|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|
|2013 Review Panel||Review Panel established under Article 17 and Annex II of the Convention with regard to the objection of the Russian Federation to CMM 1.01 dated 19 April 2013|
|2013 Review Panel Findings and Recommendations||Findings and Recommendations of the 2013 Review Panel dated 5 July 2013|
|CMM||Conservation and Management Measure|
|CMM 01-2017||Conservation and Management Measure for Trachurus murphyi adopted by the Commission on 22 January 2017|
|CMM 01-2018||Conservation and Management Measure for Trachurus murphyi adopted by the Commission on 3 February 2018|
|CNCP||Cooperating Non-Contracting Party|
|Commission||Commission of the South Pacific Regional Fisheries Management Organisation, established by Article 7 of the Convention|
|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 thereof|
|Executive Secretary||Executive Secretary of SPRFMO|
|Member||Member of the Commission of the South Pacific Regional Fisheries Management Organisation|
|Objection||Objection by Ecuador made pursuant to Article 17 of the Convention dated 28 March 2018|
|Participants||The Organisation and Members taking part in the 2018 Review Panel proceedings|
|PCA||Permanent Court of Arbitration|
|RFMOs/As||Regional fisheries management organisations or arrangements|
|Secretariat||Secretariat of the Organisation based in Wellington, New Zealand|
|SPRFMO or Organisation||South Pacific Regional Fisheries Management Organisation, established by Article 6 of the Convention|
|SWG||Science Working Group|
|TAC||Total allowable catch|
2. Substance of Written Submissions
2.1 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 sub-paragraph (b) below, the decision with respect to CMM 01-2018 to which the Republic of Ecuador has objected is inconsistent with the provisions of the Convention - in particular Articles 3, 19 and 21 - 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 and margin of appreciation of the Commission to make that decision, and the competence of the Review Panel with regard that decision.
(b) Whether the decision with respect to CMM 01-2018 to which the Republic of Ecuador has objected unjustifiably discriminates in form or in fact against the Republic of Ecuador, 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 the alternative measures adopted by the Republic of Ecuador are equivalent in effect to the decision with respect to CMM 01-2018 to which the Republic of Ecuador has objected, and the relevance in this respect of paragraphs 4, 5, and 10 of CMM 01-2018.
(d) Whether, with reference to sub-paragraphs (a) and (j) of paragraph 10 of Annex II of the Convention, the total catch and its share specified by the Republic of Ecuador in its Objection are alternative measures that are equivalent in effect to the decision to which the Republic of Ecuador has objected.
(e) Whether, with reference to sub-paragraph (b) of paragraph 10 of Annex II of the Convention, there are specific modifications to the total catch and the share 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 012018 to which the Republic of Ecuador has objected.
(f) Whether, with reference to sub-paragraph (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 01-2018 to which the Republic of Ecuador has objected.
2.2. Without prejudice to its findings and recommendations in any respect, the Review Panel further requests that the written information, documents, and material submitted by the Organisation include, in addition to other information, documents and material that the Organisation deems relevant, the following:
(a) Information, documents and material on Trachurus murphyi and the Trachurus murphyi fishery, including its area of distribution, the status of the fishery resource, the fleets actively fishing for the resource and their fishing areas, the historic and present catches, and the past and present fishing patterns and practices.
(b) Information, documents and material on the conservation and management measures applicable to Trachurus murphyi, in particular the allocation of the total allowable fishing effort and the total allowable catch, including their history, rationale, agreed allocation criteria, and the sources of information considered in the allocation processes, including information about the fishing reserve referred to by Ecuador in its Objection.
2.3. The Review Panel may seek further information following the receipt of written submissions.
(a) the Commission's basis and process for establishing the tonnage or percentage difference between the total allowable catch for the resource throughout its range (as set forth in paragraph 11 of CMM 1.01 and paragraph 10 of subsequent CMMs, including CMM 01-2018) and the total allowable catch for the area of application of the CMM (as set forth in paragraph 6 of CMM 1.01 and paragraph 5 of subsequent CMMs, including CMM 01-2018);
(b) data regarding the estimated or actual annual tonnage of catch of Trachurus murphyi in the years 2013-2018 in the areas of national jurisdiction of Chile, Ecuador, and Peru; and
(c) the reports of the Jack mackerel Working Groups established between 2013 and 2017 to address conservation and management measures, including allocation of catch limits, for Trachurus murphyi ; the submissions made to these Working Groups; and any other written material submitted to or produced by these Working Groups.
