Summary report, 12–30 July 1993

1st Session of the FSA

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The UN Conference on Straddling Fish Stocks and Highly MigratoryFish Stocks concluded its first substantive session at UNHeadquarters in New York on 30 July 1993 after three weeks ofintense negotiations on what may become an internationalconvention. This Conference, one of the major outputs of the UnitedNations Conference on Environment and Development (UNCED), wasconvened by the UN General Assembly in one of a series ofresolutions designed to implement the decisions taken in Rio.

This Conference, which brought together many delegates responsiblefor negotiating the Law of the Sea with those involved in the UNCEDprocess, addressed the divisive issue of the management ofstraddling and highly migratory fish stocks on the high seas.According to the 1982 Law of the Sea Convention, straddling andhighly migratory fish stocks include species occurring within theexclusive economic zones (EEZs) of two or more coastal States orboth within the EEZ and in an area beyond and adjacent to it. AnEEZ is defined as an area extending beyond and adjacent to theterritorial sea and does not extend beyond 200 miles from thebaselines. Many of these stocks are among the most commerciallyvaluable species and are, therefore, subject to intense fishingefforts. Recent reports have concluded that many straddling andhighly migratory fish stocks are either over-exploited or depleted.

In his opening statement, the Chair of the Conference, Satya Nandan(Fiji) said that this gloomy outlook provides a great challenge tothe international community. The issue before the Conference, hesaid, is not only to agree on management measures for thesustainable use of straddling fish stocks and highly migratory fishstocks, but also to ensure that measures and mechanisms are inplace to restore depleted stocks to levels that can produce maximum sustainable yield. One of the critical challenges is for States toagree on arrangements that would ensure the harmonization ofmanagement regimes applicable to the two stocks in the high seasand the EEZs, without prejudice to the sovereign rights of acoastal State over the living resources of its EEZ, as provided forin the Law of the Sea Convention.

During the three-day general debate that followed, many of thedelegates from 105 countries and the European Community,Intergovernmental Organizations, UN Agencies and Programmes and NGOrepresentatives gave their opening statements. On the fourth day,the Chair directed the participants through formal discussions ofeach of the issues outlined in "A guide to the issues before theConference prepared by the Chairman" (A/CONF.164/10). These issuesincluded: the nature of conservation and management measures to beestablished through cooperation; the mechanisms for cooperation;responsibilities of regional fisheries organizations orarrangements; compliance with conservation and management measures;enforcement of high seas fisheries, conservation and managementmeasures; non-parties to a regional agreement or arrangement;settlement of disputes on matters of a technical nature; andcompatibility and coherence between national and internationalconservation measures for the same stocks. After the Plenarydiscussions, the Chair drafted working papers on each issue andconducted nearly two weeks of informal sessions based on thesepapers. Eventually, these redrafted papers formed the components ofChair's "Negotiating Text" (A/CONF.164/13), which was distributedon the last day of the Conference. Nandan made it perfectly clearthat this text was neither a negotiated nor a consensus document,but a text prepared by the Chair after consulting with alldelegations. This text will serve as the basis for negotiation atthe next session of the Conference to be held in the Spring of1994.

A BRIEF HISTORY OF THE TREATMENT OF HIGH SEAS FISHERIES IN THE UN SYSTEM

The problems related to high seas fisheries are not new to the UNsystem. Participants at the Third UN Conference on the Law of theSea were well aware of the issue, however, attempts to deal with itduring the course of the ten years of negotiations were notsuccessful. The negotiators decided to leave such problems to beresolved between States concerned with high seas fisheries indifferent regions.

During the last decade, however, the pressure on high seasfisheries has grown rapidly, and the problems have become moreurgent. In a recent report, the Food and Agriculture Organization(FAO) stated that inadequate management and over-fishing are themajor problems in high seas fisheries. In this report, the FAOconcluded that "excessive fishing is endangering the verysustainability of high seas fishery resources."

A number of events in the early 1990s indicated that aninternational conference should be convened to resolve the issuesrelated to high seas fisheries, which had been discussed byregional fisheries organizations and by the FAO's Committee onFisheries (COFI) over the years. In 1991, the UN convened anexperts' meeting that prepared a study on the problems of theimplementation of the high seas fisheries provisions in theConvention on the Law of the Sea. The International Conference onResponsible Fishing was convened by the Government of Mexico, incollaboration with FAO, from 6-8 May 1992 in Cancn. The Conferenceadopted the Declaration of Cancn that contained provisions relatedto the management and utilization of high seas fisheries, requestedthe FAO to prepare an international code of conduct for responsiblefishing, and urged States to cooperate on all levels to establishand implement effective means and mechanisms to ensure responsiblefishing on the high seas. This code of conduct will aim atcorrecting the inefficiencies resulting from open-access conditionsby focusing on the responsibility of those engaged in thefisheries.

THE UNCED PROCESS

During the extensive negotiations of Chapter 17 of Agenda 21,"Protection of oceans, all kinds of seas including enclosed andsemi-enclosed seas, coastal areas and the protection, rational useand development of their living resources," the issue of high seasfisheries proved to be among the most difficult. Throughout thepreparatory process, from August 1990 - April 1992, consensus onstraddling and highly migratory fish stocks remained elusive. Atthe Earth Summit held in Rio in June 1992, the Chair of the MainCommittee (and formerly PrepCom Chair) Tommy T.B. Koh (Singapore)requested that the United States conduct informal consultations inorder to find compromise text on the issue of straddling and highlymigratory fish stocks. The resulting text for paragraph 17.52reads: "States should convene an intergovernmental conference underUN auspices with a view to promoting effective implementation ofthe provisions of the Law of the Sea on straddling and highlymigratory fish stocks."

THE 47TH UN GENERAL ASSEMBLY

The resolution establishing the Conference on Straddling FishStocks and Highly Migratory Fish Stocks (47/192) was adopted by theGeneral Assembly on 22 December 1992. The resolution says that theConference, drawing on scientific and technical studies by FAO,should:

Identify and assess existing problems related to the conservation and management of highly migratory and straddling fish stocks;

Consider means of improving fisheries cooperation among States; and

Formulate appropriate recommendations.

The resolution also says that the Conference should take intoaccount relevant activities at all levels with a view to promotingeffective implementation of the provisions of the UN Convention onthe Law of the Sea on straddling and highly migratory fish stocks.The resolution also stipulated that the Conference should completeits work "as early as possible" in advance of the 49th session ofthe UNGA.

ORGANIZATIONAL SESSION

The organizational session for the Conference was held at UNHeadquarters in New York from 19-23 April 1993. The participantsadopted the rules of procedure and agenda, elected all but one ofthe officers, appointed a Credentials Committee, and agreed on howits substantive work will be carried out. Satya N. Nandan (Fiji)was elected Chair of the Conference. Nandan served from 1983-1992as Under-Secretary-General for Ocean Affairs and the Law of the Seaand Special Representative of the Secretary-General for the Law ofthe Sea. The Conference also elected three of the four Vice-Chairs:Mohamad Mahmoud of Mauritania (for the African States); TullioTreves of Italy (for the Western European and Other States); andAndr‚s Couve of Chile (for the Latin American States). The electionof a Vice-Chair for the Eastern European States was deferred untilthe Conference.

