Daily report for 28 July 1993

On Wednesday, the Chair convened another informal session todiscuss the following three working drafts: The mechanisms forinternational cooperation; Regional fisheries managementorganizations or arrangements; and Compatibility and coherencebetween national and international conservation measures for thesame stock.

THE MECHANISMS FOR INTERNATIONAL COOPERATION

PARTICIPATION IN REGIONAL FISHERIES MANAGEMENT ORGANIZATIONS:One delegate suggested that the wording of paragraph 5 bechanged to limit participation to those States engaged in high seasfishing. He added that support for this point can be found inUNCLOS Article 118. Another delegation supported in principle theidea that organizations be open to all interested States, but thatthe concept should not be used without necessary modifications dueto special circumstances and that States with tangible interests inthe stocks concerned should avail themselves of the openness of theorganization.

NEW MEMBERS: One delegate suggested that paragraph 7 shouldbe deleted, since subparagraph 1(k) in the document on regionalfisheries management organizations or arrangements deals with newentrants. Another delegate commented that new members of regionalor subregional organizations would accrue benefits in exchange forobligations, with special consideration for coastal States.

In 7(b), language dealing with historical fishing rights asopposed to historical fishing patterns may be preferable. Aphrase might also be added to the end of the sentence so that thissubparagraph reads "the historical fishing patterns of thenon-party which have not undermined regional conservation andmanagement measures."

Subparagraph 7(c) should take into account the traditionaldependence of people on fishing for nutrition, food, or forlivelihood. Some argued that this subparagraph should be expandedto include mechanisms for regional organizations to providetraining for nationals in all aspects of fisheries management, toprovide assistance in technology, and to promote general fisheriesdevelopment.

A delegate mentioned that a new subparagraph 7(a) might bedeveloped to deal with the state of the stocks and fishing effortsemployed by existing members of a regional fisheries managementorganization. Concern was also voiced about possible discriminationin the application of criteria concerning the contribution ofnon-parties to conservation and management of stocks.

ACCESS TO REGULATED FISHERIES: Some delegates thought thatparagraph 8 was harsh and, therefore, might be deleted Anotherdelegate felt that this paragraph might best follow paragraph 5, as5 deals with open participation of the regional fisheriesmanagement organizations and 8 addresses access to the regulatedfishery.

ESTABLISHING REGIONAL FISHERIES MANAGEMENT ORGANIZATIONS: Inparagraph 10, some delegations favored deletion of the words "onthe high seas" from the chapeau so that the measures deal withmanagement of stocks in both EEZs and the high seas. Echoingstatements made Tuesday, some argued for deletion of the word"arrangements" for reasons of transparency and for consistency withthe draft convention on flagging, which uses the term "treaties andinternational agreements" instead of "arrangements." Emphasis couldbe placed on cooperation between coastal States and distant waterfishing nations, as well as on seeking technical and economiccooperation with developing countries. Others argued that retainingthe word "arrangements" had merit, since the term "agreements" wastoo narrow.

In subparagraph 10(a), it was argued that the phrase "biologicalcharacteristics of the stock(s) concerned" should be replaced bythe phrase "biological unity of the stock(s) concerned", withregard to conserving and managing these stocks. In 10(b), adelegate asked just what socio-economic factors should betaken into account. This subparagraph also needs to be read inconcert with subparagraph (a), which deals with all elements of agiven species over its complete geographic range.

It was also suggested that subparagraphs could also be addedregarding: the opportunity for States and entities to enterarrangements where port States assist coastal States on monitoringand enforcement; the need to assist developing countries withtechnical or scientific expertise; and the development by regionalorganizations of decision-making processes which aretime-efficient.

REGIONAL FISHERIES MANAGEMENT ORGANIZATIONS OR ARRANGEMENTS

OBLIGATIONS OF STATES IN REGIONAL FISHERIES MANAGEMENTORGANIZATIONS: Even though the concept of Maximum SustainableYield (MSY) works in theory, it is time to move ahead and leave thedoor open for application of technical ideas in the future.Subparagraph 1(d) on statistical data raised questions regardingthe term "ecologically related species." A delegate thought thatsuch a term could be abused and that this section should be morespecific. Are these associated or dependent species? Yet, if oneaccepts an ecosystem approach, use of the term "ecologically" maynot be too far off course.

Subparagraph 1(j), on deterring non-parties from underminingmeasures, engendered some reservations since it was suggested thatthe point is not in line with the rules of general internationallaw. In subparagraph 1(k), the criteria of conservation andmanagement are referred to as conditions for a new entrant'sutilization of the resource. It was also mentioned that thereshould be special consideration for the needs of coastal States.

In subparagraph 1(l), it was mentioned that the statement ofsettlement dispute procedures being applicable to members of anorganization who are not parties to the Convention is not in linewith international law. Because of the peculiar nature offisheries, concrete procedures and choice of dispute settlements isbest done within each organization. Provisional measures should betaken during the negotiation period to preserve the stocks.

ENCLOSED OR SEMI-ENCLOSED SEAS: Paragraph 2 addressedconsultation with concerned coastal States when establishing aregional fisheries management organization with respect to anenclosed or semi-enclosed sea. Article 123, paragraph (d) of UNCLOSsuggests that coastal States do not enjoy special status overStates interested in fishing or participation in conservationefforts in an enclosed sea.

Some debate also occurred on what is meant by the precautionaryapproach. Some delegates voiced a preference for FAO to produce apaper on the principle before the next session of the Conference,while others thought that there should be informal consultationsheld within the scope of this Conference.

