|1982 Convention||United Nations Convention on the Law of the Sea of 10 December 1982|
|1995 Agreement||Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks of 4 December 1995|
|Acting Executive Secretary||Acting Executive Secretary of the SPRFMO|
|CMM 1.01||Conservation and Management Measure for Trachurus murphyi adopted by the Commission on 1 February 2013|
|CNCP||Cooperating Non-Contracting Party|
|Commission||Commission of the Organisation|
|Convention||Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean of 14 November 2009|
|Convention Area||Area to which the Convention applies pursuant to Article 5|
|Decision||Provisions of CMM 1.01 to which the Russian Federation objects|
|Interim Secretariat||Secretariat during the Preparatory Conference|
|Member||Member of the Commission|
|Objection||Objection by the Russian Federation made pursuant to Article 17 of the Convention and dated 19 April 2013|
|Participants||The Organisation and Members taking part in the Review Panel proceedings|
|PCA||Permanent Court of Arbitration|
|Secretariat||Secretariat of the Organisation based in Wellington, New Zealand|
|SPRFMO or Organisation||South Pacific Regional Fisheries Management Organisation|
|SWG||Science Working Group|
1. Substance of Written Submissions
1. Without prejudice to its findings and recommendations in any respect, the Review Panel requests that, in addition to such other matters as may be considered relevant, memoranda, information and documents submitted to it in accordance with the Convention address or are pertinent to one or more of the following matters:
(a) Whether, apart from the question of discrimination referred to in subparagraph (b) below, the decision with respect to CMM 1.01 to which the Russian Federation has objected is inconsistent with the provisions of the Convention or other relevant international law as reflected in the 1982 Convention or the 1995 Agreement, and in this respect the basis for the decision in fact and law, the competence of the Commission to make that decision, and the competence of the Review Panel with regard to that decision.
(b) Whether the decision with respect to CMM 1.01 to which the Russian Federation has objected unjustifiably discriminates in form or in fact against the Russian Federation, and in this respect the standard and means for determining what constitutes unjustifiable discrimination under the Convention.
(c) The standard and means for determining whether alternative measures are equivalent in effect to the decision with respect to CMM 1.01 to which the Russian Federation has objected, and the relevance in this respect of paragraphs 5, 6, 7, and 11 of CMM 1.01.
(d) Whether, with reference to subparagraphs (a) and (j) of paragraph 10 of Annex II of the Convention, the catch limit specified by the Russian Federation in its letter objecting to the decision with respect to CMM 1.01 is an alternative measure that is equivalent in effect to that decision. The Review Panel requests that the question of alternative measures be included in the matters addressed by the Russian Federation in its memorandum due by 14 June 2013.
(e) Whether, with reference to subparagraph (b) of paragraph 10 of Annex II of the Convention, there are specific modifications to the catch limit referred to in sub-paragraph (d) above that would render it an alternative measure that is equivalent in effect to the decision with respect to CMM 1.01 to which the Russian Federation has objected.
(f) Whether, with reference to subparagraph (c) of paragraph 10 of Annex II of the Convention, other alternative measures would be equivalent in effect to the decision with respect to CMM 1.01 to which the Russian Federation has objected.1 * * *
Between the time of our First Meeting in 2006 and the end of... 2010, jack mackerel total biomass is estimated to have declined by 65 percent to its historically lowest level—only 11 percent of the estimated unfished biomass level. Spawning biomass is estimated to have declined to only 3 percent of the unfished level, quite possibly making this the most depleted major fish stock under the responsibility of a [regional fisheries management organisation] anywhere in the world. Immediate and substantial Measures are required to reverse this decline.... [F]ailing to implement such Measures will result in continued decline in a stock that was once the largest fish stock in the South Pacific Ocean, but is now reaching levels which are almost uneconomical to fish.16
This total includes the vessel Lafayette. Operational fishing data, in accordance with the consolidated data standards, has not been supplied to the Interim Secretariat in respect of this vessel and information supplied by some delegations indicates that the vessel probably was not capable of fishing in either 2009 or 2010. Some delegations requested the GT for this vessel (49,173 GT) should be held in abeyance pending receipt of operational fishing information. The Russian delegation stated that vessel Lafayette has duly obtained all certificates from the Russian Maritime Register of Shipping to be qualified for the fishing class; the vessel has undergone initial physical inspections and subsequent annual surveys to confirm its ability to be engaged in direct fishing operations.
