Daily report for 18 August 1994

3rd Session of the FSA

PLENARY

Conference Chair, Satya Nandan, opened the proceedings by invitingdelegates to complete work on Section IV, InternationalCooperation.

SECTION IV -- INTERNATIONAL COOPERATION: Sweden said that withregard to paragraph 14 and access to organizations, the only way tostop over-exploitation is to encourage open membership, and not torestrict it to those States especially interested in fishing. Aclosed membership would exclude new entrants and thus discriminateagainst developing countries, especially if the license fees arehigh.

The delegate of Poland suggested that paragraphs 13 and 14 beamalgamated, but that in respect of paragraph 16, he supported thealternative Japanese text. Regarding paragraph 20(d) on datacollection, the work of the FAO in drafting the Code of Conduct onResponsible Fishing should be reflected.

Speaking in further support of Section IV, the delegate from Canadasuggested regrouping a number of paragraphs to tighten the overallstructure. Taking up an earlier point made by the EU, he said hecould not support the deletion of "biological characteristics" in17(a) with replacement by "biological unity" because biologicalunity is just one of many characteristics of a fish stock. The EUdelegate replied that his delegation preferred specific inclusionof "biological unity" in the RNT.

Ukraine commented that international cooperation is the only meansof achieving sustainability of fish stocks, but the structure ofSection IV is insufficiently clear for translation into a legallybinding-document. He favored Chile's restructuring proposal, sincethe basis for cooperation is chiefly the obligation of the Stateswho harvest the fish stocks. In respect of inter-governmentalorganizations and NGOs, he supported their admission as observersonly. India favored some provision to withhold the transmission ofdata if it is deemed incompatible with the coastal State's nationalinterest.

Concluding the discussion on Section IV, the World Wide Fund forNature said that in recognizing the important role played byregional agreements, it is necessary for membership to be open andnon-discriminatory and include those parties with an interest inconservation and sustainability.

Prior to moving to Section V on enforcement measures, the Chairreflected on the question of form. He said that informalconsultations with delegates remain incomplete and will continue,as some delegations feel that the development of content and formshould proceed together. He urged delegates to complete the reviewof the RNT by Friday evening, if necessary, by limiting the lengthof interventions.

Australia made a general statement on behalf of the sixteen membersStates of the South Pacific Forum Fisheries Agency (SPFFA) on theform of the Conference's final outcome. Members of the SPFFA remainunited in their resolve to achieve a strong and substantial resultfrom the Conference and feel that substantial progress had beenmade towards reaching agreement on problems that seemedunresolvable twelve months ago, but it is necessary to reach aconsensus on the form. A legally-binding outcome must contain fouressential elements: international standards to achieve thelong-term sustainability of the stocks; consistency with UNCLOSpreserving the rights of coastal States while maintainingflexibility to allow cooperation and conservation between coastalStates and distant water fishing States; strong, detailed andmeaningful provisions relating to flag State responsibility andeffective mechanisms for compliance and enforcement; and, agreementon the timely collection and exchange of data. The SPFFA memberStates do not have the human or financial resources to engage inprotracted negotiation and he urged all delegations, especiallydistant water fishing States, to work to finalize a legally-bindingagreement as soon as possible.

Canada welcomed the Australian statement. The delegate from Indiasaid he was prepared to support a convention provided thatarrangements could be found to accommodate exploitation of highseas fish stocks by developing States. The Japanese delegate saidhis position remained unchanged because consensus had not beenreached on the form. The EU delegate expressed sympathy with theSPFFA, but said that consensus on the substance is required or theform will not be secured.

SECTION V -- COMPLIANCE WITH AND ENFORCEMENT OF HIGH SEASFISHERIES CONSERVATION AND MANAGEMENT MEASURES: Korea said hisgovernment was now prepared to accept boarding and inspection ofits vessels, but cannot accept the detention of fishing vessels onthe high seas, as this is contrary to the provisions of UNCLOS.Japan said that Part A, on duties of the flag State, generallyfollows what currently exists in the FAO compliance agreement, but,under paragraph 29, fishing masters should not be indiscriminatelysanctioned. Detention of a flag State vessel by a coastal Stateshould only be with the consent of the flag State.