The sustainable management of Trachurus murphyi was of high concern to the negotiating parties during the drafting of the Convention. Catches of the species had increased throughout the 1980s and reached their peak in 1995, totaling five million tonnes. After declining for the following four years and then stabilising until 2007, they again declined and have continued to drop through the present.
In light of these trends, while international negotiations leading up to the conclusion of the Convention were ongoing, the negotiating parties undertook initiatives to study and manage the fishery. As an initial step, at the first international consultations meeting in 2006, the participants established a Science Working Group ("SWG") to provide scientific data on the stock. At the 2007 international consultations, the participants adopted Interim Measures, pursuant to which, participants were to verify the effective presence of their vessels in the area prescribed by the measures and to communicate appropriate data to the Interim Secretariat.
By 2008, the SWG had indicated it had concerns about the declining state of the Trachurus murphyi stock. In the absence of agreed stock assessments, in 2009, the SWG carried out a comprehensive review of the fishery and other indicators as a basis for advice to the ongoing international consultations. At that time, the fishery was suffering from low biomass, recruitment, and spawning, suggesting that urgent and adequate measures limiting fishing were required. Further, the SWG advised that the fishing mortality was likely to have exceeded sustainable levels since at least 2002 and would continue to do so.
In response to the SWG's advice, at the final international consultations in 2009, the participants adopted Revised Interim Measures, in which they agreed to voluntarily restrain their catches beginning in 2010 until the Convention entered into force to the levels they recorded in 2007, 2008, or 2009. The responsibility for reviewing these measures was passed to the Convention Preparatory Conference with the suggestion that they be reviewed and revised by 31 December 2010, taking account of the forthcoming stock assessment the SWG proposed.
In the first stock assessment by the SWG carried out in 2010, data indicated that immediate catch reductions were required to prevent further biomass decline. The key management message from the SWG was that if catches continued at 2010 levels, it was certain that the biomass would continue to decline at a rapid pace. At the opening meeting of the Preparatory Conference, the Chair stated:
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.
The second Preparatory Conference adopted additional Interim Measures in 2011, providing that participants would limit 2011 catches to 60 percent of those in 2010. In principle, 2012 catches would then be reduced to 40 percent of those in 2010. Four delegations (Cuba, Faroe Islands, Korea, and the Bolivarian Republic of Venezuela) advised they could not accept the decision; the People's Republic of China (hereinafter "China") subsequently advised it would reduce its 2010 catch by 30 percent in 2011.
In the absence of any significant improvement in the status of the stock, the participants at the following and last Preparatory Conference unanimously affirmed a reduction to 40 percent of 2010 catches for 2012.15
|Year (CMM)||TAC (Resource) (tonnes)||TAC(Applicable Area)(tonnes)||Difference (tonnes)||Reported catch(Applicable Area)(tonnes)|
|2013 (CMM 1.01)||438,000||360,000||78,000||353,123|
|2014 (CMM 2.01)||440,000||390,000||50,000||395,085|
|2015 (CMM 3.01)||460,000||410,000||50,000||394,212|
|2016 (CMM 4.01)||460,000||410,000||50,000||388,575|
|2017 (CMM 01-2017)||493,000||443,000||50,000||402,050|
|2018 (CMM 01-2018)||576,000||517,582||58,418|
The Chair of the JMWG [Jack mackerel Working Group] presented a number of models and discussions eventually focussed on a straight proportional increase model based on the tonnages contained in Table 1 of CMM 4.01 as a percentage of the overall catch limit throughout the range of the stock (460,000 tonnes).
The JMWG opted to base this model on a proportionate increase of the catch limit of the entire stock in 2016 (460,000 tonnes) as opposed to the catch limit applicable in the area to which CMM 4.01 applied (410,000). The JMWG considered whether all of the 33,000 tonnes should be distributed to Members in Table 1, or if some of this amount should be added to the existing 50,000 tonnes set aside for catch in the area outside the measure. In this regard, the JMWG discussed the fact that the revised catch limit recommended by the Scientific Committee (of which the 33,000 tonnes was a part) related to the entire range of the stock, which includes waters under the national jurisdiction of Peru, and possibly Ecuador, whose waters are at the northern range of the stock.