COMPATIBILITY AND COHERENCE BETWEEN NATIONAL AND INTERNATIONAL CONSERVATION MEASURES FOR THE SAME STOCK

The Chair introduced his working draft on this controversial issueby emphasizing the two opposite views on the matter. On the onehand, a number of delegates have called for a biological unityapproach through which measures taken for the management of a stockon the high seas have to be applied throughout its range, i.e.,within the EEZ. But coastal States see this as a clear impingementon the jurisdictional rights granted to them by UNCLOS. As theChair put it, the two views -- one biological and the otherjurisdictional -- have to be reconciled for the sake of effectiveconservation and management of straddling fish stocks and highlymigratory fish stocks.

STATE SOVEREIGNTY: One of the delegates initiated the debateby calling on all States to relinquish part of their sovereignty inorder to achieve a better solution for all. Distant water fishingnations have to yield to special rights of the coastal States,while the coastal States must allow for some outside interventionin the management of the straddling and highly migratory fishstocks in their EEZs. This proposal, while approved by some, metwith some strong opposition from other delegates. A delegateinsisted that each State give due regard to the interests ofothers. A solution to this apparently unsolvable problem can bereached if all parties negotiate on an equal footing. Anotherdelegate, however, insisted that the States were not on equalfooting to start with since the nomadic vessels fishing on the highseas have access to other fishing grounds while the coastalcommunities depend on the straddling stocks for their livelihood.Another delegate responded that socio-economic needs of the distantfishers should also be taken into consideration. It was also arguedthat UNCLOS does not provide for equality among States but grantscoastal States a clear advantage. It was argued, however, thatthese special rights are not absolute, but subject to a number ofstringent conditions that need to be met.

AN ECOSYSTEM APPROACH TO MANAGEMENT: This approach wasadvocated by the proponents of the biological unity approach, whoargue that due to their biological particularities, these stockscannot be managed separately within the EEZs and on the high seas.As one delegate put it, a single stock cannot be managed by twoseparate entities.

SCOPE OF APPLICATION: There was some degree of controversyas to where the measures taken by the regional organizations shouldapply. Some parties insisted that "on the high seas" be deletedfrom paragraph 2 to make sure that those measures cover the wholerange of the stocks. This was also reflected in the debate onparagraph 3, where the conservation measures taken are to place noundue burden on the coastal States. Some opposed this provision assubordinating the freedom to fish on the high seas to the rights ofthe coastal States.

MEASURES TO BE TAKEN IN CASE THE NEGOTIATIONS FAIL:Paragraph 5 met with strong opposition from distant waterfishing nations who oppose the priority given to coastal States'measures if no agreement is reached. Instead, it was suggested thatthe States be compelled to negotiate further and provisionally andvoluntarily adopt measures based on the best available scientificevidence to ensure that the condition of the stocks does notdeteriorate. Some coastal States thought this was too weak toprotect depleted stocks. This suggestion gives high seas fisherstoo much judgement in the adoption of conservation measures.

NATURE OF THE CONSERVATION MEASURES: Conservation measuresshould take into account all the relevant factors such as stockconditions but also the socio-economic impacts on the fishers andtheir communities. A delegate pointed out that while economicfactors are mentioned in UNCLOS, social factors are not and theyshould be clearly defined before they are integrated in the finaldocument. A nation insisted that measures applying to straddlingstocks should be different from those applying to highly migratorystocks.

THE FAO CODE OF CONDUCT ON RESPONSIBLE FISHING: The Code ofConduct was singled out as a good indication on how management andconservation measures should be carried out. A delegate suggestedthat the Code of Conduct should be fully implemented by 1996, whenthe UN Commission on Sustainable Development will be addressing theimplementation of the oceans chapter of Agenda 21.

THINGS TO LOOK FOR TODAY

INFORMAL CONSULTATIONS: Discussion will continue thismorning at 11:00 on Nandan's working draft, "Compatibility andcoherence between national and international conservation measuresfor the same stock". Debate will then turn to the two documentsdistributed yesterday afternoon, "Port State enforcement" and"Non-parties to a subregional or regional agreement orarrangement."

Look for a proposal today from Nandan regarding the dates andnumber of future "sessions" of the Conference to be held in 1994.Nandan announced yesterday that on Friday he plans to hear limiteddiscussion on this item and adjourn this session of the Conferenceat 1:00 pm.

A/CONF.164/L.11/REV.1: The revised version of the Draftconvention on the conservation and management of straddling stockson the high seas and highly migratory fish stock on the high seas,submitted by Argentina, Canada, Chile, Iceland and New Zealand,will be released today as A/CONF.164/L.11/Rev.1. This new text hasbeen discussed in detail during a series of consultations held bythe sponsors with representatives of various regional groups. Thechanges in this document reflect the input from these meetings, anNGO paper on L.11, and certain trends emerging in Nandan's informalconsultations. Noteworthy changes in L.11/Rev. 1 include: 1) theaddition of Annex II "Selected precautionary measures on the highseas" that adds detail to Article 5 on the precautionary approach;2) the reorganization of Article 7 on surveillance and controlmeasures that includes provision for minimizing costs for coastaldeveloping countries and on the particular circumstances inindividual regions; 3) provision in Article 18(c) for theestablishment of funds to enable developing countries to defray thecosts of dispute settlement; 4) qualifying language related to thejurisdictional basis of port State enforcement in Article 11; 5)the addition of a new article 16 titled "Information on dispositionof cases" that requires the flag State that receives one of its ownarrested fishing vessels to inform the coastal arresting Statewithin 12 months of the final disposition of the case; and 6)improved provisions of Article 24 on technical cooperation withdeveloping countries. Some of the sponsors hope that L.11/Rev.1will continue to evolve, in a process not unlike that taken by thedraft agreement on flagging, and might, eventually, be merged withthe outcome of Nandan's consultations.