Implementation and Potential Benefits of Listing Toothfish in App. … · are bottom-living,...

UNCHARTED WATERS

IMPLEMENTATION ISSUES ANDPOTENTIAL BENEFITS OFLISTING TOOTHFISH INAPPENDIX II OF CITES

ANNA WILLOCK

A TRAFFIC REPORT

Acknowledgements

TRAFFIC would like to thank a number of individuals and organisations thatcontributed time and expertise to thisreport. John Davis (Australian FisheriesManagement Authority), Sue Lieberman(WWF International) and, in particular,Martin Exel (Austral Fisheries Pty Ltd.)provided invaluable comments in theirrespective reviews of the manuscript.Glenn Sant and James Compton ofTRAFFIC Oceania provided essentialtechnical comments and general supportin the writing of this report. Steven Broadand Maija Sirola at TRAFFIC Internationalalso contributed technical comments andguidance. Generous funding support wasreceived from the David and LucilePackard Foundation and the RuffordFoundation.

Published by TRAFFIC International,Cambridge, UK and TRAFFIC OceaniaSydney, Australia.

© TRAFFIC International 2002ISBN 1 85850 191 1UK Registered Charity No. 1076722

The designations of geographical entitiesin this publication, and the presentationof material, do not imply the expresssionof any opinion whatsoever on the part ofTRAFFIC or its supporting organisationsconcerning the legal status of anycountry, territory, or area, or of itsauthorities, or concerning the delimitationof its frontiers or boundries.

Any opinions expressed are those of thewriter and do not necessarily reflect thoseof TRAFFIC, WWF or IUCN – The World Conservation Union.

Document prepared for TRAFFIC by Hiwire Design Pty Ltd: www.hiwire.com.au

Cover Illustration: Patagonian ToothfishDissostichus eleginoides(Credit: Bruce Mahalski)

1 INTRODUCTION TO THE CASE STUDY 32 SUMMARY OF BIOLOGICAL CHARACTERISTICS 43 CHARACTERISTICS OF THE GLOBAL TRADE IN TOOTHFISH 44 CURRENT CONSERVATION AND MANAGEMENT FRAMEWORK FOR TOOTHFISH 6

4.1 International marine law 64.2 The Commission for the Conservation of Antarctic Marine Living Resources 74.2.1 Background information on CCAMLR 74.2.2 Key CCAMLR conservation measures for toothfish 74.2.3 High seas inside the CCAMLR Convention Area 94.2.4 Waters under national jurisdiction inside the CCAMLR Convention Area 94.3 Outside the CCAMLR Convention Area 94.3.1 High seas outside the CCAMLR Convention Area 94.3.2 Waters under national jurisdiction outside the CCAMLR Convention Area 104.4 Key problems with the current conservation and management regime for toothfish 114.4.1 Illegal fishing 114.4.2 Unreported fishing 114.4.3 Unregulated fishing 124.4.4 Compliance and enforcement 134.4.5 Inconsistent implementation of the CDS 13

5 CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES 145.1 What is CITES? 145.2 General description of how CITES works 145.2.1 The role of each of the three Appendices 145.2.2 Introduction from the sea 155.2.3 Compliance under CITES 16

6 POSSIBLE BENEFITS OF AN APPENDIX II LISTING OF TOOTHFISH 176.1 Membership of CITES and CCAMLR 176.2 Geographical area of competence 186.3 Decision-making under CITES 186.4 Tools for compliance 19

7 IMPLEMENTATION ISSUES 207.1 Introduction from the Sea provision 207.1.1 Definition of what constitutes introduction from the sea 207.1.2 The legal status of toothfish introduced from the sea 217.2 The basis of non-detriment findings for toothfish 227.2.1 Toothfish caught in and exported from waters under the jurisdiction of a State 227.2.2 Toothfish introduced from the sea 237.3 The basis for a finding that toothfish has been legally obtained 247.4 Readily recognisable part or derivative 257.5 Separation of Patagonian and Antarctic toothfish 257.6 Look a-likes 257.7 Documentation 267.7.1 Comparison of CCAMLR and CITES documentation requirements 277.7.2 Potential to use CDS forms for CITES purposes 297.8 Institutional arrangements 31

8 CONCLUSION AND RECOMMENDATIONS 32References 35

UNCHARTED WATERSIMPLEMENTATION ISSUES AND POTENTIAL BENEFITSOF LISTING TOOTHFISH IN APPENDIX II OF CITESANNA WILLOCK

The David and LucilePackard Foundation

UNCHARTED WATERS: IMPLEMENTATION ISSUES AND POTENTIAL BENEFITS OF LISTING TOOTHFISH IN APPENDIX II OF CITES 3

1 INTRODUCTION TO THE CASE STUDY

The issue of listing marine fish on the Appendicesof the Convention on International Trade inEndangered Species of Wild Fauna and Flora(CITES) has been repeatedly raised in CITES-relatedmeetings over the past decade, including the biennialmeeting of the Conference of Parties, meetings toreview the listing criteria and those of the AnimalsCommittee. While a number of commonly tradedmarine species are already listed on variousAppendices, including Queen conch, hard corals, andgiant clams, there continues to be wide-spreaddebate as to whether or not marine fish should belisted in CITES, particularly those that are subject tolarge-scale commercial harvesting.

The basis for this debate is varied and includesdisparate (and sometimes uninformed) views that:CITES only relates to species threatened withextinction and so is not relevant to commerciallyharvested marine fish; competency for theconservation and management of marine fish resideswith the United Nation’s Food and AgricultureOrganisation and regional fisheries organisations;and restricting trade in seafood will adversely impacton the availability of protein for humankind.

The debate over the application of CITES to marinefish species has tended to be polarised into twoextremes, where success is characterised either byachieving a listing or preventing a listing. There havebeen limited analyses of the benefits that a listingmay or may not deliver for a particular species orhow a range of implementation issues might beaddressed. This paper seeks to contribute to thedebate by providing an analysis of these two mainfactors in relation to Patagonian and Antarctictoothfish.

Patagonian toothfish (Dissostichus eleginoides)and Antarctic toothfish (D. mawsoni) have beenchosen for this analysis for a number of reasons.First, both species have biological characteristicsthat are generally considered to make a marine fishspecies highly vulnerable to over-exploitation andlong-term detrimental impacts. Such characteristicsinclude longevity, late maturation, large size and lowfecundity. Second, a conservation and managementregime established by the Commission for theConservation of Antarctic Marine Living Resources(CCAMLR) is currently in place for toothfish.Measures implemented under this regime includetotal allowable catches and a catch documentationscheme to monitor trade in toothfish, which providea useful basis for analyses of the potential applicationof quotas and certification provisions under CITES.Finally, over 90 per cent of products derived from

Patagonian and Antarctic toothfish enter intointernational trade. The high commercial value ofthese species, sometimes referred to as ‘white gold’(ISOFISH, 1999) in fishing industry circles, hascreated a lucrative fishery for both legal, and illegaland unregulated, fishing vessels. The combination ofthese factors, and the fact that CCAMLR has onlylimited ability to effectively enforce its measures, hasraised concerns regarding the conservation status oftoothfish and the future of the toothfish fisheries.This has in turn led to consideration of whether thereis potential for CITES, through its capacity toregulate trade in a species, to complement theprimary conservation and management role ofCCAMLR.

The purpose of this report is to discuss some of thekey implementation issues pertaining to a listing oftoothfish in Appendix II of CITES, as that Conventioncurrently stands, using the conservation measuresestablished by CCAMLR as the basis for thisdiscussion. The paper provides some recommend-ations in relation to these issues. Given this focus thepaper does not pass comment on whether or nottoothfish would qualify for inclusion under thecurrent CITES listing criteria. The paper also notessome potential benefits of a listing in Appendix II ofCITES for the long-term sustainability of Patagonianand Antarctic toothfish.

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Patagonian toothfish taken by longline fishing.

UNCHARTED WATERS: IMPLEMENTATION ISSUES AND POTENTIAL BENEFITS OF LISTING TOOTHFISH IN APPENDIX II OF CITES4

2 SUMMARY OF BIOLOGICALCHARACTERISTICS

The Patagonian toothfish Dissostichus eleginoidesis a large, demersal, predatory, sub-Antarctic speciesthat grows up to 2 metres in length and lives for upto 50 years. It inhabits deep water (down to 2500-3000 metres), but the smaller juveniles have mostlybeen found in shallower water on shelf areas aroundsub-Antarctic islands (Lack & Sant, 2001).Patagonian toothfish are reproductively mature bythe time they reach 70-95 cm in length, which seemsto correspond to 6-9 years of age. While varying withfish length and location, the species exhibitsrelatively low fecundity, ranging from 48,000 to500,000 eggs per fish, per spawning season (Kock,2000).

The distribution of the Patagonian toothfish iscircumantarctic however it is not found in waterscolder than 2°C. Southernmost records of the speciesare for the South Orkney Islands and the SouthSandwich Islands (Kock, 2000). Its principal habitatis the mass of water known as the IntermediateAntarctica, which expands to the north of the polarcontinent. This includes areas along the Pacific andAntarctic shores of South America, predominantlythe southern Chilean and Argentinian Patagoniashorelines, as well as the Uruguayan continentalslope and around the Falkand/Malvinas Islands andBurwood Bank. Substantial populations have alsobeen found in the southern Antarctic zone of theIndian Ocean, around the French islands ofKerguelen and Crozet, the Prince Edward Islands(South Africa), Heard and McDonald Islands region(Australia) and the Ob and Lena Banks.

Antarctic toothfish (D.mawsoni) are considered tobe smaller and faster growing that Patagoniantoothfish, with a maximum observed length andweight of 180 cm and around 75 kilograms.Antarctic toothfish of 140 to 165 cm in length havebeen estimated to be from 22 to 30 years old (Kock,2000). Like Patagonian toothfish, Antarctic toothfishare bottom-living, inhabiting waters from 300 to2500 metres. Antarctic toothfish are generallyrestricted to waters south of 65ºS though individualfish may be found north of this latitude.

3 CHARACTERISTICS OF THE GLOBALTRADE IN TOOTHFISH

Both Patagonian and Antarctic toothfish are white-fleshed, restaurant-quality fish that are highly soughtafter by markets in the USA, Japan, Europe and Canada.In the USA, for example, toothfish has been known tofetch up to USD35 per kilogram at retail outlets. Thehigh unit price paid for toothfish results in thesecombined markets representing around 90% of theestimated worldwide trade. Over the period 1996/97 to1999/00, the main catching countries of Chile,Argentina, France, UK, Australia and South Africaprovided over 90% of the products for these markets(Lack & Sant, 2001).

Toothfish is traded in a number of different forms, themain ones being whole; headed and gutted; headed,gutted and tailed; and fillets. There is also a market forheads, fins and cheeks. Even as whole fish, Patagonianand Antarctic toothfish are difficult to tell apart althoughthere are a number of distinguishing characteristics thata trained observer can use to differentiate between thetwo species. It is not possible to visually identify eachspecies in filleted form. While detailed information ontrade in Antarctic toothfish is unavailable because of thelack of species-specific customs codes, information thatis available suggests it is likely that both Patagonian andAntarctic toothfish fill the same market demand (Lack,2001).

Toothfish is commonly exported from the countrywhere the catch was first landed to countries that thenprocess the fish into different products. Most of theseproducts are subsequently re-exported to the mainconsumer countries while others are consumeddomestically. For example, China is a major importerand processor of toothfish, re-exporting frozen fillets toJapan, USA and the European Union (EU) while headsare sold on the domestic market or exported to Japan.In contrast to many fisheries a number of the mainconsuming countries, including Canada, the USA andJapan, do not themselves fish for toothfish.

Toothfish is marketed under different common namesin different countries and, in some cases, under twodifferent names within the same country. Table 1 liststhe common names for toothfish in the major markets.

Table 1: Common names for toothfish in the major markets

Country Common Name

Spain Merluza negra or Bacalao de profundidad

USA & Canada Chilean Sea Bass

France Legine

Japan Mero

UK Patagonian toothfish

Source: TRAFFIC Network and pers. comm. M. Exel, Austral Fisheries Pty. Ltd, 13 March, 2002


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4.1 International marine law

The Law of the Sea Convention(LOSC) entered into force inNovember 1994 and establishes thebroad legal regime for the marineenvironment, including where andover what a State may exercisesovereign rights and the rights andobligations of States whose vesselsfish on the high seas1. The LOSC alsoestablishes the obligation on States toco-operate for the conservation andmanagement of marine resources that:occur on the high seas; straddle thehigh seas and the waters of coastalStates; and migrate between theseareas. The obligations relating to thelast two categories of fish areamplified in the United Nations FishStocks Agreement (UNFSA).

The UNFSA entered into force on 11December 2001 and applies primarilyto straddling and highly migratory fishstocks. The Agreement requires Stateswhose vessels fish for a straddling ormigratory fish stock on the high seas,and coastal States in whose watersthose same stocks occur, to co-operatein their conservation and managementthrough the establishment of aregional fisheries organisation orarrangement. As well as applying tostraddling and highly migratorystocks, the Agreement also embodiesprinciples that apply to theconservation and management of allmarine resources, including theapplication of the precautionaryapproach. There are currently 31ratifying and acceding States toUNFSA. Toothfish are not consideredto be highly migratory however arefound on the high seas and may occuras a straddling stock in some areas.

The status of States and Entitiesinvolved in toothfish trade in respectto CITES, UNFSA and CCAMLR isdetailed in Table 2.

