Summary report, 14–31 March 1994

2nd Session of the FSA

The United Nations Conference on Straddling Fish Stocks and HighlyMigratory Fish Stocks concluded its second substantive session atUN Headquarters in New York on March 31 1994 after three weeks ofnegotiations. This Conference, one of the major outputs of theUnited Nations Conference on Environment and Development (UNCED),was convened by the UN General Assembly in one of a series ofresolutions designed to implement the decisions taken in Rio.

The 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.

This session of the Conference resumed seven months after the closeof the previous session in July, 1993. The delegates continueddebate left unresolved at the end of the previous session and theirreview of the Chair's negotiating text (A/CONF.164/13*). The Chairof the Conference, Satya Nandan (Fiji), opened the first meeting ofPlenary by highlighting the obstacles that will need to be overcomeif a durable solution to the current fisheries crises is to beattained. He insisted that any solution will need to fall withinthe framework of UNCLOS, especially in view of its entry into forceat the end of the year. He informed delegates of the developmentsthat occurred since the end of the previous session. An FAOAgreement to Promote Compliance with International Conservation andManagement Measures by Fishing Vessels on the High Seas was adoptedin 1993 and will enter into force upon the receipt, by FAO, of thetwenty-fifth instrument of acceptance. The work of the FAO on anInternational Code of Conduct on Responsible Fishing has commencedand ad hoc consultations were held on the role of regionalfisheries agencies in relation to high seas fisheries statistics.

Nandan then announced the program of work and said that afterdelegates had made general statements, the Conference would convenein informal sessions to consider document A/CONF.164/13*, theNegotiating Text, prepared by the Chair of the Conference on asection-by-section basis. He also said that informal working groupswould be established to deal with the application of precautionaryapproach and reference points to fisheries management. He alsomentioned that at one point, the delegates would need to addressthe issue of the final outcome of the Conference.

The first day of the Conference consisted of general statements andthe Conference then convened in informals until the end of thesecond week when informal-informals were held to attempt to preparea new "clean" version of the text. These sessions were held untilthe middle of the third week, and all NGOs were excluded. As aresult, five days of negotiation out of fourteen were carried outbehind closed doors. The Plenary resumed briefly on Wednesday whenthe Chair briefed the Conference on progress made during closedsessions. On the final day of the Conference the Chair produced anew version of his Negotiating Text (A/CONF.164/13/Rev.1).

A BRIEF HISTORY OF THE CONFERENCE

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 that concludedin 1982 were not successful. The negotiators decided to leave suchproblems to be resolved between States concerned with high seasfisheries in different regions. During the last decade, however,the pressure on high seas fisheries has grown rapidly, and theproblems have become more urgent. A number of events in the early1990s indicated that an international conference should be convenedto resolve the issues related to high seas fisheries. One forumwhere this was discussed was the Preparatory Committee for the UNConference on Environment and Development (UNCED). After long anddifficult negotiations, participants at the Earth Summit in Rioagreed to "convene an intergovernmental conference under UNauspices with a view to promoting effective implementation of theprovisions of the Law of the Sea on straddling and highly migratoryfish stocks."

The resolution establishing the Conference on Straddling FishStocks and Highly Migratory Fish Stocks (47/192) was adopted by theUN General Assembly on 22 December 1992. The resolution states thatthe Conference, drawing on scientific and technical studies by FAO,should: identify and assess existing problems related to theconservation and management of highly migratory and straddling fishstocks; consider means of improving fisheries cooperation amongStates; and formulate appropriate recommendations. The resolutionalso stipulated that the Conference should complete its work "asearly as possible" in advance of the 49th session of the UN GeneralAssembly, later this year.

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, appointed a CredentialsCommittee, and agreed on how its substantive work will be carriedout. Satya N. Nandan (Fiji) was elected Chair of the Conference.The Chair was asked to prepare a paper containing a list ofsubstantive subjects and issues as a guide for the Conference, anddelegations were requested to submit their proposals to theSecretariat.

FIRST SUBSTANTIVE SESSION OF THE CONFERENCE

The first session of the Conference on Straddling Fish Stocks andHighly Migratory Fish Stocks met from 12-30 July 1993 at UNHeadquarters in New York. The Plenary addressed the major issuesbefore it, guided by the Chair's summary of the issues. The Plenaryheld formal sessions on each of the issues outlined and thenadjourned to allow informal consultations to continue. At each ofthese informal meetings, Nandan presented the group with a workingpaper that summarized the issues raised in the Plenary and paperssubmitted by interested delegations.

The major issues discussed at the first session were: the nature ofconservation and management measures to be established throughcooperation; the mechanisms for international cooperation; regionalfisheries management organizations or arrangements; flag Stateresponsibilities; compliance and enforcement of high seas fisheriesand management measures; responsibilities of port States;non-parties to a subregional or regional agreement or arrangement;dispute settlement; compatibility and coherence between nationaland international conservation measures for the same stocks;special requirements of developing countries; review of theimplementation of conservation and management measures; and minimumdata requirements for the conservation and management of thesestocks. At the conclusion of the session, the Chair tabled a draftnegotiating text that will serve as the basis for negotiation atthis session of the Conference.

During the first substantive session, a core group of Like-Mindedcoastal States, consisting of Argentina, Canada, Chile, Iceland andNew Zealand, tabled document A/CONF.164/L.11, a "Draft Conventionon the Conservation and Management of Straddling Fish Stocks andHighly Migratory Fish Stocks on the High Seas". The document waslater revised and reissued as A/CONF.164/L.11/Rev.1.

48TH SESSION OF THE UN GENERAL ASSEMBLY

The Second Committee of the 48th session of the UN General Assemblyconsidered the implementation of the decisions and recommendationsof UNCED and other environmental matters on Friday, 19 November,Tuesday, 23 November and Wednesday, 24 November 1993. The Committeereviewed the report of the Conference on Straddling Fish Stocks andHighly Migratory Fish Stocks (A/48/479), which contains a summaryof the progress made to date and a copy of the Chair's negotiatingtext. Jean-Pierre Levy, Director of the Office for Ocean Affairsand the Law of the Sea, presented the report on the two sessions ofthe Conference. He noted that the results of the Conference shouldfit within the context of the Law of the Sea. He summarized thework during the Conference's substantive session.

In the debate that followed, Argentina, among others, reiteratedthe belief that the Conference should be consistent with the Law ofthe Sea Convention. Ecuador, Tunisia, and the Republic of Korea allspoke on aspects of regional considerations. Canada supported alegally-binding regime that sets out conservation and managementmeasures for conservation of fish stocks, surveillance and controlof fishing practices, an enforcement regime and compulsory bindingdispute mechanisms. Papua New Guinea said there is a need forfisheries reform and ecologically sound conservation within EEZsand on the high seas. Trinidad and Tobago, on behalf of Caricom,along with China, said that there can be no effective globalnetwork to preserve fisheries resources without the fullparticipation of developing countries. Cape Verde called for atimely response on the issues of mechanisms for internationalcooperation, flag State responsibility, port State enforcement andcompatibility and coherence between national and internationalconservation measures for the same stocks.

FOOD AND AGRICULTURE ORGANIZATION ACTIVITIES

Following the request of the first substantive session the FAOproduced two information papers: A/CONF.164/INF/8, "ThePrecautionary Approach with Reference to Straddling Fish Stocks andHighly Migratory Fish Stocks", and A/CONF.164/INF/9, "ReferencePoints for Fisheries Management: Their Potential Application toStraddling and Highly Migratory Resources".

The Precautionary Approach information paper outlines the need forrecognition of a precautionary approach to fisheries management aswell as an interpretation of a possible framework to establish aprecautionary principle. The Reference Points for FisheriesManagement information paper acknowledges that, with an imperfectknowledge of fish population and dynamics and an incompleteunderstanding of socio-economic dynamics, the future use of maximumsustainable yield (MSY) as a management target is neither efficientnor safe.

NGO ACTIVITIES

In the intersessional period, NGO consultative activity hadcontinued with detailed examination of the Chair's negotiatingtext. Individual positions had developed, and the structuredoutline of these became apparent in separate press conferencesduring the first week of the substantive session.

UNCLOS UPDATE

On 16 November 1993, Guyana became the 60th State to ratify the UNLaw of the Sea Convention (UNCLOS). Consequently, the Conventionwill come into force on 16 November 1994. The Conference onStraddling Fish Stocks and Highly Migratory Fish Stocks is widelyperceived as consistent with UNCLOS and would benefit greatly fromits entry into force. At present, only one developed State hasratified the Law of the Sea Convention and negotiations are ongoingto make it more acceptable to others. Negotiations on the so-called"boat paper" are being carried out under the supervision of the UNSecretary-General in an attempt to bridge differences between thepioneer States who have invested heavily in deep sea-bed miningtechnology and developing country representatives who want topreserve the deep sea-bed's status as the Common Heritage ofMankind. It is expected that an agreement will be reached in 1994and a draft resolution could be presented for adoption at the 49thsession of the UN General Assembly.

REPORT ON THE CONFERENCE

The second substantive session of the UN Conference on StraddlingFish Stocks and Highly Migratory Fish Stocks opened on Monday,March 14 1994 at UN Headquarters in New York. After a day ofgeneral statements, the Conference convened in informal session tobegin a first section-by-section reading of A/CONF.164/13*. Thework schedule was to include parallel meetings of two differentworking groups to address the two major technical concepts, theprecautionary approach, and reference points for fisheriesmanagement. Because some small delegations felt they would beunable to participate fully in those working groups if they wereheld in parallel to the Plenary session, the Chair suggested thatan initial general debate would be held in Plenary on thesematters, that the technical debate would then be carried out by theworking groups, and that their reports would be presented back tothe Plenary and be integrated in the final negotiating text.

