Daily report for 28 March 1994

INFORMAL-INFORMAL CONSULTATIONS

Informal-informal consultations began on Thursday, 24 March,between the Chair, Satya Nandan, and delegates of coastal Statesand Distant Water Fishing States (DWFS) with consideration of arevised Section I and II of the negotiating text. These sessions,which were closed to observers, continued during the day Monday andTuesday, and again on Wednesday morning. (Editor's note:Reporting on these closed-door sessions in this issue of theEarth Negotiations Bulletin is based on interviews withforthcoming government delegates.)

The first edition of Section I of the revised text was issuedwithout the text on Precautionary Approach. A revised Section I*appearing on Monday morning and dated 28 March detailed not onlyinclusion of a new Section on Application, but also referred to theoriginal text of Section I as a new Section II. Under Part C inrevised Section I* is old Section IX on compatibility andcoherence. The reworking of Section I* in this form provides forthe most contentious high seas and coastal States issues to becontained in one section. Section I* consists of two paragraphsdealing with Application, which caused a number of alternativetexts to be tabled. These came from Canada, the European Union andfrom a further revised text of the Chair. Consultations on SectionI* lasted throughout the day on Monday. Delegates indicated thatNandan attempted to achieve a relative consensus prior to moving onto other sections.

An alternative text on compatibility worked up by a caucus groupappears to have received the Chair's approval, and with minoramendments is broadly included in Section I* (C). Discussion onparagraphs 1 and 2 focused on the need for restructuring so as todevelop specificity between the objective and application. TheEuropean Union's alternative text sought to delete paragraph 2 butto include emphasis on the biological unity of stocks in paragraph1. Further alternative text by the European Union was proposed forparagraphs 6 and 7 on compatibility. Discussion focused on long andrambling interpretations of Article 116 of UNCLOS. One DWFSdelegate indicated that he could accept most of the requirements ofthe Conference, while he could not let the "special interests" ofthe coastal States prevail over conservation and management of highseas resources. One delegate expressed disillusionment with therepetitive and rhetorical legal statement-making.

A proposal by the core group of the Like-Minded States tabledalternative text for insertion as paragraph 6, while Chile proposedalternative text for insertion as a new paragraph 7, which madeexplicit reference to Article 116 of UNCLOS.

Notable omissions in the new text in (B) on PrecautionaryApproaches to Fisheries Management are references to thresholds andmoratoria much objected to by DWFSs. Emphasis is given to thepreservation of the marine environment, and it mentions that wheremanagement reference points are exceeded, recovery plans shall beimplemented "immediately" to restore stock(s). An alternative texttabled by the European Union on Precautionary Approaches toFisheries Management cites reference to the biological unity in theexploitation of stocks with States taking into account theecosystem management approach. Unlike the Chair's revised text, theEuropean Union alternative text seeks reference to Annex X, thetext of which is fully given in document A/CONF.164/WP.2, theReport of the Working Group on Reference Points for FisheriesManagement.

Delegates indicated that Nandan deserved high credit for acceptingalternative language that sought consensus and compromise,especially on the question of compatibility. Latin American westcoast States were sensitive about aspects of sovereignty on portState and flag State implementation, and one delegate describedtheir actions as a major filibustering exercise. The remainingdifferences on compatibility are likely to be brokered by the USduring the intersessional period. Canada has maintained a prominentrole in these informal negotiations in order to keep the other coregroup members of the Like-Minded on board. Some criticism wasleveled at Nandan for permitting frustrating legal arguments toevolve throughout the informal consultations, rather thanconcentrating on the core issue of conservation and management offish stocks.

A caucus of NGOs, including the National Audubon Society, WorldwideFund for Nature and others, forwarded a three-page document todelegates during the informal consultations. This document notedthat in order for the Conference to succeed, three fundamentalobjectives need to be satisfied: the establishment of meaningfulinternational minimum standards; the provision of a legally-bindingregime with an immediate global impact; and the establishment of abinding and compulsory dispute settlement procedure. The documentconcludes that neither narrow self-interest nor UNCLOS must be abarrier to a mutually beneficial, binding and enforceable agreementto regulate straddling and highly migratory fish stocks throughouttheir respective ranges of distribution.

On the question of an extended mandate, the Chair maintained hisdesire to conclude the Conference at the August session. Delegatesdiscussed the possibility of a longer summer session to considerthe many remaining disparate views. This idea lacks support fromthe UN Secretary-General. But delegates have noted that if signs ofprogress are made, an extension of the Conference's mandate by theGeneral Assembly may be possible.