Ultimately, the JMWG decided to recommend not to distribute any of the 33,000 tonnes to the area outside the measure. The catch limit for the area in which the measure applies reflects this decision, in that consistent with previous years it remains 50,000 tonnes less than the overall catch limit for the range of the stock recommended by the Scientific Committee. This so-called "set aside" amount had been 50,000 tonnes since the adoption of CMM 2.01 in 2014. Together, these choices of the JMWG meant that instead of proportionately increasing the amount "set aside" by 3587 tonnes, this additional tonnage could be allocated to Members.26
the intertemporal equilibrium point for the investment in a used vessel dedicated to the fishing of jack mackerel in waters of the SPRFMO convention is reached from the 6,500 MT; this is 5,321 [MT] in addition to the current quota[…]46
5. In 2018 the total catch of Trachurus murphyi in the area to which this CMM applies in accordance with paragraph 1 shall be limited to 517 582 tonnes. Members and CNCPs are to share in this total catch in the tonnages set out in Table 1 of this CMM.
6. Catches will be attributed to the flag State whose vessels have undertaken the fishing activities described in Article 1 (1)(g)(i) and (ii) of the Convention.
10. Members and CNCPs agree, having regard to the advice of the Scientific Committee, that catches of Trachurus murphyi in 2018 throughout the range of the stock should not exceed 576 000 tonnes.
25. This Measure shall be reviewed by the Commission in 2019. The review shall take into account the latest advice of the Scientific Committee and the CTC, and the extent to which this CMM, CMM 1.01 (Trachurus murphyi, 2013), CMM 2.01 (Trachurus murphyi, 2014), CMM 3.01 (Trachurus murphyi ; 2015), CMM 4.01 (Trachurus murphyi, 2016) and CMM 01-2017 (Trachurus murphyi) as well as the Interim Measures for pelagic fisheries of 2007, as amended in 2009, 2011 and 2012, have been complied with.
26. Without prejudice to Members and CNCPs without an entitlement in Table 1 and the rights and obligations specified in Article 20(4)(c) and having regard to paragraph 10, the percentages included in Table 2 will be used by the Commission as a basis for the allocation of Member and CNCPs' catch limits from 2018 to 2021 inclusive.
|Table 1: Tonnages in 2018 fishery as referred to in paragraph 5|
|Members / CNCP||Tonnage|
|Table 2: Percentages4 related to the catches referred to in paragraph 10|
|Members / CNCP||%|
4 These percentages shall apply from 2018 to 2021 inclusive.52
(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.
1. When taking decisions regarding participation in fishing for any fishery resource, including the allocation of a total allowable catch or total allowable fishing effort, the Commission shall take into account the status of the fishery resource and the existing level of fishing effort for that resource and the following criteria to the extent relevant:
(e) the fisheries development aspirations and interests of developing States in particular small island developing States and of territories and possessions in the region;
(f) the interests of coastal States, and in particular developing coastal States and territories and possessions, in a fishery resource that straddles areas of national jurisdiction of such States, territories and possessions and the Convention Area[…]
In giving effect to the objective of this Convention and carrying out decision making under this Convention, the Contracting Parties, the Commission and subsidiary bodies established under Article 6 paragraph 2 and Article 9 paragraph 1 shall:
(a) apply, in particular, the following principles:
(viii) the interests of developing States, in particular the least developed among them and small island developing States, and of territories and possessions, and the needs of developing State coastal communities, shall be recognised[…]
1. The Commission shall give full recognition to the special requirements of developing State Contracting Parties in the region, in particular the least developed among them and small island developing States, and of territories and possessions in the region, in relation to the conservation and management of fishery resources in the Convention Area and the sustainable use of such resources
2. In giving effect to the duty to cooperate in the establishment of conservation and management measures for fishery resources covered by this Convention, the members of the Commission shall take into account the special requirements of developing State Contracting Parties in the region, in particular the least developed among them and small island developing States, and territories and possessions in the region, in particular:
(c) the need to ensure that such measures do not result in transferring, directly or indirectly, a disproportionate burden of conservation action onto such developing State Contracting Parties, and territories and possessions.
3. The members of the Commission shall cooperate either directly or through the Commission and other regional or sub-regional organisations to:
(a) enhance the ability of developing State Contracting Parties in the region, in particular the least developed among them and small island developing States, and of territories and possessions in the region, to conserve and manage fishery resources and to develop their own fisheries for such resources[…]
a. Finds that the decision to which objection has been presented is not inconsistent with the provisions of the Convention or other relevant international law as reflected in the 1982 Convention or the 1995 Agreement;
b. Finds that the decision to which objection has been presented does not unjustifiably discriminate, in form or in fact, against Ecuador; and
c. Finds that the alternative measures proposed by Ecuador are not equivalent in effect to the decision to which objection has been presented.
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