4 CURRENT CONSERVATION AND MANAGEMENT FRAMEWORK FOR TOOTHFISH

Table 2: States and entities having traded toothfish in the period 1998to 2000 and their membership status under CITES, UNFSA and CCAMLR

States / Entities CITES Status UN Fish Stocks

Agreement

Status under CCAMLR

Argentina Party Signed MemberAustralia Party Ratified MemberBelgium Party Signed MemberBelize Party Signed InvitedBosnia-Herzegovina Non-partyBrazil Party Ratified MemberBulgaria Party Acceding StateCanada Party Ratified Acceding StateChile Party MemberChina Party Signed InvitedCosta Rica Party RatifiedDenmark Party Signed InvitedEC Party Signed MemberEgypt Party SignedFinland Party Signed Acceding StateFrance Party Signed MemberGermany Party Signed MemberGreece Party Signed Acceding StateHonduras PartyHong Kong PartyIndia Party MemberIsrael Party SignedItaly Party Signed MemberJapan Party Signed MemberKorea, Rep. of Party Signed MemberLaos Non-partyMauritius Party Ratified InvitedMexico PartyNamibia Party Ratified MemberNetherlands Party Signed Acceding StateNew Zealand Party Ratified MemberNorway Party Ratified MemberParaguay PartyPeru Party Acceding StatePhilippines Party SignedPoland Party MemberPortugal Party Signed InvitedRussia Party Ratified MemberSaudi Arabia PartySerbia-Montenegro Non-partySeychelles Party Ratified InvitedSingapore PartySouth Africa Party MemberSpain Party Signed MemberSweden Party Signed Member

Non-party(voluntarily appliesrelevant measures)

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PartyThe Netherlands Party SignedTurkey PartyUK Party Ratified MemberUkraine Party Signed MemberUruguay Party Ratified MemberUSA Party Ratified MemberVenezuela Party

1. The term "high seas" in this paper has the same meaningas that established under the LOSC and refers to waters that arenot included in the exclusive economic zone, in the territorialsea or in the internal waters of a State, or in the archipelagicwaters of an archipelagic State. In addition, it also refers towaters adjacent to territorial claims over areas of the Antarcticcontinent.


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The stated aims of the CDS are to:

(i) monitor the international trade in toothfish;

(ii) identify the origins of toothfish imported into orexported from the territories of Contracting Parties;

(iii) determine whether toothfish imported into orexported from the territories of Contracting Parties, ifcaught in the Convention Area, was caught in amanner consistent with CCAMLR conservationmeasures; and

(iv) gather data for the scientific evaluation of stocks.

4.2 THE COMMISSION FOR THECONSERVATION OF ANTARCTIC MARINELIVING RESOURCES

4.2.1 Background information on CCAMLR

The primary conservation and management regimefor Patagonian toothfish and Antarctic toothfish isprovided under the Convention on the Conservationof Antarctic Marine Living Resources. ThisConvention was signed in May 1980 and came intoforce in 1982 with the objective of the conservationof Antarctic marine living resources, includingrational use of those resources. While CCAMLR pre-dates the UNFSA, the Convention embodies many ofthe same principles.

The area over which the Commission hascompetency includes the majority of known waterswhere Patagonian toothfish is found as well as allwaters likely to contain commercial quantities ofAntarctic toothfish.

In giving effect to its objective and principles theConvention requires its Commission, inter alia, to:

• compile data on the status of and changes inpopulation of Antarctic marine living resources andon the factors affecting the distribution, abundanceand productivity of the harvested species anddependent or related species or populations (ArticleIX 1(b))

• ensure the acquisition of catch and effort statisticson harvested populations (Article IX 1(c)), and

• formulate, adopt and revise conservation

measures on the basis of the best scientific evidenceavailable (Article IX 1(f)).

The Commission therefore has a broad mandaterelating to scientific research and assessment, withthe results of this scientific research manifested inthe development of conservation measures.

4.2.2 Key CCAMLR conservation measures fortoothfish

CCAMLR has agreed a number of specificconservation measures that apply to both Patagonianand Antarctic toothfish including:

• a catch documentation scheme

• Port State inspection of vessels intending to land or transship toothfish

• total allowable catches in specific areas, by specific methods

• prohibition of directed fishing for toothfish, except in accordance with specific conservation measures

• a vessel monitoring system2 for all vessels fishing for toothfish in the CCAMLR Convention Area.

Of the conservation measures implemented byCCAMLR that are specific to toothfish the catchdocumentation scheme (CDS) is the most recent andcomprehensive conservation measure. The CDS wasagreed at the Commission’s XVIIIth meeting, in 1999,and became binding on all Members on 7 May 2000.

The CDS is designed to provide a comprehensive‘paper trail’ for toothfish products from the catchingvessel through to the final point of importation.Figure 2 provides example scenarios to illustrate howthe CDS operates.

A comparison of the CDS and CITES documentaryrequirements under an Appendix II listing is providedin Section 7.7.

Patagonian toothfish on the deck of an Australian trawl vessel in theSouthern Ocean.

2. The term "vessel monitoring system" refers to the automated tracking of avessel's speed, direction and location via satellite. Under CCAMLR's provisions, thisinformation is transmitted automatically to the flag State of the vessel concerned.


*Falkland/Malvinas Islands: Recognized by the UN as a "Non-Self-Governing Territory administered by the UK, also claimed by Argentina".

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STEP 5: RE-EXPORTa) Re-exporter completes a re-export document for each consignment. A copy of the original catch document must accompany each consignment.

b) Government Export Authority issues a Re-Export Government Authority Validation after certifying that the export details are correct. May cross-check copies of the catch document on the CCAMLR website to ensure that total exports do not exceed the declared catch.

STEP 1: THE CATCH Caught by CCAMLR Member's fishing vessel in the Convention Area. Flag State issues the vessel a Dissostichus Catch Document with a unique catch Document Number.

STEP 2: THE LANDINGCatch landed at a CCAMLR Member's porta) Flag State issues a Flag State Confirmation Number prior to the catch being landed, verifying that the landing is consistent with the vessel's authority to fish for toothfish. May verify this after examining the vessel's logbooks and data from the vessel monitoring system. Flag State electronically transmits a copy of the catch document to the CCAMLR Secretariat.

b) Port Authority issues a Certificate of Landing if it is satisfied that the details on the catch document agree with the actual catch landing. May request supporting evidence from the vessel's Master and/or the Flag State of the vessel.

STEP 3: EXPORTa) Exporter records the species, product type and weight of each consignment and makes a copy of the original catch document to accompany each one.

b) Government Export Authority issues Export Government Authority Validation after certifying that the export details are correct. May cross-check copies of the catch document to ensure that total exports do not exceed the declared catch.

c) Exporter provides details of the importer at the time of export then sends a copy of the completed document to the Flag State, which then electronically transmits it to the CCAMLR Secretariat.

STEP 4: IMPORTImporter receives consignment and a copy of the catch document, which it forwards to the national import authority. The national import authority then transmits it to the CCAMLR Secretariat.

Southern Ocean

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CCAMLR Convention Area(numbers denote CCAMLR fishing areas/subareas)

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99% of CCAMLR Reportedcatches of Antarctic Toothfishhave occurred in this area

Figure 2: Example scenarios illustrating the operation of the CDS.

Source: adapted from maps by Lack and Sant (2001) and Smith and Gaffney (2000) with CCAMLR information.


4.2.3 High seas inside the CCAMLR ConventionArea

The provisions of CCAMLR apply to the high seaswithin the Convention Area. This includes waterssubject to territorial claims adjacent to the Antarcticcontinent over which CCAMLR also has ‘practicaljurisdiction’. High seas areas comprise over 90 percent of the Convention Area.

Fishing activities undertaken by vessels flagged toMembers must comply with CCAMLR’s agreedconservation measures, with Members havingresponsibility to implement and enforce themeasures that have been agreed by the Commission.

A CCAMLR Member may implement and enforce agreedconservation measures in a number of ways:

• Flag Stateexercise effective flag State control over its fishingvessels, particularly when fishing on the high seas

• Coastal Stateexercise effective control over fishing activities fortoothfish within waters under its nationaljurisdiction

• Port Statecontrol fisheries-related activities in its ports,particularly transhipment of catches, andvalidation of required catch documentation

• Market Stateensure that toothfish imports are accompanied bythe appropriate documentation

• National’s Stateimplement measures to deter its nationals fromengaging in activities that undermine agreedconservation measures for toothfish

The Commission ‘encourages’ non-ContractingParties whose vessels fish for toothfish on the highseas of the Convention Area to either accede to theConvention or voluntarily apply CCAMLR’s agreedconservation measures. The Commission offerssimilar encouragement to non-parties that provideport facilities and / or markets for toothfish. To dateapproaches aimed at strengthening the catchdocumentation scheme in non-party States have hadsome success, with Singapore, the Seychelles andMauritius all committing to implement the CDS on avoluntary basis and Namibia becoming a Member ofthe Commission in 2000. The decision by Mauritiuswas viewed by Commission Members as beingparticularly significant as the Mauritian capital, PortLouis, has been a primary port for the unloading oftoothfish caught by unregulated and illegal vesselsfor a number of years.

4.2.4 Waters under national jurisdiction insidethe CCAMLR Convention Area

A number of island territories lie within theConvention Area, all of which are under thejurisdiction of CCAMLR Members. These sub-Antarctic islands include the Kerguelen and CrozetIslands (France), Bouvet Island (Norway), the PrinceEdward Islands (South Africa) and Heard andMcDonald Islands (Australia).

In Article IV 2(b) the Convention states that it iswithout prejudice to the right to exercise coastal statejurisdiction, which generally extends out to 200nautical miles from the islands. In the past, however,Members with island territories within theConvention Area have generally applied theconservation and management measures adopted bythe Commission to their waters.

4.3 OUTSIDE THE CCAMLR CONVENTION AREA

4.3.1 High seas outside the CCAMLR ConventionArea

The Patagonian slope off Chile is the mostsubstantial fishery on the high seas outside theConvention Area for Patagonian toothfish. In additionto the Patagonian slope, increasing quantities ofPatagonian toothfish have been reported as taken onthe high seas, particularly in FAO Statistical Area 51in the most recent fishing season. Statistical Area 51covers the entire western and southern Indian Oceanto the north of the CCAMLR Convention Area.Despite the recent reports of toothfish catches inthese areas, the veracity of these reports isquestionable as stocks of toothfish in this area havenot previously been identified that would support thelevel of reported catch.

There is currently no conservation or managementframework for toothfish in high seas areas outsidethe CCAMLR Convention Area beyond the broadobligations contained under the LOSC and theapplication, on a voluntary basis, by CCAMLRMembers of the CDS requirements to catches takenoutside the Convention Area. Voluntary measuresthat may be applied by Members include prohibitionof catches claimed as having been taken in StatisticalArea 51 that can not be verified via VMS reports.

Under the LOSC, States fishing for stocks on thehigh seas should co-operate in the management ofthose stocks. In relation to toothfish this could beachieved either through the negotiation of a newregional fisheries agreement or the northward


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extension of the CCAMLR Convention Area. In regardto the former option there are negotiations underwayto develop a south-west Indian Ocean convention thatmay have competency for both toothfish species andthose waters of FAO Statistical Area 51 from whichtoothfish catches are suspected of beingmisreported. However even if agreed, any suchconvention is unlikely to develop into a functioningentity in the foreseeable future. Apart from thepossibility of a south-west Indian Ocean convention,there are unlikely to be any new arrangements ofrelevance to toothfish because it would beimpractical and costly to negotiate and implement anagreement that dealt with essentially the same stocksas CCAMLR.

The option of extending CCAMLR’s ConventionArea has been briefly canvassed at recent meetings ofthe Commission however has received little support.In reality, the extension of the CCAMLR ConventionArea is unlikely to achieve consensus in the nearfuture because of the likelihood that a significantproportion of the toothfish catch claimed as havingbeen taken outside the Convention Area has, in fact,been taken within it. This undermines and blurs therationale for any such extension.

Further, while establishing a more northerlyboundary may make such claims even more

questionable it would not fundamentally change thenature of the current loophole.

4.3.2 Waters under national jurisdiction outside the CCAMLR Convention Area

Several fisheries for Patagonian toothfish takeplace within waters under national jurisdictionoutside the CCAMLR Convention Area however allsuch waters are under the jurisdiction of CCAMLRMembers. These fisheries include:

• Macquarie Island (Australia)

• Falkland/Malvinas Islands

• Argentinian Exclusive Economic Zone

• Chilean Exclusive Economic Zone

The Convention requires that the Commission seekto co-operate with Contracting Parties that havejurisdiction over waters lying outside the ConventionArea in which Patagonian toothfish are found (ArticleXI). To date, coastal States have generally imple-mented measures in their waters that are compatiblewith those adopted by CCAMLR.

In February 2002, twovessels suspected of illegalfishing were sighted in theAustralian Fishing Zonearound Heard andMcDonald Islands. TheRoyal Australian Navyintercepted and boardedboth vessels and escortedthem back to port. Thevessels were carrying a totalof 200 tonnes of toothfishat the time of their arrest,valued at approximatelyUSD1.3 million.


4.4 KEY PROBLEMS WITH THE CURRENTCONSERVATION AND MANAGEMENTREGIME FOR TOOTHFISH

The key problem for the current conservation andmanagement regime for toothfish is the continuingimpact of illegal, unreported and unregulated (IUU)fishing. CCAMLR has recognised this problemstating that “…the high market value of toothfish hasmade this species a prime target for IUU fishing inthe Convention Area. Members believe that this issueis the greatest challenge currently facing theCommission” (CCAMLR 2001b).

