altogether. As parties to the Fish Stocks Agreement accept that only Members and
CNCPs have fisheries access,
98 abstention is in fact mandatory for flag States that are
not Members or CNCPs, and could be seen as the default mode while awaiting a
successful application for membership or CNCP status.
The recognition that RFMO/As are the preeminent vehicles for regional fisheries
regulation that is implied in these obligations, give RFMO/As a clear mandate to
deal with free rider-behavior by non-Members and non-CNCPs. While such a
mandate is strictly speaking only available vis-à-vis parties to the Fish Stocks
Agreement, RFMO/As have not taken this into account in their actions so far. It is
submitted that this is not necessarily based on the position that the relevant provisions in the Fish Stocks Agreement have become part of customary international
law or are opposable to non-parties on some other ground. Instead, it is above all
based on the fact that most of these actions are primarily aimed at vessels rather than
States, and are, in the domain of international fisheries law, regarded as withholding
benefits rather than constraining rights. Examples of actions by RFMO/As primarily
aimed at States are trade measures, for instance import restrictions, trade documentation/identification schemes and catch documentation schemes.
99 As regards
actions primarily aimed at vessels, many RFMO/As treat fishing for regulated
species in their regulatory areas by vessels not flying the flag of a Member or a
CNCP as IUU fishing due to the fact that it undermines the effectiveness of those
RFMO/As. Upon the inclusion of such vessels in IUU Vessel Lists, Members and
CNCPs will be required to withhold a large number of benefits vis-à-vis listed
vessels, including fishing licenses, transshipment, landing catch, access to port
more in general, and chartering.
100
From the perspective of international trade law, however, several of these actions
aimed at vessels—for instance prohibitions on landing and transhipment—are
regarded as constraining rights held by the flag States of these vessels. Such actions
can nevertheless be consistent with international trade law if they are justified by one
or more of the general exceptions laid down in Article XX of the 1947 General
Agreement on Tariffs and Trade; in particular paragraph (g) “relating to the conservation of exhaustible natural resources”. While there have been a few instances
where unilateral actions by States and the EU have been challenged under the World
Trade Organization (WTO)’s Dispute Settlement Understanding,
101 so far there have
not been any challenges against actions aimed at States or vessels that have
98 Arts 8(4) and 17(2).
99 See Marel (2019), pp. 303–306.
100 See, for instance, CCAMLR Conservation Measure 10-07 (2016), at para. 22. See also Marel
(2019), p. 302.
101 These are the Swordfish case between the then European Community and Chile (WTO Dispute
No. DS193), and the Atlanto-Scandian herring case between Denmark (in respect of the Faroe
Islands) and the EU (WTO Dispute No. DS469). For a discussion, see Churchill (2019),
pp. 340–341, and Serdy (2016), pp. 432–438.
5 Regional Fisheries Management Organizations
101
CNCPs have fisheries access,
98 abstention is in fact mandatory for flag States that are
not Members or CNCPs, and could be seen as the default mode while awaiting a
successful application for membership or CNCP status.
The recognition that RFMO/As are the preeminent vehicles for regional fisheries
regulation that is implied in these obligations, give RFMO/As a clear mandate to
deal with free rider-behavior by non-Members and non-CNCPs. While such a
mandate is strictly speaking only available vis-à-vis parties to the Fish Stocks
Agreement, RFMO/As have not taken this into account in their actions so far. It is
submitted that this is not necessarily based on the position that the relevant provisions in the Fish Stocks Agreement have become part of customary international
law or are opposable to non-parties on some other ground. Instead, it is above all
based on the fact that most of these actions are primarily aimed at vessels rather than
States, and are, in the domain of international fisheries law, regarded as withholding
benefits rather than constraining rights. Examples of actions by RFMO/As primarily
aimed at States are trade measures, for instance import restrictions, trade documentation/identification schemes and catch documentation schemes.
99 As regards
actions primarily aimed at vessels, many RFMO/As treat fishing for regulated
species in their regulatory areas by vessels not flying the flag of a Member or a
CNCP as IUU fishing due to the fact that it undermines the effectiveness of those
RFMO/As. Upon the inclusion of such vessels in IUU Vessel Lists, Members and
CNCPs will be required to withhold a large number of benefits vis-à-vis listed
vessels, including fishing licenses, transshipment, landing catch, access to port
more in general, and chartering.
100
From the perspective of international trade law, however, several of these actions
aimed at vessels—for instance prohibitions on landing and transhipment—are
regarded as constraining rights held by the flag States of these vessels. Such actions
can nevertheless be consistent with international trade law if they are justified by one
or more of the general exceptions laid down in Article XX of the 1947 General
Agreement on Tariffs and Trade; in particular paragraph (g) “relating to the conservation of exhaustible natural resources”. While there have been a few instances
where unilateral actions by States and the EU have been challenged under the World
Trade Organization (WTO)’s Dispute Settlement Understanding,
101 so far there have
not been any challenges against actions aimed at States or vessels that have
98 Arts 8(4) and 17(2).
99 See Marel (2019), pp. 303–306.
100 See, for instance, CCAMLR Conservation Measure 10-07 (2016), at para. 22. See also Marel
(2019), p. 302.
101 These are the Swordfish case between the then European Community and Chile (WTO Dispute
No. DS193), and the Atlanto-Scandian herring case between Denmark (in respect of the Faroe
Islands) and the EU (WTO Dispute No. DS469). For a discussion, see Churchill (2019),
pp. 340–341, and Serdy (2016), pp. 432–438.
5 Regional Fisheries Management Organizations
101