Daily report for 16 August 1994

3rd Session of the FSA


The Chair, Satya Nandan, opened the morning session by askingdelegates to examine the revised negotiating text(A/CONF.164/13/Rev.1) section-by-section with the aim of completingthis part of the process by Wednesday. He then invited comments onthe preamble.

PREAMBLE: The Russian Federation said that the preamblebroadly reflects the negotiations of the March session. Stilllacking in the preamble are paragraphs dealing with the outstandingUNCLOS problems relating to straddling fish stocks and highlymigratory fish stocks, the specific rights of coastal States, andthe exclusion of Part IX dealing with enclosed and semi-enclosedseas.

The representative of Ukraine welcomed the Chair's efforts toestablish international cooperation on conservation and managementof straddling fish stocks and highly migratory fish stocks. He saidthe significance of UNCLOS needs to be more precisely introduced inthe preamble. Ukraine supported the Russian Federation in properlyreflecting the rights of coastal States.

The delegation of China asked that reference to Agenda 21 beamended to refer to Chapter 17, and that the enhanced reflection beextended toward Programme Areas "C" and "D" of Agenda 21. Since thequestion of jurisdiction exists not only on the high seas but alsoin the EEZs, it is necessary to refer to "living marine resources".Changing the emphasis of sustainability to sustainable utilizationof fish resources would better reflect other environmental andnatural factors.

The European Union, supported by Korea, Mexico, and Poland,suggested deletion of the reference to high seas fisheries in thethird preambular paragraph. The EU delegate said matters of escapecontrol are better treated by compliance with internationalconservation and management measures, as preferentially reflectedin Agenda 21 and covered in the FAO's agreement.

The delegate of Thailand said the fishing capacity of a fleet ismore important than its size. He could not support provisionssuggesting that a coastal State could exercise any jurisdictionbeyond its EEZ.

The delegate from Peru supported the Chair's preambular text, butsuggested that if the Conference agreed to refine it, appropriatealternative language could be extrapolated from paragraphs 4 and 6in Ecuador's proposal (A/CONF.164/L.44*).

Mexico said the preamble should include reference to the FAO's Codeof Conduct and the Cancun Declaration. It would be beneficial todefine the norms of responsible fishing at the world level. Thedelegate from Mauritania supported Mexico and Indonesia forinclusion of a reference to responsible fishing as promoted by theCancun Declaration. Mexico and Indonesia asked that the preamblerecognize the special rights of developing countries.

The delegate from New Zealand disagreed with the EU, Japan, Norwayand Chile, and said he could support reference to recalling theadoption of the FAO agreement in the preambular, but not toendorsing the agreement. New Zealand and its South Pacificcolleagues underlined their concerns of the FAO agreement beinginappropriate, unlawful and possibly contrary to UNCLOS inexcluding vessels under 24 meters. The United States, withconcurrence from FAO, said that the FAO agreement applies to allvessels, including those under 24 meters, with the exception ofcertain administrative requirements.

Canada associated itself with Mexico, Peru and others and said itcould not accept re-opening debate on the Conference mandate.

Ecuador objected to attempts to delete references to the high seasand to attempts to include references to the EEZs. He added thatdelegates cannot become oracles in the ministry of truth andrewrite history.

The delegate from Australia supported New Zealand in underliningthe FAO agreement's shortcomings. Australia said reference to thehigh seas both in respect of the Conference mandate and Agenda 21should be maintained.

The Chair said the Conference was making "heavy weather" of thepreamble. He did not favor a long preamble as found in UNCLOS. TheConference is concerned with implementing the Law of the Sea. Apractical approach should identify workable mechanisms.

Peru, supported by Uruguay, suggested that a final compromise mightbe to include the words "to complement the relevant provisions" inthe penultimate paragraph of the preamble.

SECTION I -- OBJECTIVE: In consideration of Section I, theEU delegate said that the final sentence repeats the obligationthat arises within UNCLOS for coastal States and flag States tocooperate in conservation and management measures, and therefore isnot complementary to the Convention. The delegate from Japan saidhe preferred the text as presented. New Zealand supported theobjective, but asked that the text be broadened to include issuesof by-catch, non-target species and associated species. Thedelegate of the Russian Federation suggested that article 4 of theEcuador proposal defines a better objective.

SECTION II -- APPLICATION: The Chair said that severalparagraphs of section III on general principles could be includedin the discussion of section II. Poland, supported by Korea,suggested amendments to make it more consistent with paragraph 1that recognizes the concept of biological unity, and to mention thewhole range of the stocks as field of application. Chile regrettedattempts to blur the distinction between high seas and EEZs, andcalled for a clause protecting the sovereignty of the coastalStates. Argentina concurred by saying that the scope ofapplication had previously been agreed generally and thatintroducing too many changes to the negotiating text was nothelpful. Brazil insisted that the rights and duties of Statesshould not be separated. Ecuador asked that the exceptionalcharacter of the application in the EEZ be reinforced.