NEGOTIATIONS ON A/CONF.164/13* (THE CHAIR'S DRAFT TEXT)

Editors note: The following is a summary of the discussion oneach of the issues, following the order of the sections in theChair's negotiating text. At the request of the Chair, statementsmade by governments during informal negotiations are not givenattribution.

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

The matter of compatibility and coherence gave rise to dissent andthe problem was seen by some as the question of the balance betweensovereign rights of the coastal States and the freedom to fish onthe high seas. It was agreed that coastal States and distantfishing States have a duty to cooperate to achieve effectivemanagement of straddling fish stocks and highly migratory fishstocks. The extent of this cooperation was unclear and led to alengthy debate on whether references in the text to "on the highseas" should be deleted. Distant water fishing States wanted thisprovision taken out because biological unity of the stock is a factwhile coastal States saw this proposal as an attempt to impinge ontheir sovereign rights within their own EEZs. It was also seen asa "re-interpretation of UNCLOS". It was agreed that some of theterms would need to be defined with greater care.

References to the concept of MSY were deemed inappropriate by somewho suggested its replacement with the concept of OptimalSustainable Yield (OSY). The FAO was suggested as an interiminstitution where no regional organization or arrangement has yetbeen established.

It was mentioned that the text could be re-organized along thelines of document L.11/Rev.1, a "Draft Convention on theConservation and Management of Straddling Fish Stocks on the HighSeas", with stronger prescriptive measures and a number of minimumstandards that would need to be respected in all circumstances.Some distant water fishing States argued that these would belimited because the measures would need to be adapted to theparticularities of each fishery.

A delegate warned against granting too many special rights todeveloping countries and recommended measures to indicate thatspecial access requires sustainable fishing. The provisions on thecollection of data proved controversial. A delegate noted that theFAO document reflects the willingness of the regional organizationsto receive appropriate data, but does not express the willingnessof fishing States to provide this information.

SECTION II. THE MECHANISMS FOR INTERNATIONAL COOPERATION

This section deals with the need for cooperation between coastalStates and States fishing on the high seas either bilaterally,multilaterally or through subregional or regional organizations andarrangements.

A delegate stated that the problem is that the mandate of thisConference is to review how cooperation has been carried out inpractice, but it is unclear how this has been done. It was arguedthat the key paragraph is paragraph 7 on cooperation, but there wasno resolution on the question of whether its application would beon the high seas or in the EEZs. Reference to States acting in goodfaith was seen by some as superfluous, while others argued for itsretention. A delegate said that this paragraph should include aprovision on the special interests of coastal States.

In paragraph 12, on regional fisheries management organization orarrangement, it was felt that reference should be made to thoseStates that do not cooperate and to the extent of any cooperation,as opposed to simple participation in the regional fishingagreements.

On paragraph 13, on the new members entitlements and benefits whenacceding to a regional fisheries management organization orarrangement, one delegate stated that incentives might need to begiven to ensure that new entrants join the regional agreements, andthis might be to the detriment of those that already belong to theregional organizations. Some of the provisions proposed in thedocument L.11/Rev.1 were suggested as being more acceptablealternative language. One delegate said that Section II on theMechanisms for International Cooperation, is a good basis fornegotiation, but more emphasis should be given to measures taken atthe global level, and complimented Greenpeace in their initiatives.

It was suggested that paragraph 13(d), on the historical fishingpatters of the non-party, needed some further reflection, and thereference to historical fishing patterns should be replaced by "thefishing practices of the non-party". Paragraph 13(e), on thespecial requirements of developing countries from the region orsubregion, was seen by many as too vague, and appropriatealternative language was suggested.

With reference to paragraph 14, dealing with the absence of asubregional or regional fisheries management organization orarrangement, alternative stronger language was suggested that wouldplace more obligation on States to enter into agreements orarrangements. This would then reflect the more assertive actionthat needs to be taken.

The debate moved once more to the scope of application of theConference, and one delegate suggested that the issue be addressedhead-on and that a specific paragraph be devoted to the matter. Therepresentative of a coastal State said that distant water fishingStates wanted to delete references to the high seas because theirown coastal waters are not under threat, but that they would feeland react very differently if their own sovereign rights werethreatened. A delegate reflected on the absence of uniformreference to the need for cooperative scientific research on thehigh seas and how, while scientific knowledge was desirable, it wasoften not attainable by developing coastal States because of heavyfinancial costs. He reserved the right to submit, under thissection, a specific paragraph on this matter in a future session.

Referring to paragraph 15, dealing with the establishment ofregional or subregional fisheries management organizations orarrangements, one distant water fishing State suggestedsub-paragraphs (a) and (b) could perhaps be combined or,alternatively, (b) separated out from close proximity to (a). Onedelegate suggested that the title of Section II might be bettercalled "Principles for International Cooperation".

SECTION III. REGIONAL FISHERIES MANAGEMENT ORGANIZATIONS OR ARRANGEMENTS.

With reference to paragraph 18(d) on the collection of statisticaldata, a delegate said that measures should apply both on the highseas and within EEZs. Since some still have reservations on Annex1, which deals with data requirements, it was felt that thereference to it at this point was inappropriate. The representativeof a developing State highlighted the fact that failures to fulfillthe required commitments are not addressed. The differentcapabilities of developing States should also be taken intoconsideration. One representative argued that States can undertaketo do their best, but there is no absolute guarantee in the field.It was also suggested that scientific committees be set up to helpin that matter. The text should also explain whether the measuresapply to straddling stocks, highly migratory stocks, or both.

There was heated debate on whether new entrants should be"deterred" or "discouraged" from undermining the effectiveness ofmanagement measures. The provision on quotas and limitations onfishing efforts in paragraph 18(a) should be qualified with thephrase "as appropriate". A delegate insisted that the word "timely"should be added to the provision on the settlement of disputes,since this has been a problem in already-existing organizations.The question of whether these procedures should be binding is stillin dispute.

Paragraph 19 on semi-enclosed and enclosed seas refers to therelevant provisions of UNCLOS and a delegate expressed his concernsince UNCLOS has not yet come into force. Another State answeredthat the deletion here would be impossible or would need to becarried out everywhere in the text. It was also argued that coastalStates should establish total allowable catches (TAC). A referencewas made to the alternative draft in L.11/Rev.1.

Paragraph 21 calls for the participation of intergovernmental andnon-governmental organizations, and some felt that theirparticipation should be left to the discretion of the regionalorganizations themselves. Minimum standards could be set up for theacceptance of these organizations. Another delegate was of the viewthat these provisions should be strengthened, and that the word"should" be replaced with "shall".

A delegate denounced strongly the attempts by distant water fishingStates to undermine the content of the text. He reminded thedelegates that the situation is dramatic and that it cannot beallowed to continue. NGO representatives highlighted the plight oftraditional fishers and called for their special interests to betaken into consideration. They also insisted that an ecosystemsapproach needs to be respected.

SECTION IV. FLAG STATE RESPONSIBILITIES

Some delegates called for stricter measures for flag States toensure that their vessels' activities do not undermine or harm theeffectiveness of international conservation measures. It was alsosuggested that flag States and coastal States cooperate to reducethe costs of onboard inspectors and observers. A distant waterfishing State noted that the presence of these observers would needto be provided by the regional organizations themselves when thevessels are on the high seas.

An additional sub-paragraph was suggested that would forbid vesselsgiven the right to fly a State's flag to engage in any activityharmful to international conservation and management measures. Anadditional proposal establishes special procedures to allow a shipto fly a State's flag, including the prohibition of reflaggingwhile at sea.

A delegate asked why the word "effectively" was used in referenceto conservation and management measures but not with regard to themeasures taken up by the flag State. Deletion of this word wassuggested, but the Chair remarked that this language is drawnverbatim from UNCLOS. An amendment was also proposed that wouldrequire flag States to enforce temporary unilateral measures of anurgent nature taken by the coastal State.

Numerous references were made to the FAO Agreement to PromoteCompliance with International Conservation and Management Measuresby Fishing Vessels on the High Seas, but the extent to which thetext can be integrated within the Chair's document was unclear.Some delegates were of the view that it cannot be integrated orthat references cannot be made to it too explicitly since itsadoption by major distant fleets is still uncertain. A delegateremarked that the Chair's text had been prepared before thisagreement was drafted and that the FAO effort should be considered.Small island representatives feared that the FAO agreement wouldnot be ratified by the governments that provide flags ofconvenience under which substantial distant fishing takes place.Strengthening the current text would thus be preferable.

With regards to enforcement measures, a member of the Like-MindedStates recommended that the provisions of L.11/Rev.1 on that matterbe reproduced in the Chair's document. The Convention on theConservation of Antarctic Marine Living Resources (CCAMLR) was alsomentioned as an agreement under which the enforcement measures areeffective and could be replicated at this Conference.