According to Russian legislation, each vessel has a quota. A quota is allocated per vessel which operates and fishes in the high seas. In this situation — in this case the situation often arises as follows, and there are plenty of examples like that, including in the 200-mile coastal zone of the Russian Federation, where a vessel obtains a large quota and, for various reasons, is unable to fill the quota. What it does then is that it brings in other vessels which supply the shortfall, and the fish butt against the vessel's bigger quota. So, in the grand scheme of things, the quota belongs to the original vessel. So, what a vessel can do is obtain fish in the sea and hire other vessels, help it fill the quota, and, of course, it pays the other vessels. Essentially, it leases or rents the other vessels' services.49
Perhaps in 2010, actually, yes, in 2010, we did have certain problems regarding this. And I think the questions we have now been asked regarding Lafayette must have had to do with that because for 200-mile economic zones we did even at that time have fairly strict rules. We ran our own — we gathered our own statistics. However, for vessels that operated outside the 200-mile economic zones, we had them operate under somewhat more lax rules, such as they were not expected to submit data exactly on a daily basis and to provide data in a very detailed manner, such as tow-by-tow, such as the amount of catch. Now the situation has changed. They submit data both by the area where they have been fishing by their daily catch. And if we have any additional request, they will give us information on a tow-by-tow basis, and these fishes break down and everything else. So, the situation in Russia has changed dramatically in what concerns the high seas; that is the vast expanses of the ocean outside of the 200-mile Economic Zone. That is, we, compared to a couple of years ago, gather probably ten times as much information as we used to on the one hand. It's a major burden, and there's a lot of information to process. On the other hand, we have information as to where, who, what, and when. And immediately on a computer screen, essentially in realtime, we can find out where a specific vessel is and what it is doing at the time. All of this information is available electronically. At this time, any information that is being requested, we can easily transmit, should there be a request.50
5. Members and CNCPs shall limit the total gross tonnage (GT) of vessels flying their flag and participating in the Trachurus murphyi fisheries in the Convention Area to the total tonnage of their flagged vessels that were actively fishing in 2007 or 2008 or 2009 in the Convention Area and as set out in Table 1. Members and CNCPs may substitute their vessels as long as the total level of GT for each Member and CNCP does not exceed the level recorded in Table 1.
6. In 2013 the total catch of Trachurus murphyi in the area to which this CMM applies in accordance with paragraph 1 shall be limited to 360,000 tonnes. Members and CNCPs are to share in this total catch in the same proportions as their 2010 catches as reported to the Executive Secretary in the area to which this CMM applies and in the tonnages set out in Table 2.
7. However, having regard to the current specific circumstances of the Trachurus murphyi fishery, on a one-off basis 10 % of the tonnages set out in Table 2 [see below] of Belize, China, European Union, Faroe Islands, Korea, Peru and Vanuatu are to be transferred to Chile. As a consequence, the catch limits to be applied in 2013 in the areas to which this CMM applies shall be those set out in Table 3 [see below].
11. Notwithstanding paragraphs 6 and 7, Members and CNCPs agree, having regard to the advice of the Scientific Working Group that fishing mortality of Trachurus murphyi in 2013 throughout the range of the stock [that is, including areas under the national jurisdiction of States other than Chile] should be maintained at or below 2012 levels, that total catches of Trachurus murphyi in 2013 should not exceed 438,000 tonnes - the total catch for 2012 reported to the Executive Secretary by 20 January 2013.
Table 2: Tonnages in 2013 fishery as referred to in paragraph 64
|Members / CNCP||Tonnage|
Footnote 4 to Table 2: The Russian Federation notified the Commission that it considers it had a legitimate right to a share in the fishery notwithstanding the situation referred to in footnote 3 and asserts its right to participate in the fishery in 2013 in a proportion calculated by a reference to the fishing activities it reported to the Executive Secretary in 2010.
Table 3: Catch Limits in 2013 as established in paragraph 7
|Members / CNCP||Catch Limit|
The Russian Federation held position that the CMM for Trachurus murphyi and the calculation for financial contributions to the Organization were based on incomplete data in that those data not include data reported by the Russian Federation to the Interim Secretariat in 2010.
We are not in the position to support the decision unjustifiably discriminates in form or in fact against the member of the Commission, or is inconsistent with the provisions of this Convention or other relevant international law as reflected in the 1982 Convention or the 1995 Agreement.
The Russian Federation, based on its Trachurus murphyi catch data for 2010 reported in the Interim Secretariat in the amount of the 41 315 tons, will limit its catch in 2013 within the total allowable catch recommended by the Science Working Group. The Russian Federation will notify the SPRFMO Secretariat about its limitations in due course.
We also do not support budget of the Commission without full reflections of Russian catch data for 2010 in the budget calculation.51
[W]e present the objection in respect of established shares in the catch limit of Trachurus murphyi in 2013 specified in [CMM 1.01].
We adhere to the position that the decision on distribution of shares in the total allowable catch of Trachurus murphyi between the countries demonstrates unjustifiable discrimination against the Russian Federation in form and in fact, and is inconsistent with the provisions of the Convention.
The Russian Federation is guided by the fact that the Commission has neither grounds nor competence to review the data presented by the Parties by the date the Convention took effect.