The following countries were appointed to the CredentialsCommittee: Antigua and Barbuda, Argentina, Burundi, China, Kenya,New Zealand, Papua New Guinea, the Russian Federation and theUnited States.

The participants at the organizational session also agreed that allsubstantive issues would remain the responsibility of the Plenary.In order to facilitate negotiations, it was decided thatconsultations on specific issues would be assigned to ad hocworking groups or negotiating groups when appropriate. Due to thescientific and technical nature of substantive issues withtechnical content, governments were encouraged to include expertson fisheries matters on their delegations. The Chair was asked toprepare a paper containing a list of substantive subjects andissues as a guide for the Conference, and delegations wererequested to submit their proposals to the Secretariat by the endof May.

REPORT ON THE CONFERENCE

The UN Conference on Straddling Fish Stocks and Highly MigratoryFish Stocks opened on Monday, 12 July 1993 at UN Headquarters inNew York. After three days of general debate, the Plenary began toaddress the major issues before it, guided by a summary of theissues before the Conference, prepared by the Chair(A/CONF.164/10). The Plenary held formal sessions on each of theeight issues outlined and then adjourned to allow informalconsultations to continue. At each of these informal meetings,Nandan presented the group with a working paper that summarized theissues raised in the Plenary and papers submitted by interesteddelegations. Based on the discussions of these papers, Nandandrafted his final text (A/CONF.164/13), which was circulated on thelast day of the session. On the final day, the Conference adoptedthe following decisions:

The Conference will recommend to the General Assembly that services be provided for two additional sessions, to be held in New York in the spring and the summer of 1994. Tentative dates for these meetings are 14-31 March and 15-26 August.

The Conference requested that the FAO prepare informational papers on the precautionary approach and maximum sustainable yield in advance of the next session.

The following is a summary of both the discussions and the finaldraft on each of these issues based on the order of the chapters inNandan's text, issued in Plenary on 30 July 1993 as A/CONF.164/13.

I. THE NATURE OF CONSERVATION AND MANAGEMENT MEASURES TO BE ESTABLISHED THROUGH COOPERATION

Document A/CONF.164/10 suggested that the discussion of this issuefocus on the general nature of the cooperation measures that Statesmust take for the conservation and management of the two types offish stocks.

SCOPE OF APPLICATION:

A number of States agreed that, basedon the biological unity approach, conservation and managementmeasures should apply throughout the range of the speciesconcerned. Thus, management should be consistent in both the EEZsand the high seas. Yet it was mentioned that the sovereignty of thecoastal State within its EEZ should not be questioned. It waspointed out that management measures must differ between geographicareas.

INTERESTS OF COASTAL STATES:

A debate that pervaded most ofthe Conference was on the rights and interests of coastal States.On one side, a number of countries, including Norway, India, SierraLeone, Uruguay and Peru, insisted that the special interests ofcoastal States are clearly recognized in the provisions of UNCLOS.Others, including Korea and China, argued that it is impossible toinfer special rights for coastal States from the Convention and,thus, coastal States should not be granted special rights.

TOTAL ALLOWABLE CATCH (TAC):

There was a mixed reaction tothe concept of Total Allowable Catch. Norway stated thatconservation and management, particularly in relation to TotalAllowable Catch (TAC), should be based on the best scientific dataavailable from an internationally recognized scientific body. TheEC said that TACs have been applied for 15 years with good results.It is not an ideal system but it can be improved. Japan suggestedthat all regional bodies set TACs throughout a species range if itis known. It is quite reasonable and appropriate to think of TACsas applicable to the whole range. Some highly migratory fish stocksare known to migrate through the EEZs of dozens of coastal States.If each State establishes its own TAC on account of its sovereignrights, it is unlikely that a TAC will be set up on the high seas.Tanzania supported the adoption of TACs within major fisheriesmanagement organizations, but said that other measures should beconsidered, including mesh size restrictions, season closures, andthe use of traditional and cultural conservation methods. Moroccosaid that TACs are effective when there are powerful regionalauthorities in place.

PRECAUTIONARY APPROACH:

Battle lines were drawn early on thequestion of applying the precautionary approach to fisheriesmanagement. The EC, Japan and Korea argued that the precautionaryapproach is taken directly from Principle 15 of the RioDeclaration, which applies to pollution, and that it cannot betranslated automatically to fisheries management. They expressedconcern that the use of the precautionary approach may, at times,be equated with the application of moratoria unless the user candemonstrate that fishing has no adverse impact on the stock.

Other countries, including Australia, Norway, New Zealand, PapuaNew Guinea, Iceland, Canada, Chile, Indonesia, Trinidad and Tobago,the Solomon Islands and the US, argued that there is no doubt thatthe precautionary principle, as set out in the Rio Declaration, hasrelevance in all fields of natural resources management. There isa general obligation to apply precaution, but the lack of fullcertainty is not a reason to postpone such measures. The depletionof stocks are the accidents that point to the need for "trafficlights," even in the absence of compelling statistics. In addition,application of this principle does not necessarily imply suchnegative measures as moratoria.

Some countries, including the Philippines and Poland, said thatprecautionary measures should be looked at with prudence andcaution. Sweden felt that the precautionary principle has been usedin handling environmental issues such as biodiversity and that, inrelation to fisheries, this principle has to be further elaborated.Brazil, supported by Samoa and Argentina, said that theprecautionary approach is controversial, but there is no reason whyit should not be applied to fisheries.

A/CONF.164/13:

The Chair's negotiating text provides thatcoastal States and States whose vessels fish on the high seas shallcooperate to ensure long-term sustainability of straddling fishstocks and highly migratory fish stocks on the high seas. Statesshall give effect to the duty to cooperate by establishingconservation and management measures for these stocks and committhemselves to responsible fishing, in a manner consistent withUNCLOS. These measures should be directed at maintaining orrestoring stocks at levels capable of producing maximum sustainableyield; promoting utilization and ensuring long-term sustainability;maintaining and restoring populations of associated or dependentspecies; promoting the development and use of environmentally-safeand cost-effective fishing techniques; taking into account thespecial requirements of developing countries; enhancing the levelof certainty in management decision-making through collecting andsharing of data; and promoting scientific research. Theprecautionary approach shall be applied widely by States tofisheries management and exploitation. The Conference requested FAOto prepare a technical paper on the issue.

II. THE MECHANISMS FOR INTERNATIONAL COOPERATION

The discussion on this issue focussed primarily on the followingissues: the establishment of regional or subregional organizationsor agreements for the conservation and management of these species,the need for members of existing regional organizations to reviewtheir cooperation mechanisms, and the need to provide assistance todeveloping countries to enable them to develop their capabilitiesto manage these fish stocks.