In broad terms, a risk assessment by a prospectiveIUU fisher deciding whether or not to fish illegally in the waters of a coastal State would include the following factors:

risk of detection x risk of apprehension x chance of asuccessful prosecution x penalty versus potential financial gain

The value of toothfish provides a powerfulincentive to undertake IUU fishing, with toothfishworth between USD4 - 7 per kilogram wholesale forheaded and gutted product and boats capable oflanding 200 to 300 tonnes of product per trip (M.Exel, Austral Fisheries Pty Ltd., in litt. to A. Willock19 February, 2002). There is limited disincentive toundertaking IUU fishing given the difficulties forcoastal States in detecting illegal fishing within theirremote sub-Antarctic waters and the limitedenforcement capacity of CCAMLR in relation to thehigh seas within the Convention Area.

In 2001 the TRAFFIC Network released two tradeanalyses of toothfish, one on Patagonian toothfishand the other on Antarctic toothfish. These analyseswere undertaken in response to growing concernsabout the extent of IUU fishing activity for toothfish,both within and outside the CCAMLR ConventionArea. The conclusion of these analyses was that thelevel of trade in both species of toothfish wassignificantly higher than the level of catch estimatedby CCAMLR, with more IUU fishing activity thanestimated by CCAMLR the source of these highercatches (Lack & Sant, 2001).

In relation to Patagonian toothfish the analysisindicated that the global level of IUU catch in the year2000 could have been up to four times that estimatedby CCAMLR. Similarly, the trade analysis of Antarctictoothfish showed that the level of removals may be70 per cent higher than the level of catch reported tothe Commission and could be as much as 147 percent higher (Lack, 2001). Further, up to half of the

total toothfish in trade in the year 2000 may havebeen derived from IUU fishing activity (Lack & Sant,2001).

Each of the different forms of IUU fishing inrelation to the toothfish fishery is discussed below inmore detail.

4.4.1 Illegal fishing

Illegal fishing for toothfish occurs in two mainways. First, boats fish in waters under the jurisdictionof coastal States, either within or outside theConvention Area, without proper authorisation. Forexample, the estimate of illegal catch of toothfishtaken from waters under Australian jurisdiction overthe split-year 2000/01 was 1,649 tonnes. This illegalcatch represented 55 per cent of the total allowablecatch of 2,995 tonnes (Anon., 2001).

The second form that illegal fishing for toothfishtakes is activity on the high seas within the CCAMLRConvention Area by vessels flagged to, or under theeffective control of, Members of the Commission. Asconservation measures that have been agreed byMembers are then legally binding on them, fishingactivity in contravention of such measuresconstitutes illegal fishing.

With the entry into force of the UN Fish StocksAgreement on 11 December 2001, a further instanceof illegal fishing will occur if a vessel flagged to acountry that has ratified or acceded to the Agreementfishes in the Convention Area in contravention of themeasures adopted by CCAMLR. However this type ofillegal activity is likely to be minimal in the short-term given that at the time of writing this report only31 countries have ratified the Agreement. Eight ofthese countries are also CCAMLR Members while themajority of the others have only small coastal fishingfleets.

4.4.2 Unreported fishing

Each year CCAMLR’s Working Group on Fish StockAssessment provides estimates of the level ofunreported catch taken from the Convention Area.Catches that may have been illegally taken from thewaters of a coastal State or by vessels flagged toCCAMLR Members are included in this estimate.

According to CCAMLR figures, the estimatedunreported catch within the Convention Area in thesplit year 1999/00 was 6,546. This represented 45per cent of the estimated total catch of 14, 441tonnes (CCAMLR 2001c). However, as notedTRAFFIC’s trade analyses indicate that CCAMLR’sestimates are likely to understate significantly thelevel of unreported catch.


4.4.3 Unregulated fishing

While the Commission regularly invites non-partieswith vessels fishing in the Convention Area to join itor co-operate with its conservation measures, this isunlikely to occur as many such vessels fly what istermed a ‘flag of convenience’.

Flag of convenience vessels are generallyconsidered to be those that are registered in adifferent country to that where the ship is beneficiallyowned. These registers are often maintained bydeveloping States for the purpose of raising much-needed revenue. Vessel owners are attracted by theopportunity to avoid higher costs in their owncountries, including insurance and taxes, and in somecases by the general lack of Flag State controlexercised over vessels’ activities. The result is thatthe fishing activity by these vessels is largelyunregulated within the Convention Area and adjacenthigh seas.

The lack of control over vessels exercised by manyFlag States, and the relative ease with which flags canbe changed by owners if a State does begin to exertsome control, has led some countries to attempt toexercise control over their nationals when they areoutside their jurisdiction. For example, Japanrequires Japanese fishers to obtain Governmentapproval before working aboard foreign-registeredtuna vessels. However exercising control overnationals in this manner can present legal andconstitutional difficulties for many countries.

In addition to fishing activity within the CCAMLRConvention Area, unregulated fishing for toothfishalso occurs in high seas areas outside the ConventionArea. There are currently no conservation andmanagement measures in place in such areas fortoothfish.

The combined impact of IUU fishing activityseriously undermines the conservation measuresestablished by the Commission to the extent thatserious concerns have been raised for the future ofPatagonian toothfish. At its meeting in 1999,CCAMLR's Scientific Committee (CCAMLR, 2000a)“…stressed that continued illegal fishing holdsserious implications for the long-term yield and thattotal catches, in some areas at least, may seriouslycompromise the status of the spawning stock in theshorter term.” More recently, CCAMLR has statedthat “… the continuation of IUU fishing could reducetoothfish stocks to levels from which they cannotrecover” (CCAMLR 2001b).

The introduction of the CDS has led to an increasein the amount of catch reported as taken on the highseas outside the Convention Area, particularly in FAOStatistical Area 51. At its annual meeting in October2001, CCAMLR Members adopted a resolution onthis issue in which they expressed concern that“…the Catch Documentation Scheme forDissostichus spp. (CDS) could be used to disguiseillegal, unregulated and unreported (IUU) catches ofDissostichus spp. in order to gain legal access tomarkets.” The resolution states Members’ concernthat “…any misreporting and misuse of the CDSseriously undermines the effectiveness of CCAMLRconservation measures.” The resolution goes on tourge “…States participating in the CDS to considerreviewing their domestic laws and regulations with aview to prohibiting, landings/transhipments/importsof Dissostichus spp. declared in a DCD as havingbeen caught in FAO Statistical Area 51 if the FlagState fails to demonstrate that it verified the DCDusing automated satellite-linked VMS derived datareports” (CCAMLR 2002).

There are clear incentives to misreport catch ashaving been taken on the high seas outside theConvention Area. First, there are no conservationmeasures or controls on the high seas in such areas,unlike in the Convention Area where total allowablecatch controls on toothfish apply. Operators can alsoavoid other conservation measures, including therequirement to carry an automatic location deviceunder the vessel monitoring system. Further, catchesthat have been illegally taken from the waters ofcoastal States can be misreported as having beentaken on the high seas. Vessels flagged to bothCCAMLR Members and non-parties are implicated inthis practice.

While CCAMLR Members and States co-operatingin the implementation of the CDS require that alltoothfish landed to their ports be accompanied by theappropriate forms there is no obligation for the PortState to verify where the catches were taken as this isthe responsibility of the Flag State. Although someport States may apply more stringent requirementson the basis of the resolution adopted at CCAMLR’sannual meeting in 2001, there is no requirement todo so. Therefore, as CCAMLR acknowledges, throughmisreporting, illegal catches can be launderedthrough the CDS in circumstances where the FlagState is not undertaking effective verification andvalidation of catches and the Port State does not itselfrequire such verification.


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4.4.4 Compliance and enforcement

As noted, the Commission has limited enforcementcapacity of its own, relying instead on Members,Acceding States and co-operating non-parties toeffectively implement and regulate agreedconservation measures. While the Commissioncontinues to invite countries involved in fishing for ortrading toothfish to join it or voluntarily co-operatewith its conservation measures, as indicated in Table2, membership of the Commission does not cover allcountries involved in the catching and trading oftoothfish. Complicating this further is the fact thatoperators from, and vessels of, Members and co-operating non-parties are themselves implicated inIUU activities for toothfish. In addition, the lack of aformal management regime for toothfish in the highseas outside the CCAMLR Convention Area allowsfishing in such areas to be undertaken in anunregulated manner.

Enforcement of conservation and managementmeasures in waters under national jurisdiction isundertaken by the respective coastal State. In regardto their respective Indian Ocean island territories,France and Australia have at-sea surveillance andenforcement patrols to deter, detect and, whereappropriate, apprehend illegal fishing vessels in theirEEZs, however such patrols are extremely expensiveand relatively limited in terms of area and timecoverage. Aerial surveillance also has limitedfeasibility due to weather conditions and the longdistances from airfields.

The introduction of the CDS, with its reliance onport and market State enforcement, is evidence of thefact that control over the act of fishing itself is almostimpossible in the remote Antarctic waters where theprimary activity takes place.

4.4.5 Inconsistent implementation of the CDS

Undermining the effectiveness of the CDS is thefact that not all countries involved in the trade in

toothfish are fully applying the Scheme. In somecases this is despite either being Contracting Partiesto the Convention or having agreed to apply the CDSas a co-operating non-party. For example, although aContracting Party and one of the major importers oftoothfish, Canada has not yet implemented the CDSdespite repeated requests from the Commission andrepresentations by individual Member countries to doso in the period since the CDS was adopted.

CCAMLR Member countries are required to detainshipments of toothfish that do not carry thenecessary documentation and to not acceptshipments where such documentation is producedbut is not valid. However, as noted, there areinconsistencies in the level of validation required byindividual Members of information contained in theDissostichus Catch Document (DCD). While someMembers require proof of where catches have beentaken through data from the vessel monitoringsystem before accepting it in their ports, otherMembers may not require such proof and allow catchto be landed on the basis that it is accompanied bythe correct and completed forms. Flag States haveresponsibility for the activities of their vessels on thehigh seas, including verifying on request that catchhas been taken in a manner that does not undermineCCAMLR’s conservation measures. However, suchverification is questionable when vessels flagged insuch States may themselves be implicated in IUUfishing activity.

The combined impact of both the incomplete andinconsistent implementation of the CDS is toseriously undermine the effectiveness of thecornerstone of CCAMLR’s measures to combat IUUfishing for toothfish.

Royal Australian Navy closingin on a suspected illegalfishing boat off Heard andMcDonald Islands


5 CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES

5.1 What is CITES?

Entering into force on 1 July 1975, the keyprinciple behind the establishment of CITES is thatno one country can effectively control internationaltrade in wildlife. Therefore the main purpose ofCITES is to provide a legislative and regulatoryframework for international co-operation in theinternational trade of wildlife. CITES does this in twomain ways: first, by providing a mechanism for theprevention of international trade in threatenedspecies and, second, by assisting in the effectiveregulation of international trade in others. CITESworks through controls on both the export andimport of listed species.

Currently, 158 countries are Parties to CITES.

In regard to fished marine species, several insignificant international trade are currently listed inCITES Appendices, including Queen conch, giantclams and all hard corals. In addition, Basking sharkand Great white shark have been listed in AppendixIII by the UK and Australia, respectively. No marinefish taken in a large-scale, commercial fishery has yetbeen listed on CITES although all sturgeon andpaddlefish, Acipenseriformes, are listed in eitherAppendix I or II, and are traded in significantquantities.

5.2 General description of how CITES works

As an international convention dealing with trade,CITES is premised on co-operation betweenexporting and importing States. Species of concernare proposed for listing by a Party and then discussedand put to a vote at the biennial meeting of theConference of the Parties. These proposals are oftenco-sponsored by other Parties. In practice, Statesgenerally consult with any other range States beforeproposing the listing of a species, with nominationsby range States usually considered to carry moreweight. Decisions on listings require a two-thirdsmajority vote of Parties present and voting, includingdecisions to list and de-list a species or transfer itbetween the Appendices. Any Party may enter areservation on a species listing within 90 days of thelisting, which results in the Party being treated as anon-party to the Convention with respect to thatspecies, until the reservation is withdrawn.

5.2.1 The role of each of the three Appendices

Appendix I

An Appendix I listing offers the highest protectionfor a species under CITES. A species listed inAppendix I must be currently threatened withextinction and affected by, or could be affected by,international trade. Trade in an Appendix I listedspecies is only authorised in exceptional circum-stances and any such trade may not be for a primarilycommercial purpose.

Appendix II

An Appendix II listing of a species does notnecessarily mean that it is currently threatened withextinction nor that trade in that species will belimited, however any such trade must be determinednot to be detrimental to the survival of the species.Appendix II includes species that may becomethreatened if their trade is not effectively regulated.Through adoption of listing criteria, the CITESParties have concluded that Appendix II shouldinclude species for which the harvesting ofspecimens from the wild for international trade has,or may have, a detrimental impact on the species byeither exceeding, over an extended period, the levelof harvesting that can be continued in perpetuity, orreducing the species to a population level at which itssurvival would be threatened by other influences.

The CITES treaty requires that trade in Appendix IIspecies must only be authorised by governments ifcertain required management and scientificdeterminations are made, including the requirementto not be detrimental to the survival of the species inthe wild.

