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PART III—MECHANISMS FOR INTERNATIONAL COOPERATION CONCERNING STRADDLING FISH STOCKS AND HIGHLY MIGRATORY FISH STOCKS
In consideration of Article 8, dealing with cooperation for conservation and management, the US noted that ICCAT, as a regional organization, experienced difficulty in persuading non-members to join, and said States should be persuaded to recognize the principles of such organizations and seek membership. Referring to Article 32, dealing with non-participants, the US said that non-member States that fail to apply such principles should be denied access to the fishery. The Korean delegate suggested "with the rules, procedures and practices already in effect for the participants" be incorporated in the text. The last line should be amended to read "on a non-discriminatory and equitable basis", and should be included in paragraph (3). This would promote the non-discriminatory principles referred to in UNCLOS when determining the rights of States participating in regional and subregional organizations and arrangements.
Chile said that such organizations must be able to elect new members who have genuine interests in fishing and research. Sri Lanka said the Indian Ocean Tuna Commission (IOTC) could provide some background guidance for formulating new text.
Norway and Australia favored incorporating elements of the US proposal into the Chair's text to give it enhanced substance. The Russian Federation asked that paragraph (3) be amended to provide for organizations and arrangements that express a non-harvesting interest in stocks.
Indonesia said the Korean proposal on "equitable allocation" was vague and unclear and could mean a contradiction of terms. Malta supported the Korean and Japanese proposals because they promoted non-discrimination. Fiji said Japan's proposal to amend paragraph (5) adequately satisfied matters of notification and openness as expressed in the US proposal.
Canada, the EU, Venezuela and Uruguay supported Japan's proposal to include an additional paragraph (6) on action to be taken by IGOs having competence with respect to living marine resources.
In Article 9, dealing with regional fisheries management organizations or arrangements, the Chair said a drafting change had been made in paragraph (b) to delete the relevant provisions "of the Convention" and to replace these words with the relevant provisions of "Article 7, paragraph (1)". This brings the compatibility provisions into focus, which are not included in UNCLOS. Peru proposed an additional paragraph (2) that discriminates against States adopting conservation and management measures that would directly affect the rights and duties of coastal States. The EU said that subparagraph (a) should examine the biological unity of stocks, not the biological characteristics. The Russian Federation said the concept of biological unity is limited and restrictive. The Chair said in Article 9 there is a need to identify objectives that States should agree on when they establish a regional organization, and that in Article 10, having established the organization, there is a need to indicate implementation of those objectives. The Philippines suggested deletion in paragraph (b) of "socio-economic, geographical and environmental factors", since what is being managed is the stock. Morocco expressed support for the Peruvian addition of paragraph (2). Mexico and Iceland also supported Peru and were concerned for the interests of coastal States and the sovereignty over conservation and management of HMFS and SFS in EEZs. Japan felt that the Peruvian proposal appeared to adopt the language of Article 116 of UNCLOS and said this problem was partially dealt with in discussions on Article 7. Japan expressed concern that any new discussion of Article 7 at this juncture would create imbalance in the text. Uruguay and Canada supported the Peruvian amendment. Peru stated there is no specific reference to the rights and duties of coastal States in Article 7, paragraph (2) (a), and thus no repetitiveness prevails in the proposed amendment. The EU said the Peruvian proposal is good in isolation, but doubted its compatibility with the remainder of the text.
The Russian Federation proposed a new subparagraph for Article 10, which deals with the functions of regional fisheries management organizations and arrangements. Peru proposed an additional paragraph (2), but Brazil said that the measures in coastal State jurisdiction should be of primary importance and should not be diluted by subregional, regional or international organizations. The Article should reflect the importance of the coastal State measures and conservation and management experience. China said Peru's proposal is in accordance with Article 119 in UNCLOS, but was concerned about the legitimacy and scientific application of the use of the terms "decisions" and "measures". Peru stated that it is always interested in improving the text to make it harmonious with Article 116. He agreed, in principle, with the Russian Federation and said mechanisms must be found to deal harmoniously with violations.
China, supported by Poland, agreed with the Korean proposal. Japan said that each sovereign State, not the regional organization, should have the final say in the punishment of violations. Mexico, supported by Venezuela, said that in subparagraph (a), conservation and management measures should ensure the long-term viability of the stocks on the basis of acceptable scientific evidence, while subparagraph (c), on responsible fishing, could be covered by a reference to the Code of Conduct for Responsible Fishing. The International Collective in Support of Fish Workers (ICSF) suggested inserting in subparagraph (a) "phasing out of non-selective fishing gear and techniques". Greenpeace said that in subparagraph (j), exemption clauses made firm conservation measures difficult to implement.
On Article 11, dealing with strengthening existing organizations and arrangements, the US, Canada and Morocco circulated a trade-related amendment. This is a non-binding provision and encourages regional organizations to address multilateral action consistent with trade rules under the World Trade Organization (WTO). The EU said the amendment seemed a useful supplement to conservation and management measures. China, backed by Malaysia, Mexico, Malta and Sri Lanka, said the conservation of fish resources is being confused with trade issues, and objected to the proposal. Japan supported the amendment.
