Daily report for 29 July 1993
1st Session of the FSA
Informal sessions on Thursday continued the discussion on theChair's working paper on compatibility and coherence betweennational and international conservation measures for the samestock. Discussions then moved to the following working papers: PortState Enforcement, Non-parties to a subregional or regionalagreement or arrangement, and Special requirements of developingcountries.
Before the substantive discussions began, Nandan made a fewprocedural announcements. He said that his final paper should beavailable in the morning. This paper is based on the comments madeby delegates on his draft working papers, the written submissionsof delegations, and the formal discussions held in Plenary. Thispaper will form the basis for the future work of the Conference. Asthe Conference needs to conclude its work by the 49th GeneralAssembly in 1994, Nandan proposed the convening of two additionalsessions: a 3-week negotiating session from 14-31 March 1994 and afinal session to adopt the text from 15-26 August 1994. Inaddition, there may also be expert group or ad hoc meetings on theprecautionary approach and the concept of maximum sustainableyield.
COMPATIBILITY AND COHERENCE BETWEEN NATIONAL AND INTERNATIONAL CONSERVATION MEASURES FOR THE SAME STOCKS
As a lengthy debate of this topic took place Wednesday, discussionon this matter did not take too much time. With regard to themeasures that should be adopted in case negotiations fail, adelegate pointed out that coastal States are not always able toestablish conservation measures. In this case, distant waterfishing vessels should comply with certain international minimumstandards. Another intervention highlighted the difficultiesdeveloping States may have in conducting stock assessments, andcalled for further international assistance.
PORT STATE ENFORCEMENT
SCOPE OF APPLICATION: The ever-recurrent issue of the finaloutcome of this Conference surfaced once more when some delegatesquestioned whether port State enforcement should be specific toregional organizations' arrangements or should be enshrined in adocument applicable at the global level. As a proponent of thelegally-binding document approach put it, the global approach canbe seen as a safety net in case the application of the measuresfails at the regional level. Another delegate asked that there beno safe refuge for vessels violating the conservation andmanagement measures agreed upon. Some parties agreed to theprinciple only in so far as it would be applied through theregional organizations and not at the global level.
PORT STATE JURISDICTION: This issue was characterized by oneof the delegates as similar to most of the questions debated duringthis Conference: participants may agree on the principle butdissent on its application. The principle itself was questioned byone delegate who first claimed that it was not recognized inUNCLOS, customary international law or customs of internationalmaritime law. After another delegate pointed out that Article 218of UNCLOS provides precisely for port State enforcement in cases ofviolation of marine pollution conventions, the first delegateclaimed that, in any event, UNCLOS has yet to enter into force andshould thus give way to customary international law which has notyet elevated port State enforcement to the status of a generalprinciple. This last assertion was questioned by some.
PORT STATE ENFORCEMENT -- A RIGHT OR A DUTY: With regard tothe provisions of the Chair's draft paper, the majority of Statesargued that port State jurisdiction is no longer questioned and,therefore, need not be mentioned further. As a result, verbs suchas "may" need to be replaced by "should" or even "shall" toemphasize the point that in fulfilling their obligation to conserveand manage the straddling and highly migratory fish stocks, theport States are required to exercise some control over the foreignvessels that call in their ports. In particular, it was argued thatapplication of conservation measures should not be left to the goodwill of the port States.
With regard to the enforcement by port States at the request ofanother State, several delegates expressed the view that thisshould remain a right and not a duty since the port State and therequesting State may have conflicting interests. It was alsosuggested that "Parties" rather than States be allowed to ask forport State cooperation.
MEASURES THAT THE PORT STATE MAY/SHOULD CARRY OUT:
- The right to request information from flag States was not disputed and some delegates attached to it a collateral obligation on the part of the flag State to provide this information.
- It was agreed that inspection of vessels suspected of violating the prescribed measures should be limited to cases where the port State has reason to suspect that the vessel's fishing practices undermine the conservation measures adopted. All agreed it is impossible to inspect all the vessels that call in but, as FAO pointed out, the simple examination of the fishing log may give good indications on the legality of the fishing. Some developing nations questioned their own capacity to carry out such inspections and suggested that on-board inspection schemes be set up to help them in this task. Others called for transfers of technology, such as satellite tracking devices, to enhance cooperation between flag State and port State. This was also seen as a way to avoid the possible partiality of on-board inspectors. If a distant water fishing vessel also fishes in the coastal area, chances are that the port State may be prejudiced against it. The concept of "undermining" practices was also questioned as being too vague and including an element of intention.
- Detainment of vessels that have violated the conservation and management measures raised the question of how long a vessel could be detained -- until the flag State has been notified or until the port State is satisfied that the proper measures have been taken by the flag State. The principle of proportionality, which should be applied to this situation, needs to be further refined.
- Refusing entry to vessels that are known to have violated conservation and management measures as well as the blacklisting of offending vessels has been applied in practice and has met with some success.
- Refusing to land catches that were harvested in violation of the conservation and management measures caused some worry that this measure would be in violation of GATT provisions. It was explained, however, that GATT does not apply to direct imports from the high seas.
- Hailing is a practice that has been successful in the past and was recommended for inclusion in this section.
