Daily report for 23 March 1994

2nd Session of the FSA


Two delegates began yesterday's session by speaking on Section X ofthe negotiating text, "Special requirements of developingcountries". One of the delegates said that there was no reason torestrict subparagraph 54(e) to high seas fisheries, and stated thatthere should be no discrimination against developing States. Thissubparagraph would discriminate by effectively confining developingcountries' activities to their own EEZs. A second delegatesupported this statement, saying that developing countries' fishingactivities should not be limited to one area. Another delegatestated that there was no intention, implicitly or explicitly, torestrict developing coastal States to their own EEZs.

The Chair then introduced Section XI of the negotiating text on thefollow-up to the Conference, and invited comments from delegations.A delegate supported the Chair's text. Another delegate said thatpolicy guidelines will have to be developed for the GEF to mobilizefinancial resources to create viable regional organizations.

Several delegates stated that five years was the right amount oftime for holding a review session. Another delegate said that thereshould be a review conference since we are starting from thepremise that the outcome of this Conference will be a convention.One delegate said that the UN should decide if there is a need toconvene a follow-up conference while another delegate replied thatthe Conference should determine this. One delegate supportedsending a copy of the report of the Conference to the CSD for itsreview of fisheries and ocean matters, while another disagreedsaying that the CSD should be informed orally of the work of thepresent Conference. Another delegate felt that the CSD may not bethe key forum for consideration of these matters.

The FAO should play a significant and constructive role in thereview mechanism, and the review process should be centered in NewYork since it is difficult for small delegations to maintain apresence in Rome, where FAO has its headquarters. One delegatestated that the FAO is the body directly involved with the issuesand is less politicized than the UN General Assembly. Other Statessaid that the General Assembly had merit, since all States arerepresented there. One delegate stated that it would be a waste ofexpertise and human resources for FAO not to take the lead forregular review of implementation. FAO, however, should not controlimplementation. Other delegations stated that the issue is not onlytechnical, it is one of high politics and of legal issues. Yet ifthe follow-up is only a narrow legal process, that is not enough.One delegate thought that biennial submission of reports to theSecretary-General would cover too long a time period, and thatannual review by fishery organizations was important. One reviewconference will not do the job. Wording should be developed forholding a conference no later than 1997, and periodicallythereafter.


The Chair convened the session with an introduction on the form theoutcome of this Conference should take. A first series of speakerstook the floor to tell of their determination to see alegally-binding document become the outcome of this Conference.They said that if the text was finally agreed to by all, thereshould be no reason why the agreed measures would not be binding.While it is true that regional organizations will play a key rolein implementation, there are a number of general principles thatwill apply in all instances. These should be codified in alegally-binding document.

Several delegates indicated their willingness to continue theprocess beyond the August deadline if this leads to the adoption ofa convention. A delegate argued that the transformation of the textin a convention would merely be a technical exercise, and if thedocument is too comprehensive, certain key elements could beretained in a convention and would be supplemented by otherdocuments such as a General Assembly Resolution.

Enforcement by the coastal States is one of the areas in which alegally-binding document would prove most useful. Past experienceshave shown that no action can be taken against those States thathave refused to abide by the regional arrangements. A new treatylaw approach could solve this problem, and it might best beachieved through an intergovernmental negotiating committeeapproach similar to the one in the conventions on climate changeand biodiversity. A delegate said that a draft convention had beensubmitted to the Secretariat by a number of Latin Americancountries and should be available to the delegates by the end ofthe week.

The representative of a coastal State said that measures need to bebinding. If measures are not accepted at the global level, theywill not be more acceptable at the regional scale. A delegate saidthat those who oppose the adoption of a legally-binding documentare those who want the over-fishing to carry on as it has up tonow.

Settlement of disputes is another area in which a Convention wouldprovide more certainty and predictability. Safeguards could beincluded to ensure that some specific conditions are met before anyenforcement measure is taken. A delegate said that one shoulddistinguish what is illegal from what is wrong and a conventionalone can ensure that unfair practices stop.

A number of States said that they were quite flexible on the formof the outcome as long as there is agreement on the substance. Adelegate said the final text would make little sense if it did notapply to the stocks throughout their range.

Several representatives of distant water fishing States were of theview that a legally-binding document was not required. Meaningfulresults can be achieved through other means. The drift-net banresolution was given as a good example, but a coastal Stateanswered that there is no common measure between this very simpleresolution and the scope of what this Conference is trying toachieve.

