far. Such proceedings would revolve in particular around the rights to engage in
fishing and fishing-related activities on the high seas pursuant to Articles 87(1)
(a) and 116 of the UNCLOS, and the right of States with a ‘real interest’ to
participate in RFMO/As pursuant to Article 8(3) of the Fish Stocks Agreement,
where applicable. This would likely be complemented by the argument that the
relevant obligations to cooperate in relation to transboundary fish stocks apply
between, on the one hand, Members and CNCPs and, on the other hand,
non-Members and non-CNCPs. Or, in other words: cooperation cannot be a
one-way street.
The absence of cases on participation in RFMO/As can in part also be explained
by the fact that existing dispute settlement procedures in the domain of international
fisheries law are insufficiently tailored to the scenario at hand. For one thing,
non-Members of RFMO/As do not have access to the dispute settlement procedures
included in the constitutive instruments of such RFMO/As. Non-Members that are
parties to the UNCLOS and/or the Fish Stocks Agreement would nevertheless have
access to the dispute settlement procedures included in these treaties. As such
procedures do not allow proceedings to be instituted against RFMOs,
118 however,
the claimant could be compelled to bring separate proceedings against all Members
of the RFMO/A that are also parties to the UNCLOS and/or the Fish Stocks
Agreement.
119 The court or tribunal—assuming not more than one court or tribunal
would be involved—could then decide to join these cases. The procedural complexities that would arise are clearly quite overwhelming, and would be very timeconsuming and costly.
As noted above, the more specific interests of Founding Fathers can also be more
conservation-oriented. Accepting applications for membership with more
utilization-oriented States may therefore lead a body towards a less conservationoriented evolution. Decision-making procedures can be a critical factor in such
circumstances. It is submitted that China’s accession to the CAMLR Convention
in 2006, and the subsequent approval of its application for CCAMLR membership in
2007,
120 are a case in point. Since then, China has gradually become more assertive
in exercising its explicit right to block consensus and its implicit right to interpret the
provisions of the CAMLR Convention.
121 While the latter is a prerogative of every
sovereign State, China may take the view that it is particularly entitled to exercise
this right on account of its non-participation in the negotiation of the CAMLR
Convention, as this occurred between 1977 and 1980, during a period in which
118 See also note 102 supra.
119 There are some precedents for simultaneously bringing multiple cases that are (largely) identical,
for example the cases brought by Yugoslavia—which was succeeded by Serbia and Montenegro
during the course of the proceedings—against Belgium, Canada, France, Germany, Italy, Netherlands, Portugal, Spain, United Kingdom and United States before the International Court of Justice
(Information available at https://www.icj-cij.org/en/case/105).
120 Report of the 26th (2007) Annual CCAMLR Meeting, at para. 2.3.
121 In particular the objective of the CAMLR Convention laid down in its Art. II, among other things
in light of CCAMLR’s actions on MPAs.
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fishing and fishing-related activities on the high seas pursuant to Articles 87(1)
(a) and 116 of the UNCLOS, and the right of States with a ‘real interest’ to
participate in RFMO/As pursuant to Article 8(3) of the Fish Stocks Agreement,
where applicable. This would likely be complemented by the argument that the
relevant obligations to cooperate in relation to transboundary fish stocks apply
between, on the one hand, Members and CNCPs and, on the other hand,
non-Members and non-CNCPs. Or, in other words: cooperation cannot be a
one-way street.
The absence of cases on participation in RFMO/As can in part also be explained
by the fact that existing dispute settlement procedures in the domain of international
fisheries law are insufficiently tailored to the scenario at hand. For one thing,
non-Members of RFMO/As do not have access to the dispute settlement procedures
included in the constitutive instruments of such RFMO/As. Non-Members that are
parties to the UNCLOS and/or the Fish Stocks Agreement would nevertheless have
access to the dispute settlement procedures included in these treaties. As such
procedures do not allow proceedings to be instituted against RFMOs,
118 however,
the claimant could be compelled to bring separate proceedings against all Members
of the RFMO/A that are also parties to the UNCLOS and/or the Fish Stocks
Agreement.
119 The court or tribunal—assuming not more than one court or tribunal
would be involved—could then decide to join these cases. The procedural complexities that would arise are clearly quite overwhelming, and would be very timeconsuming and costly.
As noted above, the more specific interests of Founding Fathers can also be more
conservation-oriented. Accepting applications for membership with more
utilization-oriented States may therefore lead a body towards a less conservationoriented evolution. Decision-making procedures can be a critical factor in such
circumstances. It is submitted that China’s accession to the CAMLR Convention
in 2006, and the subsequent approval of its application for CCAMLR membership in
2007,
120 are a case in point. Since then, China has gradually become more assertive
in exercising its explicit right to block consensus and its implicit right to interpret the
provisions of the CAMLR Convention.
121 While the latter is a prerogative of every
sovereign State, China may take the view that it is particularly entitled to exercise
this right on account of its non-participation in the negotiation of the CAMLR
Convention, as this occurred between 1977 and 1980, during a period in which
118 See also note 102 supra.
119 There are some precedents for simultaneously bringing multiple cases that are (largely) identical,
for example the cases brought by Yugoslavia—which was succeeded by Serbia and Montenegro
during the course of the proceedings—against Belgium, Canada, France, Germany, Italy, Netherlands, Portugal, Spain, United Kingdom and United States before the International Court of Justice
(Information available at https://www.icj-cij.org/en/case/105).
120 Report of the 26th (2007) Annual CCAMLR Meeting, at para. 2.3.
121 In particular the objective of the CAMLR Convention laid down in its Art. II, among other things
in light of CCAMLR’s actions on MPAs.
5 Regional Fisheries Management Organizations
105