1) of the UNCLOS and Art.
3(1) of the PSM Agreement, this is more difficult for the definition of ‘market State’. As noted by
Churchill (2019), p. 321, fn 11, the IPOA-IUU deals with port State measures in paras 52–64 and
internationally agreed market-related measures in paras 65–76. However, some of the former
(e.g. paras 56 and 63) are clearly trade measures. He concludes that a State “that prohibits a foreign
fishing vessel from landing its catch in that State’s ports for the purpose of sale is both a port State
and a market State.”
89 Report of the 37th (2018) Annual CCAMLR Meeting, at paras 3.5 and 13.10.
90 Vienna Convention on the Law of Treaties, Vienna, 23 May 1969. In force 27 January 1980 (1155
UNTS 331), Art. 34. On this topic, see Ferri (2015).
91 One famous exception are the Southern bluefin tuna cases instituted by Australia and
New Zealand against Japan under the UNCLOS (see https://icsid.worldbank.org/en/Pages/about/
Southern-Bluefin-Tuna-Case%2D%2D-Australia-and-New-Zealand-v.-Japan.aspx).
92 See, inter alia, Harrison (2019), pp. 89–92, and the Report of the Second (2016) ICCAT
Performance Review, pp. 55–59. So far, there have been two such review panels, both pursuant
5 Regional Fisheries Management Organizations
99