A convention was characterized as expensive and lengthy toimplement. Drafting a convention goes beyond the mandate of thisConference under Resolution 47/192. It was also argued that Stateswould not be as willing to compromise if they felt that they wouldbe legally-bound by the outcome.

The representative of a small island State suggested that themeasures be adopted by consensus and they would then be implementedand become the custom before ratification and entry into force. Adelegate also remarked that most of the States favoring alegally-binding document are also those who want to limit the scopeof the Conference to the high seas.

The Chair concluded the debate on this section by saying that thisissue had been simmering from the beginning and he felt thisexchange of views had been constructive.


Sections IV and V of the draft text on Reference Points wasconsidered yesterday morning. The Chair re-emphasized the tighttime-frame within which the Working Group had to consider SectionsIV and V, and hoped that the spirit of consensus could bemaintained.

Section IV on "uncertainty" primarily dealt with the problem ofdealing with knowledge when it is imperfect. A representative ofthe IOC questioned the interpretation of "environmentalvariability" and argued that while "El Nio" variabilities areapproaching a stage of predictability, there was a need to separateout biologically recognized indicators causing reversible changeand man-made pollutants causing irreversible degradation.

A distant water fishing State (DWFS) said it was important torecognize natural fluctuations in stocks. Cause and effect needhighlighting. An NGO representative said it was necessary toestablish that reference points be defined so that they are notinvalidated. Another Like-Minded core group member said fisheriesare seldom in equilibrium.

A delegate said the reference points corresponding to biologicalreference points are contained in the standards set by WHO and theCodex alimentarius. The FAO noted the burden of proof shouldnot be on the fishermen but on the polluters. A Like-Minded coregroup member said pollution is really a matter for the health codeof individual States, while another core-group member said theanthropogenic influences in fisheries should be adequatelyaddressed.

Under Section V, Linkage to Management, the Chair said it wasnecessary to have a management system in place that used guidingsignposts. A DWFS delegate said there is a need to takeprecautionary management measures which make up for the lack ofscientific evidence, but the FAO representative reminded theWorking Group that knowledge is uncertain, and presumption cannotremove uncertainty. A Like-Minded core group delegate said thatUNCLOS language promoted the concept of Total Allowable Catch (TAC)and this has not worked well. A Like-Minded core group member saidthere is no need to link explicitly TAC and resultant consequencesof degraded data.

Revised text (Rev.1), was available prior to the beginning of theafternoon session. A DWFS delegate said the text reflects majorityconsensus and suggested the reversal of paragraphs 1 and 2 inSection I to give explicit reference to UNCLOS and Conventionlanguage. An NGO representative intervention highlighted therequirement for "safe" fishery products in paragraph 5.

A delegate reminded the Working Group that Rev.1 in effectrepresented the third draft, in a clear and concise text,incorporating all the relevant information and concepts. ALike-Minded core group delegate said that paragraph 4 referred toonly one biological reference point (BRP) and that the strength ofreference is weak. The Chair disagreed with this technicalanalysis and said it was important to identify biological units.Paragraph 4 was the appropriate place to describe these. AnotherLike-Minded core group delegate said that paragraph 4 was a "tallorder" and it is not a practical measure. Discussion on thisparagraph became contentious and the Chair deferred furtherdiscussion until after discussion of Section V. Only two minoramendments were tabled in Section II, which included a referencefor long-term conservation and "utilization" of fishery resources.

Under Section III a small number of amendments were proposed undertarget and limit reference points. The IOC representative felt thatSection IV, Accounting for Uncertainty, needed reflection in theSection I, especially if paragraph 5 made reference to pollutionand degradation. Section V, Linkage to Management, paragraph 24became another contentious issue with a number of alternativeproposals tabled. At one point a Like-Minded core group membersaid the proposed revisions watered down the emphasis to overgeneralization. He also said that data quality could be improvedby monitoring the quality of data. The word "cooperation"implicitly promoted sovereignty issues.

Paragraph 4 remained contentious and there was no consensus. ALike-Minded core group member, dissatisfied with the Rev.1 text,insisted that his alternative text be circulated for consideration.Three Like-Minded core group members insisted that the alternativetext be transmitted to Nandan together with the revised text.


PLENARY: The Chair indicated that the Plenary will resumetoday with a review of Annex 1 of the negotiating text on minimumdata requirements, as well as the Japanese amendments on thissubject. By the end of the morning, the Chair should submit the tworeports of the Working Groups on Precautionary Approach andReference Points. Look for revised texts on these topics.Discussion should proceed on these documents and their possible integration into the Chair's text.