Daily report for 23 July 1993
1st Session of the FSA
The Plenary reconvened on Friday morning. The Chair opened thesession by reviewing the progress made during the three days ofinformal sessions on data requirements, the precautionary approach,dispute settlement mechanisms, port State enforcement and thespecial interests of developing countries. Then, the Plenary beganconsideration of Item VIII in the Chair's list of issues(A/CONF.164/10): Compatibility and coherence between national andinternational conservation measures for the same stocks. The Chairhad hoped that after the conclusion of this discussion delegatescould begin an informal discussion on monitoring, control andsurveillance, but the Plenary discussion lasted throughout the day.
COMPATIBILITY AND COHERENCE BETWEEN CONSERVATION MEASURES FOR THE SAME STOCKS
Japan said that neither the practices on the high seas northe practices of coastal States should be subjected to the other.Specific arrangements must be elaborated by the countriesconcerned, usually within a regional or subregional organization.This arrangement must be open to all States -- coastal and distantfishing -- through the entire migratory range and habitat of thespecies. Although it is wise to apply the same measures inside andoutside the EEZ, these measures should vary region by region, andspecific measures cannot be applied on a global level.Compatibility and coherence require that due regard be given to allinterests concerned.
India said that circumstances differ between oceans, regionsand subregions. There should be a broad framework of guidelines atthe international level that relate to features of all stocks, yetthere should also be regional flexibility. A set of internationalguidelines will strengthen regional or bilateral efforts.Korea stated that he could not avoid the legal arguments asthese are the roots of this discussion. He cited Articles 63(paragraph 2), 117, 118 and 119 of the Law of the Sea Conventionand UN publications that discuss the issue of the special rights ofcoastal States. He said that when a State signs a treaty,exceptions of sovereignty disappear with the acceptance of thetreaty's obligations. Nandan responded that he did not want todebate the legal rights of coastal States at this time.
The Philippines said that obligations should be adjusted ordelayed to meet the needs of developing States. To illustrate thishe described the provisions for developing countries in the ClimateChange Convention. Chile stressed the need for a balancebetween rights and duties. He said that there could be a singleregime for certain species. Article 4 in A/CONF.164/L.11 addressesthe application of coherence. Coastal States have the duty toprovide information, but they must have the cooperation of thedistant water fishing States. Document A/CONF.164/L.14 contains aseries of elements directed toward the practices of regionalorganizations, including a consultation mechanism with coastalStates. He mentioned the need for an ecosystem approach to managethese species, a competent authority to impose conservationmeasures, and, if no consensus is reached, a binding system forsettlement of disputes.
Argentina said that within the EEZ there are differentregimes for the preservation of resources, but outside there is nosystem at all. Not only do we need coherent systems, but we need asystem outside the EEZ. Everyone agrees that we need cooperationand consistency, but what is lacking is political will. Hesuggested the establishment of a drafting group to outlineprinciples and standards, which should serve as guidelines forregional organizations.
China said that all countries concerned have common andequal responsibilities, obligations and interests; the differentstatus between the high seas and the EEZs should be recognized; andconservation, management and exploitation of these stocks requiresall countries to cooperate. Minimum international standards areneeded and should be developed by regional organizations. We needto consider measures in the high seas when formulating EEZ regimesand vice versa, as well as the unequal social and economic needs ofdifferent countries.
The US said that all international regimes on living marineresources should be consistent with UNCLOS. The sovereign rights ofStates are fundamental. Often political and economic needs takeprecedence over ecosystem needs, so we must break new ground, findnew solutions and seek consistency between the high seas andcoastal zones.
Korea said that as long as coastal States insist they havea special right, we will have a problem. Although high seasoverfishing affects EEZs, the opposite also occurs and conservationmust take place on both sides. Japan commented that perhapshis earlier intervention was misunderstood. He explained thatmeasures in the EEZs and the high seas must be consistent with oneanother; data must be provided by coastal States; and even ifcoastal States do not fish in adjacent areas, they should beconsulted.
Australia said that there are competing priorities but thereis also a common thread -- long-term sustainability of theseresources. Cooperation should be based on EEZ regimes, but shouldalso reflect interdependence. States fishing on the high seas needto respect the rights of coastal States and high seas measuresshould not place an undue burden on coastal States or on theresources of the EEZ. He supported Chile and Argentina's suggestionthat a working group be established to elaborate ways to move fromcooperation to practice.
The EC said we must negotiate within the framework ofregional organizations, fully subscribe to consistency of measureswithin EEZs and beyond, respect the rights of all States, andrecognize the sovereignty of coastal States. It is also importantto look at the stocks on both sides of the 200-mile limit as partof one biological unit. The EC has circulated a paper on theseguidelines, A/CONF.164/L.20. He also said that we have to deal withnon-contracting parties so they do not undermine conservationmeasures.
Mexico said there should be a balance of interests betweencoastal States and distant water fishing States. It is in theinterest of coastal States to conserve in the adjacent high seas.Peru said that it is necessary to make conservation andmanagement measures in the EEZs and high seas coherent. She did notagree with statements of those who seek to place the rights ofcoastal States and distant water fishing States on egalitarianterms. This overlooks the fundamental principles of ecosystems andthe economic and social needs of coastal States. It is important tobear in mind that the obligations of the coastal State aredifferent from those of the distant water fishing nations.
Trinidad and Tobago said that the sovereign rights ofcoastal States include discretionary powers for the allocation ofsurpluses to other States, and the terms and conditions forconservation and management of the stocks in question. CoastalStates must form the nucleus of any body that manages resources inthe EEZs.