REGIONAL AND SUBREGIONAL COOPERATION:

The US supported theformation of organizations or bodies for the establishment ofconservation regimes in specific geographic regions. Sweden, thePhilippines, Sierra Leone, and Trinidad and Tobago agreed thatclose cooperation between all States has to be institutionalized,and management must not be ad hoc but ongoing. To give theseregional and subregional organizations the necessary strength, theyshould have compulsory membership, firm international structuresand financing from member States.

A number of delegates, including the Philippines, the RussianFederation and Sri Lanka, said that regional cooperation is themost adequate and appropriate way to resolve practical problems ofconservation. Regional cooperation might be geographic orestablished along the range of the migratory species. Gabon warnedagainst the proliferation of regional and subregionalorganizations. Tunisia, Sri Lanka and Argentina said that existingorganizations need to be strengthened.

With regard to financing these organizations, Sierra Leone said inits position paper that the coastal States should be allowed tocollect license fees from vessels fishing in the high seas adjacentto their EEZs. These fees could then be given to the regionalbodies. The EC said a share of financing can be based on acombination of catch figures and correcting GNP figures. Some alsosaid financing should be based on per capita rather than GNP.

PARTICIPATION IN ORGANIZATIONS:

There was general agreementthat regional and subregional cooperation is important and thatorganizations should be open to all interested States. Othercomments were: developing countries should receive preferentialtreatment; States have the right not to accede to organizations butalso have the right and duty to cooperate; and, it is theresponsibility of both fishing States and coastal States toparticipate in the financing of those organizations.

A/CONF.164/13:

The Chair's negotiating text says thatcoastal States and States whose vessels fish on the high seas shallcooperate in relation to straddling and highly migratory fishstocks bilaterally and/or multilaterally through regional fisheriesmanagement organizations or consultative arrangements. States shallenter into consultations in good faith and without delay,particularly where there is evidence that the stock(s) concernedmay be under threat of over-exploitation. Regional and subregionalfisheries management organizations and arrangements shall be opento participation, on a non-discriminatory basis, to all States withan interest in the stock(s) concerned. States with an interest inthe stock(s) concerned, which are not parties to an existingcompetent regional or subregional fisheries managementorganization, shall be encouraged to participate in the work ofthat organization. Only those States that participate in the workof a regional organization should have access to the regulatedfishery. New members of a regional fisheries managementorganization or parties to an arrangement shall generally beentitled to accrue benefits in exchange for the obligations theyundertake. Where no subregional or regional fisheries managementorganization or arrangement exists, States should enter intoagreements or arrangements to ensure effective conservation andmanagement of the stock(s) in question. States shall strengthenexisting regional and subregional fisheries managementorganizations and arrangements.

III. REGIONAL FISHERIES MANAGEMENT ORGANIZATIONS OR ARRANGEMENTS

Document A/CONF.164/10 set out the parameters for this discussion,specifically what should be the responsibilities of regionalorganizations or other regional arrangements concerning the twotypes of fish stocks. The US said that regional organizationsshould emphasize a multi-species ecosystem approach and take intoaccount the relationship between species and habitats. ThePhilippines, the US and the EC agreed that regional fisheryorganizations should promote information collection anddissemination that could strengthen resource management. Trinidadand Tobago said there should be a mechanism to facilitate exchangeof information between commissions, perhaps with FAO assistance.India mentioned the need to provide assistance to developing Statesentering the fisheries.

Solomon Islands, on behalf of the South Pacific Forum FisheriesAgency, said that although the FFA supports efforts to cooperate inthe management of straddling and highly migratory fish stocks, manyof these bodies have not been successful due to: inadequateinformation for decision making; competition; disagreement amongmembers; domination of developed over developing countries; poorenforcement measures; failure to adapt the institutional frameworksto the geographic circumstances in each region; and lack ofcommitment to precise management approaches.

A/CONF.164/13:

The Chair's negotiating text says thatcoastal States and States fishing on the high seas that participatein a regional or subregional fisheries management organization orarrangement shall: agree on allocations of quotas or of effortlimits; adopt and apply international minimum standards for theresponsible conduct of fishing operations; develop agreed standardsfor collection, reporting, verification and exchange of data andinformation; compile and disseminate accurate and completestatistical data; conduct and disseminate the results of scientificanalyses; establish appropriate cooperative mechanisms; develop anduse environmentally safe and cost-effective fishing techniques;agree on measures to deter non-parties from undermining theeffectiveness of agreements; agree on means by which the fishinginterests of new entrants will be accommodated; provide proceduresfor compulsory settlement of disputes; and consult with otherrelevant fisheries organizations and arrangements. The paper alsourged that regional fisheries organizations should be transparent.

IV. FLAG STATE RESPONSIBILITIES

During the discussion on this issue, Poland said that licenses orpermits to control fishing should be issued by flag States, notregional organizations. Gabon said that license fees collectedwithin a region should go to the regional organizations. ThePhilippines said that flag States should be very specific in theirlicensing as to the stock involved, the gear, the season, and theamount of catch allowed. Argentina said all States should includein their legislation a register of the vessels from their countriesfishing on the high seas. Samoa said the Conference should seek theagreement that flag States accept the obligation of maintaining theregulation of their vessels on the high seas.

A/CONF.164/13:

The negotiating text prepared by the Chairsays that flag States whose vessels fish on the high seas shalltake the necessary measures to ensure that their vessels complywith regional or subregional conservation and management measures.These measures should include: cooperation in monitoring, controland surveillance; control of vessels flying their flag on the highseas by means of fishing licenses and other administrative means;implementation of quotas and other control measures; establishmentof a national record of fishing vessels; requirements for catchverification and validation through observer programmes, inspectionschemes and monitoring of landed catches; installation and use ofsatellite transmitter equipment; regulation of transshipment;requiring compliance with international minimum standards forresponsible fishing practices; and education and informationprogrammes.

V. COMPLIANCE AND ENFORCEMENT OF HIGH SEAS FISHERIES, CONSERVATION AND MANAGEMENT MEASURES

The discussion on compliance and enforcement focussed primarily onissues relating to the scope of application, responsibilities ofthe flag State, and penalties and sanctions. The issues of flags ofconvenience, reflagging and fraudulent maneuvers on the part of themaster were also highlighted as important matters to be addressed.

SCOPE OF APPLICATION:

One of the major points ofdisagreement was the extent to which compliance and enforcementmeasures will be applicable within EEZs. This actually led to alengthy discussion on the mandate of this Conference. Is theConference to deal with fish stocks lying in and beyond the EEZs?Should references to the high seas be stricken? What is theresponsibility of coastal States and distant water fishing nationswith 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 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 thatagreement could be reached on a broad framework. Some delegatespointed out, however, that this could then result in theestablishment of individual measures, such as quotas, for eachregion.