The debate then turned to yet another theoretical confrontationover the interpretation of UNCLOS with regards to the rights andduties of the coastal States in their EEZs and the applicability ofthis Conference to the high seas, the EEZs, or a combinationthereof. A distant water fishing State triggered the debate withits request that the reference to the high seas be deleted in thechapeau of paragraph 22, which deals with the measures to be takenby the flag States. Representatives of the coastal States wereadamant that jurisdictional matters within the EEZ are not theconcern of this Conference. Nandan reflected on the fundamentaldichotomy on references to the high seas throughout the text, butadded that in the particular matter of enforcement, there can be nodoubt whatsoever as to the extent of the coastal Statejurisdictional rights in the management of the EEZ livingresources, regardless of whether the stock straddles or migrates tothe high seas or not.

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

The Chair highlighted that everyone agrees that there should beconservation and management of high seas resources and the flagStates agree they have prerogatives to take the appropriatemeasures. But vessels that fish on the high seas are fishing atgreat distances from their nation and it is impractical to expectthat flag States could observe what is happening on the high seas.As part of the regional arrangements, assistance is needed for theflag States to ensure that their vessels are cooperating. Adelegate agreed that such assistance is needed, but the text doesnot specify whether this responsibility is shared by the coastalState 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 party, vis-…-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, and aresidual competence could be exercised only if and after the flagState does not take the appropriate measures. A distant waterfishing State re-emphasized the importance of having those measuresapplied through specific regional organizations.

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 toStateless vessels also proved troublesome.

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, which deals with the duty of Statesto adopt measures for the conservation of the living resources ofthe high seas.

Some delegates called for more flexibility on the part of the flagStates to allow boardings of vessels fishing on the high seas bypersons of the non-flag States. The sovereignty issue, however, wasone on which traditional open registries were uncompromising.

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.

A representative of a coastal State warned against attempts by someto delete everything that ensures 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, on compliance and enforcement by flag States,is an elaboration of UNCLOS, but Part B, on regional arrangementfor compliance and enforcement, should not be misunderstood asgoing further than UNCLOS. It is not an "open season" for coastalStates to deal with foreign vessels on the high seas. Theprocedures must be agreed on before any of these measures canapply.

SECTION VI. PORT STATES

This section deals with the duties and obligations of port Statesto promote effective conservation and management measures. Adelegate 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 whether theauthority is vested as a consequence of regional agreements or ifit should be specified in greater detail. A coastal State arguedthat all ports should be vested with that kind of authority,regardless of where the violation took place. One delegate saidthat requiring the regional arrangement to grant that authority isa second stage in the process that is not 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 not be able to enter the marketplace. It also presents the risk that the contravening vessel wouldcall only in the 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).

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

This section deals with non-parties to subregional or regionalagreements or arrangements that contravene the terms of establishedconservation and management regimes.

The first delegate pointed out that this section might need to bereorganized since it deals with non-members to regional agreementsor arrangements, in paragraphs 35 and 36, while in paragraphs 37and 38 it deals with the members of regional organizations andarrangements. The Chair answered that he took good note of thecomment, 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 language inthe Bering Sea Agreement, was suggested that would require theparties to regional agreements to take measures to deter activitiesthat undermine the effectiveness of relevant internationalconservation and management measures.

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 intergovernmental; is the exchange ofinformation limited to those actions undermining the effectivenessof the measures; what management measures are envisioned andwhether they include fishing vessel blacklisting and tradeboycotts.

SECTION VIII. DISPUTE SETTLEMENT

This section deals with the settlement of disputes by peacefulmeans and establishing a legal framework for the settlement ofdisputes.

The Chair said that this was clearly an important problem and thevery reason why this Conference has been convened. He also saidthat the only way to settle disputes is to do so in a peaceful andorderly way. The procedure should be quick and simple and, ifpossible, disputes should be solved before the fishing season isover. In that respect, the help of technical experts might bevaluable. It was agreed this is a very sensitive area where States'interests do not always coincide, and the key point is therefore tohave 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.

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

This section deals with the need for coastal States and Statesfishing on the high seas to achieve compatible, coherent andcoordinated measures for the conservation and management ofstraddling fish stocks and highly migratory fish stocks.

Discussion on this matter was delayed until the Working Group onPrecautionary Approach reported back to the Plenary at the end ofthe second week. The Chair then invited delegates to comment onSection IX of the text on compatibility and coherence. He said hehad tried to reconcile the jurisdictional division between highseas and EEZs and the fundamental biological unity of the stocks.

The first delegate felt that the balance was not right with regardto the burden that weighs on the distant water States or theimpacts borne by the coastal States. Some minimum standards mustapply to all States.

The representative of a coastal State answered that there arefundamental differences that are reflected in UNCLOS, and theparties to this Conference cannot start from scratch but need tobuild on the Law of the Sea. Coastal States and States fishing onthe high seas need to cooperate, but there is no need to tell thecoastal States how they should organize within their EEZs. Measuresshould be stricter on the high seas than within EEZs and themeasures in both areas will not always be equivalent. The interestsof the coastal States are most vulnerable, and the rights of allStates therefore cannot be put on the same footing.

Another delegate said that five principles should apply: thesovereign rights of coastal States within their EEZs must berespected; States have a right to fish on the high seas; thebiological unity of stocks must be recognized; regionalorganizations will play a particularly important part to achievemanagement goals; and there must be mutual respect of rights andobligations under UNCLOS. A delegate said that he had nodifficulties in principle with the concept of conservation andmanagement measures "equivalent in effect" on the high seas, but aquestion arises as to exactly what the notion signifies. Hesuggested the establishment of certain criteria that would explainthe concept in detail. Another delegate said that the question ofhow to achieve compatibility and coherence within conservation andmanagement measures on the high seas clearly differs between thestraddling fish stocks and the highly migratory fish stocks. Stillanother delegate said that if there is no uniform treatment of thebiomass, then there is no effective regime of conservation andmanagement. The biological unity of the stocks cannot be subject tonegotiations with regard to national and international conservationmeasures, but the principle of the biological unity of speciesshould not undermine the sovereignty of the coastal States in theEEZs. Any fishing on the high seas has a profound effect on themanagement of resources in the EEZ. A delegate said that theconcept of ecosystem management should be introduced here.

SECTION X. SPECIAL REQUIREMENTS OF DEVELOPING COUNTRIES

This section deals with the provision of assistance to developingcountries from States fishing on the high seas and highlights areasof global, bilateral, regional or subregional cooperation withdeveloping countries.

The Chair highlighted that this section of his draft text was theresult of last year's discussions on the topic. He said thatdeveloping coastal States need assistance if they are toparticipate in the conservation and management of marine livingresources. In this respect, data and information on high seasstocks are not sufficient and must also be made available on thestocks within the EEZ of coastal developing States. DevelopingStates also need assistance in settling disputes.

Several States commented on this section. It was highlighted thata fund should be created to assist developing States in mattersother than the peaceful settlement of disputes. A developing Stateadded that assistance should be applied to all aspects ofconservation and management. This Conference needs to be seenwithin the context of UNCED and a link must be made between thisConference and the Global Conference on the Sustainable Developmentof Small Island Developing States. Although developing States havea strong interest in the conservation and management of theseresources, it must be recognized that they will have difficultiesimplementing the general measures adopted. The measures should nottransfer an undue burden to developing States. Several amendmentswere proposed to detail in what areas assistance is needed. Adelegate said that access to markets would be more efficient thanany other form of assistance.

It was argued that developing States should receive preferentialaccess to areas adjacent to their high seas, but it was alsounderstood that this access should not lead to overfishing. Adelegate said that greater opportunities to fish would also carrya greater responsibility, both in the EEZ and on the high seas.References were made to the work of the CSD, the Global EnvironmentFacility (GEF) and the FAO. As in Agenda 21, quantitativeobjectives should be defined to take into account the cost ofapplication of various provisions.

The representative of an African State said that it was importantthat efficient enforcement and surveillance measures be set up toensure that distant water States fully implement their obligationsto developing countries. Local people, and women in particular,should be taken into consideration. Part of the objective should beto help developing States formulate national strategies forfisheries and to eliminate poverty and promote sustainabledevelopment. A delegate said that assistance could be channeledthrough successful regional arrangements and those communities thathave joined their efforts.

A developed country representative said that many useful amendmentshad been made but that they needed to be examined carefully toensure compatibility with other requirements of the text. All thedelegates agreed that this was a crucial part of the Chair'sdocument and that the special needs of developing countries must betaken into account. An NGO representative delivered a statementfrom the Women's Caucus in which she said that the text failed totake into account the crucial role women play in fisheriesworldwide. The Chair agreed that his document did not reflect thefact that fisheries are gender-neutral. A delegate said that therewas no reason to restrict subparagraph 54(e), on greaterparticipation of developing countries in fisheries for straddlingfish stocks and highly migratory fish stocks, to high seasfisheries, and stated that there should be no discriminationagainst developing States. This subparagraph would discriminate byeffectively confining developing countries' activities to their ownEEZs. Another delegate supported this statement, saying thatdeveloping countries' fishing activities should not be limited toone area. Another delegate stated that there was no intention,implicitly or explicitly, to restrict developing coastal States totheir own EEZs.

SECTION XI. REVIEW OF THE IMPLEMENTATION OF CONSERVATION AND MANAGEMENT MEASURES

The final section of the negotiating text deals with the need toreview the work of States, subregional and regional organizationsand arrangements by reporting biennially to the Secretary-General.