The Russian Federation said that, in his view, the majorityof delegations support the idea of unity of stock throughout thearea of habitat and the development of unifying measures for theregulation of stocks. Measures for conservation should include astrategy for long-term stock management with definitions ofallowable catch, permissible fishing areas, the amount of fishtaken, and measures governing fish to be caught and the type ofgear used.
Norway agreed that cohesion and consistency should prevail,but asked on what premises they should be based. He said that thecoastal States have the most expertise, experience and interest indealing with the fisheries in their particular regions. Distantwater fishing fleets can move to new grounds if a stock locatedwithin the adjacent high seas becomes depleted, but the coastalState has no such alternative. The two sides cannot be given equalfooting unless we revert to a pre-UNCLOS situation. Broadguidelines should be set up, based on the EEZ measures and appliedto the high seas, so that both are consistent.
Sweden said that the interventions of the US and Russiaexpressed a good basis for guidelines on compatibility andcoherence between the regimes in EEZs and the high seas. Heassociated himself with the remarks of India on noncompulsoryinternational guidelines at a general and broad level allowing forflexibility at regional and subregional levels. Perhaps theSecretariats of the regional organizations should be situated incoastal States. In the Commission on Sustainable Development (CSD)session in 1996, we should see how the recommendations of thisConference can be implemented and take further measures at thattime. We should take advantage of the CSD High-Level Segment toencourage the political will necessary to implement decisions.
Iceland associated himself with the remarks of Chile, sayingthat special attention should be given to situations in differentregions. He added that the special interests of coastal States andthe regimes they have set up must be taken into considerationbefore a global regime is established.
Poland associated himself with Argentina, on the need forstrong political will to reach agreement on cooperation, and withthe EC, on defining cooperation to mean negotiation. He agreed withSweden on the need to strengthen regional organizations. Regionalorganizations can be the forum in which States negotiateconservation and management regimes for straddling and highlymigratory fish stocks.
Canada commented that UNCLOS should be seen as a livingdocument, part of a law that can adapt and be interpreted. He alsosaid that the differences can be bridged if examined from apractical point of view. Coastal States have special rights due totheir special geographic situation. The Law of the Sea invites thecoastal States to cooperate with regional organizations but notwith other States. Nationals of the coastal States suffer fromdiscrimination since, under UNCLOS, they must fish in the adjacenthigh seas under the same rules as those nationals that fish in thehigh seas. Distant water fishing fleets are not bound by the samerules. The fact that 95% of the fishing takes place in the EEZ doesnot help management, as a biological unit should not be dividedalong jurisdictional limits.
Colombia said that Item VIII of the Chair's text containsthe basic elements for the establishment of compatibility andcoherence between national and international measures. He supportedMexico's comment on strengthening regional organizations.
The FAO said that regional bodies should be strengthened andcooperation among bodies encouraged. The dormant COFI subcommitteeon international organizations connected with fisheries might be amodel for an equivalent mechanism for regional organizations todiscuss common concerns.
The EC pointed out that some straddling fish stocks may beout of the EEZs, but that this fact must be examined in thebiological context, since due to seasonal mobility, a significantpart of a stock may be out of the EEZ at some time of the year.Regarding the special status of coastal States based on UNCLOS, theEC did agree with many of the arguments raised, but he did not wantto open the legal debate again. Korea abstained from anyfurther legal discussion, but endorsed the EC statement, as didChina.
In response to Korea's earlier intervention, New Zealandreferred to the same Law of the Sea Office publication on highseas fisheries and UNCLOS to highlight the fact that the rights ofcoastal States should not be prejudiced.
Indonesia disagreed with the EC's point on the relevance ofcoastal States' interests and insisted that coastal States havespecial rights that should take precedence, but with possibleexceptions. Argentina expressed regret for the failings ofthe second Convention on the Law of the Sea and Icelandsuggested that the delegates meet in a legal library.
The debate closed with an intervention by the representative ofGreenpeace who asked the delegates to bear in mind thatconsistency should apply not so much to the rights but to the dutyof all the States involved to manage and conserve these stocks.With regard to coastal States, he insisted that those rights givenspecial attention should be those of the traditional fisheries andcoastal communities dependent on the fisheries.
IN THE CORRIDORS
The next round of the UN Secretary-General's informal consultationson Part XI of the UN Convention on the Law of the Sea(A/CONF.62/122) will be held from 2-6 August 1993 at UNHeadquarters in New York. Part XI deals with the exploitation ofsea-bed resources and the establishment of the InternationalSea-Bed Authority. Disagreement on this part of the Convention hasdelayed ratification by many States. At the last round of theseinformal consultations, the US stated that it is now ready toparticipate in negotiations to "repair" Part XI. If some agreementis reached in August, it is likely that an appropriate process willbe found to commence accelerated negotiations on this section,making it possible for many countries to ratify the Convention. TheConvention has been ratified by 56 of the 60 countries necessaryfor it to enter into force.
THINGS TO LOOK FOR TODAY
INFORMAL CONSULTATIONS: The Conference will meet in aninformal closed session this morning in Conference Room 2 todiscuss the Chair's working paper on compliance and enforcement.This paper sets out the responsibilities of the flag States both toensure that their vessels comply with subregional and regionalconservation and management measures, and to take steps to enforcethese provisions. This document may be an indication of the formatof Nandan's paper, which is expected to be circulated by the middleof this week.