MECHANISMS TO ENSURE COMPLIANCE:

Indonesia said there is aproblem in identifying mechanisms to ensure compliance. Vesselsknown to have violated conservation measures could be blacklisted.The EC suggested that a good way to ensure compliance might be a"hail system," where a vessel announces its arrival in the fishingarea. Sweden suggested that this Conference recommend to theGeneral Assembly that it invite FAO to convene the Committee onFisheries for an extraordinary session in the spring of 1994 tomobilize regional and subregional organizations to addresscompliance and enforcement.

FLAG STATE JURISDICTION:

One of the most contentious issueswas the extent of flag State jurisdiction, as opposed to that ofcoastal States, port States and regional organizations. Somedelegates pointed out that UNCLOS enshrines the principle that flagStates have sole jurisdiction over their vessels on the high seas.Others argued that if flag State jurisdiction is not implemented,the whole issue of enforcement will be in doubt. It was thereforesuggested that some measure be applied for carrying out enforcementwhere the flag State is unwilling or unable to exercisejurisdiction over vessels flying its flag, as is the case for manyopen registries.

Norway said there is a need for the establishment of cooperationmechanisms as part of regional fishing arrangements or agreementsto complement the responsibility of flag States. There may be someinstances where, due to deficiencies, such mechanisms cannot beproperly operated. In such instances, we need to incorporate rulesto allow for coastal State enforcement. The EC disagreed. The basicprinciple is and should be that of flag State responsibility,whether or not the State is a contracting party. Australia saidthat regional agreements on enforcement should supplement flagState jurisdiction. Argentina added that all measures should bebased on the consent of the flag States and their consent isnecessary for enforcement cases.

SANCTIONS AND PENALTIES:

The question of applicablepenalties was one of the most difficult and many delegates arguedthat the concept of proportionality is essential. Some delegatesargued for sanctions against the master, the captain, the owner orthe crew, while others called for the seizure of the vessel orconfiscation of the gear. 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 the issues can be quitecomplex.

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.

A/CONF.164/13:

The negotiating text prepared by the Chair isdivided into two parts: compliance and enforcement by flag Statesand regional arrangements for compliance and enforcement. The firstsection says that States shall ensure compliance by vessels flyingtheir flag with applicable management measures, including adoptinglegislation and administrative measures and providing for theeffective enforcement of such measures. The paper includesprovisions for investigating alleged violations and implementingcompliance measures, including sanctions. In the second part onregional arrangements, the paper says that States should agree onprocedures under which the appropriate authorities of one State mayboard, inspect and, if appropriate, arrest a fishing vessel flyingthe flag of another State. States may take cooperative action toprevent vessels that have violated agreed management measures fromfishing in the region. It also provides recommendations for dealingwith unregistered fishing vessels and fishing vessels that concealtheir identification.

VI. PORT STATES

This issue was not originally included in the Chair's list ofissues to be discussed (A/CONF.164/10), but emerged as a matterthat required more in-depth treatment. During the informaldiscussions, it was agreed that this question is not welldocumented in the Law of the Sea Convention. Delegates expresseddivergent views on the extent of port State jurisdiction in termsof high seas fisheries. There was also disagreement on thecustomary international law in this respect. Some delegatesadvocated an extended jurisdiction for the port State, based on thecoastal State's special interests. Others argued that the portState's authority was the exception rather than the rule and islimited to a number of specific cases, such as the protection ofthe marine environment and the prevention of pollution.

In the discussion on measures that the port State may/should carryout, delegates mentioned the following:

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 the 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. 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 the transfer of technologies, such as satellite tracking devices, to enhance cooperation between flag States and port States.

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/CONF.164/13:

The negotiating text prepared by the Chairsays that a port State should take measures as are necessary topromote the effectiveness of international conservation andmanagement measures. In the event that such inspection or otherevidence discloses clear and reasonable grounds for suspicion thatthe vessel has undermined international conservation and managementmeasures or has fished on the high seas without authorization, theport State shall inform the flag State and the requesting State, ifany.

VII. NON-PARTIES TO A SUBREGIONAL OR REGIONAL AGREEMENT OR ARRANGEMENT

The discussion on this section addressed how to deal with vesselsfishing in an area where a regional conservation and managementregime for a particular high seas stock, established in accordancewith the provisions of the Law of the Sea Convention, applies andthe flag State of the vessel does not cooperate with other Statesin the regional arrangement. Canada said that States who do notbelong to a regional organization may choose not to fish in thearea. If they do, both Canada and the EC agreed that they stillhave obligations not to undermine the effectiveness of regionalorganizations or arrangements.

The Russian Federation said that this Conference must developmechanisms that would make it possible to impose obligations onStates starting to develop fishing industries to cooperate withexisting organizations. The EC raised four points: internationalfishing organizations should be open to all States interested inexploiting stocks; non-member States should be invited to joinregional organizations; even if they do not join regionalorganizations, States are not discharged from the obligation toconserve such stocks; and if a State does not want to join, the ECis not certain that sanctions should be applied. Peru agreed withthe EC that it is premature at this stage to talk about sanctionson non-contracting parties, but that it is necessary to have amechanism that would be respected by non-parties.

A/CONF.164/13:

The Chair's text says that vessels flying theflag of a State not cooperating with a competent regional fisheriesorganization or arrangement should not fish in violation of theterms of the established regime. Even States that do notparticipate in the work of such an organization or arrangement arenot discharged from the obligation to cooperate in the conservationand management of the regulated stocks. Member States shallexchange information with respect to the activities of fishingvessels flying the flag of non-parties that undermine theeffectiveness of the conservation and management measures.

VIII. DISPUTE SETTLEMENT

The discussion on dispute settlement focussed on four topics:procedures under regional arrangements; compulsory conciliation;special arbitration; and fact-finding procedures. Disputesettlement procedures agreed upon by this Conference must beconsistent with the Law of the Sea Convention. Parties to theConvention are obliged to settle disputes by peaceful means andthey are also required to submit to final and binding third-partyprocedures if all others fail. There are formal institutionalizeddispute settlement procedures, such as the Tribunal, theInternational Court of Justice, and arbitration. The Conventionitself provides practical and expeditious means to settle disputesof a technical nature.

In the discussion, most delegates agreed that UNCLOS provides agood mechanism for dispute resolution. Some argued against creatingnew procedures or mechanisms, while others stated that the 1982Convention does not have adequate measures for conflict resolutionon fishing matters. It was pointed out that UNCLOS has not yetentered into force and certain countries experiencing problems withoverfishing of straddling stocks and highly migratory species maynot be party to the Convention. The authors of A/CONF.164/L.11(Draft Convention on the Conservation and Management of StraddlingFish Stocks and Highly Migratory Fish Stocks on the High Seas)pointed out that Article 25 contains mechanisms for disputesettlement. L.11's arbitration measures are fast-acting, followUNCLOS, and are specifically adapted to the needs of thisConference. Some developing countries expressed concern aboutarbitration costs. The Law of the Sea provides for equal sharing ofcosts, except under certain circumstances.