SECTION III -- GENERAL PRINCIPLES: Japan said that many ofthe measures listed in sub-paragraphs B and C (precautionaryapproach and compatibility) could apply both to high seas and EEZs,but that this should also be true for sub-paragraph A on the natureof conservation and management measures. There are only a fewprovisions in A that would not apply in the EEZ, such as 3(g) onsharing of data and 3(k) on discrimination, but the otherprovisions should apply to both zones since they deal with generalprinciples. Other distant water fishing States supported thisproposal to respect the biological unity of the stocks. This viewwas supported by the EU who said that the formulation needs to bemore general, while respecting the sovereignty of the coastalStates. The obligation of the coastal States in their EEZ should bemade more specific and refer to an obligation to conserve.

Canada likened this attempt to put more burden on the coastalStates as "salami tactics" on the part of the distant water fishingStates, while Peru said they had an obstructionist attitude. TheChair called on all participants to calm down and said that theissue of compatibility could be solved if it is looked at in apractical way. Coastal States and distant fishing States exchangedrhetorical arguments throughout the afternoon.

While some delegates understood the need for compatibility betweenmeasures in the EEZ and on the high seas, they highlighted the factthat this should not lead to measures being identical, since somemeasures taken on the high seas may not be applicable to the EEZs.Canada suggested, and Australia and Indonesia concurred, thatparagraph 3 be split to reflect the concerns of coastal States andwhere the former part A would apply exclusively to the high seas.It might then be necessary to add an additional clause to note that"nothing in this convention shall be construed as prejudicing thesovereign rights of the coastal States ...". India added that whilethis amendment was a helpful suggestion, it should not apply to theparagraphs dealing with the special requirements of developingStates and scientific research. The US said that the sovereignty ofthe coastal States in their EEZs should in no way be compromised,but that the general principles in section III(A) should apply inboth the EEZ and on the high seas.

China asked that a footnote be added to explain that "high seas"refers to the area beyond 200 miles. The Chair noted that thisaddresses cases where the coastal State has not declared anexclusive zone, but added that he was not sure that such a footnotewould solve the problem. Russia suggested that "beyond the EEZ" beadded after "on the high seas". It was highlighted that severalother terms need to be defined carefully in view of the settlementof disputes that will arise. Canada suggested that they be insertedafter the preamble and before the objective. Japan said that UNCLOShad listed highly migratory species without defining them andwarned against inconsistency, but Russia answered that thisimprecision was partly to blame for the fisheries crisis.

Brazil asked why paragraph 3(a) referred to economic factors aswell as the best scientific evidence. The Chair answered that thiswas derived from article 61 of UNCLOS. India said that a referenceto the best scientific evidence might not apply to developingStates, and both Brazil and Sweden asked whether it was wise toretain such an old concept as that of MSY. Sweden suggested thatreference be made to the long-term sustainability of fisheries.

Brazil said that nowhere in the text is mention made of specialconservation areas, and he suggested that they might be establishedwherever oceanic ecosystems are recognized for their importance tothe life cycle of the stocks.

Mexico suggested that the recommendations in III(A)(c) and (d) onspecies associated with target species and selective gear be dealtwith through appropriate information on by-catch. Thailand andPapua New Guinea asked that the reference to the number of vesselsbe replaced with the capacity of vessels.


While delegates consumed three hours of valuable conference timethis morning re-hashing old debate over the preambular makeup ofthe Chair's revised negotiating text, a draft Convention on theConservation and Management on the High Seas of Straddling FishStocks and Highly Migratory Fish Stocks was the focus of whispereddebate by small groups of delegates in the corridors. Thecomprehensive 56-page document, devoid of delegation origin,constitutes a 27-page convention and an 11-page resolution anddeclaration, each accompanied by a table of contents andexplanatory notes.

The first part of the document is made up in the form of a draftconvention and is based on document A/CONF.164/13/Rev.1. It ispresented in the form of an international convention that drawsupon UNCLOS, the FAO Agreement to Promote Compliance withInternational Conservation and Management Measures by FishingVessels on the High Seas and other documents tabled at theConference. The draft convention consists of 41 articles containedin 9 parts that include general provisions, conservation andmanagement, international cooperation, compliance with enforcementof high seas fisheries conservation and management measures,non-participants in subregional or regional organizations orarrangements, non-parties, special requirements in developingStates, dispute settlement and final provisions. Four annexescovering highly migratory fish species, the precautionary approachto managing fish stocks, flag State surveillance and controlmeasures, and arbitration complete the draft convention.

The second part of the document consists of a single page draftresolution calling for the adoption of its accompanyingdeclaration. Both draft texts are based on A/CONF.164/13/Rev.1. Thedraft declaration consists of 4 parts made up of 14 articles. It isaccompanied by an annex covering minimum data requirements for theconservation and management of straddling fish stocks and highlymigratory fish stocks.

The document appears to represent a tool that promotes theLike-Minded position but without any indication of whichdelegation(s) will submit it or, for that matter, any provisionalissue date.


INFORMAL PLENARY: The informal plenary will resume thismorning at 10:00 am in Conference Room 2. Some delegates did nothave a chance to comment on Section III, General Principles,yesterday and will take the floor this morning. Thesection-by-section review of the Chair's revised negotiating text will then resume.