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GENERAL COMMENTS ON THE REVISED UNOFFICIAL DRAFT OF THE DRAFT AGREEMENT

On Monday morning, following informal consultations on Articles 14, dealing with enclaves, and Article 21 (old Article 20), on compliance and enforcement, the Chair introduced A/CONF.164/CRP.6 of 6 April 1995 and A/CONF.164/CRP.6/Add.1 of 7 April 1995, the Chairman's Revised Text. He explained that he was looking for the common denominator in the work, and that it is not a matter of counting States who support an idea, but that it is a matter of evaluation and judgment.

The EU said that the mandate is to improve the conservation and management of fishery resources through cooperation. He could not accept textual changes that shifted the balance among States. His comments were clustered around Articles 3, 5, 6 and 7. He said that there are two elements that underpin cooperation: biological unity and compatibility. In Article 6, biological unity was treated now as a by-product of information available for managing fish stocks and was no longer the fundamental element that the Chair had made it at the opening of the August 1994 session. He said that elements of international cooperation must be truly reciprocal, otherwise no rational management of fish stocks could occur. He said that all States must be able to express opinions in regional organizations by becoming a member or participating. Concerning Article 21, he said that changes in the rules of international law cannot be created to transfer competency of jurisdictions on the high seas.

Norway said that the new subparagraph (e) in Article 16, on the needs of coastal States whose economies are overwhelmingly dependent on the exploitation of living marine resources, could be accepted on the proviso that the term "coastal State" should be understood in the light of Articles 63 and 64 of UNCLOS. Thailand stated that it is not the excessive size of a fleet that counts, but rather its capacity. Japan said that definitions of international "conservation and management measures" and of "organization" and "arrangement" are still necessary. The Russian Federation said that its position was greatly reflected in Articles 13 and 14 on enclosed and semi-enclosed seas and areas surrounded by areas of the national jurisdiction of a single State. Argentina said that negotiations on Article 20, on enforcement, are indispensable for the text.

Chile said that in Article 3, on application of the Agreement, the EEZ involves economic characteristics, coastal communities and other factors making a degree of flexibility necessary. He suggested replacing paragraph (3) (b) of Article 6 with: "apply the guidelines as set out in Annex 2 in order to determine stock-specific reference points, and any further action to be taken if they are exceeded". He suggested changing "ecologically related species" with "associated and dependent species". In paragraph (8) of Article 7, he said that he wanted to add, after the word "notify", the phrase "the relevant coastal States and" other interested States. He also wanted to add at the end of the paragraph "including vessel data as set out in Annex 1 paragraph (6)".

Malta said that the amended text on Article 21, circulating within the informal consultations on Article 21, was insufficient. With regard to Article 13, on enclosed and semi-enclosed seas, he said the provisions did not adequately cater to artisanal fishermen in the Mediterranean, where there is no high seas area. New Zealand said he was pleased with the revised text, but said that in Article 12, paragraph (3), on the collection and provision of information, the drafting needed to be consistent with Annex 1. Article 26 needs clarification as to when and how the international tribunal may act to prescribe the obligatory settlement of disputes by peaceful means. On the application of the precautionary approach in Article 5, paragraph (c), he said there is a requirement to recognize that it is applied with particular relevance to Article 6.

The delegate of Korea said that Articles 5, 6 and 7 are insufficient to achieve compatibility and efficient conservation and management measures within zones of national jurisdiction. He argued for the insertion of a safeguard in Article 21 to protect against abuse of right. Articles 13 and 22 contained new elements that are inconsistent with UNCLOS and general international law. He reserved the right to make recommendations on the text later.

China said it is difficult to make a final judgment on the text, because Article 21 was missing. He said that in Article 1, fish were fish, and he reserved further comment on this definition. In Article 8, paragraph (3), he said that the word "interests" could be interpreted as "economic interests", or "simply a willingness to do something". He could not endorse any reference to interests if these constituted "economic interests". On Article 17, paragraph (1), duties of the flag State, he said the obligations should be derived from UNCLOS and not from regional organizations.

Uruguay proposed that Article 12, paragraph (3), dealing with collection and provision of information, should begin by establishing its conformity with Part XIII of UNCLOS. The title of Article 22 should be amended to read "Measures to be taken by port States" when dealing with boarding and inspection. Article 24, paragraph (2), on forms of cooperation, should include reference in the text to "the strengthening of the autonomous scientific research capabilities".