A/CONF.164/13:

The negotiating text says that all Stateshave the obligation to settle their disputes by peaceful means. Inthe event of a dispute of a technical nature, the States concernedshall refer the matter to an ad hoc panel of experts. Where allparties to a dispute are Parties to UNCLOS, the procedures for thesettlement of disputes under that Convention shall apply. Regionalor subregional fisheries management organizations or arrangementsshould strengthen or adapt the procedures for the settlement ofdisputes. If no settlement has been reached within a reasonableperiod of time, an arbitration procedure of the type described inAnnex 2 of the Chair's negotiating text shall apply. Non-parties toregional or subregional management organizations or arrangementsmay invoke or submit voluntarily to the dispute settlementprocedure established by the organization.

IX. COMPATIBILITY AND COHERENCE BETWEEN NATIONAL AND INTERNATIONAL CONSERVATION MEASURES FOR THE SAME STOCKS

The discussion on this issue was one of the most contentious duringthe three-week Conference. The major points of discussion were theestablishment of global or regional conservation and managementregimes for straddling and highly migratory fish stocks and thespecial rights of coastal States. Other points raised were thatobligations should be adjusted or delayed to meet the needs ofdeveloping States and that there should be some mechanism to dealwith non-contracting parties so that they do not undermineconservation measures.

REGIONAL AND GLOBAL MEASURES:

Japan, Norway, the EC andothers agreed that measures in the EEZs and the high seas must beconsistent with one another. India, Japan, Sweden, Iceland andChile agreed that circumstances differ between oceans, regions andsubregions and there should, thus, be a broad framework ofguidelines at the international level that relate to features ofall stocks, yet there should also be regional flexibility. A set ofinternational guidelines will strengthen regional or bilateralefforts. China, the EC and Poland agreed that conservation andmanagement regimes should be developed within the framework ofregional organizations.

SPECIAL RIGHTS OF COASTAL STATES:

Although the Chair did notwant to have a debate on the legal rights of coastal States, thisissue pervaded the discussion. On one side, a number of delegates,including Peru, Iceland and Indonesia, argued that coastal Stateshave special rights and obligations that are different from thoseof distant water fishing States. Trinidad and Tobago said that thesovereign rights of coastal States include discretionary power forthe allocation of surpluses to other States, and the terms andconditions for conservation and management of the stocks inquestion. Norway said that the coastal States have the mostexpertise, experience and interest in dealing with the fisheries intheir particular regions. Distant water fishing fleets can move tonew grounds if a stock located within the adjacent high seasbecomes depleted, but the coastal State has no such alternative.The two sides cannot be given equal footing unless they revert toa pre-UNCLOS situation. Canada commented that coastal States havespecial rights due to their special geographic situation. CoastalStates nationals suffer from discrimination since, under UNCLOS,they must fish in the adjacent high seas under the same rules asthose nationals that fish in the EEZs. Distant water fishing fleetsare not bound by the same rules. The fact that 95% of the fishingtakes place in the EEZ does not help management, as a biologicalunit should not be divided along jurisdictional limits.

On the other side, the EC, Korea and China disagreed with many ofthe arguments raised on this issue. As long as coastal Statesinsist they have a special right, there will be a problem. Althoughhigh seas overfishing affects EEZs, the opposite also occurs andconservation must take place on both sides. China said that allcountries concerned have common and equal responsibilities,obligations and interests; the different status between the highseas and the EEZs should be recognized; and conservation,management and exploitation of these stocks requires cooperationfrom all countries.

A/CONF.164/13:

The final negotiating text says that coastalStates and States fishing on the high seas have a duty to cooperateand achieve compatible and coordinated measures for theconservation and management of these stocks. States shouldrecognize the interdependence of stock components harvested inareas under national jurisdiction and on the high seas. Indetermining conservation and management measures, States andsubregional or regional organizations or arrangements shall ensurethat the measures: do not transfer a disproportionate burden ontothe coastal State(s); do not result in undue harm to the livingmarine resources in the areas of national jurisdiction; are no lessstringent on the high seas than those established in areas undernational jurisdiction (with regard to the same stock); and give dueregard to measures taken or proposed by coastal States, relativedependence of the coastal State and States fishing on the high season the stock(s) concerned, the impact of fishing on the stock, andthe particularities of the region. Where States are unable to reachagreement, States shall continue their efforts and States fishingon the high seas shall observe conservation and management measuresequivalent to those in effect in areas under national jurisdiction,or observe minimum international standards.

X. SPECIAL REQUIREMENTS OF DEVELOPING COUNTRIES

Although this issue was not included as a separate item inthe Chair's original list, it soon became apparent that the specialinterests of developing countries should be addressed. Discussioncentered on the type of assistance that should be given todeveloping countries. An important point raised was that forms ofassistance should not be limited to the development of fishingwithin national jurisdiction. Developing States expressed theirintention to develop distant water fishing fleets and argued thatthe high seas fisheries should not be earmarked for developedStates that are already harvesting.

Another point that gave rise to debate was how financial flowsshould be channeled. The creation of special development funds wasmentioned as well as coordinating efforts through the Commission onSustainable Development (CSD) or the Global Environment Facility(GEF). The CSD will be dealing with Chapter 17 of Agenda 21 on theoceans in 1996 but, in the meantime, the GEF can be used to fundprojects through its focal point on international waters. Some,however, expressed their fear that the issue of high seas fisherieswould be diluted within the global context of sustainabledevelopment and called for a regional organizations approach. Itwas mentioned that the levy of participation fees in regionalorganizations should be proportional to the level of catch, butadjusted in relation to GNP or per capita income levels.

A/CONF.164/13:

The document says that States should givefull recognition to the special requirements of developingcountries. Specific forms of cooperation with developing countriesshall include financial assistance, assistance relating to humanresource development, technical assistance, transfer of technology,and appropriate advisory and consultative services. States shallcooperate to enhance the ability of developing countries toconserve, manage and develop their own national fisheries. Statesshall cooperate to establish a voluntary fund to enable developingcountries to meet the costs involved in dispute settlementproceedings.

XI. REVIEW OF THE IMPLEMENTATION OF CONSERVATION AND MANAGEMENT MEASURES

This chapter was not discussed during the course of the meeting.The Chair's negotiating text says that States as well assubregional and regional organizations and arrangements concernedwith the conservation and management of these stocks shallimplement the foregoing measures based on their capacities and theneeds of the region. They should report biennially to the UNSecretary-General, who will submit a report to the GeneralAssembly. A full review will take place in five years when theConference will assess the adequacy of the provisions and, ifnecessary, propose means of strengthening the substance and methodsof implementation to address any continuing problems.

ANNEX 1: MINIMUM DATA REQUIREMENTS FOR THE CONSERVATION AND MANAGEMENT OF STRADDLING FISH STOCKS AND HIGHLY MIGRATORY FISH STOCKS.

Nandan organized the discussions on data requirements around thefollowing five issues: fishery data collection; basic fishery datarequirements; vessel data and information; data reporting andverification; and data exchange.