A delegate said that policy guidelines will have to be developedfor the GEF to mobilize financial resources to create viableregional organizations. Several delegates stated that five yearswas the right amount of time for holding a review session. Anotherdelegate said that there should be a review conference since we arestarting from the premise that the outcome of this Conference willbe a convention. One delegate said that the UN should decide ifthere is a need to convene a follow-up conference while anotherdelegate replied that the Conference should determine this. Onedelegate supported the proposal to send a copy of the Conferencereport to the CSD for its review of fisheries and ocean matters,while another disagreed saying that the CSD should be informedorally of the work of the present Conference. Another delegate feltthat the CSD may not be the key forum for consideration of thesematters.

A delegate said the FAO should play a significant and constructiverole in the review mechanism, and the review process should becentered in New York, since it is difficult for small delegationsto maintain a presence in Rome, where FAO has its headquarters. Onedelegate stated that the FAO is the body directly involved with theissues and is less politicized than the UN General Assembly. OtherStates said that the General Assembly had merit, since all Statesare represented there. One delegate stated that it would be a wasteof expertise and human resources for FAO not to take the lead forregular review of implementation. The FAO, however, should notcontrol implementation. Other delegations stated that the issue isnot only technical, but one of high politics and of legal issues.Yet, if the follow-up is only a narrow legal process, that is notenough. One delegate thought that biennial submission of reports tothe Secretary-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.

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

The Chair opened debate on this portion of the text by introducinghis draft of Annex 1 on data requirements as well as an alternativetext submitted by the Japanese. Delegates noted that one of thetools for better management of the resources is the requirement forscientific data. They stated that unless this becomes available,the Conference cannot achieve the goals of its mandate.

Japan said its text was not designed to water down the Chair'snegotiating text. Fishing of stocks must carry the obligation toexchange scientific information, catch data and fishing effortstatistics through the appropriate regional body, as provided forin Articles 61(5) and 119(2) of UNCLOS. It is necessary to avoidmis-reporting of catch data, but the cooperation of fishers must beensured. Decisions on data collection should be left to regionalarrangements or organizations. Japan also has problems with therelease of data and information that it considers to becommercially confidential and which therefore needs to beprotected. Another delegate responded that the unavailability ofcommercially confidential information creates problems for Stateswhen measuring biomass levels. Delegates did not have the sameviews on what should remain confidential and what is likely toundermine the conservation measures and needs to be disclosed.

A Like-Minded core group delegate said that formal reporting ofcatch data rests with the flag State, but while fishing in thecoastal State's EEZ, flag State vessels are also required to reportto that coastal State. Where no regional organization exists, theflag State should report to one of the coastal States in theregion. The Japanese proposal has merit in being shorter, but itssubstantive requirements are less comprehensive than those of theChair's text. A representative speaking on behalf of States fromthe South Pacific said she felt that the Japanese text had somemerit in the area of data dissemination through regionalorganizations. All fisheries data needs to be assembled andanalyzed in support of Section IX on compatibility and coherence.

The first distant water fishing State delegate to speak said thatthe data requirements should be general in all cases, and that thisshould be reflected in the title of Annex 1. Paragraph 1, on datacollection, should emphasize the mandatory elements of datacollection, because, without such data, optimum management of fishstocks is impossible. He preferred substitution of the phrase"within the area of the straddling fish stocks and highly migratoryfish stocks" for "high seas" in the Chair's text. Another distantwater fishing State delegate supported the Japanese proposal asbeing "appropriate and consistent with paragraph 2 of GeneralAssembly resolution 47/192".

One delegate said that the La Jolla ad hoc Consultation onthe Role of Regional Fishery Agencies in Relation to High SeasFishery Statistics highlighted the gaps in data collection.Technical details vary from region to region, but one problem ofhigh seas statistics is caused by the confidentiality of catchdata, especially for tuna. Coastal States have a legal interest toobtain information quickly from fisheries outside their EEZs forthe purpose of establishing management measures. Supporting theintervention of a Like-Minded core group member, one delegateemphasized the need to monitor associated and dependent species aswell as target stocks. The requirements should extend to thoseStates that are not party to the regional arrangements.

Taking into account the volume of discards is an important datacomponent and a delegate pointed out that one fleet's discardspecies may well be another fleet's target species. The datacollected should be used to make projections so that it is possibleto know what stocks will exist depending on what effort is applied.With regard to the examination of log books, a delegate said thatthere is so much information that it is not realistic to expect tocheck all the log books of all vessels. The delegate of adeveloping State said that observers may board vessels as long asthey have been invited by the regional organization, but it isimportant to avoid any idea of coercion. The role of theseobservers should be limited to the collection of data, but theyshould not be involved in enforcement.

There was disagreement again on the scope of application of themeasures on the high seas and within EEZs, as a representativeargued that the coastal State has more interest in seeing that theright information is circulated than the distant water fishingStates do. The same delegate asked that references to the high seasbe retained. Several delegates felt that the Chair's text and theJapanese proposal were not necessarily mutually exclusive.

An intervention by the representative of the IntergovernmentalOceanographic Commission (IOC) recommended the inclusion of anadditional sub-paragraph that will require future fisheries data toincreasingly recognize oceanographic contaminants, habitat andecological changes as environmental factors.

Both the Chair's text and the Japanese alternative have positiveand important solutions, and perhaps the best way to meetrequirements for the whole exercise is to merge the two texts.Others expressed the opinion that it might be difficult to mergethe two texts, but if discussion was held in a smaller group, itwould be welcome and appreciated. One delegate said that scientificobservers should not be the instruments for verifying what themaster of the ship does, for the master alone is responsible forthe information provided. Scientific observers only collect data soas to assess impact on the stocks.

Collection of data on associated species from fisheries andscientific research should be emphasized in the Annex. Severaldelegates favored strengthening paragraph 2 of the Chair's text ontraining and assistance to developing countries, as well asstrengthening the infrastructure of developing countries to allowaccess to data bases. Another delegate stated that paragraphs 4through 11 in the Chair's text set out the minimum requirements fornecessary data on the conservation and management of fish stocks.A non-governmental organization stated that confidentiality shouldnot be used as an excuse to withhold data that is essential to theconservation and management of fish resources. The exchange of datashould cover straddling fish stocks and highly migratory fishstocks throughout their ranges and she voiced concern about theconfidentiality clause on non-aggregated data. It is important toinclude references to the importance of artisanal fishing in theprovision of protein for people and of the role of women infisheries. Discard statistics for target and non-target speciesshould be specifically required. Data on indirect mortality oftarget and non-target species should also be collected. Another NGOemphasized the need for transparency of data and references tonutritional value of lost fish in discards as a basic fishery datarequirement.

ANNEX 2. ARBITRATION

The provisions of this Annex were covered in the course of thediscussion of Section VIII on dispute settlement.

DISCUSSION ON THE FINAL OUTCOME OF THIS CONFERENCE

In the course of the Plenary sessions, the Chair asked thedelegates to comment on the kind of text they would like to seeadopted as the outcome of this Conference.

A first series of speakers took the floor to tell of theirdetermination to see a legally-binding document become the outcomeof this Conference. They said that if the text was finally agreedto by all, there should be no reason why the agreed measures wouldnot be binding. While it is true that regional organizations willplay a key role in implementation, there are a number of generalprinciples that will apply in all instances. These should becodified in a legally-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 textinto a convention would be merely 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 newtreaty-law approach could solve this problem, and it might best beachieved through an Intergovernmental Negotiating Committee (INC)approach 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. This document was tabled by Ecuador on the last day ofthe session.

The representative of a coastal State said that measures need to bebinding. If measures are not accepted at the global level, theywill not be any more acceptable at the regional level. A delegatesaid that those who oppose the adoption of a legally-bindingdocument are those who want the over-fishing to carry on as it hasup to now.

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.

One delegate characterized a convention 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 developing State suggestedthat the measures be adopted by consensus and they would then beimplemented and become the custom before ratification and entryinto force. A delegate also remarked that most of the Statesfavoring a legally-binding document are also those who want tolimit the scope of 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.

CLOSING PLENARY SESSION THURSDAY MARCH 31, 1994

The Chair began the morning Plenary with general remarks on therevisions of the negotiating text. He explained that importantprogress had been achieved on the issues of compatibility andcoherence and on national jurisdiction on the high seas. There iscommon ground now but further work is needed to achieve completeagreement. The Chair took delegates section-by-section through thenegotiating text, which now reflects input from the Working Groups.Nandan suggested that States should not succumb to short-terminterests.

The Chair then opened the floor for closing statements. The EUstated that only a responsible attitude on the part of all Statescould provide for a successful conclusion to the Conference beforethe 49th General Assembly. Japan suggested that furtherconsultations begin immediately in preparation for the Augustmeeting. New Zealand said that NGO participation is extremelyimportant for the sake of openness and of reaching communities noteasily reached by governments. NGOs should have the opportunity toparticipate in meetings in accordance with the rules of procedure,given the exigencies of space, which are often limiting. The Chairstated that the procedure in respect to NGOs has been known fromthe beginning. They are included as observers by the rules ofprocedure. The problem arises when you go to negotiations andsmaller group meetings. The question is how far to go and how mucheveryone interested in the negotiations can be involved. The Chairacknowledged the important contribution of NGOs to the work hereand elsewhere; however, in certain stages of negotiations, even thenumber of delegations in smaller rooms are limited. The Chairstated that he has tried to accommodate NGOs in informal meetingsby designating two NGOs to be present unless negotiations are ofsuch a character that other delegations are not permitted.