On Article 12, dealing with collection and provision of information, Peru proposed a new Article 12 (bis) on cooperation for scientific research. The Chair said it would be better to incorporate Peru's concerns, and that Article 12 would also be used to strengthen the provisions for developing countries. Malta asked for a cross-reference regarding the obligations of scientific collection and dissemination of data in Article 23, subparagraph (2) (a), and that provisions for developing States should not be optional. He pointed out that in Annex 1, paragraph (2), the use of "should" is not consistent with the main body of the text, which uses "shall", and that this could be interpreted to mean that the Annex is optional.
Opening debate on Article 13, which deals with enclosed and semi-enclosed seas, the delegate of the Russian Federation, supported by Peru, Canada and the US, emphasized that his amendment, tabled in document A/CONF.164/L.47, draws attention to the reference in Part IX of UNCLOS to enclosed and semi-enclosed seas. Due to the geographical, environmental and other particularities of these areas, the special concerns of coastal States should be given emphasis because Article 123 of UNCLOS obliges States with enclosed or semi-enclosed seas to cooperate with other States in conservation and management. Article 13 should be consistent with UNCLOS to ensure such cooperation.
Norway expressed sympathy with the general thrust of L.47 in respect of Articles 13 and 14 because the situations referred to in the Russian proposal are special, and specific provisions should take those situations into account. Poland said he could not accept L.47 because it attempts to introduce new notions into the Chair's text. Considerable debate ensued on this issue and the Russian Federation offered to consider all comments before resubmitting an amendment to Article 13.
Japan could not accept the L.47 text, and said subparagraph (a) of the Chair's text should remain, as all other paragraphs in Article 13 refer to fishing. New Zealand supported the L.47 text because his country has a high seas enclave, and special issues need to be addressed within the Draft Agreement.
Israel said Part IX of UNCLOS is important to Article 13, and Article 123 of UNCLOS should be fully used rather than just subparagraph (a).
On Article 14, dealing with areas of high seas forming an enclave surrounded entirely by areas under the national jurisdiction of one State, the Russian Federation said one of the most complicated and unregulated problems that has arisen is that of conservation of living resources in small portions of the high seas surrounded by the EEZs, referred to as "enclaves". Canada supported the Russian proposal and said it includes rights, responsibilities and interests. Peru said there is a need to prescribe a special rule for a special reality and to aid progressive development of UNCLOS. China and Poland said the international community cannot make exceptions for the special circumstances of one State, and wanted deletion of Article 14. The US supported the Russian proposal and said it accurately captures the urgency of the issue and focuses attention on the special problems of the area. The EU said Article 14 is unnecessary and the problem should be dealt with in the framework of Article 7 of the Chair's text.
In consideration of Article 15, on transparency in the subregional and regional fisheries management organizations or arrangements, the US proposed an amendment to paragraph (2). The proposal has several objectives: to assure that NGOs have the right to attend meetings of such organizations as "participating" observers; that records of meetings, data and other information be made available in a timely fashion to NGOs; and that such organizations shall be barred from levying excessive fees that would serve to exclude or prevent NGOs from participating. The US reminded delegates that the term "NGO" constitutes a variety of non-governmental organizations that also includes members of fishing communities.
Venezuela supported transparency, but said the US proposal might be unduly restrictive and suggested that the text be amended "to ensure that NGOs have the right to participate in the work of such bodies". The Japanese delegate supported the concept of transparency in decision-making, but said the essence of the US proposal suggested that governments are incapable of acting without assistance from NGOs.
New Zealand and Australia supported the involvement of NGOs in regional meetings and bodies, but noted that the US proposal did not include any reference to IGOs. The Philippines wanted NGOs to participate in discussions, but not in decision-making processes. Argentina supported the Chair's text and said that NGO involvement had not been reflected in a positive manner in the work of the Conference. Malta supported the Chair's text, but objected to some expressions within the US proposal. He did not like reference to NGO rights in treaty text. Peru reminded delegates that NGOs play an important role in the continuing development of the FAO Code of Conduct.
Representatives from Greenpeace International and the ICSF said they were encouraged to hear delegates' support for NGOs. Article 71 of the UN Charter establishes the right of NGO participation. ICSF reminded delegates that southern NGOs cannot raise funds to attend meetings of importance to them, and it is essential that fees should not be levied against them.
On Article 16, which deals with new participants, the delegate of Iceland, supported by Canada, Uruguay, Indonesia, Micronesia, Mexico and the Marshall Islands, said that the list of criteria should take into account the needs of coastal fishing communities. Iceland proposed adding a new subparagraph (d), stating that "the interests of coastal States whose economies are overwhelmingly dependent on the exploitation of living marine resources" should be taken into account. Norway could not support the Icelandic proposal. Peru and Chile supported the principles of the Icelandic proposal. Papua New Guinea supported the Chair's draft and stated that amendments should be kept to a minimum and, with the Marshall Islands, expressed his doubts about the use of the term "equitable".