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A BRIEF ANALYSIS OF THE CONFERENCE
In so far as it brought together representatives from 105 nations and the European Community who agree that straddling and highly migratory fish stocks are imperiled, this session of the UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks was a success. After three weeks, the Conference managed to fulfill two of the three parts of the mandate given it by the General Assembly: (1) to identify and assess existing problems related to the conservation and management of highly migratory and straddling fish stocks; and (2) to consider means of improving cooperation among States with regard to fisheries management. However, it is the third part of the mandate -- to formulate appropriate recommendations-- that has proven to be the most difficult. While this session demonstrated that there is general agreement on the need to establish appropriate conservation and management measures as a way to promote long-term sustainability of the resources, there is still no agreement on the means by which this goal will be attained. Coastal States, which are suffering most from the stocks' depletion, urge quick, and sometimes radical, action. But the distant water fishing States, who have invested heavily in this industry in the past decades, do not think it is necessary to react with the same degree of urgency.
During the debates and discussions, the delegates were able to express their views on the many, often controversial, issues before them. One of these issues was the special rights of coastal States. The debates reflected the ideological divergence between the distant water fishing States and the coastal States in a confrontation not unlike the one between coastal States and the maritime powers during the United Nations Convention on the Law of the Sea (UNCLOS) negotiating process. Coastal States were accused by some of wanting to have their EEZs and the adjacent high seas, too. Canada was instrumental in calling for this Conference because it felt that fishing practices in the high seas adjacent to its EEZ undermined the conservation efforts it carried out within the EEZ. In this respect, many coastal States have claimed a special interest in the straddling stocks that occur within and outside their EEZs. From a biological point of view, this interest may be acceptable but many have pointed out that these restrictive measures are called for by the coastal States after they have overfished the resources of their own EEZ. It has been highlighted that 95% of worldwide catches originate in the EEZs, and some believe that the coastal States should manage their own EEZs properly before attempting to regulate the high seas.
The legal validity of coastal State jurisdiction was also disputed by distant water fishing States. Because this Conference needs to operate within the framework of UNCLOS, some distant water fishing nations were quick to point out that the Law of the Sea does not confer special rights to coastal States with regard to high seas fisheries. As UNCLOS is widely seen as favorable to coastal States, others have argued that coastal States have already been dealt more than their share and that creeping jurisdiction on their part must be avoided at all cost. This point was strongly disputed by delegates from coastal States.
But while coastal States requested special rights to manage the resources in the adjacent high seas for biological reasons, they rejected the idea that measures taken to manage stocks on the high seas need also apply within their EEZs. This question of the compatibility and coherence between the measures taken in the high seas and the EEZs was one of the most contentious and, as the Chair put it, pitched biological concepts against jurisdictional arguments. This led to many proposals from the distant water fishing States that the mandate of the Conference be slightly modified in order to adopt measures or recommendations that would not necessarily apply only "on the high seas".
The dichotomy between coastal States and distant water fishing nations was also apparent when the scope of application of the measures was discussed. On the one hand, most delegates favored an approach where regional organizations are empowered to take the relevant measures and enforce them. This approach is particularly relevant as it takes into account both the geographical and biological specificities. As such, this point is not disputed. However, a number of delegates insisted that a more global approach is also necessary as a safety net, in case the regional agreements fail. Distant water fishing States resent this approach and describe it as too intrusive and threatening to their interests.
This conflict was also reflected in the debate over the final outcome. A legally-binding agreement would be implemented through the regional organizations, but also be applicable at a more global level. Nevertheless, at this point it is unclear if this Conference will adopt a legally-binding instrument one year from now. It is important to note, however, that the discussions did not stall on the issue of the form of the final agreement. As some observers noted, a legally-binding agreement adopted by all but the major distant water fishing States would be of very little practical value. A number of like-minded States advocated a legally-binding approach and actually submitted a draft Convention (A/CONF/164/L.11/Rev.1) to be considered by the Conference. This document, however, was never used as the basis for negotiation as the Chair favored a consensus approach and did not think this draft Convention would gather enough support at the present time.
Another controversial issue that pervaded the Conference was State sovereignty. When the US suggested that all States relinquish a small part of their sovereignty for the greater benefit of all, there were rumblings in the room, particularly from Latin Americans. Sovereignty is an issue on which disagreements have arisen in the past, both during UNCED and the UNCLOS negotiations. It is likely that the issue will be raised again when the Conference resumes next spring.