Ecuador introduced a new document, "Presentation of the WorkingPaper for a Draft Convention on the Conservation and Management ofStraddling Fish Stocks and Highly Migratory Fish Stocks on the HighSeas" (A/CONF.164/L.44), resulting from the 10th Fishing MinistersMeeting in Lima, 8-10 March, 1994. He said that it is necessary topreserve the environment and mentioned Chapter 17 of Agenda 21 onthe protection of oceans and seas and the rational use of livingresources. The intention of this Conference is to adopt precisebinding provisions to deal with problems discussed here. He alsostated that there was massive support for a binding legalinstrument to establish clear-cut standards for the regulation offishing on the high seas. The text of L.44 reflects thenegotiations of the first session of this Conference, FAOdocumentation, UNCLOS, and the definitions found inA/CONF.164/L.32, submitted by the Russian Federation. Interestingproposals from this session will be added.

Peru said that the purpose of the draft text is not to replace theChair's negotiating text, but to provide a valuable auxiliarydocument. There should be a view to ensuring the rational use ofresources on the high seas, contributing to the well-being of allpeople. The representative of OLDEPESCA said that the generalfeeling of the region and the majority of States was to negotiatea binding instrument for the effective conservation and managementof high seas resources for the benefit of all. A number of othercountries outside of the region had been present, so this drafttext should not come as a surprise. Quoting World Bank figures, andusing earlier interventions of the Philippines, Canada and Peru assupport, he said there was high social content in the mandateproducing L.44. For 1 billion people, the main source of protein isfish, and 100 million people rely on fishing for their livelihood.He stated that the ministers at Lima proclaimed a 5-year period forsocial development of fishers to the year 2000.

The Russian Federation said that it was not totally satisfied, asa tremendous amount of work was still needed to produce alegally-binding document. He said that he was uncertain if workcould be finished by the conclusion of the next session. Otherdelegations, such as Samoa, said that this was a productive sessionand urged States to build on the early signs of consensus. He wasconcerned, however, by some delegations that avoid addressingfundamental and urgent issues, such as compliance and enforcement.Canada said that responsible coastal States cannot acceptirresponsible fishing practices on the high seas that undermine EEZmanagement measures taken by the coastal States. He said that wemust have a set of management measures inside and outside the EEZsfor the same stocks, a global enforcement regime where fishingStates' vessels can be arrested, and a global system of bindingdispute settlement, all to be combined in a global convention.

Norway stated that there is a need to ban unregulated fishing ofthe high seas, and that the coastal States need enhanced powers ofenforcement. Argentina associated himself with the remarks ofEcuador and also said that UNCLOS was too detailed in thepreservation of resources in the EEZ. The US said that more workneeds to be done, particularly on the Precautionary Approach andAnnex 2 on reference points. He also said that those favoring abinding agreement are States that insist we deal with the highseas, developing binding rules and concepts only for those fishingon the high seas and negotiating a treaty that will only apply toothers. Trinidad & Tobago said that there are certain centralpillars, such as compatibility and peaceful settlement of disputes,without which significant practical benefits cannot be achieved.Australia said that it was imperative for all delegations to lookat intersessional consultations to develop measures and principlesfor a strong framework to help deal with problems of straddlingfish stocks and highly migratory fish stocks. Chile said that anyregime established for the high seas must be fully compatible forthe fishing regimes interested in the convention and not bedetrimental to any of its aspects.

An NGO representative from the Fishermen's Community in Chile urgeddelegates not to neglect the needs of societies. There is a need tostrengthen the Conference mandate by establishing equity, globalpeace and sustainable development. He asked that the real interestsof fishers be recognized and urged governments to negotiateconstructively to produce an instrument advancing the goals ofconservation and management of straddling and highly migratory fishstocks. A representative of Greenpeace spoke of NGO frustrations atbeing excluded from participation in the informal-informalnegotiations and noted that NGO contributions to the Conferencereceived little reflection in the revised negotiating text. Heasked for meaningful NGO participation during the intersessionalperiod and at the August session of the Conference, and read anopen letter to the Chair and delegates on behalf of the NGOconference participants. The letter expressed in strong terms theirfrustrations at being excluded from negotiating sessions whichcontradicts the letter and spirit of Agenda 21 and the follow-up ofUNCED. A representative from the National Audubon Society, speakingon behalf of a caucus of NGOs, urged States to dispense with theirnarrow self-interests and enter into a mutually beneficial, bindingand enforceable agreement to regulate straddling and highlymigratory fish stocks.

WORKING GROUP REPORTS

The FAO was mandated by the first substantive session to produce adocument on the Precautionary Approach that could serve as adiscussion document for delegates. Previously, the distant waterfishing States had argued against precautionary management forfisheries because the precautionary principle management practicesderived from issues of marine pollution and these could not bedirectly translated into fisheries management tools. They fearedthat without technical qualification, the precautionary approachcould be interpreted as encouraging "moratoria". The FAO document(A/CONF.164/INF/8) outlined the confusion between PrecautionaryApproach and Precautionary Principles and established sevenprinciple points: (1) the precautionary approach gives the benefitof doubt to the resource; (2) precaution is not new; (3)precautionary approach requires preventive action; (4) the need toagree to minimum standard, reference points and critical thresholdwhile recognizing the potentially non-precautionary nature of themaximum sustainable yield (MSY); (5) quantitative criteria andstandards required for precautionary ecosystem management; (6)fisheries must have an impact on the resources and the ecosystem ifthey are to play a role as a human life-support system; and (7) theprecautionary approach requires substantial support from fisheryresearch.

After delegates spoke to the FAO document, and to its presentationby Dr. Serge Garcia, the Chair convened the Working Group, andappointed Andres Couve (Chile) as Chair.

At the outset, one delegate said the Precautionary Approach was adifficult issue to address and represented a mixed bag of options,underscoring that the Working Group would not specifically be ascientific meeting. Delegates debated the value of considering thePrecautionary Approach without specific reference to the FAO paperon Reference Points. Delegates recognized that MSY, defined inUNCLOS as the "holy cow" of fisheries management, now lacks status.Delegates reacted to suggestions of L.22, consisting of comments onprecautionary management of fisheries, submitted by Sweden andL.11/Rev.1 submitted by the Like-Minded core group but they feltmore comfortable taking the Chair's paragraph 4 of A/CONF.164/13 asa basis for negotiation. The circulation of alternative languagefrom the US heightened debate, which focused on thresholds andmoratoria; both unacceptable to the DWFS delegates. Ecosystemapproach to management while desirable, may not be either practicalor attainable. In consideration of the MSY concept, the FAO saidthat it might become a minimum standard for the re-building ofdepleted stocks in the future, but that other environmental factorssuch as pollution need to be taken into account. An NGO stated thatthe Precautionary Approach is implicitly required in UNCLOSpractices.

A revised text on the precautionary approach was available forconsideration in the second meeting of the working group. Intabling the revised text, Chair Couve noted that the text wouldeventually require a set of technical guidelines or Annex andsuggested that Annex 2 of A/CONF.164/L.11/Rev.1 could bebeneficially adopted. Many delegates expressed dissatisfaction thatthe revised text did not cater for the many divergent positions. Inthis second session, the interdependence between BiologicalReference Points (BRP) and the Precautionary Approach washighlighted. The many diverging views caused Chair Couve to suggestthe establishment of a working group within the Working Group ifthat might produce a consensus text. Moratoria remained a featurein the paragraph 5 Rev.1 and of concern to DWFS, as well as theabsence of qualification of the term ecosystem. Precautionarythresholds remained of similar concern and while one DWFS did notoppose the concept of thresholds he preferred a discretionaryapproach, with threshold limits being set on a case-by-case,species-by-species basis. The Chair, recognizing the disparateviews, said the revised text could provide the basis forstimulating a further revised text and urged delegates to respondindividually or collectively with additional submissions on Fridaymorning of the first week.

An informal working group consisting of seven States, withadditional written representation from three DWFSs, drafted aconsensus text, which was passed to the Chair. The Chair, onresuming the third session of the Working Group, acknowledged thevaluable contributions submitted and said the Bureau had tried toavoid using conflicting wording in Rev.2, which he regarded asbeing technically correct and balanced. Delegates remaineddisappointed with the balance of Rev.2, and one DWFS delegatevoiced concern that the informal working group consensus text wasnot adequately reflected. The FAO said that if Rev.2 was readcarefully delegates would see that many of the new concepts hadbeen accommodated, and the Chapeau had been accepted in itsentirety. One delegate suggested the revised text should go to thePlenary as a "proposal" from the Working Group. Delegates confirmedthis idea, on the basis that some further modifications be madeprior to its passage to Plenary.

PRECAUTIONARY APPROACH TO FISHERIES MANAGEMENT

The FAO was mandated by the first substantive session to produce adocument on the Precautionary Approach that could serve as adiscussion document for delegates. Previously, the distant waterfishing States had argued against precautionary management forfisheries because the precautionary principle management practicesderived from issues of marine pollution and these could not bedirectly translated into fisheries management tools. They fearedthat without technical qualification, the precautionary approachcould be interpreted as encouraging "moratoria". The FAO document(A/CONF.164/INF/8) outlined the confusion between PrecautionaryApproach and Precautionary Principles and established sevenprinciple points: (1) the precautionary approach gives the benefitof doubt to the resource; (2) precaution is not new; (3)precautionary approach requires preventive action; (4) the need toagree to minimum standard, reference points and critical thresholdwhile recognizing the potentially non-precautionary nature of themaximum sustainable yield (MSY); (5) quantitative criteria andstandards required for precautionary ecosystem management; (6)fisheries must have an impact on the resources and the ecosystem ifthey are to play a role as a human life-support system; and (7) theprecautionary approach requires substantial support from fisheryresearch.