The delegate of Australia said she was pleased with the balance and level of detail contained in the text, but argued against any more definitions appearing in Article 1. She concurred with New Zealand's comment on the precautionary approach in Article 5, paragraph (c), but objected to any alteration of Articles (8), paragraph (3), and Articles 16 and 17. On Article 20, she said enforcement and compliance needs to be strong and concise and should provide for effective high seas boarding and inspection.

The delegate of Ukraine spoke in general support of the revised text and did not wish to see any imbalance occur through the inclusion of new amendments. He did not support Chile's amendment to Article 8, paragraph (3), on cooperation for conservation and management.

Poland said the revised text is much improved, but expressed concern over the concepts adopted in Articles 5, 6 and 7. He reserved final comment on Articles 13, 14 and 21. He said the Preamble's reference to Programme Area C of Agenda 21 should also include reference to Programme Area D, as both are related and cross-references exist in Agenda 21. Article 5, subparagraphs (a) and (h), needed harmonizing, as the term "utilization" later shifted to "sustainability". He could not accept any reference to adjacent areas extending outwards 70 miles from coastal States' EEZs.

Greenpeace International drew attention to an earlier US proposal urging adoption of language that would prevent excess fishing capacity shifting from one area to another to harvest fisheries at or above sustainable levels. He welcomed Chile's movement over adoption of the precautionary approach, but remained disappointed that the US language on transparency had not been incorporated into the Chair's revised text. He was especially pleased to see reference to artisanal fishworkers in Article 22, subparagraph (2) (b) and in Article 5, paragraph (i), and expressed the hope that this language could be carried through into the final text.

Peru said the text improved the provisions of UNCLOS, and emphasized that it should remain balanced. He said any changes at this juncture would jeopardize the efforts of the Conference thus far and supported Uruguay's proposed amendments.

The Chair said he needed further time for informal consultations on Articles 14 and 21 and suggested the Plenary reconvene on Tuesday afternoon. The EU delegate said he had kept his intervention within the Chair's guideline of 3 minutes, and now wished to have the opportunity to respond at length, as the Chilean and other delegations had already done.

The EU proposed that the definition of "conservation and management measures" will need revision in the light of the operative parts of the text. A definition of the terms "arrangement" and "stock" will also need definitions. In Article 6, paragraph (1), the word "widely" should be deleted, since it gives the impression of broader assessment of the precautionary approach. He said that in Article 7, biological unity should not become a sub-product of information. He also said that in Article 12, paragraph (3), the term "beyond areas under national jurisdiction" should be deleted. He also kept a general reservation and said he could not take any decision until he would see the final version of the Chair's revised text. The Chair stated that he was uncomfortable taking decisions on some of the scientific matters presented without discussions. Japan stated that in Article 5, subparagraph (d), the effect of stock enhancement programs designed for the recovery of target species and species belonging to the same ecosystem or dependent upon or associated with the target species, should be added. He also said that he wanted to delete Article 16, paragraph (e), since it gives special emphasis for the coastal State. In Article 17, paragraph (4), he suggested deleting a "regionally agreed" system of monitoring, to be replaced with one "adopted by subregional or regional fisheries management organizations or arrangements to which the flag State is a party". Canada said there seemed little point in being self-congratulatory when suddenly questions that seemed to have been settled long ago were reopened through a series of proposed amendments. He favored cooperation, but said that if cooperation is supposed to be based on political imperatives, any concession would be made impossible. He said uncertainty seemed to reign. He wanted a definitive Article 21 on enforcement. Indonesia said that he was uncertain where developing countries like his own could go in view of these developments. Argentina, supported by Peru, said in any negotiation there is a need for timing and rhythm if one is negotiating in good faith. His government has stressed the urgent need, in light of recent events, for having texts agreed upon internationally. He said if there is no political will to act through cooperation, governments will feel themselves free to defend their interests in the best way possible. The Russian Federation said that the mandate of the General Assembly is not all that is involved, since the destruction of fish stocks continues. Turkey said that he favored the Chair's text in Article 13 on enclosed and semi-enclosed seas. The EU admitted to being surprised at delegates' reactions and said there can be no agreement on anything until there is agreement on everything. The EU, he said, had never given up the positions it had presented in the last two and one-half years. The Chair said he needed time to evaluate the suggestions made and to identify any possible improvements, but wanted to move ahead as far as possible. The nature of dialogue, he said, is to put forth points of view and to recognize what is viable and what is not. His immediate task is to see what can be incorporated in light of the debate.

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