We also note that the Russian Federation duly presented to the Secretariat of the Organization data on the Russian catch of Trachurus murphyi in 2010 amounting to 41,315 tonnes.
However, CMM 1.01 proves that these data have been disregarded in the course of establishing Trachurus murphyi catch limit in 2013.
In accordance with paragraph 6 of CMM 1.01 the Parties agreed that the total catch of Trachurus murphyi in 2013 shall be limited to 360,000 tonnes whereas the countries are to share in this total catch in the same proportions as their 2010 catches.
With the view to the above and following the principle of shares distribution in the catch of Trachurus murphyi in 2013 the Russian Federation establishes Trachurus murphyi catch limit in the Convention area in respect of the Russian fisheries equal to 19,944 tonnes.
(a) Any member of the Commission may present to the Executive Secretary an objection to a decision within 60 days of the date of notification "the objection period". In that event the decision shall not become binding on that member of the Commission to the extent of the objection, except in accordance with paragraph 3 and Annex II.
(b) A member of the Commission that presents an objection shall at the same time:
(i) specify in detail the grounds for its objection;
(ii) adopt alternative measures that are equivalent in effect to the decision to which it has objected and have the same date of application; and
(iii) advise the Executive Secretary of the terms of such alternative measures.
(c) The only admissible grounds for an objection are that the decision unjustifiably discriminates in form or in fact against the member of the Commission, or is inconsistent with the provisions of this Convention or other relevant international law as reflected in the 1982 Convention or the 1995 Agreement.
[P]articipants were quite clear that in developing the measures [in CMM 1.01], they were not engaged in an Article 21 decision-making exercise; rather, they were attempting to find an acceptable means of urgently and severely reducing current catches to allow the potential of a stock rebuild to a level at which an Article 21 exercise could reasonably be undertaken.67
[F]ollowing the principle of shares distribution in the catch of Trachurus murphyi in 2013 the Russian Federation establishes Trachurus murphyi catch limit in the Convention area in respect of the Russian fisheries equal to 19,944 tonnes.105
The alternative nature of the measure proposed by the Russian Federation is that irrespective of the actual catch of jack mackerel by the Russian fishing vessels in 2013, in case the TAC of 360,000 tons of Trachurus murphyi is fished by the members of the Commission, the Russian Party will cease fishing for Trachurus murphyi in the Convention Area.107
Being guided by the principle of the distribution of the amounts of jack mackerel catch for 2013 established in CMM. 1.01, the Russian Party establishes a restriction on the jack mackerel catch for Russian fishing vessels in the Convention Regulation Area in 2013 at the level of 19,944 tons. The Russian Federation... does not suggest review of the overall catch for other countries for 2013. In 2013, when the level of 360,000 tons is reached in the region covered by CMM 1.01, the Russian Federation, irrespective of the amount of the quotum used until then of the national quota, will stop fishing. Taking into account this approach, the applicable limits should be seen as equivalent to Measure CMM 1.01 and also being in line with the objectives of the Convention.108
The Russian Federation is a major State with a significant historical connection to fishing for jack mackerel in the Pacific as well as more recent activity in the fishery in this century. It actively participated from the beginning in the Consultations that resulted in the adoption of the Convention, in all three meetings of the Preparatory Conference, and in the First Meeting of the new Commission. Their delegates also played their part in the work of the Science Working Group and the Data and Information Working Group.110
Moreover, no convincing argument has been made in the written or oral submissions to justify the resultant potential windfall to others that are accorded allocations, including those that may have entered the fishery only after the date on which negotiation of the Convention commenced.
a. Finds that the Decision to which objection has been presented unjustifiably discriminates in form or in fact against Russia;
b. Finds that the alternative measures adopted by Russia are not equivalent in effect to the Decision to which objection has been presented by Russia;
c. Recommends the following alternative measures as equivalent in effect to the Decision to which objection has been presented:
Russia will authorise vessels registered in the Russian Federation to catch Trachurus murphyi in the Convention Area in 2013:
(i) only after Russia concludes from data reported by the Organisation, and in accordance with Article 3, paragraph 1(a)(v) of the Convention, that it is likely that the total catch in 2013 will not reach the total allowable catch of 360,000 tonnes referred to in paragraph 6 of CMM 1.01, and
(ii) only until the Organisation reports that this total allowable catch has been reached;
d. Finds, without prejudice to the foregoing, that the Decision to which objection has been presented by Russia is not inconsistent with the provisions of the Convention or other relevant international law as reflected in the 1982 Convention or the 1995 Agreement.
Done in English, accompanied by an unofficial Russian translation prepared by the PCA, at the PCA’s facilities in the Peace Palace in The Hague, this 5th day of July, 2013, and transmitted to the Acting Executive Secretary in accordance with Article 17(5)(e) and paragraph 9 of Annex II of the Convention,
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