After delegates spoke to the FAO document, and to its presentationby Dr. Serge Garcia, the Chair convened the Working Group, andappointed Andres Couve (Chile) as Chair.

At the outset, one delegate said the Precautionary Approach was adifficult issue to address and represented a mixed bag of options,underscoring that the Working Group would not specifically be ascientific meeting. Delegates debated the value of considering thePrecautionary Approach without specific reference to the FAO paperon Reference Points. Delegates recognized that MSY, defined inUNCLOS as the "holy cow" of fisheries management, now lacks status.Delegates reacted to suggestions of L.22, consisting of comments onprecautionary management of fisheries, submitted by Sweden andL.11/Rev.1 submitted by the Like-Minded core group but they feltmore comfortable taking the Chair's paragraph 4 of A/CONF.164/13 asa basis for negotiation. The circulation of alternative languagefrom the US heightened debate, which focused on thresholds andmoratoria; both unacceptable to the DWFS delegates. Ecosystemapproach to management while desirable, may not be either practicalor attainable. In consideration of the MSY concept, the FAO saidthat it might become a minimum standard for the re-building ofdepleted stocks in the future, but that other environmental factorssuch as pollution need to be taken into account. An NGO stated thatthe Precautionary Approach is implicitly required in UNCLOSpractices.

A revised text on the precautionary approach was available forconsideration in the second meeting of the working group. Intabling the revised text, Chair Couve noted that the text wouldeventually require a set of technical guidelines or Annex andsuggested that Annex 2 of A/CONF.164/L.11/Rev.1 could bebeneficially adopted. Many delegates expressed dissatisfaction thatthe revised text did not cater for the many divergent positions. Inthis second session, the interdependence between BiologicalReference Points (BRP) and the Precautionary Approach washighlighted. The many diverging views caused Chair Couve to suggestthe establishment of a working group within the Working Group ifthat might produce a consensus text. Moratoria remained a featurein the paragraph 5 Rev.1 and of concern to DWFS, as well as theabsence of qualification of the term ecosystem. Precautionarythresholds remained of similar concern and while one DWFS did notoppose the concept of thresholds he preferred a discretionaryapproach, with threshold limits being set on a case-by-case,species-by-species basis. The Chair, recognizing the disparateviews, said the revised text could provide the basis forstimulating a further revised text and urged delegates to respondindividually or collectively with additional submissions on Fridaymorning of the first week.

An informal working group consisting of seven States, withadditional written representation from three DWFSs, drafted aconsensus text, which was passed to the Chair. The Chair, onresuming the third session of the Working Group, acknowledged thevaluable contributions submitted and said the Bureau had tried toavoid using conflicting wording in Rev.2, which he regarded asbeing technically correct and balanced. Delegates remaineddisappointed with the balance of Rev.2, and one DWFS delegatevoiced concern that the informal working group consensus text wasnot adequately reflected. The FAO said that if Rev.2 was readcarefully delegates would see that many of the new concepts hadbeen accommodated, and the Chapeau had been accepted in itsentirety. One delegate suggested the revised text should go to thePlenary as a "proposal" from the Working Group. Delegates confirmedthis idea, on the basis that some further modifications be madeprior to its passage to Plenary.

REFERENCE POINTS FOR FISHERIES MANAGEMENT

The second FAO information paper (A/CONF.164/INF/9) on ReferencePoints was first considered in Plenary on Monday morning 21 March.The FAO, while introducing the paper, said the principle of MSY wasadopted in UNCLOS as a target for development or rebuilding ofresources that would be efficient for humans and safe for theresource. But with an imperfect knowledge of fish population anddynamics and an incomplete understanding of socio-economicdynamics, future use of MSY as a management target is neitherefficient nor safe. After initial Plenary consideration of thedocument, the Working Group was convened, initially underConference Chair Nandan, who reminded delegates of the twomanagement concepts contained in UNCLOS. MSY had to be dealt withas defined by UNCLOS and not abstractly in developing a revision ofthe negotiating text. Delegates supported his nomination of Dr.Andy Rosenberg (US) as Working Group Chair. The delegates whoparticipated in the working group consisted of technicians andscientists.

Initial discussion focused on the procedural framework fordeveloping a revised text and endorsing the authoritative text ofthe FAO document. The Chair's draft outline plan of action, whichincluded the five main points for consideration by the WorkingGroup, was circulated to delegates. This action plan provided thebasis of work throughout the Working Group sessions consisting of:(1) an introduction to illustrate the context of the issue and itsrelationship with both BRPs and the Precautionary Approach; (2) theimportance of setting management objectives and theirinter-relationships; (3) distinguishing between management targetsand conservation reference points (or limit thresholds); (4) theconcept of uncertainty and its estimation, and; (5) concept linkageand practical implementation of management.

The outdatedness of the MSY concept was noted and one delegate saidit should, in future, only be treated as a philosophical referencepoint rather than a mathematical one.

Underlining the need to define objectives to prevent unsustainablefishing, a delegate suggested that the International Council forthe Exploration of the Seas (ICES) concept of "safe biologicalunits" could be developed. The FAO said that some reference pointsare strategic to the management of fisheries while others arepurely tactical. The need to recognize the importance of non-targetspecies and the ecosystem approach was emphasized by anotherdelegate. Noting the comments made, Rosenberg invited writtensubmissions that would help develop a text.

The written submissions from six delegations and two NGOs wereincorporated into a six-page draft text made available to delegateson Tuesday, 22 March. Emphasizing the need to strive for technicalconsensus, the draft text was considered by the Working Group on asection-by-section basis. A DWFS delegate expressed a desire to seethe text referenced back to the FAO document, but the guidelinesneeded to be flexible for practical fisheries management purposes.The enshrining of references, such as had happened to MSY, was notconsidered desirable. Reference points require updating in thelight of improved data and technological advancement.

The "biological unit" concept was supported by several delegates,but the FAO preferred for such recognition to be in general, theterms to be agreed by scientists and technicians. One delegateemphasized the need to amplify all forms of fish mortality,especially toxin-induced. This was supported by the Alaska MarineConservation Council and the IOC and was further elaborated in abriefing paper submitted by the Swedish delegation.

DWFS and coastal State delegates argued for "State" neutralitywithin the text. The Chair was concerned throughout to avoidinclusion of the sensitive issues of compatibility and coherence inthe text. The FAO advised of the need to identify global models ofmanagement and urged the Working Group to consider issuesanalytically for the development of separate reference points forbreeding and spawning areas.

Alternative language for "non-target" species was suggested in theform of incidental catch, bycatch or multispecies terminology,although establishing reference points for non-target species wouldbe difficult to manage in practice.

Majority consensus was achieved throughout the final session, withthe exception of drafting problems on Section I paragraph 4. Thisparagraph promotes the biological unity of stocks throughout theirentire range of distribution. Chile could not accept this provisionand endeavored to seek enhanced coastal State rights overstraddling stocks, rather than accepting the concept of biologicalunity. It was not possible to reach consensus on this paragraph,with two other Like-Minded core group members speaking up in favor.The revised text was forwarded to Nandan with a covering caveat.The Like-Minded preferred text became a contentious issue inPlenary.

A/CONF.164/13/Rev.1 - REVISED NEGOTIATING TEXT

The "Revised Negotiating Text" was distributed by the Chair on thefinal morning of the Conference. Structurally it departs markedlyfrom the layout of the original draft, but represents the Chair'sattempt to bring the contentious issues to the front of his textand consolidate earlier sections under core headings. The revisednegotiating text, A/CONF.164/13/Rev.1, contains a preamble, tensections and three annexes.

The Preamble refers to UNCED and UNCLOS as the two processes thatguide the work of the Conference and highlights the need tostrengthen fisheries conservation and management, in the context ofsustainable development, while promoting the availability of fishresources for present and future generations. It explicitly refersto the FAO Agreement to Promote Compliance with InternationalConservation and Management Measures by Fishing Vessels on the HighSeas, and for all members of the international community tostrengthen their cooperation in conservation and management of allliving marine resources, by adopting measures that apply to thestocks overall.

Section I, on "Objective" is a new section promoting the concept ofbiological unity of stocks, and underscores the need for coastalState and DWFS cooperation to achieve compatible measures toeffectively conserve and manage straddling fish stocks and highlymigratory fish stocks.

Section II on "Application" identifies the provisions of thedocument that apply to straddling fish stocks and highly migratoryfish stocks, but acknowledges that the coastal State hasresponsibility for the conservation and management of such stocksin areas under national jurisdiction.

Section III brings together many of the contentious issues under"General Principles". The section is conveniently divided intothree subsections on: (A) the nature of conservation and managementmeasures; (B) precautionary approaches to fisheries management,and; (C) compatibility (previously labeled as Section IX underA/CONF.164/13). Throughout, there is specific reference to the word"shall" rather than "should". Subsection (B) on precautionaryapproaches differs from its predecessor by introducing thepreservation of the marine environment, but falls short ofunderscoring the ecosystem approach to fisheries management. Itsatisfies distant water fishing States' concerns by not includingmoratoria management options and emphasizes the need to implementrecovery plans "immediately" to restore stocks if managementreference points are exceeded. The supporting Annex 2 on the"Suggested Guidelines for applying Precautionary Reference Pointsin Managing Straddling Fish Stocks and Highly Migratory FishStocks" are contained in five watered-down paragraphs from theelaborately crafted technical guidelines of the Working Group onReference Points. The concept of "uncertainty" is loosely referredto without definition and the distinction between "target referencepoints" and "limit reference points" is blurred.