To ensure that trade in an Appendix II-listedspecies is non-detrimental, a number of steps mustbe completed prior to export. First, the ScientificAuthority of the State must advise that the exportwould not be detrimental to the survival of thespecies. Second, the Management Authority of theState must be satisfied that the species was notillegally obtained. The Scientific Authority may alsodetermine that limits should be placed on export of aspecies in order to maintain it throughout its range ata level consistent with its role in the ecosystems inwhich it occurs. Annual quotas are one example ofsuch limits.

In relation to importation of Appendix II-listedspecies, the importing State must require the priorpresentation of the export permit or re-exportcertificate. If a species is re-exported, the re-


exporting State’s Management Authority must besatisfied that the species was imported in accordancewith CITES provisions.

The above requirements relate to species that areharvested from areas that are under the jurisdictionof a State. CITES provisions relating to species thatare introduced from the sea, outside the jurisdictionof any one State, are discussed separately under sub-section 5.2.2, below.

Appendix III

Species listed in Appendix III include those subjectto regulation within the jurisdiction of a State butrequiring the co-operation of other States to preventor restrict their exploitation through trade. As thepurpose of an Appendix III listing is to assist a Statein regulating a species under its jurisdiction there areno provisions in the Convention relating to theintroduction from the sea of an Appendix III-listedspecies. Further, there is no requirement for non-detriment findings to be made in relation to anAppendix III listed species.

A CITES Party can unilaterally list a species inAppendix III at any time. Recent examples ofAppendix III listings of marine fish include Baskingshark and Great white shark.

5.2.2 Introduction from the sea

‘Introduction from the Sea’ is a significantprovision in the application of CITES to many large-scale commercial marine fisheries. Under CITES,introduction from the sea is defined as“…transportation into a State of specimens of anyspecies which were taken in the marine environmentnot under the jurisdiction of any State” (Art. I (e)).To date CITES Parties have not clarified whatconstitutes waters under a State’s jurisdiction beyondthe 12 nautical mile territorial sea.

Article IV 6 of the CITES treaty requires theManagement Authority of a CITES Party to issue acertificate of introduction from the sea before theintroduction takes place. In issuing the certificate theManagement Authority must act on the advice of theScientific Authority that ‘…the introduction will notbe detrimental to the survival of the species involved’(Art. IV 6(a)).

As introduction from the sea does not constituteeither an export or an import under CITES, animportant distinction exists between therequirements for the granting of a certificate ofintroduction and those for an export or importpermit for an Appendix II-listed species.

In relation to species listed in Appendix II, theexporting State must meet two conditions prior to

export. First, the Scientific Authority must advisethat the export will not be detrimental to the survivalof that species, and, second, the ManagementAuthority must be satisfied that the specimen was notobtained in contravention of the laws of theexporting State for the protection of fauna and flora.Therefore, there is both a biological and a legalfinding required prior to export. The export permitmust also be presented to the importing State prior toimportation. A number of countries also require animport permit to be granted prior to importation,including members of the EU, exercising the rightunder Article XIV of CITES to implement a stricterdomestic measure. This effective double-check hasbeen used to prohibit, for example, the import intothe EU of certain species of coral from Indonesia dueto concerns over the veracity of the exportingcountry’s non-detriment finding.

CITES was negotiated and entered into force priorto the completion of negotiations on the LOSC andthe subsequent establishment of a legal regime formarine waters and obligations on States to co-operate with each other in the conservation andmanagement of high seas resources. The CITEStreaty itself and its negotiating history are clear,however, as to the applicability of the treaty to allwild species, whether terrestrial or marine. ArticleXIV of CITES states, among other things, that it iswithout prejudice to the development of the LOSC.However, CITES does not contemplate that there maybe regimes established in waters that are not underthe jurisdiction of any State which may require afinding as to whether a listed species was legallyharvested. Therefore, in regard to introduction fromthe sea, the only requirement is for the CITESScientific Authority of the state of introduction to besatisfied that the introduction will not be detrimentalto the survival of the species.

At the ninth meeting of the CITES Parties in 1994the USA put forward a draft resolution and paperdiscussing aspects of the implementation of CITESArticle IV paragraphs 4 and 5, which was discussedbut not put to a vote. At the 10th meeting of theCITES Parties in 1997 the USA put forward a draftresolution to establish a Marine Working Group todiscuss introduction from the sea and other technicalissues relevant to the application of CITES to marinefish, which was not adopted. At the 11th meeting ofCITES Parties in 2000 Australia proposed a draftresolution to guide the application of theintroduction from the sea provisions. The proposedresolution was not adopted although it receivedsubstantial support.


5.2.3 Compliance under CITES

The CITES Parties have established a number ofprocesses through which remedial action can betaken against a country that is not fulfilling itsobligations under the Convention. In cases where aCITES Party does not implement domestic legislationin support of CITES, as required under the treaty,notification may be made to other Parties to suspendtrade in all CITES-listed species with that country.Further, infractions reports are provided to theConference of Parties at their biennial meeting thatdescribe problems with compliance with CITESmeasures.

Another process through which CITES investigatescompliance with and the effectiveness of anAppendix II listing is through what is commonlyknown as a ‘Significant Trade Review’. Under aSignificant Trade Review an independent group ofexperts reviews the trade and management situationfor a particular species and may makerecommendations on changes where trade in thatspecies is of concern. Recommendations are basedon implementation of CITES Article IV, specifically asit pertains to the issuance of scientific non-detrimentfindings and the sustainability of trade. If a Party failsto take action to implement the recommendationsresulting from a Significant Trade Review, trade inthe affected species with that Party can be suspendedby the CITES Standing Committee, althoughcompliance by the Party is the overall objective.

Resolution 8.9 (Rev) of the CITES Conference ofParties provides for recommendations under aSignificant Trade Review to be either primary orsecondary recommendations:

i) primary recommendations include, for example,administrative procedures, specific quotas, zero quotas ortemporary restrictions on exports of the speciesconcerned; and

ii) secondary recommendations include, for example,field studies or evaluation of threats to populations orother relevant factors, including illegal trade, habitatdestruction, internal or other uses, designed to providethe information necessary for a Scientific Authority non-detriment finding in relation to those species under reviewfor which sufficient information is available on trade andbiological status, to determine possible problems with theimplementation of the relevant paragraphs of Article IV,and following consultation with the range States, to makespecific recommendations.

An individual State may implement strongerconservation measures than those provided for oragreed under the provisions of CITES.

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Hauling longlines set for toothfish in the southern oceans.


While Patagonian and Antarctic toothfish could beproposed for listing under either Appendix I or II,this analysis will deal with the implications of anAppendix II listing. Currently, CCAMLR allows forthe controlled catch and landing of toothfish, whichis consistent with an Appendix II listing. Further,given that commercial trade would be prohibitedunder an Appendix I listing an examination of anAppendix II listing provides for a more detaileddiscussion of a range of trade-related implementationissues for toothfish, particularly CITES’ potential rolein assisting CCAMLR in the effective regulation oftrade. It should be noted, however, that many of theissues discussed would be common to a listing oneither Appendix I or II. In relation to an Appendix IIIlisting, such a listing would have little impact on theoverall sustainability of toothfish given that themajority of the catch is taken on the high seas andAppendix III contains no provisions relating tointroduction from the sea. Further, as there is norequirement for a non-detriment finding under anAppendix III listing there would be little conservationvalue in listing toothfish in this Appendix.

CCAMLR acknowledges that pursuit of itsecosystem approach and conservation efforts forspecies such as toothfish will require close co-operation with other organisations that can assist ininfluencing activities that are not directly under themandate of the Commission (CCAMLR 2000b). Inparticular, CCAMLR recognises that “…IUU fishingactivities are often also conducted outside theConvention Area.” (CCAMLR 2001b). This sectionwill therefore deal with the potential contributionthat a CITES Appendix II listing of toothfish couldmake to the pursuit of these objectives while Section7 considered some of the implementation issues thatwould arise if a listing were to occur.

6 POSSIBLE BENEFITS OF AN APPENDIX II LISTING OF TOOTHFISH

6.1 Membership of CITES and CCAMLR

Currently all 30 CCAMLR Members and AccedingStates are also Parties to CITES. Of around 55 Statesor entities that have been involved to some degree inthe catch and / or trade of toothfish over the pastthree years only four are not members of CITES;Laos, Bosnia-Herzegovina, Serbia-Montenegro andTaiwan. Taiwan, which is unable to join CITES,voluntarily applies relevant provisions of theConvention.

At present the effectiveness of CCAMLR’sconservation measures is undermined because of thepotential for toothfish catches to be taken by andlanded in States that are not Members of or AccedingStates to the Convention. CCAMLR has had onlylimited success in convincing non-parties to either

join it or voluntarily apply its measures. The muchbroader global membership of CITES may thereforehave some practical advantages as it is highly likelythat any port or market State will also be a CITESParty. Although CITES provisions would not directlyimpact on the conduct of fishing activity, toothfishcatches taken by IUU fishing activity would besubject to these provisions at the time the catch wasintroduced from the sea, exported or imported.

The extent of the advantage offered by CITES inthis regard should however be viewed with somecaution given that 90 per cent of the total toothfishtraded ends up in the markets of the USA, Japan,Canada and the EU. More stringent application of thecurrent CCAMLR conservation measures by thesecountries could potentially achieve much the sameresult. For example, as noted, despite repeatedrequests by CCAMLR Members, Canada has notimplemented the CDS even though it is both anAcceding State to the Convention and involved in theimport and export of toothfish product. Further,consumer States could themselves requireverification of where catches had been taken ratherthan relying on second, third or even fourth parties toverify this information. Although more time-consuming, this would be possible as the currentCDS scheme tracks catches from the vessel to theState of final importation.

Apart from the possibility of achieving a widerpractical application of conservation measures fortoothfish as a result of the broader CITESmembership, a further consideration is the potentialfor greater international influence and, if necessary,pressure exerted by 158 countries compared to thesmaller membership of CCAMLR. In the case oftoothfish, this could result in a number of benefitsincluding; an increase in the countries applying theagreed conservation measures; the inability ofcountries that did not apply those measures to findmarkets for their products; or the suspension in tradeof all CITES-listed species from a CITES Party whosedomestic legislation was insufficient to implementCITES provisions.

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6.2 Geographical area of competence

One of the main potential benefits achieved undera CITES listing of toothfish is that the geographicalarea of application under CITES is global. Thiscompares to the more limited Convention Area ofCCAMLR. While in combination with the co-operation of Member coastal States, theCommission’s influence encompasses the majorPatagonian toothfish grounds and all knowncommercial grounds for Antarctic toothfish,loopholes exist in the effective application of thisinfluence. As noted, the main reason for this is thatthe absence of comprehensive at-sea enforcementmeans that catches of toothfish taken within theConvention Area, and from the waters of coastalStates, are being misreported as having been takenon the high seas outside the Convention Area.Compounding this inability to exercise at-seaenforcement is the fact that many flag States,including some CCAMLR Members, are not exertingcontrol over the activities of their vessels oreffectively verifying their catches.

At the annual meeting of CCAMLR in October2001, Members discussed options to close existingloopholes including the application of the vesselmonitoring system to waters beyond the ConventionArea. However, this would require the Commission toextend the application of certain conservationmeasures beyond its area of competence, and thusbeyond the mandate provided by its Convention. Inlieu of the extension of the vessel monitoring system,a resolution was agreed whereby a Port State mayrequest verification from a vessel of where catch hasbeen taken, including through information takenfrom vessel monitoring systems, in issuing aCertificate of Landing under the CDS (CCAMLR,2002). While this resolution provides a more solidbasis for an individual country to refuse the landingof toothfish where vessel monitoring systeminformation is not provided, there is no requirementfor a Port State to verify the information contained onthe CDS forms in this manner. Further, vesselmonitoring information can not of itself show wherecatch was taken. This raises the possibility that a boatpermitted to fish both within and outside theConvention Area may still claim all or part of its catchas having been taken outside the Area, thuscircumventing CCAMLR’s total allowable catchlimits.

Assuming that Patagonian and Antarctic toothfishwere listed as species, rather than on the basis ofcertain populations, the unlimited geographicalapplication of CITES could address this problem asits provisions would apply regardless of the locationof the catch. However there are a number of

attendant implementation issues that requireconsideration including; the basis for a CITESScientific Authority’s non-detriment finding; theability of an exporting country to determine thelegality of any catch; and which provisions of CITESwould actually apply to any given landing of toothfish.These are discussed further under Section 7.

6.3 Decision-making under CITES

One important element in assessing the potentialeffectiveness of a CITES-listing of toothfish is thedecision-making and reservation procedures underCITES. Decisions by the Conference of Parties toamend Appendices I or II are taken by a two-thirdsmajority of Parties present and voting. However, aParty may enter a reservation on any amendmentsuch that the Party is treated as a non-party to theConvention with respect to the species concerned.

In general, CITES Parties do not exercise theoption of taking out a reservation on a species listing.In cases where this has occurred, to the detriment ofthe conservation status of the species, pressure towithdraw the reservation has been exerted by othercountries. An example of this was the decision byJapan to remove its reservation on certain marineturtle listings in response to international pressureover its continued trade in their products. There havealso been cases where unilateral action has beentaken against a country or entity because of itscontinuing trade in a threatened species, even iftechnically legal under a reservation.

In relation to toothfish, if a major toothfishcatching or consuming country were to take out andmaintain a reservation it would potentially limit theeffectiveness of a toothfish listing. This would beparticularly significant given the extent of toothfishlandings that would fall under the introduction fromthe sea provisions as a State with a reservation wouldnot have to issue certificates of introduction for suchfish and so they would not be documented under aCITES scheme. However, if the fish were thenexported to a CITES Party that did not have areservation, documentation comparable to thatspecified by CITES would be required. For areservation to have any effect in removing a countryfrom its CITES obligations both importing andexporting countries, or States introducing toothfishfrom the sea and the subsequent importing country,would have to enter a reservation.