WEDNESDAY MORNING PLENARY SESSION

The Chair reconvened Plenary on Wednesday at noon, following twoand one-half days of informal-informal consultations. Nandanoutlined the work of these consultations but refrained from givingan assessment of the negotiations at this stage.

Noting his original Conference agenda, he reminded delegates of hiswish to produce a revised negotiating text for issuance in thethird week. This, he said, had largely been achieved duringinformal-informal consultations over the last two and one-halfdays. This working time-frame included one late evening meeting inwhich delegates had considered a number of conference room papers.The benefit of working in a smaller group had provided for theconsideration of selective issues. Where there were widedifferences, those papers had been considered first, but heregretted that even working in a smaller group, it had not beenpossible to complete fully the required task. A/CONF.164/CRP.1deals with the mechanisms of cooperation and describes the dutiesof flag States, compliance and enforcement of high seas fisheries,port State responsibilities and regional arrangements.A/CONF.164/CRP.2 deals specifically with international cooperationand is split into two sub-sections: (a) Mechanisms forInternational Cooperation and (B) Regional Fisheries ManagementOrganizations or Arrangements. The Chair said there had been usefuldiscussion on this paper with a considerable amount of newdiscussion, mainly on the problems of provision, but he thoughtthere is common ground which he said could provide for earlyagreement. A/CONF.164/CRP.3 outlines Section I, which has a newsection on Application added. Section I of the original revisedtext (A/CONF.164/13*) is now contained under Section II describingGeneral Principles. Section II is split into three headings: (A)the Nature of Conservation and Management Measures; (B)Precautionary Approaches to Fisheries Management; and (C)Compatibility. Nandan said it is important to agree on this paperthat deals with the biological unity of stocks, because this couldbreak deadlocks on other areas. A number of alternative texts wereconsidered in a constructive atmosphere. He felt that by-and-large,on the question of stocks and jurisdiction, there was considerablecommon ground; however, certain mechanisms were difficult toresolve and discussion of these will continue. Nandan said therewas insufficient time to consider the paper on dispute settlement,A/CONF.164/CRP.4, informally, but he hoped that there will not betoo much difficulty with its content. The special requirements ofdeveloping countries is contained in A/CONF.164/CRP.5.

Nandan said he felt that the informal-informal consultations hadmade good progress. There were difficult topics to debate, but hehad come out with a good feeling of progress. He said somerestructuring will be better reflected in the revised text forcirculation today at 11:00 am. He apologized for the delay inprocessing the text, but recognized that delegates wanted to departwith a composite copy of the revised text. He stated that he wouldtry to complete the session by midday.

No delegates asked for the floor and the meeting, which lasted 10minutes, was adjourned.

THINGS TO LOOK FOR TODAY

PLENARY: The Plenary will meet today at 11:00 am to receivethe Chair's revised negotiating text, a compilation of fiveConference Room Papers (A/CONF.164/CRP.1, 2, 3, 4, and 5),considered during the informal-informal sessions held on Monday,Tuesday and Wednesday morning of this week. The Chair is expectedto consider the work of the Credentials Committee (A/CONF.164/18)prior to adjourning the Conference. Look for the draft listing ofdelegates to the Conference, which is scheduled to be releasedtoday.

NGO ACTIVITIES: Look for a letter to be published in<W2I>ECO<D> from the NGOs to the Conference Chair on the topic ofopenness and transparency at this and future work of theConference. In a debriefing session held yesterday, the NGOsdrafted a collective letter, addressed to Satya Nandan, expressingtheir discontent at the way the negotiations have been conductedthis week. Over the last three days, the NGOs have been excludedfrom observing the negotiating sessions. Many feel that this sortof secrecy and lack of transparency had been abandoned bygovernments following the positive experience of the UNCED process.Some have expressed the feeling that democracy and participationcannot be sacrificed at the expense of political expediency, sincethis is too high a price to pay for a speedy resolution tonegotiations. This was the first meeting in two years related toenvironment and development matters, and the first UNCED-mandatednegotiation, where NGOs have been barred from observing thesessions. Many NGOs who have traveled great distances and representconstituencies directly affected by the decisions taken by thedelegates feel that their contribution has been not only ignoredbut discounted as irrelevant to what has become a legalisticstruggle. They have all endorsed this open letter to the Chairasking for a more transparent process, both during the comingintersessional period and at the last session of the Conference inAugust 1994. Look for strong words in the corridors from NGOs,particularly to those delegations who normally are supportive ofNGO participation but who have failed to advocate for theirpresence in the negotiating room this week.