FISHERY DATA COLLECTION:

Discussion on data reportingfocussed on which catch figures should be included: discards andundersized fish, catch of targeted species and non-targetedspecies, biological composition of catch, number of vessels,capacity and activity. There is also a need to distinguish betweenwhat is caught inside and outside the EEZ. There was concern thatdata from within EEZs are a matter of sovereignty. There was alsodiscussion on the reliability and the timeliness of the datagathered from log sheets and databases. It was suggested that databe reported by gear, year, longitude and latitude.

Discussion on data analysis focussed on the treatment of the rawdata. Delegates asked for what purpose the data are collected andwhether an effort is being made to harmonize the collection ofdata. It was indicated that data gathered from research orscientific vessels should be treated separately from catchsampling.

Discussion on data transmission and repositories focussed on towhom data should be transmitted, in what form, for what purpose,and according to what rules. It was suggested that either regionalorganizations or, in their absence, coastal States can serve asdata repositories. Regional organizations, acting as the collectingagents, can then assemble data. Ultimately, all of the data couldbe archived by the FAO.

BASIC FISHERY DATA REQUIREMENTS:

There appeared to beconsensus on the need to handle scientific data separately fromcatch data. It was also suggested that oceanographic and ecologicaldata be included. Delegates agreed to use the FAO formula fornominal weight to determine the weight of fish catches. Otherquestions raised included: should States simply make their bestefforts to describe data; should data facilitate effective stockassessment; how essential to conservation and management is thedetailed provision of data; and what data should be provided ondiscard statistics.

VESSEL DATA AND INFORMATION:

The Chair's paper identifies aseries of data required on vessels, including: 1. vesselidentification and type; 2. vessel specification, e.g., enginepower, length, tonnage, hold capacity, storage methods, etc.; 3.navigation and position-fixing aids; 4. communication equipment; 5.ownership, flag State, home port, etc.; 6. construction details,vessel age, hull material, etc.; 7. crew size and composition; and8. type of fishing gear, quantity and specification. The measuresthat met with the greatest degree of consensus were those mostrelated to the catch (1, 2, 5 and 8). The other measures were seenby some as irrelevant to the harvesting capacity. Some nationsargued that the crew had little, if any, impact on the harvestingcapacity. Others answered that the crew, in fact, could influencethe amount of catch. Navigation and position-fixing aids were alsodiscarded as more relevant to the application of the SOLASConvention than for the sake of data gathering. A recurrent themewas the necessity to avoid the duplication of data alreadygathered. A few delegates pointed out that their national licensingsystems gather more precise information. Some concern was voicedwith regard to vessels fishing without flags or under flags ofconvenience and how they should be treated. A proposal was madethat advocated distinguishing between data required at all timesand data required as soon as the vessel enters the fishing ground.

DATA REPORTING AND VERIFICATION:

The issue of the use ofsatellite transponders gave rise to considerable discussion.According to an FAO study, the cost is small when compared to thecost of vessels, navigation equipment and operational costs. Anumber of delegates commented that the cost of transponders shouldbe borne by the industry. Questions raised include: should allvessels carry transponders (including those that fish primarily inEEZs); what is the implication on coastal countries; what exactrole should these transponders play; and how can they contribute toreal time evaluation.

Some delegates commented that aerial surveillance can also be animportant tool for verification and should be mentioned in thisdocument. Others argued that aerial surveillance is an effectivetool but has nothing to do with data reporting and verification andshould be taken up under the section on compliance. The use ofships' logs to verify catch was also mentioned.

DATA EXCHANGE:

Many delegates raised the issue ofsovereignty and the obligation of coastal States to provideinformation. There was some concern that the data collected couldbe used to accuse coastal States of having mismanaged theirresources. Assurances were given that this information should notinterfere with the sovereignty of coastal States and that theprimary concern is collecting data that will help in conservationand management. It was also mentioned that data should be exchangedon the basis of reciprocity.

A/CONF.164/13:

The Chair's negotiating text contains anannex on data requirements for the conservation and management ofstraddling fish stocks and highly migratory fish stocks with thefollowing subheadings: Fishery Data Collection; Basic Fishery DataRequirements; Scientific Data; Supporting Stock Assessment; VesselData and Information; Data Reporting; Data Verification; and DataExchange.

ANNEX 2: ARBITRATION

During the Conference the topic of arbitration was discussed withinthe context of dispute settlement. Some delegates suggested that anannex be drafted to outline arbitration mechanisms. The Chair basedhis draft partially on informal consultations, as well as the annexon arbitration in A/CONF.164/L.11, a draft convention submitted byArgentina, Canada, Chile, Iceland and New Zealand. The annexcontains the following subheadings: Institution of proceedings;Constitution of arbitral tribunal; Submission of Memoranda;Hearings; Procedure; Duties of a Party to a dispute; Expenses;Required majority for decision; Default of appearance; Provisionalmeasures; Award; Finality of Award; Interpretation orimplementation of the dispute; and Application to entities.

A BRIEF ANALYSIS OF THE CONFERENCE

In so far as it brought together representatives from 105 nationsand the European Community who agree that straddling and highlymigratory fish stocks are imperiled, this session of the UNConference on Straddling Fish Stocks and Highly Migratory FishStocks was a success. After three weeks, the Conference managed tofulfill two of the three parts of the mandate given it by theGeneral Assembly: (1) to identify and assess existing problemsrelated to the conservation and management of highly migratory andstraddling fish stocks; and (2) to consider means of improvingcooperation among States with regard to fisheries management.However, it is the third part of the mandate -- to formulateappropriate recommendations-- that has proven to be the mostdifficult. While this session demonstrated that there is generalagreement on the need to establish appropriate conservation andmanagement measures as a way to promote long-term sustainability ofthe resources, there is still no agreement on the means by whichthis goal will be attained. Coastal States, which are sufferingmost from the stocks' depletion, urge quick, and sometimes radical,action. But the distant water fishing States, who have investedheavily in this industry in the past decades, do not think it isnecessary to react with the same degree of urgency.

During the debates and discussions, the delegates were able toexpress their views on the many, often controversial, issues beforethem. One of these issues was the special rights of coastal States.The debates reflected the ideological divergence between thedistant water fishing States and the coastal States in aconfrontation not unlike the one between coastal States and themaritime powers during the United Nations Convention on the Law ofthe Sea (UNCLOS) negotiating process. Coastal States were accusedby some of wanting to have their EEZs and the adjacent high seas,too. Canada was instrumental in calling for this Conference becauseit felt that fishing practices in the high seas adjacent to its EEZundermined the conservation efforts it carried out within the EEZ.In this respect, many coastal States have claimed a specialinterest in the straddling stocks that occur within andoutside their EEZs. From a biological point of view, this interestmay be acceptable but many have pointed out that these restrictivemeasures are called for by the coastal States after they haveoverfished the resources of their own EEZ. It has been highlightedthat 95% of worldwide catches originate in the EEZs, and somebelieve that the coastal States should manage their own EEZsproperly before attempting to regulate the high seas.

