Daily report for 17 March 1994
2nd Session of the FSA
MORNING PLENARY SESSION
The Chair first gave the floor to those delegates who wanted tomake general statements.
Sweden reiterated the position that this Conference is a child ofUNCED and that the previous statements have too often been aconfrontation of antagonistic legal perspectives. He reminded thedelegates that the CSD would review their work in 1996 and thatconcrete results must be achieved by then. He then offered a seriesof important elements that should form the core of the finaldocument of this Conference, including: a preamble, generalprinciples, regional cooperation, mandatory membership to thoseorganizations, timely, compulsory and binding dispute settlement,strict enforcement and compliance measures as well as a follow-upprocess that would involve UNCLOS, and a close partnership of theCSD and the FAO. An Intergovernmental Negotiating Committee (INC)would be established for negotiating a convention.
General statements were also made by Sierra Leone and Indonesia. Itwas highlighted that technical support must be provided todeveloping countries and special consideration must be given totheir needs. Specific comments were also made on the sections ofthe text dealing with the nature of the conservation and managementmeasures to be established through exploitation, the precautionaryapproach, entrance to fisheries by new members, settlement ofdisputes and the special requirements of developing countries.
The discussion then continued with a review of Section V,Compliance and Enforcement of High Seas Fisheries Conservation andManagement Measures. The Chair briefly introduced this part of thetext by highlighting that everyone agrees that there should beconservation and the flag States agree they have prerogatives totake the appropriate measures, but vessels that fish on the highseas are fishing at great distances from their nation and it isimpractical for flag States to observe what is happening on thehigh seas. As part of the regional arrangements, assistance isneeded for the flag States to ensure that their vessels arecooperating. The first delegate agreed that such assistance isneeded, but the text does not specify whether this responsibilityis shared by the coastal State or the regional mechanisms.
The Chair's text calls for a transfer of competence from the flagState to the coastal State within the framework of the regionalorganization alone, whereas in L.11/Rev.1 the competence to enforcewould be conferred on any part vis-a-vis any other party of auniversal convention. Adjustments and reconciliation between thesetwo texts need to be made. It should still be made clear that thecompetence of the coastal State is subsidiary in nature, a residualcompetence that could be exercised only provided the flag Statedoes not take the appropriate measures. A distant water fishingState re-emphasized the importance of having those measures appliedthrough specific regional organizations. The text cannot go beyondUNCLOS. A series of "technical details" were also highlighted by adelegate to show inapplicability of Section V. Other countries sawthis section as the "pillars" of the negotiating text.
Some argued that direct action by the coastal State can only beallowed in a number of particular cases, such as fishing whenfishing is banned, without permission, and when the national quotahas already been filled. Compensation schemes could then beestablished if the sanctions cause damages.
A delegate said that the text should not go further than the FAOflagging document that was agreed upon. Another delegate answeredthat since not all negotiating parties present acceded to the FAOagreement, it should not be mentioned too generally.
References to stateless vessels proved troublesome and a delegateargued that a vessel that has a nationality but is not registeredshould not be treated as stateless as provided by UNCLOS. The Chairanswered that by flying a false registry the vessel has put itselfin the position of a stateless vessel. The question of knowing whatto do with the vessel before its nationality is established isstill open.
A delegate mentioned that some of the measures to be adopted wouldviolate some States' constitutions, and this led to the latestlegalistic debate on the applicability, signature and ratificationof UNCLOS and its Article 117.
AFTERNOON PLENARY SESSION
The Plenary resumed its review of Section V on flag Statejurisdiction. Some delegates called for more flexibility on thepart of the flag States with regard to boarding by persons of thenon-flag States. The sovereignty, issue, however, was one on whichtraditional open registries were uncompromising.
A delegate argued that it might be helpful to get assistance fromthe International Maritime Organization when reviewing paragraph 28on the applicability of sanctions.
A delegate said that one of the major problems is how to deal withStates that are not party to the regional agreements. To beapplicable to all there is a need to strengthen the arrangementsinto international hard law.
A distant water fishing State questioned the extent of thepenalties applicable, whether they are pertinent to the vessel andhow long they should be applied. References to "alleged violations"are too vague; they do not indicate what the sources of informationare or how the violation is documented. The Chair answered that"alleged violation" is common language and taken from Article 217of UNCLOS.
The question of compatibility of the required measures and nationallaws was addressed once more with a distant fishing State arguingthat UNCLOS could not be opposed because it has not been ratifiedby the States concerned, and a coastal State answering that thereason UNCLOS was not ratified is well known to all and has nothingto do with compatibility with national law.
A representative of a coastal State warned against attempts by someto delete everything, ensuring the efficacy of methods ofcompliance and enforcement that would disturb flag States in anyway.
The Chair intervened to explain how the text should be understood.Part A of Section V is an elaboration of UNCLOS but Part B shouldnot be misunderstood as going further than UNCLOS. It is not anopen season for coastal States to deal with foreign vessels on thehigh seas. The procedures must be agreed on before any of thesemeasures can apply. He then invited delegates to comment on SectionVI of the text on port State jurisdiction.
