considerable number are comparatively ‘closed’ due to the ‘approval role’ of the
existing Members on applications for membership. Some of the constitutive instruments of the latter group even fail to provide non-Founding Fathers with a right to
accede, and give existing Members a right to ‘invite to accede by consensus’. This
enables any Founding Father to veto a favorable response in case a non-Founding
Father submits a request to be invited to accede. As the two newest RFMO/As—
NPFC and the CAOF Agreement
112
—are part of this latter group, there is certainly
no indication of a trend towards openness. The practice by RFMO/As on this
approval role so far has been very divergent, with for instance CCAMLR having
rejected only one of many applications, and WCPFC having rejected all applications
except one.
113
A majority of the RFMO/As listed in Table 5.1 above have one or more
participatory categories other than membership (e.g. CNCP status).
114 For some of
the most closed RFMO/As (e.g. NEAFC and WCPFC), this alternative participatory
category provides some fishing opportunities and—often more importantly—the
ability to engage in fishing-related activities. Whereas the eligibility criteria can be
assumed to be quite inclusive, applicants are required to comply with a considerable
number of conditions and are often expected to make a ‘voluntary’ financial contribution.
115 A significant disadvantage of cooperative status—from the perspective of
status holders—is the considerable lack of stability and predictability that ensues
from the RFMO/A’s competence to revoke or to not renew this status on an annual or
biannual basis. While the exercise of this competence is legitimate and understandable where a status holder does not comply with the conditions attached to its status,
there is always a risk of abuse of competence.
116
It is clear that preferential treatment accorded to Founding Fathers through rules
and practices on allocation and participation poses a significant obstacle to States
that want to fish in the regulatory areas of RFMO/As of which they are not Members
or CNCPs, but are at the same time confronted with a generally accepted mandate of
RFMO/As to deal with free riders and IUU fishing, and may be bound by obligations
under the Fish Stocks Agreement vis-à-vis such RFMO/As (see Sect. 4). While there
have been some dispute settlement proceedings on allocation
117
—albeit none
brought by non-Members—there have not been any in relation to participation so
112 See Art. 24(2) of the NPFC Convention (Convention on the Conservation and Management of
High Seas Fisheries Resources in the North Pacific Ocean, Tokyo, 24 February 2012. In force
19 July 2015; text available at www.npfc.int); and Art. 10(2) of the CAOF Agreement.
113 See Molenaar (2019), pp. 122–123.
114 Id., pp. 116–118.
115 E.g. WCPFC Conservation and Management Measure 2009-11 ‘Cooperating Non-Members’.
116 E.g. the difficulties experienced by Vietnam in renewal of CNM status by WCPFC in 2012–2015
due to the construction of large-scale tuna fishing vessels in Vietnam (e.g. Report of the 12th (2015)
Annual WCPFC Session at paras 65–66).
117 Namely the Southern bluefin tuna cases, note 91 supra, the Atlanto-Scandian herring cases, note
101 supra and PCA Case 2013-30, and the review panels under the SPRFMO Convention, note
92 supra (PCA Cases Nos 2013-14 and 2018-13).
104
E. J. Molenaar
existing Members on applications for membership. Some of the constitutive instruments of the latter group even fail to provide non-Founding Fathers with a right to
accede, and give existing Members a right to ‘invite to accede by consensus’. This
enables any Founding Father to veto a favorable response in case a non-Founding
Father submits a request to be invited to accede. As the two newest RFMO/As—
NPFC and the CAOF Agreement
112
—are part of this latter group, there is certainly
no indication of a trend towards openness. The practice by RFMO/As on this
approval role so far has been very divergent, with for instance CCAMLR having
rejected only one of many applications, and WCPFC having rejected all applications
except one.
113
A majority of the RFMO/As listed in Table 5.1 above have one or more
participatory categories other than membership (e.g. CNCP status).
114 For some of
the most closed RFMO/As (e.g. NEAFC and WCPFC), this alternative participatory
category provides some fishing opportunities and—often more importantly—the
ability to engage in fishing-related activities. Whereas the eligibility criteria can be
assumed to be quite inclusive, applicants are required to comply with a considerable
number of conditions and are often expected to make a ‘voluntary’ financial contribution.
115 A significant disadvantage of cooperative status—from the perspective of
status holders—is the considerable lack of stability and predictability that ensues
from the RFMO/A’s competence to revoke or to not renew this status on an annual or
biannual basis. While the exercise of this competence is legitimate and understandable where a status holder does not comply with the conditions attached to its status,
there is always a risk of abuse of competence.
116
It is clear that preferential treatment accorded to Founding Fathers through rules
and practices on allocation and participation poses a significant obstacle to States
that want to fish in the regulatory areas of RFMO/As of which they are not Members
or CNCPs, but are at the same time confronted with a generally accepted mandate of
RFMO/As to deal with free riders and IUU fishing, and may be bound by obligations
under the Fish Stocks Agreement vis-à-vis such RFMO/As (see Sect. 4). While there
have been some dispute settlement proceedings on allocation
117
—albeit none
brought by non-Members—there have not been any in relation to participation so
112 See Art. 24(2) of the NPFC Convention (Convention on the Conservation and Management of
High Seas Fisheries Resources in the North Pacific Ocean, Tokyo, 24 February 2012. In force
19 July 2015; text available at www.npfc.int); and Art. 10(2) of the CAOF Agreement.
113 See Molenaar (2019), pp. 122–123.
114 Id., pp. 116–118.
115 E.g. WCPFC Conservation and Management Measure 2009-11 ‘Cooperating Non-Members’.
116 E.g. the difficulties experienced by Vietnam in renewal of CNM status by WCPFC in 2012–2015
due to the construction of large-scale tuna fishing vessels in Vietnam (e.g. Report of the 12th (2015)
Annual WCPFC Session at paras 65–66).
117 Namely the Southern bluefin tuna cases, note 91 supra, the Atlanto-Scandian herring cases, note
101 supra and PCA Case 2013-30, and the review panels under the SPRFMO Convention, note
92 supra (PCA Cases Nos 2013-14 and 2018-13).
104
E. J. Molenaar