The legal validity of coastal State jurisdiction was also disputedby distant water fishing States. Because this Conference needs tooperate within the framework of UNCLOS, some distant water fishingnations were quick to point out that the Law of the Sea does notconfer special rights to coastal States with regard to high seasfisheries. As UNCLOS is widely seen as favorable to coastal States,others have argued that coastal States have already been dealt morethan their share and that creeping jurisdiction on their part mustbe avoided at all cost. This point was strongly disputed bydelegates from coastal States.

But while coastal States requested special rights to manage theresources in the adjacent high seas for biological reasons, theyrejected the idea that measures taken to manage stocks on the highseas need also apply within their EEZs. This question of thecompatibility and coherence between the measures taken in the highseas and the EEZs was one of the most contentious and, as the Chairput it, pitched biological concepts against jurisdictionalarguments. This led to many proposals from the distant waterfishing States that the mandate of the Conference be slightlymodified in order to adopt measures or recommendations that wouldnot necessarily apply only "on the high seas".

The dichotomy between coastal States and distant water fishingnations was also apparent when the scope of application of themeasures was discussed. On the one hand, most delegates favored anapproach where regional organizations are empowered to take therelevant measures and enforce them. This approach is particularlyrelevant as it takes into account both the geographical andbiological specificities. As such, this point is not disputed.However, a number of delegates insisted that a more global approachis also necessary as a safety net, in case the regional agreementsfail. Distant water fishing States resent this approach anddescribe it as too intrusive and threatening to their interests.

This conflict was also reflected in the debate over the finaloutcome. A legally-binding agreement would be implemented throughthe regional organizations, but also be applicable at a more globallevel. Nevertheless, at this point it is unclear if this Conferencewill adopt a legally-binding instrument one year from now. It isimportant to note, however, that the discussions did not stall onthe issue of the form of the final agreement. As some observersnoted, a legally-binding agreement adopted by all but the majordistant water fishing States would be of very little practicalvalue. A number of like-minded States advocated a legally-bindingapproach and actually submitted a draft Convention(A/CONF/164/L.11/Rev.1) to be considered by the Conference. Thisdocument, however, was never used as the basis for negotiation asthe Chair favored a consensus approach and did not think this draftConvention would gather enough support at the present time.

Another controversial issue that pervaded the Conference was Statesovereignty. When the US suggested that all States relinquish asmall part of their sovereignty for the greater benefit of all,there were rumblings in the room, particularly from LatinAmericans. Sovereignty is an issue on which disagreements havearisen in the past, both during UNCED and the UNCLOS negotiations.It is likely that the issue will be raised again when theConference resumes next spring.

Another aspect of this question was manifest in the debate overenforcement measures. No one disputed that on the high seas,primary enforcement jurisdiction belongs to the flag State. Thissovereignty, however, is far from absolute and it is believed thatwhen a flag State is unable to exercise jurisdiction over vesselsflying its flag -- as is often the case with flags of convenience-- subsidiary jurisdiction has to be granted to another entity, beit the coastal State, the port State, or even the relevant regionalor subregional organization. UNCLOS does not clearly provide forthis jurisdiction, but coastal States have some enforcement powerwith regard to violations of marine pollution conventions. Onedelegate argued that the only case where a coastal State canexercise jurisdiction over a foreign vessel on the high seas is incases of so-called "universal applicability," such as piracy andslave trafficking. The issue, however, is a contentious one incustomary international law.

In this respect, the Conference is attempting to codify somepractices that have gained support but have not yet achieved thestatus of general principle of international law. If, and when,this jurisdiction is granted to the coastal and port States,participants generally agree that it will need to be exercisedwithin the framework of strict guidelines. The more restrictive themeasures -- examination of the documents, inspection or evendetention and confiscation of the vessel -- the more limited theenforcement will have to be. For instance, it was suggested thatthe port State should only be allowed to inspect a vessel if theState has grounds to suspect that the vessel was involved infishing activities likely to undermine existing conservation andmanagement measures.

In so far as the port State will be granted some authority overvessels calling in, the measures it will be allowed to take alsoneed to be strictly defined. For instance, any sanction appliedwill have to comply with the principle of proportionality. Some ofthe most effective measures in practice, such as hailingrequirements and the blacklisting of offending vessels, are muchless controversial from a legal viewpoint. It is likely, however,that the legalistic debate will be pursued along the lines ofdivergent economic interests through the next round ofnegotiations.

The debate on the precautionary approach again placed those infavor of stronger fisheries management regimes against the distantwater fishing States. The precautionary approach is embedded inPrinciple 15 of the Rio Declaration, but not everyone agrees to itsapplication to the field of fisheries. The difference is really oneof degree, since all agree that fishing should be carried out in acautious manner, but some see the application of such a strongprinciple to fisheries management as a threat to the freedom of thehigh seas. It is true, however, that the degree of uncertainty inscientific data is unusually high and many point to thecatastrophic state of high seas stocks as a perfect illustration ofthe problem. Distant water fishing States refuse to sanctify theprinciple, however, because it may lead to the application ofdrastic measures, such as the adoption of moratoria.

Yet freedom of the high seas has been seen by others as an exampleof the "Tragedy of the Commons" and, in this respect, it isbelieved that the access to fisheries should be limited. Thiscaused a reaction from some of the developing nations. Even thougheveryone agreed that substantial assistance needs to be channelledto enable developing countries to assume their responsibilities infisheries management, many developing countries insisted that thisaid be unconditional. This caused some conflict for donor countrieswho want to provide assistance, yet need to retain some degree ofcontrol over access to fisheries by new entrants. Developing Stateswere adamant that assistance apply for the management of both theirEEZs and the high seas and that they also be assisted if they wantto develop a distant water fishing fleet. They stated that highseas fisheries should in no way be the privilege of those developedStates that have been over-harvesting them.

After three weeks of negotiation, it is apparent that thisConference is a hybrid of both UNCLOS and UNCED. While it is clearthat these negotiations fit within the framework of UNCLOS, manyaspects identify it as an output of the UNCED process. In additionto the pace and sense of urgency that has been carried over fromUNCED, concepts such as the precautionary approach, sustainabledevelopment, aid to developing countries, and the conservation ofresources for future generations have successfully bridged UNCEDand UNCLOS. Likewise, the active participation of NGOs in Rio wasreflected during this Conference as NGOs were allowed to tablepapers at the back of the room, take the floor, and even observesome of the closed informal meetings. The fact that New Zealandtabled a response to an article published in an NGO newslettercritical of its Individual Transferable Quota (ITQ) policyillustrates the seriousness with which delegates take the views ofNGOs.

It is still too early to know whether or not the spirit ofcompromise and consensus that marked the final days of UNCED willinfluence this Conference. There are still five more weeks ofnegotiations in 1994 when delegates will attempt to reconcile theirdifferences and, hopefully, spend less time confronting divergentlegalistic opinions. It is hoped that at the next session delegateswill concentrate on the issues before them and aim for consensusrather than confrontation.

