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PART II—CONSERVATION AND MANAGEMENT OF STRADDLING FISH STOCKS AND HIGHLY MIGRATORY FISH STOCKS
Peru said that Article 5, dealing with general principles, should be drafted to include a list of the regimes in which States fish. He proposed an additional subparagraph (k) be added requiring States to refrain from activities on the high seas that are inconsistent with regional, subregional, or global rules and regulations. The Chairman reminded Peru that references contained in Article 18, paragraph (1) effectively incorporate these goals. Argentina said subparagraph (e) must be strengthened to incorporate special reference to juvenile fish. Japan proposed the addition of a new subparagraph (f) that makes reference to the impact of other non-fishing activities on living marine resources. The US said it could support this addition. Poland and Korea expressed concern over the phrase "producing the maximum sustainable yield" in subparagraph (b), and suggested revision to include the concept of long-term sustainability. Korea pointed out that this would be more consistent with Article 22, which addresses the special requirements of developing States.
Chile said that differences exist between Article 6, dealing with the application of the precautionary approach, and the draft document produced by the Working Group (WG) in March 1994. He stated that in the interests of transparency, it is important to understand these differences, and he cited a number of instances where the WG text differs in terms of broadness of application, promotion of appropriate conservation measures, and the level of obligation in regard to Annex 2. He expressed concern over the ability of developing States to collect data due to technical limitations. The Chair said that although the WG text lacked unanimity, it served the purpose of expanding the negotiating text. Concerning the use of the terms "ecologically related" and "ecosystem", the Chair recommended use of the least broad term. Uruguay agreed with the substance of Article 6, but suggested the precautionary approach should be aimed at setting stock-specific minimum standards. When scientific data is deficient, it must not be used as an excuse for failing to adopt minimum standards. The article must reflect the need to apply the precautionary approach while at the same time providing for the compilation of new data for decision-making.
The US delegate said the matter dealt with in the precautionary approach text is an important and controversial issue. In referring to the WG report produced one year ago, he regretted that more of the WG's text was not embodied in the Chair's Draft Agreement. The US could not fully endorse the Chair's text, but said that Annex 2 must be mandatory for the article to work. Fish stocks need to return to full production, and an agreement must be reached on data collection and management techniques. The EU said that only the term "relevant reference points" should be used, and that the word "precautionary" should not be used with "reference points". Canada said the application of the precautionary approach should not jeopardize the sovereign rights of coastal States in their own EEZs. Canada supported India on the need to assist developing countries in attaining new and advanced technical goals. Papua New Guinea, supported by the Philippines, said that without technical assistance, developing countries would be unable to implement some of the precautionary measures. Poland said that precautionary measures should apply to the whole stock, or their application would lack strength. New Zealand said that changing "precautionary reference points" to "relevant reference points" would be an unacceptable change of substance. The representative of the Natural Resources Defense Council said that making Annex 2 mandatory was central to the Draft Agreement.
The Chair failed to secure any reaction to Chile's proposal of substituting "ecologically related" with "associated and dependent species" and concluded that silence represented consensus. The US said that Annex 2 was a descriptive list that should be applied mandatorily and not be considered as a voluntary application. He recognized that some developing States do not have the tools to attain a high degree of conservation and management. He said this is a fertile area in which the provision of international technical assistance can be made to developing coastal States. Provision should be made for the Annex to be revisited in 4-5 years' time to identify any need for change. Uruguay said that evolving science would require periodic review of the reference points and this should be taken into account when considering Annex 2.
The Russian Federation said that Annex 2 needs to be mandated as a guideline for use by States. He said that in subparagraphs (b), (d) and (e) where the words "associated ecosystems" or "ecologically related species" are used, guidance should be taken from Article 63 (2) of UNCLOS. Lebanon said grace periods were good incentives for joining international conventions.
Sri Lanka stressed that mandatory reference points would impose considerable burden on developing countries.
Chile questioned the cohesiveness of Article 6 and said that subparagraph (d) would make the document difficult to comply with. Peru proposed a new Article 6 (bis) on interim measures in cases of an emergency situation. This proposal was later amended and re-submitted for further comment. He cited ecological factors such as El Niño, where situations may arise that may make it necessary to introduce provisional measures based on scientific non-discriminatory information to deal with the problem of States that encounter difficulties. Peru said the proposal did not represent an attempt to expand jurisdiction, but to find jointly-agreed solutions for the interim. The EU, Japan, the Republic of Korea and Malta could not accept Peru's proposal based on Articles 117 and 118 of UNCLOS. China asked for clarification on the definition of an "emergency situation" and wanted to know who would sit in judgment. The Canadian Oceans Caucus said that States should enshrine in the Draft Agreement the rights of women and other representatives of coastal communities to participate in international and regional bodies dealing with the conservation and management of fish stocks.
Iceland referred to his country's unique situation and proposed a new subparagraph (2)(d) in Article 7, that would "take into account the interest of coastal States whose economies are overwhelmingly dependent on the exploitation of living marine resources". Kiribati and Thailand supported Iceland's proposal. The Philippines, supported by Thailand, suggested that in subparagraph (1)(b), "optimum" be replaced with "sustainable", for consistency with the objective of the Agreement in Article 2.
The Republic of Korea said the inclusion of "in accordance with Article 61 of UNCLOS" in subparagraph (2)(a) would enhance the guiding principles for coastal States with respect to conservation measures in their EEZs. New Zealand said UNCLOS language should not be tampered with and the concept of an optimum limit on sustainable use is confusing. Norway said the overall balance of the text is acceptable and is a good basis for general agreement. The proposal by Iceland goes well beyond what can be accepted in this text, and that has to do with the specific situation of Iceland. Iceland's capacity to compete for resources on the high seas should not be supported by special provisions. Article 7 is important to all other provisions contained in the draft, whether they concern technical regulations, the establishment of TAC, distribution of quotas, or enforcement. Greenpeace said that Articles 5, 6 and 7 are a package for precaution and conservation and are necessary to affect the long-term sustainability of SFS and HMFS. World Wide Fund for Nature (WWF) said Annex 2 contains a general package of guidelines that could provide creative, holistic and less expensive means of monitoring for developing countries.