Daily report for 17 August 1994
3rd Session of the FSA
The Conference Chair, Satya Nandan, opened proceedings by askingdelegates to keep their statements short and precise so that thefirst reading of his revised negotiating text (RNT) could becompleted quickly. The morning's informal Plenary focused mainly onSection III, General Principles, of the RNT, although somedelegations spoke on earlier discussions of Sections I, theObjective, and Section II, the Application.
SECTION III -- GENERAL PRINCIPLES: The delegate of Indonesiasaid that if paragraph 3(a) was applied in the EEZ it wouldrepresent a complete negation of the EEZ. With regard to paragraph3(f), on developing countries, it is necessary to help thosecountries fulfill their obligations but also to provide mechanismsto enable their participation in high seas fisheries. The Chairsuggested that all developing country issues could be clusteredtogether.
The delegate of India, supported by Thailand, agreed that there wasno legal duty to cooperate on resources in the EEZ. Regarding thebest scientific advice, this can only be attained with the consentof the State concerned. The delegate of Kenya emphasized the needto strengthen capacity building. He was concerned thatenvironmental factors should be more expressly taken into accountunder Section III.B that deals with the precautionary approaches tofisheries management.
Korea said that Section III.C.7(d) should be amended to betterreflect that the management measures established on the high seaswould be no more stringent than those established in the EEZ.Poland suggested that the paragraph be deleted, while Chinamaintained that the requirement be given vice-versa status.
The delegate from Ukraine said that biological unity should not beprejudicial to the sovereign rights of the coastal State. Canada'scontention yesterday that Section II, dealing with application, besplit into two parts. This was supported by Fiji. Sweden tenderedthree specific observations on Section III: that decisions onconservation and management measures should be based on the stateof the marine environment; that the interest of local communitiesand indigenous peoples should be adequately taken into account whennegotiating regional and subregional agreements; and that clearerguidelines be established in the sub-section on the precautionaryapproach to fisheries management, Section III.B.4(d). Analternative Swedish text underlines the need for States to be morecautious in managing a resource about which little might be known,and additionally seeks amendment to the RNT's Annex 2 so that themaximum sustainable yield should be viewed as a limit for fisheriesmanagement.
Fiji said it was necessary to include the full rights andobligations of coastal States as defined by UNCLOS and keep theprinciples enshrined in the FAO's compliance agreement. TheEuropean Union said that it was not necessarily the five percent offish caught outside the EEZ that caused management problems insidethe EEZ and it was not proper to use different principles whendealing with the biological unity of fish stocks.
Thailand supported the Indian position that a quotas concept shouldonly apply with regard to a fair and equitable distribution of highseas resources. Referring to the collection of data, Thailand,supported by Ecuador, said this should be available free of chargesince it is necessary to give developing States the means to applyeffective management measures. The US delegate said there is a needto collate common data throughout the entire geographic range ofthe stock. Poland said he could not accept any extension of therights of coastal States, but he could accept the rights tocooperate on an equal footing. He could not support the concludingsentence of the chapeau in Section III.C.7 requiring States torespect measures and arrangements adopted by relevant coastalStates in accordance with UNCLOS.
Poland circulated alternative text on paragraph 8 dealing with thedispute settlement mechanisms under which States are to settledisputes over incompatible and uncoordinated conservation andmanagement measures.
With regard to part B on the precautionary approaches to fisheriesmanagement, the representative of Japan said the RNT recognized theintense discussions of the Working Group held in March. The USdelegate did not agree and said both part B and its accompanyingannex needed strengthening since it did not reflect the WorkingGroup's text. The Russian Federation said that "minimum standards"in paragraph 4(d) was not a careful precautionary approach tofisheries conservation and management. The term "optimum standards"is more applicable. The EU said the provision to widely apply theprecautionary approach in the chapeau of paragraph 4 is not clear.Clarity can be promoted by ensuring that the concept of biologicalunity is applied to the entire stock throughout its entire area ofdistribution. The delegate from Chile, and former Chair of theWorking Group on the Precautionary Approach, said that as the textproperly reflected his report, he could not support any amendments.
The Japanese delegate said that the second sentence of UNCLOSArticle 64 dealing with cooperation by relevant coastal Stateswhere no appropriate regional or other organization exists, ismissing in paragraph 5(b), and circulated alternative language tocover this anomaly.
In Section III.C, compatibility, China said it was necessary tointroduce the concept of rational utilization when agreeing uponthe conservation of fish stocks in the area adjacent to the EEZ ofa coastal State. Regarding the Russian intervention for inclusionof a new paragraph 3(g) in respect of temporary measures necessaryto prevent overfishing in enclosed and semi-enclosed areas, theChinese delegate said this would provide for unilateral coastalState action contrary to UNCLOS. The delegate from India supportedthe use of UNCLOS language in paragraph 8 on dispute settlementprovisions.
Japan said that this proposal on subparagraph 5(b) is no more orless than what is provided in UNCLOS. New Zealand stated that eventhough the language comes from UNCLOS, it did not mean that suchlanguage must be completely reflected in the RNT. The delegate fromIndia favored keeping the chapeau of paragraph 7 as it is. Inparagraph 8, he supported use of language from UNCLOS regarding adispute settlement mechanism. The delegate from New Zealandsupported making the provisions of paragraph 4(b) mandatory,especially programs for collection of data on fishing on non-targetspecies.