THINGS TO LOOK FOR DURING THE INTERSESSIONAL PERIOD

The Conference Chair, SatyaNandan, proposed and the Conference adopted a decision recommendingto the General Assembly that two more sessions of the Conference bescheduled for 1994. Nandan was informed by the UN Secretariat thatit would be possible to hold one session from 14 to 31 March and asecond one from 15 to 26 August, pending approval by the GeneralAssembly. This may prove to be a problem since Tunisia and severalother countries have noted that the March session conflicts withother meetings. Particularly troublesome for the African countrieswould be the conflict with the fourth session of theIntergovernmental Negotiating Committee (INC) for the elaborationof an international convention to combat desertification in thosecountries experiencing serious drought and/or desertification,particularly in Africa, scheduled in Geneva from 21 to 31 March. Inaddition, while Nandan has indicated that he would like to holdsimultaneous meetings during the spring session, observers havenoted that the financial implications and the limited availabilityof conference services during the spring session make this highlyunlikely.

FUTURE WORK OF THE CONFERENCE:

UN CONVENTION ON THE LAW OF THE SEA:

The next round of theUN Secretary-General's informal consultations on Part XI of the Lawof the Sea was scheduled to be held immediately following thissession of the Conference, 2-6 August 1993. Part XI deals with theexploitation of sea-bed resources and the establishment of theInternational Sea-Bed Authority. Disagreement on this part of theConvention has delayed ratification by many States and its entryinto force. At the last round of these informal consultations inMay 1993, the US stated that it is now ready to participate innegotiations to "repair" Part XI. If some agreement is reached atthis round of informal consultations, it is likely that anappropriate process will be found to commence acceleratednegotiations on this section, making it possible for many countriesto ratify the Convention. The Convention has been ratified by 56 ofthe 60 countries necessary for it to enter into force. Look formovement on this issue over the next several months, with possibleresolution during the coming session of the General Assembly.

48TH SESSION OF THE UN GENERAL ASSEMBLY:

The next session ofthe General Assembly is scheduled to begin on Tuesday, 21 September1993 at 3:00 pm. The provisional agenda for the session (A/48/150)lists 157 items. Consideration of the Conference on Straddling FishStocks and Highly Migratory Fish Stocks is item 100(c), togetherwith the reports of the INC for the Desertification Convention andthe Small Island States Conference preparations. Since theConference on Straddling Fish Stocks and Highly Migratory FishStocks is part of the implementation of decisions andrecommendations of UNCED, its report is expected to be referred tothe Second Committee of the General Assembly for consideration. Thereport of the Secretary-General on the work of the Conference willbe presented, as required by resolution A/47/192.

It is most likely that the Second Committee, or perhaps an ad hocsub-group that will deal specifically with UNCED follow-upactivities, will be responsible for drafting the General Assemblyresolution on the future work of the Conference. This resolutionwill establish the dates of the 1994 sessions, and will probablycall for the establishment of mechanisms that will ensure the fulland effective participation of developing countries in the work ofthe Conference. Since the resolution will have financialimplications, a statement of Programme Budget Implications (PBI)will have to be submitted to the Fifth Committee. Based on thebudget for the 1993 session (A/C.5/47/78), it is estimated thatadditional sessions of three and two weeks in 1994 will costapproximately US$1,230,000 for conferencing services, although thatfigure would increase substantially if simultaneous sessions orworking/expert group meetings were added.

FAO:

The FAO is expected to participate actively in thecontinuing negotiation process. The Code of Conduct on ResponsibleFishing, which is still under negotiation, will be submitted to theFAO Committee on Fisheries (COFI) in 1995 and to the FAO Counciland Conference for adoption in 1996. States will then be in aposition to adopt the Code unilaterally and integrate it in theirnational legislation.

The FAO, as requested in the final decision taken by this sessionof the Conference, will also be instrumental in the preparation oftwo technical papers in advance of the next session. One of thepapers will deal with the precautionary approach principle.According to the Chair's closing remarks, a small working groupwill then be established to consider the issue. The Conference alsoauthorized FAO to provide a paper on Maximum Sustainable Yield(MSY). The Conference will also examine this paper in a workinggroup. Since there has been discussion of reference points otherthan MSY for the conservation and management of marine livingresources during the last decade, which require consideration aswell, the Chair asked the FAO to provide the Conference with aninformation paper on this matter. Developing States are expected toparticipate actively in the process and additional sources offunding might be necessary.

SMALL ISLANDS STATES CONFERENCE:

The first preparatorymeeting of the Global Conference on the Sustainable Development ofSmall Island Developing States will be held in New York from 30August to 10 September 1993. This Conference is scheduled for 25April to 6 May 1994 in Bridgetown, Barbados. While it does notspecifically address the issue of high seas fisheries, theConference will tackle the related problems of coastal communitiesand traditional fisheries likely to be affected by the outcome ofthis Conference. Look for possible work at this PrepCom on the FAOCode of Conduct for Responsible Fishing, regarding the integrationof fisheries within coastal management.

WORK OF THE SECRETARIAT:

Due to lack of time given toproduce the Chair's Negotiating Text (A/CONF.164/13) minortypographical corrections and other technical changes will have tobe made and the document will be reissued. The Secretariat willalso assist in the preparation of the report of theSecretary-General to the 48th Session of the General Assembly andwork closely with FAO in the drafting of the documents requested bythe Conference on the precautionary approach and MaximumSustainable Yield.

WORK OF THE CHAIR: The Chair, Satya Nandan, is preparing areport to the Secretary-General, which will be part of theSecretary-General's report to the 48th General Assembly, asmandated by Resolution 47/192. In the coming months, Nandan will beavailable for informal consultations at Fiji's Permanent Mission tothe UN in New York. He has indicated that he will monitor theprogress of the contributions to the voluntary fund for the fulland effective participation of developing countries at the nextsession of the Conference. Nandan will also play a role in draftingwhat he hopes is a procedural resolution to be adopted by the 48thGeneral Assembly this year.

NGOs

Look for NGOs to focus on preparing theircontributions to the FAO position papers on the precautionaryapproach and Maximum Sustainable Yield. NGOs will also beconsidering how to bring their concerns to the FAO work on the Codeof Conduct of Responsible Fishing.

On the last day of this session, one group of NGOs called for thefollowing issues to be addressed in preparation for the nextsession of the Conference: strengthening of regional organizationsthrough effective enforcement mechanisms; dispute settlementprocedures and enhanced funding for research and observer programs;implementation of a system of international review for thedecisions of regional management entities; the establishment ofintegrated international research and reporting programs; progresson the Flagging Agreement; the development of conservation-basedapproaches to management that incorporate a common appropriatedefinition of long-term maximum sustainable yield and also considerthe entire ecosystem of a region or species; and development ofby-catch standards requiring minimization of wanton by-catch wasteand ecosystem damage created by non-selective and destructivefishing methods and gear.

Participants

National governments: US
Negotiating blocs: African Union; Brazil, South Africa, China, India; Small Island Developing States
Non-state coalitions: NGOs