Daily report for 27 July 1993

Informal consultations continued on Tuesday in Conference Room 2.At the outset of the meeting, the Chair, Satya Nandan, commentedthat the purpose of these informal meetings was to exchange viewson specific aspects. He requested specific comments on the workingdrafts that he has circulated in order to incorporate all concernsinto the final draft paper that will serve as the basis for futurediscussion and negotiation.

In addition to the papers distributed yesterday, Nandan circulateda new draft on compatibility and coherence between national andinternational conservation measures for the same stocks. Onedelegate requested that this latter document be discussed first, asit must be looked at in conjunction with all the other papers.Another responded that although this is a valid point, there was noopportunity to examine this paper. Thus, discussion began on thenature of conservation and management measures to be establishedthrough cooperation.

NATURE OF CONSERVATION MEASURES TO BE ESTABLISHED THROUGH COOPERATION

SCOPE OF APPLICATION: The first sentence of the draft reads:"States shall cooperate to ensure long-term sustainability ofstraddling fish stocks and highly migratory fish stocks on the highseas." A number of delegates were of the view that the principle ofbiological unit must prevail. Therefore, this agreement'sapplication cannot be limited to the high seas but should alsoinclude the EEZs. This was strongly opposed by a number ofdelegates from coastal States and led to a legal debate on thechanges brought about by the Law of the Sea. It is not the firsttime that this particular issue was brought up. It was argued thatthe issue can only be solved through greater cooperation, and ifequal rights are granted to all. Special rights to coastal Statescould undermine the balance. A delegate commented that the exerciseof jurisdiction of the coastal State within its EEZ is similar tomotherhood. Though nobody denies the mother's right to her child,she may still receive some advice from third parties. Likewise, thecoastal State can benefit from counseling in the management of itsEEZ resources.

"STATES" FOOTNOTE: This footnote, which says references to"States" should be read as references to States and entities(including regional economic integration organizations), generateda number of comments. It has been argued by some delegates thatregional organizations, and the EC, need to be taken in fullaccount. Their mention in the footnote would then be redundant. Thematter of EC participation had been discussed and agreed to duringthe adoption of the rules of procedure. It was also suggested thatStates be defined according to the UNCLOS terminology as coastalStates and States whose vessels fish on the high seas.

OPTIMUM UTILIZATION AND LONG-TERM SUSTAINABILITY: Thequestion of optimum utilization (1(b)) is defined as a situationwhere incremental cost equals incremental benefits, but the notionfails to indicate what incremental costs will be borne for eachspecies. In that respect, the goal should be to attain sustainableuse and minimize discard and waste. Management and conservationmeasures should not be applied solely to stocks but also to thepeoples involved.

PROTECTION OF ASSOCIATED AND DEPENDENT SPECIES: Paragraph1(c) calls on States to ensure that harvesting of the targetstock(s) does not result in associated or dependent species beingreduced to unsustainable levels. It was pointed out that in the ECdocument A/CONF.164/ L.20, the approach was different since itfocused on the protection of endangered species that should not goso far as to endanger the target species.

ENVIRONMENTALLY SAFE METHODS OF FISHING: Paragraph 1(d)addresses the use of environmentally safe fishing techniques tominimize pollution, waste, discards and the catching of untargetedspecies. Some delegates believe that the provisions should notinclude pollution since there is no reference to it in paragraph 55of Chapter 17 of Agenda 21. A delegate saw the provisions of 1(d)as too close to a blank check. Maximum Sustainable Yield was alsomentioned by certain delegates as an environmentally safe method.

SPECIAL CONDITIONS OF DEVELOPING COUNTRIES: Most delegatesagreed on the importance of paragraph 1(e), which mentions thespecial requirements of developing countries. Some said that moreneeds to be known about these countries' requirements so as toevaluate their chances of compliance. The question of how muchaccess these countries will have to international agreements andwhether they should be granted favorable access also needs to beaddressed. This issue is rather ambiguous and was previously dealtwith in UNCLOS. Some delegates supported the view that the specialinterests of coastal States should be dealt with in a separatesubparagraph. It might be important to support developing countrieswishing to enter fishing grounds on the high seas adjacent to theirEEZs.

RESPONSIBLE FISHING: Some delegates viewed this issue as anessential one and questioned its relegation to the sixth point ofthe first paragraph (1(f)). They asked if it would be moreappropriate to mention it earlier in the text. It was alsosuggested that a chapeau be added that would contain the principleof responsible fishing as well as other agreed basic principles,such as the rational use of the stocks and ecosystem protection.

SCIENTIFIC RESEARCH: There is consensus on the need toencourage scientific research. It was suggested that 1(g) could berewritten to stress the importance of scientific research and therole it can play in management and conservation of these fishstocks.

COLLECTION AND SHARING OF DATA FROM FISHING ACTIVITIES: Adelegate disagreed with provision 1(g), in so far as it refers todata on the position of fishing vessels, which is too detailed andsuggested that this provision be replaced with the notion of"area". Others commented that research programmes should not beonly national, but also regional and international.

PRECAUTIONARY APPROACH PRINCIPLE: Though everyone agrees onthe need to proceed cautiously, there were dissenting views on theexact meaning of the precautionary approach, as prescribed inparagraph 2. In particular, some viewed the negative reference tomoratoria as too strong and possibly leading to its non-applicationwhen there is scientific uncertainty. It was recommended that thesubject be referred to a group of experts who could define it ingreater detail. It was pointed out that exploitation of fisheriescould be mentioned more specifically.

MECHANISMS FOR INTERNATIONAL COOPERATION

ACTING IN GOOD FAITH: Paragraph 3 addresses States enteringinto consultations in good faith. Caution was urged in the use ofterms such as "abuse of right." Agreements should be reachedexpeditiously, and a compulsory and binding dispute resolutionmechanism should be included. The resources also should beprotected during the negotiating process.