Section IV deals with "International Cooperation" and is dividedinto two subsections: (A) mechanisms for international cooperation,and; (B) regional fisheries management organizations orarrangements. This section brings together old Sections II and III.In sub-section (A) States are to pursue cooperation throughregional, subregional fisheries organizations or arrangements bytaking into account the specific characteristics of the subregionor region, while highlighting such cooperation shall be to agree onconservation and management measures as required by UNCLOS. Iturges States to enter into consultations in good faith and withoutdelay and notes that subregional and regional fisheries managementorganizations and arrangements shall be open to participation on a"non-discriminatory" basis. Subsection (B) requires States to takeinto account the biological characteristics of the stocks concernedand the nature of the fisheries involved. States shall comply withArticle 123 of UNCLOS in establishing a regional fisheriesmanagement arrangement or organization in respect of an enclosed orsemi-enclosed sea. With respect to States fishing on the high seas,they shall agree on and comply with conservation and managementmeasures to ensure the sustainability of stock(s) by agreeing onparticipatory rights, adopting and apply international minimumstandards for the responsible conduct of fishing and establish ascientific body. New members of, or new parties to, a subregionalor regional fisheries management organization or arrangement shallbe entitled to accrue benefits in exchange for the obligations thatthey undertake. Substantial emphasis is directed to the need foreffective data collection and processing, while developing andsharing new resource assessment methodologies, management modelsand other analytical techniques.

Section V on "Compliance with and Enforcement of High SeasFisheries Conservation and Management Measures" consists of threesubsections: (A) duties of the flag State; (B) compliance andenforcement by the flag State; and (C) regional agreement andarrangement for compliance and enforcement. This reworked sectionbrings together old Sections IV and V of A/CONF.164/13*. Subsection(A) requires flag States vessels fishing on the high seas to complywith applicable conservation and management measures and sets outa package of management measures to be adhered to by the flagState. Subsection (B) sets out a package of compliance measuresthat flag States shall enforce on their vessels. Subsection (C)calls flag States, in addition to fulfilling their duties inrespect of vessels entitled to fly its flag, to cooperate directlywith coastal States and through regional or subregionalorganizations or arrangements in the development of surveillanceand law enforcement measures. These measures shall includeagreement to board, inspect and arrest flag State fishing vessels.

Section VI on "Port States" highlights the duties of port States,in accordance with international law, not to discriminate againstthe vessels of any State. It encourages States to enact legislationempowering relevant national authorities to prohibit landings ofcatch that undermine the effectiveness of agreed conservation andmanagement measures.

Section VII deals with the "Non-Participants in Subregional orRegional Organizations or Arrangements" and emphasizes that wherea State does not participate in the work of a regional orsubregional organization or arrangement the State is not dischargedfrom the obligation to cooperate in the conservation and managementof the regulated stock(s). Furthermore, a State that does notcooperate in such regional or subregional organizations orarrangements shall not authorize its flag vessels to operate infisheries subject to the conservation and management measuresestablished by the appropriate organization or arrangement.

Section VIII on "Dispute Settlement" has an attached Annex onarbitration procedures and encourages States to settle theirdisputes by peaceful means. The supporting Annex increases tribunalmembership from three to five members, with the party institutingthe proceedings "appointing" one member rather than adopting onemember. Responses by the other party to the dispute is increased to20 days and the time frame for notification for hearings isincreased from 30 to 40 days. The Annex stipulates that thePresident would cast a deciding vote where there is a tie. Anintroduced caveat in the finality of award gives the parties to thedispute a procedural let-out clause.

Section IX deals with the "Special Requirements of DevelopingStates", but insufficient time in the informal-informalnegotiations prevented closed-door discussion on this section.Calls in the Plenary for enhanced recognition of the specialrequirements of developing States are emphasized in this section.These, in particular, deal with the vulnerability of the developingStates dependent upon living resources for nutritional requirementsand the avoidance of adverse impact on subsistence and small scalecommercial fisheries, but underscore the specific areas ofassistance that developing coastal States require in order tofulfill their obligations in respect of the conservation andmanagement of straddling fish stocks and highly migratory fishstocks. Developed States shall cooperate to enhance the ability ofdeveloping coastal States to conserve, manage and develop their ownnational fisheries for straddling and highly migratory fish stocksboth in the exclusive economic zone and on the high seas.

Section X on "Review of the Implementation of Conservation andManagement Measures" requires States, regional, subregionalorganizations and arrangements to report biennially to theSecretary-General who, in turn, shall report biennially to theGeneral Assembly. The Secretary-General shall also report asrequired to the CSD. A five-year review, following adoption of thenegotiating text, shall be undertaken by a conference.

A BRIEF ANALYSIS OF THE CONFERENCE

After six weeks of intense negotiations at this and the previoussession of the Conference, some delegates and many NGOs arebeginning to question the seriousness of the States involved toresolve the issue of the sustainable management of high seasfisheries. At the end of the first substantive session there was ageneral feeling that the Conference had fulfilled two of the threeparts of the mandate given to it by the General Assembly: (1) toidentify and assess existing problems related to the conservationand management of highly migratory and straddling fish stocks; and(2) to consider means of improving cooperation among States withregard to fisheries management. It was therefore expected thatefforts at this session of the Conference would be made towardsachieving the third part of the mandate; to formulate appropriaterecommendations. Instead it appeared that many delegates wereworking to ensure that the interests of their own States would notbe compromised at the expense of formulating consensusrecommendations. This has resulted in two diametrically opposedpositions; coastal States want to have special rights on the highseas adjacent to their EEZs and that the provisions of thisConference be limited to the high seas with a legally bindingdocument as the outcome of the process; while the DWFS would rathersee a series of loose recommendations that apply within and beyondthe EEZs and equal rights for all on the high seas.

Frequently, States have used legalistic arguments to defend theirown interests. No where was this more obvious than in thecontradictory legal interpretations that were made of UNCLOS. SinceUNCLOS is the result of negotiations that produced a "package deal"that included compromise on the part of all who negotiated it, theLaw of the Sea Convention is, by definition, subject tointerpretation. Unfortunately this has led to attempts on the partof the delegates to select only those provisions that serve theirinterests best, and they have used UNCLOS as both a sword and ashield in countering other States' arguments. One delegatechallenged credibility when he argued that the fact that UNCLOS hasnot yet entered into force is symptomatic of the lack of consensuson some EEZ provisions. He overlooked the fact that the Conventionhas not come into force because of the provisions of Part XI ondeep sea bed mining. Another representative of a DWFS wasinterrupted by the Chair when he renewed his tactic of smotheringthe delegates with quotes from legal scholars on the absence ofcoastal State special rights on the high seas.

One delegate pointed out that those States that rejected thespecial rights of the coastal States were DWFS whose coastal waterswere not directly at threat. What the same delegate failed tomention, however, is that the coastal States themselves argued forthe special rights of the coastal States on the high seas adjacentto their EEZs, while at the same time opposing strongly any ideathat the result of this Conference would apply anywhere but on thehigh seas. "Tho' much is taken, much abides", and, in our analysisof the first substantive session, this double bind in which thecoastal States have put themselves had already become apparent.

A number of issues were passed on from the previous session andstill remain to be resolved. The question of compatibility andcoherence is one that has pitched coastal States and DWFS againstone another most directly. The aim of compatibility and coherenceprovisions is to ensure that the measures adopted for the high seasare compatible with those the coastal States take within their ownEEZs. A successful negotiation at this Conference rests onacceptance of the concept of biological unity, under which thestock(s) are to be managed throughout their entire range. CoastalStates recognize the concept but refuse to support it for fear ofundermining their own sovereign rights in managing resources withintheir EEZs. DWFSs argue that the biological unity of stocks is oneprinciple on which they will not compromise. There was littleprogress on this point at the second substantive session of theConference.

This lack of progress is also striking when one looks at theworking documents. Last July, the Like-Minded core group Statesindicated their flexibility by negotiating along the lines of theChair's text while keeping their own L.11/Rev.1 as an alternativenegotiating text. In this second session, the negotiations focusedonce again on Nandan's text, but several Like-Minded coastal Stateswaited until the last day of this Session to circulate yet anotherdraft-convention. This may be interpreted as political posturingbut, along with Canada's implicit threat of unilateral measures toextend its national jurisdiction over high seas resources, itserves as a reminder to the DWFSs that coastal States have thecapacity to take matters into their own hands if they are notsatisfied that drastic measures will be taken to address thecurrent crisis. It remains unclear if this sends a clear message tothe DWFSs, who maintain a rather strong position of rejecting theneed for a legally-binding document. They have been equally clearin stating that they will ignore an outcome that contradicts theirown interests.

It would seem that now, two years after UNCED, the spirit ofcompromise and consensus that marked the final days of the RioConference has all but disappeared. Although the "Fish Conference"was convened as a result of Chapter 17 of Agenda 21 on thesustainable use and conservation of marine living resources,attempts to link this process to the future work on the Commissionon Sustainable Development (CSD) were opposed by "veterans" of theUNCLOS negotiations. These negotiators argued that this Conferencehas little to do with sustainable development and much more withthe Law of the Sea. In this respect, there was a clear feeling thatsome of the delegates longed for the "old boys network" that hadprevailed during the 10 years of UNCLOS negotiations. A delegate,in what appeared to many as particularly condescending, remarkedthat another delegate's interpretation of a provision was clearlyerroneous because that same delegate had not participated in theUNCLOS negotiations. A third delegate stepped in to remark that itwas a good thing this forum was not restricted to veterans of thesenegotiations since, if that were so, there would not be manynegotiators around.

