Daily report for 18 March 1994

The Plenary resumed Friday morning with a general statement by thedelegation of Ukraine. The delegate indicated that in consideringthe application of measures for the conservation of straddling fishstocks and highly migratory fish stocks, it is necessary to extendthe measures to the geographical area where the stocks live.Limiting their application to the high seas would diminish theeffectiveness of these measures because it would lessen theresponsibility by some coastal States in their EEZs to conserve.

The Plenary then resumed its review of the negotiating text withSection VII on non-parties to subregional or regional organizationsor arrangements. The first delegate pointed out that this sectionmight need to be reorganized since it deals with both non-membersin paragraphs 35 and 36 and members of the regional organization inparagraphs 37 and 38. The Chair answered that he took good note ofthe comment but added that all four paragraphs deal with the sametopic. Another delegate remarked that there should be an additionalsection between Sections V and VI or VI and VII dealing withcoastal States enforcement. An amendment, taken from the Bering SeaAgreement, was suggested that would require the parties to regionalagreements to take measures to deter activities that undermine theeffectiveness of relevant international conservation and managementmeasures.

The representative of a distant water fishing State noted thatreferences to non-parties are inappropriate since a code can notimpose obligations on a non-party. A new provision was suggestedthat would require any non-party to inquire with the regionalorganization about the possibility of carrying out fishingoperations. Then, if the regional organization says that there areno possibilities, the flag State should not allow its vessels tofish in this area.

It was highlighted that some points of this section need to beclarified such as: how the regional organizations are identified;do they need to be inter-governmental; is the exchange ofinformation limited to those actions undermining the effectivenessof the measures; what measures are envisioned; and do they includeblacklisting and boycotts.

The Plenary then began a review of Section VIII on the settlementof disputes. The Chair said that this was clearly an importantproblem and the very reason why this Conference has been convened.He also said that the only way to settle disputes is to do so in apeaceful and orderly way. The procedure should be quick and simpleand, if possible, disputes should be solved before the fishingseason is over. In that respect, the help of technical expertsmight be valuable. It was agreed this is a very sensitive areawhere States interests do not always coincide, and the key point istherefore to have order.

References to proper decision making procedures were seen by someas irrelevant here since disputes can arise regardless of theinitial decisions. References to experts should be refined to makevery clear that the dispute may be referred to them but the Statesthemselves will decide to do so. Only if all other possibilitiesfail will mandatory settlement of disputes apply.

Another delegate said that each regional organization should adoptthe procedures as it sees fit. It is not only inappropriate butalso impractical to demand that each and every regionalorganization adopt a specified and uniform procedure for disputesettlement. The same delegate said that he had difficulty acceptingthe fact that the parties would be bound by the procedure sincethey may well prefer to choose a procedure, the finding of which isnot binding, such as conciliation.

A delegate said that the text does not provide for the case wherea State does not abide by its obligation to follow theorganization's mechanisms. Another delegate added that a mechanismapplicable independently of the regional organizations goeshand-in-hand with the peaceful settlement of disputes.

A coastal State representative said that this text will not applyto disputes pertaining to the sovereign rights of the coastalStates on the living resources of their EEZs because it is alreadyprovided for in UNCLOS, but an additional provision should makethat fact clearer. A suggestion was made that would make thedecisions dependent on the weight a member State carries in anorganization. Another delegate said this would be unacceptablebecause it disregards the legal equality of all States, which is auniversal principle.

There was also some doubt on how experts would be designated butthe Chair said that they could also be consulted in informalprocedures and the parties themselves would choose to consult them.

Some States were of the view that arbitration is the procedure thatshould be applied unless the parties to the dispute decideotherwise.

AFTERNOON PLENARY SESSION

The Chair opened the afternoon session by inviting delegations tomake general statements. The Philippines said that the Chair'snegotiating text adheres to the spirit of Rio and to the frameworkprovided by UNCLOS, reaffirming the sovereign rights of coastalStates for the purpose of conserving and managing straddling fishstocks and highly migratory fish stocks in their EEZs. The ultimatebeneficiary of all precautionary approaches is the human being.

Discussion resumed on Section VIII of the Chair's text, DisputeSettlement. Many delegates stated that this chapter is an essentialpart of the Chair's text. Several delegates welcomed closer linkswith provisions of UNCLOS. Prevention of disputes can take manyforms. Effective decision-making is preferable to any mechanism fordispute settlement. Guidelines for all regional agreements areneeded so that there is harmonization. Some delegations had strongreservations that dispute resolution should be mandatory. There wassupport for an ad hoc expert panel, perhaps within the FAO,to assist States to resolve disputes without recourse to formaldispute settlement procedure, as stated in paragraph 41. Onedelegation said that where there are disputes, it is only a matterof having more information available. Access to dispute mechanismsmust be given to developing countries and the least developedcountries (LDCs). One delegation stated that such mechanisms mustbe timely, compulsory and binding. Several delegations supportedlanguage in paragraph 44 for the arbitration procedure to be thetype described in Annex 2 of the Chair's text. An NGOrepresentative said that regional organizations should includeNGOs.