COOPERATION WITH REGIONAL ORGANIZATIONS: In paragraph 4, itwas mentioned that special consideration might be given to coastalcommunities that are dependent on fishing in adjacent areas. Thereshould be cooperation between the coastal States and the distantwater fishing nations in the work of the organization. Althoughthis paragraph deals with the high seas, it does not say wherecooperation between regional bodies, coastal States and distantwater fishing States will occur. Such organizations should be opento all States interested in the stocks concerned withoutdiscrimination and should give due regard to developing States.

PARTICIPATION IN REGIONAL AND SUBREGIONAL MANAGEMENTORGANIZATIONS: Paragraph 5 deals with subregional and regionalfisheries management organizations and arrangements. Generally, adelegate said, the word "agreements" might be a better choice thanthe word "arrangements" throughout the document. Regionalorganizations should be open to all States that are interested inthe exploitation of the living marine resources. Important factorsto remember are the status of the stock under consideration, thefishing effort, and the expectations of parties. It was pointed outthat paragraph 10 in A/CONF/ 164/L.20 comments on paragraphs 5, 7and 8. Paragraph 10 calls for international fisheries organizationsto be open, on a non-discriminatory basis, to all States interestedin the exploitation of the stocks concerned.

ACCESS TO THE REGULATED FISHERY: In regard to paragraph 8,it is important for States to join regional fisheries managementorganizations or arrangements. States fishing in the high seasshould participate in the work of the organization, even thoughthey may not be members of the region. Subparagraph 1(n) ofDocument III, "Regional fisheries management organizations orarrangements," is relevant here, since it is not clear iforganizations outside the region would have the authority to reviewthe effectiveness of a specific regional organization.

ESTABLISHMENT OF ORGANIZATIONS: Paragraph 10 deals with theagreement of States, when establishing subregional or regionalfisheries management organizations, on aspects such as the fishstock(s) to which conservation and management measures apply, thearea to be covered, relationship to existing organizations,mechanisms for obtaining scientific advice, and processes tofacilitate timely determination of conservation and managementmeasures. The nature of the fisheries, a delegate said, should bedirected at the biological characteristics of the stocks.

IN THE CORRIDORS I

At an informative roundtable on "legal mechanisms" organized by theNGO Network, representatives from several governments met with NGOsto discuss the pros and cons of the various options forimplementing substantive and procedural agreements. The optionsdiscussed included: 1) a treaty regime, either free-standing or asa protocol to UNCLOS; 2) an authoritative interpretation of UNCLOSwith regard to fisheries provisions; 3) the adoption of rules andregulations under UNCLOS; 4) an agreed statement of principles madelegally-binding through regional agreements, national law and/orcustomary international law; 5) a UN General Assembly resolution;and, 6) a hybrid of two or more of the above options (e.g., afree-standing treaty complemented by a General Assembly resolutioncommitting governments to abide by the treaty pending its entryinto force).

IN THE CORRIDORS II

The New Zealand delegation, in an unusual move, tabled a three-pageresponse to two articles published in ECO, an NGOpublication circulated at the Conference. New Zealand took thismeasure after unsuccessfully attempting to respond in ECO tothe stories. These articles, written by Leith Duncan, discuss bothprivate ownership of fisheries resources in New Zealand and theintroduction of individual transferable quotas (ITQs). ITQs areschemes through which shares of a stock are allocated to individualfishers, based on their historical catch, in an effort to ensuresustainable use. New Zealand's response states that there is littleevidence to support the thesis of the articles that "privateownership of fisheries resources is inimical to the conservation offisheries and the welfare of fishing people." The ECOarticle attributes depletion of stocks to the implementation of ITQschemes. These, however, are often seen by fisheries economists asa means of putting an end to the so-called "Tragedy of theCommons." When property rights are not clearly assigned,individuals will, in a classic example of the "Prisoner's Dilemma,"tend to catch as much as they can, regardless of sustainability, inorder to harvest the fish before somebody else does. It is arguedthat when property rights are assigned, fishers have an economicincentive to harvest their own quotas in the most sustainablemanner. Discussion in the corridors indicated that New Zealand'sresponse was a sign that some governments are taking the views ofNGOs quite seriously. Yet, the question being asked was why, withsuch a range of predatory fishing countries available as targetspecies, New Zealand was singled out by ECO as its by-catch.

THINGS TO LOOK FOR TODAY

INFORMAL CONSULTATIONS: Work will continue this morning at10:30 on the Chair's working paper, "The mechanisms forinternational cooperation." Discussion on this document shouldcontinue through the morning before the group turns to the next ofthe draft chapters of Nandan's eventual text, "Regional fisheriesmanagement organizations or arrangements." If there is time thisafternoon, debate will move to the draft circulated yesterday,"Compatibility and coherence between national and internationalconservation measures for the same stock."

NANDAN'S DRAFT TEXT: Look for more sections of Nandan'sdraft text to be circulating today. At the outset of yesterday'smeeting, Nandan outlined his paper, which he expects to serve asthe basis for further discussion and negotiation in the comingmonths. The proposed chapter headings are: I. The nature ofconservation and management measures to be established throughcooperation; II. The mechanisms for international cooperation; III.Regional fisheries management organizations or arrangements; IV.Compliance with conservation and management measures; V.Enforcement of high seas fisheries, conservation and managementmeasures; VI. Port State enforcement; VII. Non-parties to aregional or subregional agreement or arrangement; VIII. Disputesettlement; IX. Compatibility and coherence between national andinternational conservation measures for the same stocks; and,possibly, a review of measures and of any agreement reached duringthis Conference. There will also be an annex that will contain therevision of the draft paper on data collection that was discussed last week.