Some delegates have expressed their wish to see the mandate of thisConference extended for another year, either to provide time forthe combatants to finally reach agreement on the most crucialsubstantive issues, or to push for the adoption of a Convention. Astime goes by, however, rifts have appeared among Like-Minded Statesand some of the extremists pushing most for a new regime nowthreaten to take unilateral action. In this respect, more is to befeared from no action at all. The Chair referred to thispossibility as a return to the "law of the jungle". Another reasonwhy extending the mandate would not necessarily be appropriate isthat in the coming year UNCLOS will come into force and the UNOffice of Legal Affairs and the Law of the Sea will be too busyimplementing all its implications (e.g. the Law of the SeaTribunal, the Sea Bed Authority, the settlement of boundariesdisputes, etc.) to deal with these issues separately.

We are now facing the all too familiar point in internationalnegotiations where all the parties acknowledge that a problemcommon to all ought to be addressed but where none is ready to paythe price of solving it. When the outcome of the Conference wasdiscussed at this session, two of the most outspoken of DWFSsargued that the costs of a new legally binding instrument would betoo high to implement. Not surprisingly, these were also some ofthe flag States who, in the short term at least, have most to gainfrom the status quo.

It would appear that things may get worse before they get anybetter. Governments should look at these negotiations in terms ofa new regime that might be established for the conservation andmanagement of living resources on the high seas. But, in theabsence of any hegemonic power, the States concerned still find ittoo expensive to set up a new set of goals, rights, duties, andprocedures that would allow for sustainable resource exploitation.Yet the continued collapse of fish stocks will eventually forceStates to pay a substantial price, in the form of restrictive andcostly domestic economic policies, or in terms of limitations oftheir sovereign rights in their EEZs for the coastal States and onthe high seas for the distant water fishing states and the coastalStates. Until then, the States are caught in a series of prisoners'dilemmas because they lack the political will to cooperate inearnest negotiations and fruitful dialogue to achieve consensustowards establishing a new regime.

The solution is close at hand, because, during their technicalconsultations, the States have identified the tools needed toachieve sustainable management of fish stocks. These are broadlyreflected in the Chair's revised negotiating document and thedelegates now have a blueprint of the actions they need to take, if-- and when -- they can muster the political momentum required toovercome the short-term interests of each and every individualState. In this respect, the final session of this Conference, to beheld next August, will be a litmus test of the commitment by Statesto finally solve the real world-wide fisheries crisis.

THINGS TO LOOK FOR IN THE INTERSESSIONAL PERIOD

Sweden's proposal, A/CONF.164/L.39,received little visible attention during the second substantivesession despite its circulation during the early stages of thefirst week. The proposal's preambular elements recognize UNCLOS asthe legal framework for the management of straddling fish stocksand highly migratory fish stocks; the strength of the flaggingagreement; the applicable guidelines anticipated in theInternational Code of Conduct on Responsible Fishing; and Chapter17 of Agenda 21, which establishes some of the basic pre-requisitesfor this Conference, but notes that the CSD is the organ entrustedwith the task of following up the implementation of UNCED.

The Swedish proposal acknowledges that this Conference does nothave a mandate to establish a legally-binding instrument. It notesthat the Conference is locked into legalistic interpretationscarrying forward antagonistic positions on fundamental issues ofcoastal States rights versus distant water fishing States rights inenjoying freedom of fishing on the high seas. The proposal says itis incorrect to maintain that freedom of the high seas is acomplete freedom entailing no responsibility by underscoring thatthe utilization of straddling fish stocks and highly migratory fishstocks can never be in the interest of a single State. Utilizationwithout resource management could result in a situation where therights of other States would be infringed. Conservation andmanagement of these fish stocks must be compatible with the conceptof sustainable development, with cooperative management beingundertaken regionally and based on ecological principles.

SWEDISH PROPOSAL:

Sweden's proposal, A/CONF.164/L.39,received little visible attention during the second substantivesession despite its circulation during the early stages of thefirst week. The proposal's preambular elements recognize UNCLOS asthe legal framework for the management of straddling fish stocksand highly migratory fish stocks; the strength of the flaggingagreement; the applicable guidelines anticipated in theInternational Code of Conduct on Responsible Fishing; and Chapter17 of Agenda 21, which establishes some of the basic pre-requisitesfor this Conference, but notes that the CSD is the organ entrustedwith the task of following up the implementation of UNCED.

The Swedish proposal acknowledges that this Conference does nothave a mandate to establish a legally-binding instrument. It notesthat the Conference is locked into legalistic interpretationscarrying forward antagonistic positions on fundamental issues ofcoastal States rights versus distant water fishing States rights inenjoying freedom of fishing on the high seas. The proposal says itis incorrect to maintain that freedom of the high seas is acomplete freedom entailing no responsibility by underscoring thatthe utilization of straddling fish stocks and highly migratory fishstocks can never be in the interest of a single State. Utilizationwithout resource management could result in a situation where therights of other States would be infringed. Conservation andmanagement of these fish stocks must be compatible with the conceptof sustainable development, with cooperative management beingundertaken regionally and based on ecological principles.

ECUADOR PROPOSAL:

At the final Plenary session thedelegation of Ecuador submitted document A/CONF.164/L.44,"Presentation of the Working Paper for a Draft Convention on theConservation and Management of Straddling Fish Stocks and HighlyMigratory Fish Stocks on the High Seas". This document does notinclude the observations and proposals made during the currentsession because it was considered appropriate to leave to the Chairthe evaluation of the changes that, in the light of the debates, heconsidered advisable to introduce in the revision of hisnegotiating text. Its authors said that the purpose of this drafttext is not to supersede the negotiating text, but solely toprovide the Conference with a comprehensive working paper thatmakes it easier for all participants to evaluate the opinions andthe proposals of the sponsoring delegations with a view toachieving the goals for the establishment of an effectiveconservation and management regime for such fish stocks on the highseas.

The Chair's text (A/CONF.164./13) constitutes the main source ofthe working paper while certain articles and paragraphs are takenfrom the draft Convention submitted to the Conference by thedelegations of Argentina, Canada, Chile, Iceland and New Zealand(A/CONF.164/L.11/Rev.1, of 28 July 1993) and concepts that stemfrom other sources, such as the working paper submitted by thedelegations of Colombia, Chile, Ecuador and Peru (A/CONF.164/L.14,of 16 July 1993), the document on definitions presented by thedelegation of the Russian Federation (A/CONF.164/L.32, of 27 July1993), and the elements contributed by the Latin AmericanOrganization for the Development of Fisheries (OLDEPESCA) in thedraft prepared for its tenth Ministerial Conference, held in Lima,Peru, 8-10 March 1994.

INTERGOVERNMENTAL CONSULTATIONS:

Both the Chair and thedelegates indicated in the final Plenary session that much work isstill needed before agreement can be reached on all the majorsubstantial issues. Several delegates indicated that thenegotiations should resume informally as soon as possible. Look forStates to hold informal consultations to work on consensus text.The Like-Minded States are expected to meet among themselves towork further on the draft convention tabled by Ecuador. They mayalso discuss the issue of the final outcome of the Conference,since some divergence had started to appear on this point withinthe group. It is still unclear how much participation will beallowed the NGOs in these intergovernmental informal negotiationsbut expect them to provide alternative language that reflects theirconcerns.

NGO ACTIVITIES:

NGOs remain frustrated at the lack oftransparency during the informal-informal negotiations. They remainconfident that the assurance given by the Chair during the finalday of Plenary will enable NGOs to become more active observersduring the August session. NGOs have asked to be allowed toparticipate in the intersessional State deliberations. NGOs havebeen invited to make written submissions to the FAO on theInternational Code of Conduct following an encouraging roundtablewith Dr. Krone of the FAO. Look for NGOs to seek different rulesthat would govern their accreditation to the FAO in order tofaciliate their participation in FAO decision making. Look for NGOsto develop strategies for the August session in a summer workshop.

FAO ACTIVITIES:

Work continues on the FAO International Codeof Conduct on Responsible Fishing. Consultations with NGOs tookplace during the final week of the March session but, because theStates delegations were under severe workloads during the session,little formal consultation was possible. Consolidation of the wholedraft will continue through 1994. The final draft is expected inDecember and will then be presented to the FAO's Committee onFisheries in March 1995.

The Code will contain eight sections but two sections are seen ascrucial to its formulation: Fishing Operations, and, FisheriesManagement Practice. Look for a Technical Consultation on allaspects of the proposed Code. Look also for further details on theFAO Expert Consultation to be hosted by Canada June 6-12, 1994, onFishing Operations. Watch out for IMO and ILO comments in July onthe outcome of the Expert Consultation.

SMALL ISLANDS STATES CONFERENCE:

The United Nations GlobalConference on the Sustainable Development of Small IslandDeveloping States will be held from 25 April to 6 May 1994 inBridgetown, Barbados. While it does not specifically address theissue of high seas fisheries, the Conference will tackle therelated problems of coastal communities and traditional fisherieslikely to be affected by the outcome of this Conference. Look forpossible work at this Conference on the FAO Code of Conduct forResponsible Fishing, particularly in relation to the integration offisheries within coastal management schemes.

Participants

Tags