The representative of Canadian Ocean Caucus said that under SectionIII.A.3(b)(ii), limits to fishing effort should include capacity,along with the number of fishing days. The representative of theWorldwide Fund for Nature said that Section B of the RNT,"Precautionary approaches to fisheries management", requires thatthe precautionary approach be widely applied to fisheriesmanagement, both on the high seas and within EEZs, in order toprotect the marine environment. The representative of the AlaskaMarine Conservation Council suggested incorporating an amendment onimpacts suffered by the marine ecosystem and fish stocks from toxicpollution.
The Chair stated that common ground has now been found on theobjectives. The Conference is working to ensure long-termsustainability of straddling fish stocks and highly migratory fishstocks. There is broad agreement on the application of some of thebasic principles. He said that everyone agrees that principlesrelating to the precautionary approach should be applied throughoutthe range of the stocks, taking into account their biologicalunity. There is common ground on compatibility to ensure stocks inthe EEZ and the high seas are managed on the basis of commonminimum standards. The Chair said that the area presentingdifficulty is the application of minimum standards in the economiczone and in the adjacent high seas. The problem is one of respectfor the sovereign rights of coastal States to manage theirresources and the interrelationship of the stocks found in theadjacent high seas. The Chair suggested the possibility of aroundtable to examine the problem of enclosed and semi-enclosedseas.
SECTION IV -- INTERNATIONAL COOPERATION: Most delegates saidthat this section of the text represents a good balance of thevarious interests involved. Papua New Guinea suggested that it beshortened without losing the essence of its provisions. Chile saidthat this section deals with two different aspects, internationalcooperation and regional fisheries management organizations, and hesuggested that it be divided accordingly.
Japan proposed that a new paragraph be added in part A that dealswith mechanisms for international cooperation. This new draftparagraph deals with the effects of actions taken in application ofa non-fishery organization that have an implication on theconservation and management measures taken by a fisheriesorganization or arrangement.
The issue of openness or exclusiveness of the organizations wasdebated at length, with China arguing that any country,irrespective of its geographical location, has a right and duty toparticipate in the conservation and management measures of livingmarine resources in any area of the high seas. States with aninterest in the stocks concerned should therefore be deleted at theend of paragraph 14. Argentina, and others, suggested that onlythose with a fishing interest should be admitted in the regionalorganization. Uruguay said that those with no interest at allshould not be admitted.
The Russian Federation said that despite the freedom of fishing,certain straddling stocks are fully utilized by the coastal Stateitself, and a regime should not violate the rights of coastalfishers utilizing the resource on a primary basis. India agreedthat the coastal States should have preference in areas adjacent totheir EEZs. The EU also called for openness and said thatexclusiveness could undermine the measures taken on the part ofnon-members. Korea estimated, and Thailand concurred, that thesubparagraphs a, b, c, and d, of paragraph 21 are alldiscriminatory against new entrants and conferred a preferentialtreatment on existing members, which is unacceptable.
Norway, supported by the US, Argentina and Chile, answered that theprinciple of openness should apply, subject only to the terms ofparticipation of the organization itself. Canada agreed andsuggested an amendment to that effect, while adding that accesswould be on a non-discriminatory basis. The Russian Federation saidthat it had concerns over paragraph 18 and its reference to article123 of UNCLOS with regard to enclosed and semi-enclosed seas.Russia called for a more extended wording of this paragraph.
In paragraph 21, which deals with the criteria for allocation ofparticipatory rights to new members of the organizations andarrangements, Norway said that the criteria should also apply tothe distribution of stocks among all members. Both Norway andCanada asked that the biological unity of the stocks be respectedin this regard. One cannot simply assume that there are new membersbut must first look at how the decision to accept new members istaken. Chile also highlighted some important oversights such asdecision-making in the organizations and how the organizations areset up. He added that coastal States are a minority and distantwater fishing States the majority but the coastal States are notindifferent to the way in which the organizations are formed or howdecisions are taken within them.
Senegal highlighted the importance of international cooperation andregional arrangements to develop fisheries. Several references tocoastal fishing communities and coastal developing States gave riseto debate since the EU, Korea and others wanted to delete the word"coastal". The representative of a Latin American State accused thedistant water fishing States of just trying to delete any referenceto coastal, wherever they are.
The US suggested that reference be made to the integrity of theregional organizations. With regard to sub-paragraphs (g) and (k)of paragraph 20, Thailand argued that they were vesting authorityin a supra-national entity that would have jurisdiction overnon-members, which is contrary to the law of treaties. Uruguayanswered that some obligations apply even to non-parties, as is thecase with the protection of endangered species.
IN THE CORRIDORS
Greenpeace entertained the delegates by handing over protest notesabout illegal high seas drift net fishing practices tied up withpieces of illegal driftnet they seized from an Italian vessel.While the debate in the Plenary rages over whether a fishinginterest is a requirement to gain entry into one of the regionalorganizations, NGOs and a delegation are pondering whether thoseStates that have an interest other than fishing should not beadmitted as well. Look for statements on this issue.
THINGS TO LOOK FOR TODAY
INFORMAL PLENARY: The informal Plenary will resume at 10:00am in Conference Room 2. Four delegations and one NGO are on theChair's list to comment on Section IV. The Plenary will then startthe review of Section V, which deals with compliance with andenforcement of high seas fisheries conservation and managementmeasures.