The reservation provisions of CITES are notdissimilar to those used by CCAMLR. While decisionsin that forum are taken by consensus a Member ofthe Commission may subsequently notify that it isunable to accept a particular conservation measure.In relation to the conservation measures relevant to

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toothfish, including the CDS, no Member has notifiedits non-acceptance. Given this, the question arises asto whether a CCAMLR Member that has agreed to theCDS would take out a reservation to an Appendix-IIlisting on CITES. However, even if that were to occurthe conditions of the CDS under CCAMLR wouldcontinue to apply.

6.4 Tools for compliance

As noted, CITES has a number of tools throughwhich it regularly applies pressure on or censurescountries that are not effectively implementing theprovisions of the Convention. The broad membershipof CITES provides it with sufficient mandate tomultilaterally suspend trade in listed species with acountry on that basis.

In comparison CCAMLR has limited ability toenforce its own measures and does not have well-established processes under which its Members maytake action against a country that is considered to beundermining the agreed conservation measures.

Such processes are particularly difficult to establishunder a consensus decision-making regime wherevessels flagged to Members may be implicated in IUUfishing activity. In such circumstances, any unilateralaction by a Member may leave it vulnerable todispute under the provisions of the World TradeOrganisation.

A listing of toothfish under CITES would potentiallyprovide scope for action to be taken againstcountries that, for example, were making non-detriment findings inconsistent with the biologicalstatus of the species or allowing the export of fishthat may have been illegally taken. Given thatfindings under CITES of non-detriment and thelegality of toothfish catch can only rely on the sameinformation currently available to CCAMLR this ispotentially a key benefit of CITES. This is particularlyimportant to ensure that the major weakness of thecurrent CCAMLR regime, depending on flag Stateseffectively controlling their vessels’ activities, is notsimply substituted with an over-reliance on portStates under CITES.

Freshly caught Patagonian toothfish on board a longline vessel


7 IMPLEMENTATION ISSUES

7.1 Introduction from the Sea provision

7.1.1 Definition of what constitutes introductionfrom the sea

Although CITES states that it is without prejudiceto the codification the LOSC, the CITES Parties havenot explicitly adopted the jurisdictional regime formarine waters established under that Conventiondespite its entry into force in 1994. While somecountries maintain that the entry into force of theLOSC automatically altered the definition of whatconstitutes waters under the jurisdiction of a Stateunder CITES, it is unclear whether this is a widelyheld view among CITES Parties. Therefore whatconstitutes waters under a State’s jurisdiction beyondthe 12 nautical mile (nm) territorial sea has not yetbeen agreed, which in turn blurs the definition ofwhat constitutes fish introduced from the sea.

In relation to toothfish, this lack of clarity wouldaffect any toothfish taken from waters between 12and 200nm off sub-Antarctic island territories andcoastal States and potentially result in toothfish takenin these areas being subject to different CITESprovisions.

The toothfish fishery in the waters surrounding Australia’sHeard and McDonald Island is used to illustrate thisissue:

a) Toothfish is taken within 12nm of Heard Island and landedin an Australian port

• the fish has not been traded or introduced from the sea,therefore there would be no requirement for any permit orcertificate of introduction under CITES

• if the fish were subsequently exported, an export permitwould be required

b) Toothfish is taken within 12nm of Heard Island and landedin non-Australian port

• requires an export permit to be granted by Australia

c) Toothfish taken between 12 and 200nm from Heard Island

• currently under CITES this may constitute introductionfrom the sea, regardless of where the fish was landed, andrequire the prior grant of a certificate of introduction

d) Toothfish taken between 12 and 200nm from Heard Islandand transhipped in a non-Australian port

• the fish has not been traded therefore there would beno requirement for any permit or certificate of introductionunder CITES at this stage

• an introduction from the sea certificate would, however,be required to be granted by the first State of landing.

There are a number of practical issues to considerin relation to this issue.

First, there is potential for conflict at a domesticlevel between implementing legislation for CITESand fisheries legislation, which in many cases wouldreflect a State’s jurisdiction out to 200nm. Statesmay be unwilling to implement a decision of CITESthat impacts on the definition of waters under theirjurisdiction on the basis that this could weaken theirclaims over such waters. This may particularly be thecase where there are disputes over maritimeboundaries and possession of territories.

A second issue is the potential for conflict betweenStates in regard to their responsibilities for issuingpermits. For example, consistent with its fisherieslegislation and sovereign interest over the waterssurrounding Heard and McDonald Islands, Australiamay wish to issue export permits for catches takenfrom waters within 200nm of the islands. However,the State of landing may consider the same catch ashaving been introduced from the sea.

A further practical consideration is that it ispossible that on the one fishing trip a vessel may fishboth within and outside the 12nm boundary. Thiswould result in part of the catch being subject tointroduction from the sea and the other subject toeither export requirements or no CITES provisions,depending where it was landed. This situation mayarise regardless of whether the definition of watersunder a State’s jurisdiction is interpreted to conformto that of LOSC. The lack of certainty created by allof the above would adversely impact on industry’sability to operate their businesses efficiently andcomply with both CITES and fisheries obligations.

Issues relating to conflict over what constitutedwaters under the jurisdiction of a State could beaddressed by the CoP adopting a definition of suchwaters that was consistent with the LOSC. Whilenoting that not all States with a coastline have yetadopted and defined their waters in a mannerconsistent with the LOSC this would neverthelessprovide a major step towards removing the majorsources of conflict with fisheries legislation andsovereign rights issues.

Ensuring the consistent application of CITESprovisions relating to introduction from the seashould be considered a prerequisite to a listing oftoothfish. In the remainder of this paper, therefore,the term ‘introduction from the sea’ will refer totoothfish taken from high seas areas only; that is,from waters not included in the exclusive economiczones, territorial sea or internal waters of a State, orthe archipelagic waters of an archipelagic State, asdefined under the LOSC.


In relation to the third issue of ‘split catches’, apractical solution would need to be developed toprevent uncertainty among industry and the potentialto manipulate reporting requirements. One optionwould be for the CoP to make a decision that all suchcatch should be subject to a single requirement,being whichever is the more stringent. For example:

• for catch split between export permitrequirements and introduction from the sea, exportpermit requirements would apply

• for catch split between introduction from the seaand no CITES provisions applying, introduction fromthe sea would apply.

While this option may present legal difficulties inthat it seeks to apply CITES provisions beyond thescope of the Convention in some circumstances it isindicative of the need to pursue a practical solutionto this issue. It is often the case within CITES that,when presented with new commodities or uniquesituations concerning trade in a species, Partiesspend considerable time developing and reviewingpractical resolutions to allow for flexibility. This hasoccurred for trade in caviar and crocodiles forexample, as well as in relation to the implementationof Appendix II listings for commercially tradedtimber species.

7.1.2 The legal status of toothfish introducedfrom the sea

The provisions under CITES for introduction fromthe sea are particularly significant for Patagonian andAntarctic toothfish fisheries. The extent of fishingactivities on the high seas, as well as the difficultiesin detecting IUU fishing in waters under nationaljurisdiction, would result in much of the Patagonianand Antarctic toothfish landed being treated underthese provisions. In the latter case, although catchesillegally taken from waters under a State’sjurisdiction would not literally fall under thedefinition of introduction from the sea such catchesare commonly misreported as having been taken onthe high seas in order to avoid prosecution by thecoastal State. The application of the introductionfrom the sea provisions to the toothfish fishery raisesa number of important issues.

There is no recognition under CITES of thepotential for a listed species to have been taken in amanner that contravened the conservation andmanagement measures established by a regionalfisheries organisation or in a manner that violatedinternational law. Therefore, where toothfish claimedto have been taken on the high seas is landed into aPort State, the Management Authority of that Statehas no explicit decision-making role under which it

can take into account whether the catch was taken ina manner that undermined CCAMLR’s conservationmeasures.

Before assessing the full potential impact ontoothfish conservation of the narrower requirementsfor product introduced from the sea under CITES it isnecessary to examine the next step in trade intoothfish products.

While the majority of toothfish is likely to beintroduced from the sea at the first point of landing,over 90 per cent is then exported to other countriesand, in some cases, re-exported to the consumercountry after further processing. If listed in AppendixII, toothfish that was exported from a CITES Partywould need to be accompanied by an export permit.Grant of the export permit requires both a finding bythe Scientific Authority that the export will not bedetrimental to the survival of the species(presumably on the same basis as that for the originalgrant of the certificate of introduction) and for theManagement Authority to be satisfied that thetoothfish was not obtained in contravention of thatcountry’s laws for the protection of fauna. In additionEU member countries, major importers of toothfish,also require import permits to be issued prior to theimportation of an Appendix II-listed species. Othercountries also have the capacity to implementstronger measures in relation to importation ofCITES-listed species including Australia which canrequire import permits for certain species.

If a non-CITES party wished to export toothfish toa CITES Party, documentation comparable to thatspecified by CITES would be required. The onlyaspect of trade in toothfish that would require nodocumentation under CITES would be trade betweentwo States that were non-parties to CITES.

As noted under sub-section 5.2.3 CITES has anumber of tools at its disposal to encouragecompliance with its measures and could suspendtrade in listed species with a country that wasexporting illegally caught toothfish.

Therefore, although CITES provisions for introductionfrom the sea require only a non-detriment finding,subsequent export of toothfish would require both a non-detriment finding and a finding on the legal status of the fish.An Appendix II listing could therefore potentially expand theapplication of toothfish conservation measures beyondCCAMLR Members and co-operating non-parties andprovide a means to encourage more effectiveimplementation of those measures. The basis for and timingof a finding prior to export that the toothfish has been legallyobtained is discussed further in sub-section 7.3.


7.2 The basis of non-detriment findings fortoothfish

The main direct control on the sustainability oftoothfish within the Convention Area is theestablishment of total allowable catches. CCAMLR’sWorking Group on Fish Stock Assessment providesadvice to the Scientific Committee on long-termannual yields, which the Committee then considersand uses as the basis for its advice on total allowablecatch (TAC) limits to the Commission. These TACsare set based on estimates of sustainable catchprojected over a 20-year plus time horizon. A TAC isset by the Commission on an annual basis for eachdeveloped, exploratory or new fishery for whichsufficient information is available, and applied tostatistical sub-areas within the Convention Area.While Member countries must provide priornotification of the intention of their vessels to fish inan area, there is no allocation of a certain level ofcatch to any individual country. As there is no allocation to individual countries,authorised vessels fish in a given sub-area in acompetitive manner for a share of the available TAC.The Commission’s Secretariat monitors reportedcatches against the TAC and the fisheryis closed if and when the allowable catch limit isreached.

In a similar way under CITES, limits, usuallyreferred to as quotas, can be placed on the totalnumber (or quantity) of specimens that can be tradedof an Appendix II-listed species in a year. Thesequotas directly relate to export quotas established forthat species by range States. In the case of a sharedstock, such as sturgeon in the Caspian Sea, rangeStates reach agreement on catch and export quotasand, once agreement is reached, then takeresponsibility to manage the export of their share ofthe total quota under CITES provisions. TheScientific Authority’s non-detriment finding is thenmade in reference to the national quota (also termednational allocation).

The TACs established by CCAMLR for Patagonianand Antarctic toothfish reflect the best availableinformation on what is a sustainable level of catchand also take into account the impact of catches onthe broader ecosystem. Given this, and the fact thatover 90 per cent of toothfish is traded, the TACs setby CCAMLR would correlate closely with a non-detriment finding under CITES as to whether thelevel of trade is sustainable.

However, a complicating factor in basing a non-detriment finding on CCAMLR TACs is that, under thecurrent CCAMLR system, any illegal, unreported orunregulated catch known to have been taken from a

sub-area during the course of the fishing season isnot deducted from the TAC for that sub-area in realtime but rather is taken into account when setting theTAC for the following season. For example,approximately 200 tonnes of toothfish has recentlybeen seized by Australian authorities following thearrest of two vessels allegedly fishing illegally fortoothfish in Australian waters around Heard Island.However, the TAC of 2,815 tonnes for the year2001/02 has not been reduced by 200 tonnes; insteadthe additional catch will be factored into the settingof the TAC for that sub-area for the year 2002/03.Although, all other factors being equal, there wouldbe some reduction in the TAC for 2002/03, thereduction will not be in the order of 200 tonnes asremovals are, in effect, amortised over the 20-yearplus time horizon. This means that any non-detrimentfindings under a CITES listing of toothfish basedsimply on whether or not a particular TAC had beenreached would be a significant departure fromcurrent practice under CCAMLR. Further, dependingon how the non-detriment findings were implementedthere is the potential to create conditions within thefishery that could actually encourage IUU fishing tooccur. This is discussed in more detail under sub-section 7.2.2.

7.2.1 Toothfish caught in and exported fromwaters under the jurisdiction of a State

There are a number of fisheries for toothfish thattake place in waters under the jurisdiction of acoastal State within the Convention Area. TACs forthese waters are set either through the same processas those for other sub-areas; that is, on the adviceand recommendations of the Scientific Committee, orthrough an internal process undertaken by thecoastal State and notified to CCAMLR. In thesecircumstances, because such waters are fished underthe control of an individual country the TAC is similarto a range State quota under CITES and a non-detriment finding for toothfish exported from thosewaters would therefore be relatively straightforward.