The Chair deferred discussion on Chapter IX, Compatibility andCoherence, until this week, as there had been some earlierdiscussion of the topic. The Chair suspended the meeting for fiveminutes so that delegates could consider an amendment submitted bythe Russian Federation on the situation of enclaves, entitled"Addition to Paragraph 19 in Section II of the Negotiating Text".UNCLOS does not refer to the special situations of enclaves, whichare areas of the high seas that are completely surrounded by EEZs.The measures envisioned are temporary until a mutually acceptableagreement is reached. Any negative consequences should be comparedto those ensuing from uncontrolled fishing and extensiveexploitation of resources found in the enclave. Many delegationssaid that they understood the sentiment behind the proposal, thatcoastal states have to take special measures in certaincircumstances where an accident of geography has created an enclaveas envisioned here. One delegate said that he did not understandlimiting the proposal solely to straddling fish stocks. Anotherdelegate said that the entire high seas could be considered anenclave, and another delegation said that this is creating aspecial rule for a special situation. Some delegates had troublewith the legal ramifications, since nowhere in UNCLOS is thecoastal State given unilateral regulation of fisheries on the highseas.

PRECAUTIONARY APPROACH WORKING GROUP

An informal working group, consisting of seven States, withadditional written input from three distant water fishing (DWF)States, labored late on Thursday night seeking consensus on a draftrevised text for the Precautionary Approach Working Group. Awritten text was delivered to the Bureau on Friday morning.

The Bureau worked up a revised text (Section I, Paragraph 5, Rev.2)during the morning, which was circulated to the Working Group bythe Chair, Andres Couve, at 3.00 p.m. on Friday. A separate listingdetailing the main points of divergence was also circulated. TheChair, in acknowledging the valuable contributions made, said theBureau had tried to avoid the use of conflicting wording in Rev.2.The text, he believed, was technically correct and balanced, but itwas not a consensus text. He preferred to advance the structure ofa set of technical guidelines rather than reopen Rev.2 to serve asthe basis of an Annex to the negotiating text.

Delegates initially expressed disappointment that their additionalcomments were not adequately reflected in Rev.2. One DWF State,while acknowledging the technically sound structure of Rev.2,voiced concern that the consensus text reached in the informalworking group had not been adequately reflected.

The Chair admitted the impossibility of incorporating all thedivergent points of view tendered, but emphasized, the Bureau hadmade all reasonable efforts to incorporate many new concepts. TheFAO Representative said Rev.2 had been developed from the WorkingGroup proposals, and should be read carefully. Most of the newconcepts had been accommodated by substantial re-wording of thesub-paragraphs. He said the revised Chapeau had been accepted inits entirety.

One member of the Like-Minded core group congratulated the Bureauon crystallizing, succinctly, the many complex ideas in a documentthat could be usefully passed back to the Plenary to developfurther, because some of the explicit technical language invokedpolitical connotations.

Another delegate said that unless important conceptual issues werereflected accurately, the Plenary would not have a comprehensivetechnical text upon which to proceed. He said it was essential toinclude precautionary measures that covered the entire range of astock and that the entire stock area needed recognition bothtechnically and biologically. He urged strengthening the conceptof uncertainty, which is essential to precaution. Bycatch needsminimizing but clearly it is impossible to eliminate. A DWF Statedelegate spoke of practical bycatch problems because ofpredator-prey relationships in tuna long-lining. A Like-Minded coregroup member said he could not accept generalized references toecosystems. A member of the Like-Minded core group said Rev.2 wasnot just a summary of a good discussion, but it had sufficientcontent to go forward to the Plenary as a consensus document fromthe Working Group. The Chair thought it should go forward as a"proposal" from the Working Group. Another Like-Minded core groupmember said he did not sense the unity expressed by a Like-Mindedcore group colleague and felt time could be more beneficiallyutilized developing a framework of technical guidelines.

A delegate suggested several minor amendments that could bringRev.2 closer to consensus. A DWF State said that he did notdisagree with the text, but some of the sense of the text had beenlost through editing. Recognizing the deadline set by the Plenary,delegates accepted an assurance by the Chair that somemodifications to Rev.2 would be made by the Bureau prior tocirculation in the Plenary today.

IN THE CORRIDORS

The speed at which the Chairman's negotiating text is being dealtwith, and the number of Like-Minded core group meetings that havemet during the evenings of last week suggest that an L.11/Rev.2 maybe about to emerge. A Like-Minded meeting is scheduled for tonight.

NGOs have mixed feelings about how fast delegates have dealt withthe issues at stake, and while they remain pleased with the speedyreview of the Chair's negotiating text and that negotiations havebegun in earnest, NGOs are concerned at the hardening ofideologies. Other NGOs expressed disappointment that many of thecore issues of sustainable resource management had not beeneffectively emphasized and hoped that States would give furtherconsideration to these in Plenary.

THINGS TO LOOK FOR TODAY

PLENARY: The Plenary will open today with a report from theWorking Group on the Precautionary Approach, which concluded itswork on Friday evening. Look for circulation of the revised textunder Section I, Paragraph 5. Rev.2*. The Chair will giveconsideration to the issue of Reference Points for Fisheries Management as tabled in document A/CONF.164/INF/9. Section IX ofthe Chair's negotiating text will then be considered. The Plenaryshould meet in parallel to the BRP Working Group this afternoon.

BIOLOGICAL REFERENCE POINTS WORKING GROUP: The first workingsession of the BRP Working Group will be convened by ChairmanNandan in Conference Room 6 at 3.00 p.m.