Another aspect of this question was manifest in the debate over enforcement measures. No one disputed that on the high seas, primary enforcement jurisdiction belongs to the flag State. This sovereignty, however, is far from absolute and it is believed that when a flag State is unable to exercise jurisdiction over vessels flying its flag -- as is often the case with flags of convenience -- subsidiary jurisdiction has to be granted to another entity, be it the coastal State, the port State, or even the relevant regional or subregional organization. UNCLOS does not clearly provide for this jurisdiction, but coastal States have some enforcement power with regard to violations of marine pollution conventions. One delegate argued that the only case where a coastal State can exercise jurisdiction over a foreign vessel on the high seas is in cases of so-called "universal applicability," such as piracy and slave trafficking. The issue, however, is a contentious one in customary international law.
In this respect, the Conference is attempting to codify some practices that have gained support but have not yet achieved the status of general principle of international law. If, and when, this jurisdiction is granted to the coastal and port States, participants generally agree that it will need to be exercised within the framework of strict guidelines. The more restrictive the measures -- examination of the documents, inspection or even detention and confiscation of the vessel -- the more limited the enforcement will have to be. For instance, it was suggested that the port State should only be allowed to inspect a vessel if the State has grounds to suspect that the vessel was involved in fishing activities likely to undermine existing conservation and management measures.
In so far as the port State will be granted some authority over vessels calling in, the measures it will be allowed to take also need to be strictly defined. For instance, any sanction applied will have to comply with the principle of proportionality. Some of the most effective measures in practice, such as hailing requirements and the blacklisting of offending vessels, are much less controversial from a legal viewpoint. It is likely, however, that the legalistic debate will be pursued along the lines of divergent economic interests through the next round of negotiations.
The debate on the precautionary approach again placed those in favor of stronger fisheries management regimes against the distant water fishing States. The precautionary approach is embedded in Principle 15 of the Rio Declaration, but not everyone agrees to its application to the field of fisheries. The difference is really one of degree, since all agree that fishing should be carried out in a cautious manner, but some see the application of such a strong principle to fisheries management as a threat to the freedom of the high seas. It is true, however, that the degree of uncertainty in scientific data is unusually high and many point to the catastrophic state of high seas stocks as a perfect illustration of the problem. Distant water fishing States refuse to sanctify the principle, however, because it may lead to the application of drastic measures, such as the adoption of moratoria.
Yet freedom of the high seas has been seen by others as an example of the "Tragedy of the Commons" and, in this respect, it is believed that the access to fisheries should be limited. This caused a reaction from some of the developing nations. Even though everyone agreed that substantial assistance needs to be channelled to enable developing countries to assume their responsibilities in fisheries management, many developing countries insisted that this aid be unconditional. This caused some conflict for donor countries who want to provide assistance, yet need to retain some degree of control over access to fisheries by new entrants. Developing States were adamant that assistance apply for the management of both their EEZs and the high seas and that they also be assisted if they want to develop a distant water fishing fleet. They stated that high seas fisheries should in no way be the privilege of those developed States that have been over-harvesting them.
After three weeks of negotiation, it is apparent that this Conference is a hybrid of both UNCLOS and UNCED. While it is clear that these negotiations fit within the framework of UNCLOS, many aspects identify it as an output of the UNCED process. In addition to the pace and sense of urgency that has been carried over from UNCED, concepts such as the precautionary approach, sustainable development, aid to developing countries, and the conservation of resources for future generations have successfully bridged UNCED and UNCLOS. Likewise, the active participation of NGOs in Rio was reflected during this Conference as NGOs were allowed to table papers at the back of the room, take the floor, and even observe some of the closed informal meetings. The fact that New Zealand tabled a response to an article published in an NGO newsletter critical of its Individual Transferable Quota (ITQ) policy illustrates the seriousness with which delegates take the views of NGOs.
It is still too early to know whether or not the spirit of compromise and consensus that marked the final days of UNCED will influence this Conference. There are still five more weeks of negotiations in 1994 when delegates will attempt to reconcile their differences and, hopefully, spend less time confronting divergent legalistic opinions. It is hoped that at the next session delegates will concentrate on the issues before them and aim for consensus rather than confrontation.