A delegate expressed concern at the provisions that allow theregional arrangement to grant authority to the port State to detainvessels when this authority is that of the port State alone. It wasalso suggested that the port State be required to notify the flagState of the actions taken.
It was argued by a distant fishing State that the port State has noright to deny access to the port and that, in this respect, therights of the port State are not absolute and access to a port isa matter of right. In several paragraphs it is unclear that theauthority is vested as a result of the regional agreements and itshould be specified in more detail. A coastal State argued that allports should be vested with that kind of authority, regardless ofwhere the violation took place. Requiring the regional arrangementto grant that authority is a second stage in the process that isnot useful.
An amendment was suggested that would require States to enactlegislation empowering the relevant authorities to prohibitlandings where the catch has been taken in a manner that hasundermined the effectiveness of international conservation andmanagement measures. If such universal obligations to this effectwere adopted, illegal catches would have no where to go. It alsopresents the risk of seeing the contravening vessel call only inthe ports of States that are not party to the regionalarrangements. The text was characterized by a delegate as theperfect balance between the FAO agreement that does not reallyaddress the issue and L.11.Rev.1 that goes too far.
The Chair closed this discussion by saying that it would benecessary to go back to all the proposals and amendments that weresuggested and that many points would need to be reconsidered.
A final amendment was tabled under which the port State adoptslegislation according to which violations carried out on the highseas are to be considered as a violation of the law in accordancewith the legislation of the port State. The reactions to thisamendment were mixed and delegates will reflect on the new proposedlanguage further.
PRECAUTIONARY APPROACH WORKING GROUP
Numerous Precautionary Approach proposals, from delegates and NGOsources, were presented to the Working Group Secretariat earlyyesterday morning. The Secretariat membership consisting of ChairAndres Couve, FAO Representative Serge Garcia and a representativeof the Law of the Sea Office, worked throughout Thursday morningpreparing two pages of revised text (Paragraph 5 Rev.1). TheWorking Group reconvened Thursday afternoon. The Chair noted thatthe text would require a set of technical guidelines or Annex andin this matter he suggested that Annex 2 of documentA/CONF.164/L.11/Rev.1 could become Annex 3 to the Chairman'snegotiating text.
The first speaker stated that trying to generate technicalguidelines when the substance of the revised text had not beenagreed was "out of kilter." It quickly became evident that many ofthe divergent positions had not been catered to in Paragraph 5Rev.1. The second speaker said that careful consideration of thegeneral conceptual framework would freely stimulate the requiredtechnical guidelines. Another speaker underlined theinterdependence between the Biological Reference Points (BRP) andPrecautionary Approach. He felt that it might be appropriate toawait the convening of the BRP Working Group before proceedingfurther. The Chair explained that it was his position to maintainbalance and impartiality, but he was prepared to accept consensus,even though this might require establishing a working group withinthe Working Group.
For the DWF States, there was concern that the word "moratoria" wasstill featured in sub-paragraph (c) and said there was a need toqualify the term "ecosystem" with "stock area".
One delegate, acknowledging the difficult task of producing anagreed text suggested Paragraph 5 Rev.1 had not produced the levelof consensus apparent at the conclusion of the Working Group theprevious day. He said that the "precautionary thresholds" neededexplanation by including objective and measurable thresholds. A DWFState did not oppose the idea of thresholds, but objected tomandatory usage, preferring a discretionary approach, with thethreshold limit being set on a case-by-case, species-by-speciesbasis.
The language in sub-paragraph (c) and the reference to irreversibledamage in sub-paragraph (b) did not suggest a precautious approach,one delegate argued, and even when a small quantity of data wasavailable, thresholds needed to be set just to be precautious. Adelegate suggested that the Precautionary Approach should also beincluded in the FAO Code of Conduct.
The disparate views among delegates caused the Chair to recommendthat the Precautionary Approach should be implicit throughout thetext. Noting the considerable number of proposals requiringamendment, deletion, change and revision, the Chair suggested thatwhile Paragraph 5 Rev.1 had not been endorsed it had nonethelessserved as a useful tool upon which to develop a further revisedtext. He felt the way forward would be for States eithercollectively or individually to prepare additional submissions tothe Working Group Secretariat on Friday morning, while overnightthe Secretariat would begin to develop Rev.2.
THINGS TO LOOK FOR TODAY
PLENARY: The Plenary will resume its discussion of theChair's negotiating text with Section VII on non-parties tosubregional or regional organizations or arrangements.
Look for Sweden's Conference Room Paper, available today as an L.document, that suggests a restructuring of the Chair's negotiatingtext. The paper aims to reconcile contradictions between thecoastal States core group and the distant water fishing States overthe scope of application of the Conference. The paper serves asthe basis for a final document that has the character of a"forceful political instrument."
PRECAUTIONARY APPROACH WORKING GROUP: The Working Group willreconvene today at 3:00 p.m. in Conference Room 6 with a reviseddraft (Section I, Paragraph 5, Rev.2) on the PrecautionaryApproach.