- Confiscation of vessels or fishing gear was suggested in the case of the most serious violations.
A minor incident occurred when one delegate renewed claim ofjurisdiction over the Kuril Islands. The other nation, which claimssovereignty over the same islands, regretted the intervention,claiming it contradicted the mandate of this Conference.
NON-PARTIES TO A SUBREGIONAL OR REGIONAL AGREEMENT OR ARRANGEMENT
One delegate said a key element of the framework is the subregionalor regional organizations and arrangements that will apply rules,regulations and principles with due regard to the peculiarities ofthe region. States will then have legal tools to challenge theunlawful use of stocks. Another delegate insisted that regionalorganizations should be open to everyone on a non-discriminatorybasis.
In paragraph 1, a delegate thought that the first line should notmention only the cooperation of flag States, but that theobligation to cooperate should lie with all States. Anotherdelegate thought that the phrase "flag States" could be replaced bythe phrase "all States concerned." It was mentioned that referencesto criminal law terminology should be avoided. One delegation saidthat a reference to straddling fish stocks or highly migratory fishstocks should be made in this paragraph. To maintain the referenceto the stocks, the last word of the paragraph, "fishery," should bereplaced with the phrase "regulated stocks."
In paragraph 3, one delegate asked about the criteria to be used indetermining what undermines the effectiveness of relevantconservation and management measures. Specific language shouldspell this out.
In paragraph 4, one delegate said that blacklisting of vesselsseems to be an effective mechanism that should be given someserious consideration, along with other measures that areconsistent with international law. This paragraph could bestrengthened if the final sentence of paragraph 4, "Such actionsshall be consistent with international law," was incorporated intothe first sentence so that compliance with conservation andmanagement measures could be promoted. The revised paragraph wouldthan read: "States shall cooperate in a manner consistent withinternational law to the end that fishing vessels entitled to flythe flags of non-parties do not engage in activities that underminethe effectiveness of relevant international conservation andmanagement measures."
SPECIAL REQUIREMENTS OF DEVELOPING COUNTRIES
This working paper considers the special needs of developingcountries regarding straddling fish stocks and highly migratoryfish stocks, the need to enhance assistance to them on a regionalor subregional basis, and how to channel such assistanceeffectively. One delegate thought that a new subparagraph 1(a)should be included to address the vulnerability of developingcountries whose geography makes them dependent on exploiting livingmarine resources for their populations. In subparagraph 2(a), onedelegation mentioned the importance of including a provision on thevulnerability of coastal communities in these countries that aredependent on fishing.
In paragraph 3, regarding specific forms of assistance todeveloping countries for the purposes set out in this section, onedelegate thought it advisable to permit rapid and regular access todata and information, and assistance in increasing data collectioncapacity. In subparagraph (b), scientific research should relate tostock assessment. Exchange of information and training of personnelis also important. One delegate said that thought should be givento the means of implementing subparagraph (c) on providing trainingand funding to help developing countries build their capacity withregard to monitoring, control and surveillance. It was mentionedthat subparagraph (d) does not go far enough in discussing accessto global dispute mechanisms. It was also suggested that thecreation of a voluntary fund to defray costs be considered and thedevelopment of gear technology be included among the specific formsof assistance. A delegate thought that the FAO was conspicuous inits absence in relation to the provision to developing countries ofscientific research and the collection, verification, and exchangeof data.
Paragraph 4 deals with special assistance to developing countriesto enhance their ability to conserve, manage and develop their ownnational fisheries for these stocks. It was argued that thisassistance is not limited to the high seas, but should include theEEZs. A provision should be developed to reflect the ability ofdeveloping countries to enjoy the benefits of these stocks "intheir own zones and on the high seas."
IN THE CORRIDORS
The decision to hold two further negotiating sessions during 1994raises a series of procedural concerns, which were discussed in thecorridors by some of the delegates who will have to deal with thisissue at the next General Assembly. As this Conference is part ofthe implementation of decisions and recommendations of UNCED, itwill be handled by the Second Committee of the General Assemblyunder item 100(c) of the provisional agenda (A/48/150). Anyresolution calling for additional negotiating sessions of thisConference will have to include a statement of programme budgetimplications considered by the Fifth Committee, which handlesadministrative and budgetary matters. Based on the figures in thebudget implications for the 1993 session (A/C.5/47/78), it isestimated that additional sessions of three and two weeks in 1994will cost approximately US$1,230,000 for conference servicing(translation, interpretation, etc.).
THINGS TO LOOK FOR TODAY
PLENARY: The Plenary will meet today at 11:00 am inConference Room 2. The Chair has announced that he will circulatehis draft text, although Conference Services cannot guarantee itwill be available at the beginning of the meeting. Peru, Chile,Korea and Colombia have already indicated that they will speak thismorning. Three NGOs are also expected to speak: Women and FisheriesNetwork, on behalf of many participants in the NGO Network;Fisherman, Food and Allied Workers; and Inshore Fisheries fromNewfoundland. The Chair has said that he hopes the business of theformal meeting will not be prolonged and that governments will keeptheir statements about future sessions short. Nandan hopes toadjourn this session of the Conference at or before 1:00 pm.