originated from RFMO/As.
102 The mandate of RFMO/As to deal with free riderbehavior by non-Members and non-CNCPs—whether or not they are parties to the
Fish Stocks Agreement—has therefore not been challenged in the context of dispute
settlement proceedings under international trade law or international fisheries law so
far. Were such a challenge to arise in the future, it is highly likely that it would be
linked to the issues of allocation and participation discussed in the next section.
Some further approaches to dealing with free rider-behavior are included in the
PSM Agreement. Much of the PSM Agreement relates to denying IUU fishing
vessels entry and use of port, and builds on Article 23 of the Fish Stocks Agreement.
In addition, the PSM Agreement also acknowledges the right of port States to impose
enforcement measures that are more onerous (stringent) than denial of entry and use
of port. Examples of such more onerous enforcement measures are monetary
penalties and confiscation of catch. Consistency with the principle of pacta tertiis
can for such more onerous enforcement measures be ensured through flag State
consent (upon the initiative of the flag State or upon request by the port State), a
decision of an RFMO/A, or some other ground of international law
103
; for instance a
port State’s residual jurisdiction derived from its territorial sovereignty. As regards
decisions by RFMO/As, the limited practice that exists so far all relates to exceptional circumstances, and it is unclear if and to what extent port States have actually
made use of the enabling provisions in the PSM Agreement.
104
Furthermore, the first sentence of Article 20(3) of the PSM Agreement requires
parties to encourage their vessels to “use ports of States that are acting in accordance
with, or in a manner consistent with this Agreement”. The second sentence encourages parties “to develop, including through [RFMO/As] and FAO, fair, transparent
and non-discriminatory procedures for identifying any State that may not be acting
in accordance with, or in a manner consistent with, this Agreement.” While there
does not seem to be any practice within RFMO/As on the ‘negative identificationapproach’ reflected in the second sentence of Article 20(3), various RFMO/As have
developed practices modeled on the ‘positive identification-approach’ reflected in
the first sentence.
105 Some RFMO/As explicitly stipulate that only ports of Members
or CNCPs can be used.
106 Others prohibit Members and CNCPs from using ports
that have not been designated in accordance with applicable procedures. However,
as these procedures entitle only Members and CNCPs to designate ports, this means
that ports by non-Members and non-CNCPs cannot be used.
107
102 See Churchill (2019), who also notes at p. 337 that as RFMO/As are not Members of the WTO,
the challenges must be directed at Members or CNPCs implementing actions by RFMO/As. See
also Ferri (2015), at Ch 5, and the text accompanying note 118 infra.
103 Arts 4(1)(b) and 18(3).
104 See the practice by CCAMLR, ICCAT, NAFO and NEAFC examined by Honniball (2018),
subsection 5.3.5.
105 See Honniball (2018), subsection 5.3.1.2.
106 E.g. ICCAT Recommendation 18-02, para. 71.
107 See, e.g. NAFO Conservation and Enforcement Measures 2019, Arts 38(1)(p)(i) and 43(1); and
NEAFC Scheme of Enforcement 2019, Arts 21 and 29(f).
102
E. J. Molenaar
102 The mandate of RFMO/As to deal with free riderbehavior by non-Members and non-CNCPs—whether or not they are parties to the
Fish Stocks Agreement—has therefore not been challenged in the context of dispute
settlement proceedings under international trade law or international fisheries law so
far. Were such a challenge to arise in the future, it is highly likely that it would be
linked to the issues of allocation and participation discussed in the next section.
Some further approaches to dealing with free rider-behavior are included in the
PSM Agreement. Much of the PSM Agreement relates to denying IUU fishing
vessels entry and use of port, and builds on Article 23 of the Fish Stocks Agreement.
In addition, the PSM Agreement also acknowledges the right of port States to impose
enforcement measures that are more onerous (stringent) than denial of entry and use
of port. Examples of such more onerous enforcement measures are monetary
penalties and confiscation of catch. Consistency with the principle of pacta tertiis
can for such more onerous enforcement measures be ensured through flag State
consent (upon the initiative of the flag State or upon request by the port State), a
decision of an RFMO/A, or some other ground of international law
103
; for instance a
port State’s residual jurisdiction derived from its territorial sovereignty. As regards
decisions by RFMO/As, the limited practice that exists so far all relates to exceptional circumstances, and it is unclear if and to what extent port States have actually
made use of the enabling provisions in the PSM Agreement.
104
Furthermore, the first sentence of Article 20(3) of the PSM Agreement requires
parties to encourage their vessels to “use ports of States that are acting in accordance
with, or in a manner consistent with this Agreement”. The second sentence encourages parties “to develop, including through [RFMO/As] and FAO, fair, transparent
and non-discriminatory procedures for identifying any State that may not be acting
in accordance with, or in a manner consistent with, this Agreement.” While there
does not seem to be any practice within RFMO/As on the ‘negative identificationapproach’ reflected in the second sentence of Article 20(3), various RFMO/As have
developed practices modeled on the ‘positive identification-approach’ reflected in
the first sentence.
105 Some RFMO/As explicitly stipulate that only ports of Members
or CNCPs can be used.
106 Others prohibit Members and CNCPs from using ports
that have not been designated in accordance with applicable procedures. However,
as these procedures entitle only Members and CNCPs to designate ports, this means
that ports by non-Members and non-CNCPs cannot be used.
107
102 See Churchill (2019), who also notes at p. 337 that as RFMO/As are not Members of the WTO,
the challenges must be directed at Members or CNPCs implementing actions by RFMO/As. See
also Ferri (2015), at Ch 5, and the text accompanying note 118 infra.
103 Arts 4(1)(b) and 18(3).
104 See the practice by CCAMLR, ICCAT, NAFO and NEAFC examined by Honniball (2018),
subsection 5.3.5.
105 See Honniball (2018), subsection 5.3.1.2.
106 E.g. ICCAT Recommendation 18-02, para. 71.
107 See, e.g. NAFO Conservation and Enforcement Measures 2019, Arts 38(1)(p)(i) and 43(1); and
NEAFC Scheme of Enforcement 2019, Arts 21 and 29(f).
102
E. J. Molenaar