There are also a number of fisheries for toothfish innational waters that lie outside the CCAMLRConvention Area, for example the Chilean artisanalfishery and Australia’s Macquarie Island fishery.Non-detriment findings for toothfish exported fromthese waters would be based on the managementmeasures implemented by the relevant coastal State,which might be a TAC or some other form of effectivecontrol on fishing effort in that area.


7.2.2 Toothfish introduced from the sea

In the context of CCAMLR’s competitive TACregime, an Appendix II listing of toothfish would raisethe question of the basis on which a country wouldmake a non-detriment finding when assessingwhether to accept the introduction of toothfish fromthe sea. There is little question that informationprovided by the Scientific Committee of CCAMLRwould provide the most robust basis to make a non-detriment finding. However, consideration needs to begiven to how best to link national authorities withCCAMLR to accommodate the characteristics of thetoothfish fishery and gain the information required.

In relation to linkages between national authoritiesand CCAMLR’s Scientific Committee, Article IV 7 ofCITES states that a Scientific Authority’s advice maybe reached in consultation with internationalscientific authorities. However, Article IV 7 goes on tolink that advice with the granting of certificates ofintroduction for a period of time and relating to a totalnumber of specimens to be introduced over thatperiod. These factors – time and total numbers – raisedifficulties in the context of the toothfish fishery.First, toothfish catch is recorded in weight, with boatscapable of landing 300 metric tonnes per trip. Itwould clearly be impractical to account for largecatches in numbers of specimens, particularly wherepartial processing of the fish had occurred at sea.Second, the amount of toothfish that may beintroduced by a vessel will vary from season toseason, so it would not be possible for a country toaccurately predict total amounts for inclusion on anintroduction from the sea certificate. Therefore, theprovisions under Article IV 7 taken in their entiretymay prove impractical for toothfish unless the CITESCoP were to discuss and adopt a flexibleinterpretation of Article IV 7 through a resolution oran annotation to a toothfish listing in Appendix II.

An alternative to directly linking with the provisionsof Article IV 7 would be for the CoP to simply make adecision when listing toothfish that non-detrimentfindings for toothfish introduced from the sea shouldbe made with reference to the TACs established byCCAMLR.

Regardless of whether advice from CCAMLR’sScientific Committee was accessed under theprovisions of Article IV 7 or through a decision by theCoP upon listing, a number of issues remain to beconsidered.

As noted, CCAMLR sets TACs for individual sub-areas within its Convention Area, enabling it tomanage individual stocks and the ecosystem effects ofoff-takes. Assuming that CCAMLR continued tomanage by sub-area, including authorising vessels of

Member countries to fish in those areas, the relevantquestion for a CITES non-detriment finding would bewhether or not the total catch of toothfish had beenexceeded. If CCAMLR were to establish an overalltotal allowable catch for each toothfish species aCITES Party could then simply make a non-detrimentfinding on that basis. However, in isolation, thisapproach could have significant negativerepercussions as it would promote a high level ofcompetition between operators, both legal and IUU,to ensure that they caught and landed their catchbefore the overall TAC was reached. Non-detrimentfindings made on the basis of each of the sub-areaTACs established by CCAMLR would not remove theproblem of competition for fish within those areas.

Competition between legal and IUU vessels under aTAC, set on either an overall or sub-area basis, wouldinevitably result in the over-capitalisation of fleets,potential wastage of product, and remove incentivesfor legal operators to fish within CCAMLR’sestablished conservation measures, including theircurrent role of reporting IUU activity. Althoughensuring that total catch of toothfish remained withinthe CCAMLR TAC this approach would undermine thebasis for the legal toothfish fishery and CCAMLR’sefforts to eliminate IUU fishing.

Under CCAMLR’s current approach, this issue onlyarises in relation to competition between Membercountries’ vessels legally fishing in sub-areas. This isbecause catches from non-Members or illegaloperators are not deducted from the TACs during thatfishing year but, as noted, are amortized over a 20-year plus time horizon.

In addition to the broader considerations withapproaches to non-detriment findings, a practicalconsideration is that, while separate stockassessments are undertaken for each species using itsbiological characteristics, the total allowable catchesestablished by CCAMLR are not explicitly set forPatagonian toothfish or Antarctic toothfish. Ratherthe TACs relate to a statistical sub-area where one orother of the species is predominantly expected tooccur. This could however, be readily addressed bythe Commission setting explicit TACs for eachspecies.

A further issue with non-detriment findings relatesto catches reported as being taken on the high seasoutside the CCAMLR Convention Area. These catches take two main forms. First, asdescribed under sub-section 4.4.2, one of the majorfactors undermining CCAMLR’s conservationmeasures for toothfish is catch claimed to be taken onthe high seas outside the CCAMLR Area that has beentaken from the waters of coastal States or from thehigh seas within the CCAMLR Area. Second, there are


catches of toothfish that are genuinely taken in areasof high seas outside the CCAMLR Area, includingsubstantial catch taken on the Patagonian slope.

There is currently no regulatory framework for theconservation and management of toothfish resourcein high seas areas outside the CCAMLR ConventionArea and, as such, there is no basis upon which a non-detriment finding could be made. One option toaddress this situation would be to determine a nilquota (that is, no trade allowed) for these high seasareas. This approach that has been used by CITESParties in relation to other species. This would meanthat a non-detriment finding could not be made inrelation to toothfish claimed as having been taken inthese areas.

Determining a nil quota would clearly have a majorimpact on operators that are genuinely catching fishin those high seas areas. However the fact that fishingfor toothfish in these areas does not take place undera conservation framework raises questions about thelong-term sustainability of catches in those areas andthe basis on which any non-detriment finding could bemade. Although CCAMLR’s Scientific Committeewould remain best placed to advise on a non-detriment finding for such catches, it may be difficultfor it to do so for areas outside the mandate of theCommission.

In regard to misreported and / or illegal catch oftoothfish, establishing a nil quota for the high seasoutside the CCAMLR Convention Area would close thecurrent loophole. However, it would then create theopportunity for IUU fishers to land catch at a non-CCAMLR, but CITES Party’s, port and claim thatcatch had been taken on the high seas within theConvention Area. While such catch would then besubject to non-detriment findings based on whether ornot the TAC set by CCAMLR had been exceeded, itwould potentially allow illegal or unregulated catch tobe landed and traded under CITES provisions. Thiswould clearly be contrary to attempts by CCAMLRMembers to eliminate IUU fishing for toothfish, aswell as the requirements under CITES exportprovisions for specimens to have been legallyobtained. Further, it would exacerbate the situationwhereby legal operators were required to ‘race forfish’ with illegal and unregulated operators before aTAC was reached and the fishery closed. It wouldhowever, ensure that the total trade in toothfish didnot exceed the total allowable catches established byCCAMLR. To prevent the potentially significantimpacts of this scenario CITES Parties would need torequire verification of where catch was taken andwhether the vessel was authorised to fish in theCCAMLR Convention Area before accepting toothfishinto their ports. This is discussed further in sub-section 7.3.

7.3 The basis for a finding that toothfish hasbeen legally obtained

The approach described under sub-section 7.2 fora non-detriment finding to be made on the basis thatthe CCAMLR total allowable catch had not beenexceeded would not in itself enable identification ofwhether that catch had been taken in the course ofIUU fishing. As noted in sub-section 7.1.2, toothfishintroduced from the sea does not require a finding tobe made as to the legality of the catch at the time ofintroduction, however such a finding must be madeat the time of export. This raises the issues of thetiming of, and the basis for, the finding as to whetherthe catch was legally obtained.

It would seem counter-intuitive for a State to allowtoothfish to be landed in its ports, processed, andthen only determine if it had been legally obtained atthe time of export. Ideally, a relevant finding wouldbe made simultaneous to the introduction itself. AsIUU fishing activity for toothfish is widely recognisedto be the most significant threat to the long-termsustainability of the species such fishing couldreasonably be considered to be inherentlydetrimental and therefore form part of the basis forthe non-detriment finding. This would requireidentification of what was IUU catch by the ScientificAuthority at the time of its introduction.

Identification of IUU catch at the time of itsintroduction would require the State of introductionto verify where the catch was taken. This would beconsistent with the current provisions for issuing aCertificate of Origin under the CDS but wouldnecessitate the Port State validating where catcheshad been taken. Further, to ensure that unregulated,flag of convenience, vessels were not able to land andtrade toothfish, the CITES CoP, by resolution, couldrequire that a vessel must be authorised to fish underthe CCAMLR measures before accepting toothfishfrom it. Such a finding would then facilitate a findingon the legality of the product at the time of export.These measures combined would, firstly, allow non-detriment findings to be based on sub-area TACs and,secondly, address the potential for IUU fishing toundermine CCAMLR’s conservation measures fortoothfish. Such an approach under CITES wouldrequire further consideration in regard to questionsof the relationship with international fisheries law,particularly the LOSC.

In relation to the high seas areas outside theCCAMLR Convention Area, verification of wherecatches had been taken would close the currentloophole of catches taken in the Convention Areabeing claimed as having being taken beyond it or onthe high seas inside the Convention Area. However


the issue of the basis for a non-detriment finding forcatches genuinely taken in areas outside theConvention Area would remain and, in the absence ofsome form of a limit on catches or fishing effort, maystill require a nil quota to be applied by CITES.

7.4 Readily recognisable part or derivative

Under Article I of CITES, the term ‘specimen’means any readily recognisable part or derivative ofa species included under Appendix I or Appendix II.The provisions of Appendix I and II then refer to theregulation of trade in specimens of the listed species.

The term ‘readily recognisable part or derivative’has been interpreted to include any specimen whichappears from an accompanying document, thepackaging or a mark or label, or from any othercircumstances, to be a part or derivative of an animalof a species included in the Appendices, unless suchpart or derivative is specifically exempted from theprovisions of the Convention (CITES ResolutionConf. 9.6 (Rev.)). In relation to toothfish, thisinterpretation would cover all products that currentlyenter into trade.

7.5 Separation of Patagonian and Antarctictoothfish

There is little overlap of the fishing grounds forPatagonian and Antarctic toothfish so catches byvessels operating in a certain area will primarilycomprise one or other of the two species. There islittle incentive to identify any individual fish of thenon-target species, even were they to occur, giventhat the market place does not appear to discriminatebetween the two. As discussed, separate harvestlevels for each species are established implicitlythrough their application to specific sub-areas withinwhich only one or other of the two species is likely tooccur. CCAMLR has not made separate estimates ofIUU fishing activity for Antarctic toothfish in thepast, considering that such activity is ‘probably low’.

While explicit TACs have not been established foreach toothfish species catch reporting documentsand the CDS require vessels to separately record thetwo species. Further, CCAMLR has previouslyrecommended that its Member countries introduceseparate trade codes for Patagonian toothfish andAntarctic toothfish however to date only the USA andNew Zealand are known to have done so. Majorimporters of toothfish, including Japan, the EU andCanada record only Dissostichus spp. as the importcode (Lack, 2001). The lack of species-specific tradecodes impedes validation of reported catch againsttrade statistics. Such validation greatly improves theaccuracy of estimates of IUU catch of bothPatagonian toothfish and Antarctic toothfish, and

therefore the likely impact of that catch on stocks.

CITES listings of Patagonian and Antarctictoothfish would require each species to beindividually recorded on all CITES-relateddocumentation, with Parties required to provide anannual report detailing their trade in the species. Theintroduction of separate trade codes by CITESParties for the two species, including the ability torecord different product types, would be a logicalextension of this requirement to build on a country’sability to accurately record its exports and imports.This would be consistent with the recommendation ofCCAMLR for its Members to implement separatecodes.

7.6 Look a-likes

Article II 2(b) of CITES requires that other speciesbe placed in Appendix II if this is necessary to ensurethe effective regulation of trade of a listed species.According to Annex 2b to Resolution Conf. 9.24, thisshould occur when “…the specimens resemblespecimens of a species included in Appendix II underthe provisions of Article II, paragraph 2(a), or inAppendix I, such that a non-expert, with reasonableeffort, is unlikely to be able to distinguish betweenthem.”

As noted, Patagonian and Antarctic toothfish arevery similar in appearance as whole fish and visuallyindistinguishable from each other in fillet form.Assuming that Antarctic toothfish was not listed in itsown right, it would be necessary to consider thisspecies under what is commonly referred to as the‘look a-like’ provisions of CITES. In relation to otherfish species, toothfish are quite distinct, including infilleted form, because of their extremely white fleshand sheen of oil, even in frozen form. However, it ispossible that the more highly processed a toothfishbecomes the more difficult it will be to visuallydistinguish from other species. This would then raisethe risk of toothfish being laundered as anotherspecies. Such a species may then need to beconsidered for listing in Appendix II.

Once a species is listed in Appendix II the standardprovisions for import and export would apply,regardless of whether its inclusion was on the basisof its conservation status or the fact that its listingwould enable better control over a listed species.While in the case of Antarctic toothfish the process ofmaking a non-detriment finding could follow thesame course as that for Patagonian toothfish formany fish species the institutional support of aScientific Committee and Commission is absent andtherefore such a finding would be difficult to make.Further, if the controls exercised over such a fishspecies were more relaxed than those for toothfish


7.7 Documentation

There are two main aspects to a discussion ondocumentation: first how the provisions of the CDSand CITES documents would apply to different stagesof the toothfish trade and, second, the informationcontained in the permits themselves.

this could result in the potential for laundering oftoothfish. This could encompass an array of differentspecies occurring throughout the world, presentingboth logistical and cost issues.

