Daily report for 26 July 1993

The delegates met in an informal session on Monday to discuss theChair's draft paper on compliance and enforcement. There wasconfusion at the beginning of the session when some delegates askedif this was a draft of the final paper. The Chair insisted thatthis was not a drafting session and this paper was only to providea framework for discussion. All the delegates commended the Chairon his paper, but some called for more detailed measures and forstrengthening certain points.

THE FAO CODE OF CONDUCT

A recurrent question was about the relationship of this draft paperto the FAO Code of Conduct. Some delegates took the view that theday's discussion was a waste of time and effort since the FAO paperdealt precisely with compliance and enforcement. A delegate arguedthat the participants should actually encourage their Governmentsto adopt the FAO Code of Conduct and submit it to the Commission onSustainable Development (CSD) in order to generate supportreminiscent of the Spirit of Rio. Other States argued that the twoefforts were more complimentary than duplicative and that, in anyevent, the result of the current Convention may well apply tonations that do not ratify the FAO Code of Conduct. One delegatenoted that some of the provisions of the FAO Code of Conduct on theidentification of vessels did not meet with unanimity. But othersargued that some flag States have neither the financial means northe capacity to exert any kind of effective jurisdiction overvessels that fly their flags but hardly ever call in their ports.

FLAG STATE JURISDICTION

One of the most contentious issues was the extent of flag Statejurisdiction, as opposed to that of coastal States, port States andregional organizations. Some delegates cited the UN Convention onthe Law of the Sea that enshrines the principle that flag Stateshave sole jurisdiction over their vessels on the high seas. Othersargued that if flag State jurisdiction is not implemented, thewhole issue of enforcement will be in doubt. One delegate statedthat coastal States must form the nucleus of any body that managesresources in the high seas.

SANCTIONS AND PENALTIES

The question of applicable penalties was one of the most difficultand many delegates argued that the concept of proportionality wasessential. Some delegates argued for sanctions against the master,the captain, the owner or the crew, while others called for theseizure of the vessel itself. Technical points of maritime lawregarding practical issues of insurance were discussed as well ascases where the legal owner of the vessel had no responsibility foroperation of the vessel. Certificates of competency were alsodiscussed as a means of applying sanctions against the captain andcrew. It was agreed, however, that it is difficult to make anybroad statements in this regard, as issues can be quite complex.

One delegate argued that flag State jurisdiction might beappropriate when it comes to issuing licenses, but coastal Statesor port States will be more apt to control and validate the levelsof catch harvested. Several delegates emphasized the need todistinguish between the functions of observer and inspector inorder to keep the trust of the fishers and ensure a reliable flowof scientific data. Regional organizations could establish therights and duties of such inspectors.

Another question addressed was whether a vessel suspected ofviolating regulatory measures can be confiscated until the flagState is notified. The cooperation of coastal States and regionalorganizations was also deemed necessary in terms of verification ofthe vessel, on-board observation, inspection, control in unloading,dockside monitoring, as well as aerial and satellite surveillance.Financial assistance might have to be given to developing countriesin order to assist them in this regard.

SCOPE OF APPLICATION

One of the major points of disagreement was the extent to whichcompliance and enforcement measures will be applicable within EEZs.This actually led to a lengthy discussion on the mandate of thisConference. Is the Conference to deal with fish stocks lying in andbeyond the EEZs? Should references to the EEZs be stricken? How isthis to be considered in relation to the heading of the item listedin A/48/150 of 23 July 1993, "Provisional Agenda of theForty-Eighth Regular Session of the General Assembly": 100(c) --"Sustainable use and conservation of the marine living resources ofthe high seas: United Nations Conference on Straddling Fish Stocksand Highly Migratory Fish Stocks" (resolution 47/192 of 22 December1992). What is the responsibility of coastal States and distantwater fishing nations with regard to compliance and enforcement.Beyond the legal discussion, some delegates argued that due to thenature of the stocks, jurisdiction cannot be divided along nationalboundaries. Rather, stocks need to be seen as a biological unitthroughout their range. Some delegates argued that the issue of EEZand high seas fisheries management is best dealt with in thesection of the Chair's final report on compatibility and coherencebetween conservation measures for the same stocks.

There was also discussion about how general the guidelines shouldbe. Most agreed that there is a need for harmonization ofcompliance and enforcement measures at the global level so that abroad framework can be agreed upon. Some delegates pointed out,however, that this could then result in the establishment ofindividual measures, such as quotas, for each region. The role ofregional organizations should be strengthened so that they can playvisible roles. In light of the outcome of this Conference,already-established regional organizations should examine their ownoperations.

The issues of flags of convenience, reflagging and fraudulentmaneuvers on the part of the master were also highlighted asimportant matters to address.

IN THE CORRIDORS

Yesterday, when the Conference discussed compliance andenforcement, countries frequently referred to the FAO draftagreement to promote compliance with international conservation andmanagement measures by fishing vessels on the high seas.Negotiations, organized by the FAO Secretariat, in cooperation withseveral interested governments, were held each evening last week atthe UN. While these discussions were not officially part of theConference on Straddling Fish Stocks and Highly Migratory FishStocks, talks were being held since, as one delegate put it,"everyone was already here." Last year's FAO Council established anad hoc group to draft part of the international code of conduct forresponsible fishing that will deal with the practice of flagging orreflagging vessels. This group reported to the Committee onFisheries (COFI) meeting in Rome last March, where parallelnegotiations by a working group produced a heavily bracketed text.In June, this draft was presented to a meeting of a technicalcommittee established by the Council. It was tabled at thisConference as an annex to the COFI report.

The final version, negotiated last week, is virtually a consensusdocument. From here it will be presented to the FAO Committee onConstitutional and Legal Matters (CCLM) and then to the FAO Counciland the 27th session of the FAO Conference in November. Observershave commented on the speed with which this draft convention wasnegotiated, as there was the necessary political will. Copies ofthe final draft were circulated informally last Friday and thedocument will be released as a Conference document later this week.

THINGS TO LOOK FOR TODAY

INFORMAL CONSULTATIONS: Informal consultations will continuethis morning in Conference Room 2 at 11:00 am on three more workingdrafts presented for consideration by the Chair: I. The nature ofconservation and management measures to be established throughcooperation; II. The mechanisms for international cooperation; and,III. Regional fisheries management or arrangements. Nandan plans todiscuss these documents one-by-one and it is expected that he willget through the first two documents today.

FUTURE WORK: Yesterday's questions from the floor elicitedindications from the Chair on the course of work for the remainderof this week and what to expect as the final outcome of thissession of the Conference. Nandan announced that discussions wouldcontinue on the substantive issues, and he insisted that the formof the final document should not be discussed at this time.Further, he said that as he had stated before, and as had beenagreed since the first days of the session, he will produce aunified text that will provide the basis for further discussion andnegotiation. He said that he had already begun drafting this text,but that it will not be available until Friday, the last day ofthis session. Some observers anticipate that the General Assemblymay convene an experts' group meeting early next year. Look for aforthcoming round of negotiations in 1994 to conclude a Conventionthat will fit within the framework of UNCLOS and resolve the issueof high seas fisheries.