The listing of other fish species on the basis of‘look a-like’ status with toothfish products would beone approach however there is a number ofalternatives.

First, in listing Patagonian and Antarctic toothfishCITES Parties could agree as a resolution orannotation to the listing that toothfish only be tradedin a form that would allow for its visual identification.While this may seem to be a practical option, underCITES if a part or derivative is not readilyrecognisable, it is not covered under CITESprovisions. This would then raise the possibility oftoothfish being processed at sea and never comingunder CITES provisions. It is unlikely that CITESParties could simply ban trade in non-recognisableparts of a species. However, if this was to occur itwould create the potential for illegal trade in non-recognisable parts, as this would not require anydocumentation under CITES. This would thenbecome a compliance and enforcement issue.

Requiring toothfish to be traded as whole fish only,for example, would also be incongruous with currenttrade practices whereby different toothfish productsare sold into different markets: for example, headsand collars may be marketed in China while fillets aresent to the US or EU markets. A further problem withthis option is that requiring that only whole toothfishbe traded could result in toothfish being processedand traded under another name. Given the high priceof toothfish there would appear to be a reasonabledegree of market sensitivity to the ‘toothfish’ brandname in its various forms, therefore marketing itunder a different name could be expected to impacton the price of the product. However, toothfishproduct could be exported and imported under adifferent name then, once through the final point ofimportation, revert to being labelled as toothfish.The extent to which toothfish products could belaundered in this manner would depend on thedegree of any price impact, with its subsequentimpact on the viability of fishing activity, and whetherregulatory scrutiny could realistically be avoided forwhat would still be a high-value product. In regard tothe latter, it could be expected that legitimateindustry would monitor the market for signs oflaundered toothfish that may be impacting on thedemand for their own products and so draw illegalproducts to the attention of authorities. However,such impacts are likely to be felt at a low level ofresolution, whereby the legal catching sector mayfeel the impact of a shipment of illegal fish on prices

for their own product but be unable to differentiatelegal and illegal product in the market place.

A second alternative to the listing of any look a-likespecies is the development of a biochemical, or DNA,test for toothfish. A biochemical test has already beendeveloped to distinguish between Patagonian andAntarctic toothfish fillets, as well as betweentoothfish and other fish species (Smith, Gaffney andPurves, 2001). The main difficulties with such testsare the technical resources required and the costs, aswell as difficulties in the use of these techniques bycustoms officers. Further, many developing countriesare engaged in the processing of toothfish productsand would face difficulties in implementing a costlyand resource-intensive biochemical-testing regime.Given the major consumer markets are Japan, theEU, USA and Canada it may be feasible to implementtesting at this end point in the chain of trade.However, in general such techniques usually workbest as verification tools and spot-checking formonitoring and enforcement purposes whenproblems are believed to exist rather than used on aroutine basis for each shipment.

A third alternative would be to list Patagonian andAntarctic toothfish without any attendant listing ofother potential look a-like species. This approachrecognises that implementation issues can not all beassessed and solved in advance and should not delaythe listing of a species that requires increased co-operation for its conservation. In relation totoothfish, the main issue with look a-like species isthe risk that toothfish will be laundered as a visuallysimilar species. However the real level of this risk isprobably small as even in filleted form the flesh oftoothfish is visually quite unique. Under this option,consideration would need to be given to establishinga monitoring programme to assess the extent towhich any laundering may be occurring and thesubsequent impact on the effectiveness of the listing.CCAMLR’s catch reporting and other monitoringrequirements in place for toothfish, plus the interestof the legitimate industry in ensuring that the marketis not corrupted, would assist in such an assessment.


7.7.1 Comparison of CCAMLR and CITESdocumentation requirements

CATCH DOCUMENTATION SCHEME CITES APPENDIX II

DOCUMENTATION REQUIREMENTS FOR THE CATCHING AND LANDING OF TOOTHFISH

Table 3: Comparison of the application of CCAMLR’s Catch Documentation Scheme and CITES requirements under Appendix II

Scenario 1: CCAMLR Convention Area – high seas

a) Taken by a vessel flagged to a CCAMLR Member

Vessel is authorised to fish by Flag State and required to complete DCD for catch landed or transhipped on each occasion. Flag State verifies that the vessel has fished in accordance with its authorisation.

Members and co-operating non-contracting parties (CNCP) require all toothfish landed in their ports have a completed DCD. Certificate of Landing issued when port authority is satisfied that the details on the catch document agree with the actual catches landed. This includes verification that the catch has been taken in a manner consistent with CCAMLR conservation measures.

Introduction from the sea (IFS) requiresing the prior granting of a certificate from the State of introduction.

Scientific Authority must advise that the introduction will not be detrimental to the survival of the species (i.e. the non-detriment finding). No requirement to determine the legality of the catch.

b) Taken by non-Member vessel

a) Caught and landed in the same jurisdiction

No requirement to complete DCD for catch landed or transhipped.

• Though catch can not be landed at a Member or CNCP port or transhipped to a Member or CNCP vessel without a DCD.

Implementation of CDS by Members within waters under their national jurisdiction.

• All such waters are under the jurisdiction of CCAMLR Members.

State’s domestic legislation regulates domestic fishing in a manner that is compatible with CCAMLR measures and implements the CDS requirements.

Introduction from the sea requirements would apply if catch is landed in a CITES Party.

IFS requires the prior granting of a certificate from the state of introduction.

Scientific Authority must advise that the introduction will not be detrimental to the survival of the species (i.e. the non-detriment finding). No requirement to determine the legality of the catch.

No documentation required as not IFS or importation.

Scenario 2: CCAMLR Convention Area – waters under national jurisdiction

As shown in Table 3 the provisions of CCAMLR’scatch documentation scheme are similar to theprovisions of CITES, requiring the presentation ofvalid documentation at all stages of import andexport of toothfish product.



b) Landed in another CCAMLR Member or CNCP port

c) Landed in a non-CCAMLR or non-CNCP port

Port authority verifies that information on the DCD agrees with actual catch landing. Flag State validates legality of catch.

CDS applies to all CCAMLR Member vessels and CNCP.

a) Landed in CCAMLR Member or CNCP port

a) Caught and landed in the same jurisdiction

b) Landed in CCAMLR Member or CNCP port

c) Landed in Non-CCAMLR Member or CNCP port

b) Landed in Non-CCAMLR Member or non-CNCP port



Voluntary implementation of CDS by Members with waters under their national jurisdiction.

State’s domestic legislation regulates domestic fishing in a manner that is compatible with CCAMLR measures.

No documentation required.



No DCD required unless landing in a country that has voluntarily adopted the CDS.

Export permit required following findings that the catch is non-detrimental and legally obtained.


No DCD required.

No requirement to produce DCD prior to landing or verification of where catch taken.

• Boats authorised to fish in CCAMLR Member’s waters would usually be flagged to that Member and unlikely to be allowed to circumvent the CDS in this manner.

All such waters are under the jurisdiction of CCAMLR Members & all are also CITES Parties.

Export permit from coastal State required based on findings that the catch is non-detrimental and legally taken.

Introduction from the Sea requirements would apply if catch is landed in a CITES Party - all current CCAMLR Members are also Parties to CITES.

Introduction from the Sea requirements would apply if catch is landed in a CITES Party.

All such waters are under the jurisdiction of CCAMLR Members & all are also CITES Parties.

Export permit from coastal State required based on findings that the catch is non-detrimental and legally taken.

Scenario 2: CCAMLR Convention Area – waters under national jurisdiction

Scenario 3: Outside CCAMLR Convention Area – high seas

Scenario 4: Outside CCAMLR Convention Area – waters under national jurisdiction



DOCUMENTATION REQUIREMENTS FOR THE EXPORT AND IMPORT OF TOOTHFISH

Scenario 5: Export or re-export of toothfish

a) Exported by a CCAMLR Member or CNCP

Each consignment must be accompanied by fully completed catch document. Export Government Validation Authority certifies that details in the form are complete and correct before authorising export.

Validated copy must accompany each consignment.


b) Exported by a non-CCAMLR Member or non-CNCP

b) Imported by a non-CCAMLR Member or non-CNCP

a) Imported by a CCAMLR Member or CNCP

No DCD required, although can not be exported to a CCAMLR Member or CNCP without it.


Each consignment must be accompanied by fully completed catch document. Importer transmits copy to national CDS authority for examination by the national import authority.

Requires the prior presentation of either an export permit or a re-export permit.

No DCD required. Requires the prior presentation of either an export permit or a re-export permit if imported by a CITES Party.

Scenario 6: Importation of toothfish

7.7.2 Potential to use CDS forms for CITESpurposes

A listing of Patagonian and Antarctic toothfishunder CITES would bring with it the requirement forthe use of a comprehensive system of permits andcertificates. The basic principle of the CITES systemis that, to the extent possible, there should beuniformity in the permits used by Parties so as toreduce the scope for fraudulent documents. The CDSalso has a single recommended format, applicableacross the four CCAMLR official languages – English,French, Russian and Spanish.

A further principle of CITES documents is thatthese should contain the maximum amount ofinformation to assist a Party in verifying conformitybetween the actual specimens being traded and theaccompanying document (Wijnstekers, 2001).

CITES Resolution Conf. 10.2(Rev) contains a list ofthe information that should be included on permits. To support a toothfish listing CITES documentationmust assist a Party in making a non-detriment andlegality finding on toothfish introduced to orexported from its jurisdiction.

As described under sub-section 4.2.2, CCAMLR hasan existing documentation scheme for toothfish. It is practical, therefore, to consider whether theinformation required by CCAMLR’s DissostichusCatch Document would be sufficient to fulfil therequirements of CITES and, if not, whatmodifications might be required. Table 4 provides acomparison of the two forms of documentation.


CITES Appendix II permits & certificates

Convention Name

Type of document (import, export, re-export, other)

Management Authority name and address

Control number

Purpose of transaction

Appendix number and source

Name and address of importer and exporter

Scientific name

Common name

Source of specimens

Quantity and units of measurement

Issue date and expiry date

Name of signatory and signature

Seal or stamp of Management Authority

Country of origin (for re-export)

CCAMLR CDS documentation equivalent

Identified as a Dissostichus Catch Document

(Export, import and re-export components of same form)

Nominated National Authority (Flag State) name and address

Document number and Flag State Confirmation Number

--

--

Name and address of recipient of catchName and address of importer and exporter

(Form is specific to the two toothfish species)

Common name for each toothfish species

Fishing vessel name, home port & registration number, call sign, IMO / Lloyd’s NumberArea where caught & dates of catch

Estimated weight to be landed Verified weight landedNet weight soldProduct type for all the above

(Flag State issues document in close to real-time with date on it)

Name, authority, address, signature and seal of Port Authority

Seal and signature of Export Government Authority

(Copy of original catch document accompanies all consignments)

Table 4: Comparison of information requirements of CITES permits and CCAMLR CDS documents


The above comparison indicates that, while the wayin which information appears varies between the twoforms of documentation, the information provided islargely comparable in terms of the purpose it serves.

The CDS documentation amplifies therequirements relating to the ‘source’ of the toothfishas it is designed to track catches through trade andmaintain the integrity of the CCAMLR conservationmeasures. The CITES permit structure is based onexport and import of a species taken under a State’sjurisdiction and so does not contemplate the situationthat arises with introduction from the sea wherebydomestic arrangements may be insufficient to makenon-detriment and legality findings. The informationrequired under the CDS in relation to the verificationof catches would therefore be essential to support alisting of toothfish given that the majority of toothfishis introduced from the sea.

There are only a few information requirementsrelating to the specifics of a CITES listing that are notrequired by the CDS documents. If the CDS form wasadopted as the CITES permit and certificates by theCoP presumably these could readily be included.

It should be noted that while there is an agreedcontent for permits and certificates issued underCITES, Parties are able to modify these, thoughshould first request advice from the Secretariat(Resolution Conf. 10.2(Rev)). While some minormodifications may need to be made there wouldappear to be no substantial barrier to the Partiesadopting the documents developed under the CDSfor the purposes of toothfish. The more extensiveinformation and verification requirements under CDSdocumentation could be argued as placing anadditional burden on CITES’ Parties. However, thosecountries that are substantially involved in the tradeof toothfish at the moment are either alreadyMembers of CCAMLR, and so already applying theCDS, or not applying the CDS and therebyundermining the effectiveness of CCAMLR and theconservation status of toothfish.

7.8 Institutional arrangements

In considering options to address variousimplementation issues concerning an Appendix IIlisting of toothfish it is clear that the successfulimplementation of CITES provisions would rely on aclose working relationship with CCAMLR. Forexample, the ability of a CITES Party to make arobust non-detriment finding for toothfish is

dependent on advice from the Scientific Committeeof CCAMLR.

Further, close co-ordination between CITES andCCAMLR would be necessary to ensure thatconservation efforts are and would continue to becomplementary. The need for a close workingrelationship assumes particular importance inrelation to fisheries, given their dynamic nature andthe need to respond to changes in the behaviour offleets.

Such institutional relationships between CITES andother relevant organisations have been established inthe past. In regard to the International WhalingCommission (IWC), for example, the CITES CoPadopted Resolution 11.4, establishing theresponsibilities of the two bodies whereby the IWC isresponsible for the conservation and management ofwhales and CITES is responsible for issues relating tointernational trade. There is also a close relationshipbetween CITES and the Vicuna Convention, wherethe Vicuna Convention is responsible formanagement of the vicuna species and CITES hasadopted annotations that allow for trade based onrecommendations of the Vicuna Convention,although is not bound by these.


Despite the continuing efforts of CCAMLR toestablish tight controls over fishing for toothfish theconservation status of the species continues to beundermined by IUU fishing activity. A listing oftoothfish under Appendix II of CITES wouldcomplement the CCAMLR regime, including itsobjective of the rational use of toothfish resources, byaddressing some of the current deficiencies in thatregime.

First, CITES has well-established processes toencourage compliance by Parties with its provisions.Although the right of all States to freedom of fishingon the high seas has been qualified, particularlythrough the recent entry into force of UNFSA,CCAMLR remains largely powerless to prevent non-parties from fishing for toothfish in its ConventionArea in a manner that undermines its conservationmeasures. A non-detriment finding under CITES onthe basis that only catch landed from a vesselauthorised to fish for toothfish under CCAMLR’sconservation measures would be accepted couldprovide a powerful tool in preventing illegal andunregulated fishing from the CCAMLR ConventionArea. Further, CCAMLR has limited ability toeffectively censure countries that are not co-operatingwith its agreed conservation measures, including itsMembers and Acceding States as well as non-parties.CITES’ compliance processes, including the ability tosuspend a Party from trade in a listed species if theyare found to be undermining the sustainability of thattrade, may therefore potentially be a key benefit of atoothfish listing.

In addition to the greater potential under CITES foraction to be taken against a Party that undermines theprovisions of the Convention, a listing of toothfishwould also result in more extensive application ofconservation measures for the species, in particular,to high seas outside the CCAMLR Convention Areawhere there are currently no conservation andmanagement measures for toothfish. This wouldoccur in two ways. First the much broadermembership of CITES would result in those Partiesinvolved in toothfish trade that are not participating inCCAMLR’s conservation measures to be subject tocomplementary measures under CITES. Second,the fact that CITES is not limitedin its geographical coverage would assist incompliance and enforcement efforts relating tovessels claiming to have taken toothfish in areasoutside CCAMLR’s Convention Area, particularly inFAO Statistical Area 51.

The extent to which the effectiveness of a CITESlisting would rely on supporting information fromCCAMLR would necessitate a close complementary

8 CONCLUSION AND RECOMMENDATIONS working relationship between CITES Parties andCCAMLR to be established. Practical issues such asresponsibilities for collection and collation of datarelating to toothfish catch and trade would also needto be addressed.

Recommendation 1: A formal agreement should be developed thatestablishes a complementary workingrelationship between CITES and CCAMLR.

In addition to the overarching implementationissue of the institutional relationship between CITESand CCAMLR, there are a number of more specificand technical areas that would need to be addressed.

Introduction from the Sea

Much of the waters in which toothfish occursconsist of high seas, and therefore would be subjectto the provisions relating to introduction from thesea. Toothfish is also taken from the waters of coastalStates however CITES Parties have not yet adoptedan interpretation of the definition in the Conventionof what constitutes ‘waters under the jurisdiction of astate’. This then creates confusion over what wouldconstitute toothfish introduced from the sea andwhat would constitute toothfish caught under thejurisdiction of a coastal State, with the potential forconflict between States and uncertainty for legitimateindustry.

Recommendation 2: CITES Parties should adopt a resolution thatspells out the interpretation of introductionfrom the sea provisions of the CITES treaty.This should reflect the regime establishedunder the law of the sea convention todetermine waters that are under thejurisdiction of the State. This will enableconsistent application of the provisionsrelating to introduction from the sea.

Resolution of the current uncertaintiesrelating to introduction from the sea shouldbe a regarded as a prerequisite to a listing oftoothfish in Appendix II.

Even with a consistent definition of whatconstitutes waters under the jurisdiction of a Statethere remains potential for confusion. This arisesthrough the possibility that, on any one fishing trip, avessel could take a listed species from both watersunder national jurisdiction and high seas areas.


Recommendation 3: CITES Parties should make a decision that allsuch ‘split catch’ be treated under the one setof provisions under CITES and seek to developpractical solutions in response to the variouscircumstances where this situation may arise.

Non-detriment findings

With the likelihood that the majority of toothfishwould be introduced from the sea, a listing oftoothfish in Appendix II of CITES will require clearprocedures by which the State of introduction maymake a non-detriment finding.

Recommendation 4: The Conference of Parties should establishexplicit links to CCAMLR and its Secretariatthat enable Parties to make non-detrimentfindings. This should be spelled out either byresolution or annotation to an Appendix IIlisting.

For toothfish fisheries within waters under thejurisdiction of a State, the relevant coastalState would be responsible for non-detrimentfindings in the granting of an export permit onthe basis of their national managementmeasures.

The major factor undermining the conservationstatus of toothfish under the CCAMLR managementregime is the continuing illegal, unreported andunregulated fishing activity through which catchesare taken in excess of the total allowable catch levelsestablished by that Commission. As IUU fishing, byits nature, operates outside of agreed conservationmeasures for toothfish it is inherently detrimental tothe long-term sustainability of the two species.

Recommendation 5: CITES Parties should not make a non-detriment finding in relation to toothfishtaken by IUU fishing. This should include aresolution by the CITES Conference of Partiesto only allow the introduction of catch to theirports by vessels authorised by CCAMLR to fishin the Convention Area.

CCAMLR’s Scientific Committee, supported by itsWorking Group on Fish Stock Assessments, annuallyundertakes a comprehensive review of scientificinformation on both species of toothfish, includingtheir role in the relevant ecosystem. The results ofthis review are then translated into total allowablecatches, adopted by the Commission. Given that over90 per cent of toothfish is traded, these totalallowable catches would correlate closely with a non-detriment finding under CITES as to whether thelevel of trade is sustainable.

Recommendation 6: Non-detriment findings for Patagonian andAntarctic toothfish introduced from the seafrom the CCAMLR Convention Area should bemade with reference to the status ofCCAMLR’s total allowable catch for therelevant sub-area.

At present, CCAMLR’s Scientific Committeerecommends total allowable catches that are implicitto each of Patagonian and Antarctic toothfish. Toenable non-detriment findings to be made for bothPatagonian and Antarctic toothfish, information willbe required on each species.

Recommendation 7: CCAMLR should establish explicit totalallowable catches for each toothfish species.

In relation to catches claimed as having been takenon the high seas outside the CCAMLR ConventionArea two issues were identified. First, there isevidence that substantial catches taken within theConvention Area, including from the waters ofcoastal States, are being misreported as having beentaken outside the Area. Second, there is currently noregulatory regime or control over catches oftoothfish that are genuinely taken on the high seasoutside the Convention Area.

Recommendation 8: A nil quota (no trade) be set for high seasareas outside the CCAMLR Convention Areauntil such time as a basis for a non-detrimentfinding for catches taken from those areas isestablished.

Establishment of a nil quota in this areashould be contingent on the adoption byCITES Parties of a requirement to verify wherecatches of toothfish had been taken in orderto avoid the potential for IUU catch to belegitimised and traded under CITES provisions.


Documentation requirements

The CITES permit and certificate requirementsunder an Appendix II listing are relatively similar tothose required under the CCAMLR CDS. It wouldseem unnecessarily burdensome for industry andcountries to apply a second set of permits andpaperwork to essentially the same activity.

Recommendation 9: The CITES Conference of Parties should adopt,mutatis mutandis, the CCAMLR DissostichusCatch Documents for the purposes of CITESpermit and certificate provisions under anAppendix II listing.

In addition to reducing duplication between theCITES and CCAMLR documentation, there are anumber of other reasons for adopting the CDS for thepurposes of an Appendix II listing of toothfishrelating to non-detriment findings.

CITES provisions for introduction from the sea donot require a finding to be made as to the legality ofthe catch at the time of introduction. If it is acceptedthat IUU fishing is inherently detrimental to the long-term sustainability of toothfish, it is necessary for aCITES Party to identify what is IUU catch. Further,non-detriment findings based on sub-area TACs willrequire CITES Parties to establish where catch wastaken.

Recommendation 10: As part of the adoption of the CDS, CITESParties should require verification of wherecatches have been taken prior to issuing acertificate of introduction.

If the Conference of the Parties does not adopt theCDS for the purposes of monitoring toothfish underCITES, an alternative process to allow all catches tobe counted against sustainable catch limits and todetermine that catches have not been taken in thecourse of IUU fishing will be required.

Listing of ‘look a-like’ species

The issue of ‘look a-likes’ species is an importantconsideration in a listing of toothfish. Patagoniantoothfish and Antarctic toothfish are visually similaras whole fish and indistinguishable from each otherin processed form. If Antarctic toothfish was notlisted in Appendix II in its own right it would benecessary to list it as a ‘look a-like’ species ifPatagonian toothfish was listed, and vice versa.

Recommendation 11: If one or other of Patagonian toothfish orAntarctic toothfish was listed in Appendix II,the other toothfish species should be listed asa ‘look a-like’ species.

Although the flesh of toothfish is quite distinctive,in a highly processed form it may be difficult tovisually distinguish from some other fish species.This raises the spectre of the listing of numerousother fish species taken throughout the world.However the potential impact on the effective controlof toothfish trade by the non-regulation of trade inother fish species is unknown.

Recommendation 12: Consideration of listing ‘look a-like’ speciesshould be deferred until there is informationavailable on the level of risk of toothfish beinglaundered as other fish species. A monitoringprogramme should be developed to assess theextent to which laundering may be occurring.

There is nothing intrinsic in either the informationrequirements or general operation of CITES’permitting provisions that would provide a greaterlevel of information or control over trade in toothfish- indeed findings under CITES relating to biologicalnon-detriment and legality of toothfish catch wouldlargely rely on information from CCAMLR. However,depending on the manner of implementation, anAppendix II listing could provide significant byassisting CCAMLR in the effective regulation ofinternational trade in toothfish species and therebystemming the incidence of IUU fishing for thespecies.


REFERENCES

Anon. (2001) Commonwealth Fisheries: Heard and McDonald IslandFishery. Australian Fisheries Management Authority. Australia.http://www.afma.gov.au/fisheries/heard%20and%20mcdonald%20islands/default.php) viewed 25 March 2002.

CCAMLR (2000a) Report of the Eighteenth Meeting of the ScientificCommittee. Hobart, Australia.

CCAMLR (2000b) Understanding CCAMLR’s Approach to Managementhttp://www.ccamlr.org/English/e_pubs/e_app_to_manag/e_app_page3.htm#Top%20of%20Page. May.

CCAMLR (2001a) Commission Membershiphttp://www.ccamlr.org/English/e_m_ship/e_membership.htm#Top%20of%20Page.August.

CCAMLR (2001b) Report of the Nineteenth Meeting of the ScientificCommittee. Hobart, Australia.

CCAMLR (2001c) CCAMLR Newsletter No. 22, January 2001. Hobart,Australia.

CCAMLR (2002) Schedule of Conservation Measures in Force 2001/2002http://www.ccamlr.org/English/e_cds_1999/resolution%2017-XX.pdf

CITES (2002) List of Parties http://www.cites.org/eng/parties/alphabet.shtmlviewed 4 April 2002.

ISOFISH (2002) ‘WHITE GOLD': Video released today by the UnitedNations Environment Programme (UNEP), WWF and TVE exposing PirateFishermen of the Southern Ocean TVE International Media Release London,19 April 2000 http://www.isofish.org.au/ viewed 25 March 2002.

Kock, K.H. (2000) A Brief Description of the Main Species Exploited in theSouthern Ocean, Annex 1 to Understanding CCAMLR’s approach toManagementhttp://www.ccamlr.org/English/e_pubs/e_app_to_manag/e_app_page7.htm viewed25 March 2002.

Lack, M. and Sant, G. (2001). Patagonian Toothfish: Are Conservation andManagement Measures Working? Offprint from TRAFFIC Bulletin Vol. 19 No. 1.

Lack, M. (2001). Antarctic Toothfish: An analysis of management, catchand trade. TRAFFIC Oceania.

Smith, P.J., Gaffney, P.M. and Purves, M. (2001) Abstract of Genetic markersfor identification of Patagonian toothfish and Antarctic toothfish. Journal ofFish Biology (in press).

Smith, P.J. and Gaffney, P.M. (2000) Toothfish and Stock Structure Revealedwith DNA Methods, in Water and Atmosphere Online Vol. 8 No. 4, NIWA 2000.

Wijnstekers, W., (2001). The Evolution of CITES: A Reference to theConvention on International Trade in Endangered Species of Wild Faunaand Flora. 6th Edition. CITES Secretariat, Geneva, Switzerland.

United Nations (2002). Status of the United Nations Convention on the Law ofthe Sea and Related Agreementshttp://www.un.org/Depts/los/convention_agreements/convention_agreements.htm

The TRAFFIC Network is the world’s largestwildlife trade monitoring programme with officescovering most parts of the world. TRAFFIC is aprogramme of the conservation organization WWFand IUCN-The World Conservation Union,established to monitor trade in wild plants andanimals. It works in close co-operation with theSecretariat of the Convention on InternationalTrade in Endangered Species of Wild Fauna andFlora (CITES).

The TRAFFIC Network’s international headquartersis co-located in the United Kingdom with the UNEPWorld Conservation Monitoring Centre.

For further information contact:Senior Fisheries AdvisorTRAFFIC OceaniaGPO Box 528, SydneyNSW 2001 AustraliaTel: (61-2) 9280-1671Fax: (61-2) 9212-1794E-mail: [email protected]

The Executive DirectorTRAFFIC International219c Huntingdon Rd Cambridge, CB3 ODL, UKTel: (44) 1223 277427 Fax: (44) 1223 277237Email: [email protected] AP

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