Panama said that it is currently complying with most of theserequirements, but could not accept inspection of its vessels otherthan by inspectors authorized by Panama. Malaysia said that the RNTrepresented a move away from flag State control and this isacceptable because of the serious level of over-fishing.

The Cook Islands, supported by Vanuatu, said the RNT does notprovide adequate provision for developing coastal States that arealso flag States and the problems facing these developing Statesmust be recognized.

The Russian Federation, while supporting the general provisions ofSection V, introduced a new paragraph under Part C on regionalagreements and arrangements, which include the right to prohibit avessel to fish on the high seas in contravention of conservationand management measures. Argentina said the efficiency of theregime depends on the system of compliance and enforcement and itcould not support deletion of the reference to detention and arrestof violating flag State vessels.

China argued that there should be no change from the provisions ofUNCLOS in regard to violating flag vessels. Sweden said that inorder to halt over-exploitation of fish stocks, it is necessary toagree on enhanced enforcement measures as promoted in Parts A andB of the RNT. Mexico spoke in support of licenses to fish on thehigh seas, but said that monitoring programs cannot be establishedquickly and efficiently without the transfer of technology.

Canada endorsed the position of the EU that there should beflexibility for regional organizations, but acknowledged thatflexibility should be in the procedures themselves and recommendedmaintaining paragraph 31. This would then allow each regional orsubregional organization to adopt procedures to suit their owncircumstances. Member States of regional organizations should agreeon procedures for execution, but implementation of the principleswould fall to the organization. Canada wants to adopt a bindinginternational convention through which flag States agree ahead oftime to the detention of vessels flying their flags in respect ofparagraph 34. He endorsed the proposal by the Russian Federationthat promotes a ban on reflagging on the high seas. Canada alsosupported the inclusion of additional text promoted by Ecuador onillegal incursions into the EEZ and also raised by Argentina andIndonesia. Canada associated itself with Australia by wanting tokeep as much possible of the Chair's RNT. Canada supported theproposal by Samoa that high seas fishing vessels carry appropriatevessel positioning equipment and the communication facility totransmit that information.

The delegate of Vanuatu supported Australia, Samoa and the SolomonIslands for retention of the text in Section V.

The EU supported maintenance of the FAO agreement that, he said,should be applied generally and cover fishing activities for allspecies. Poland said that flag States are responsible and he couldnot agree to give coastal States more control than the provisionsof UNCLOS, but acknowledged the importance of the FAO complianceagreement. Korea spoke in support of strengthening flag Stateresponsibility for fishing on the high seas. Uruguay praised thetext and suggested that, if adopted, it would require a fewmodifications. He supported Mexico on the provisions of observerprograms.

The US said extensive modification of the text would be requiredbefore it could become binding. He said the FAO agreement, althoughmisunderstood, did have teeth. There was no loophole in respect ofvessels less than 24 meters. The United States gave advance noticeof a roundtable to consider the FAO compliance agreement wheredelegates and NGOs will be welcome. He also gave notice of anOctober workshop, with FAO participation, that will addressenforcement measures in the exclusive zones of developing countriesand explain the state-of-the-art equipment to assist inenforcement.

SECTION VI -- PORT STATES: Brazil suggested amending thetext so that it refers to the fact that another member State canrequire an inspection. Argentina suggested that inspections becarried out to ensure compliance with international conservationand management standards as set up by the regional organization.The Chair agreed that it would make no sense for a flag State toask a port State to enforce its own laws.

Russia said that some of the provisions in this section alreadyexist since the port State has the right to take enforcementmeasures within its own territorial waters. He suggested thatparagraphs 37 and 38 be linked since the measures are taken at theport State's initiative or at the request of a State party to theregional arrangement. Paragraph 38 would not appear as separatefrom the standards that are set up in paragraph 37. He suggested anamendment under which violation of the conservation and managementmeasures in the preceding three years is a violation under the portState's legislation.

Argentina suggested, and Canada concurred, that the interdictionmeasures become mandatory, but several delegates felt that it wouldbe contrary to the sovereign rights of the port State and suggesteda chapeau specifying that these measures should not prejudice thesesovereign rights. Indonesia said, and Chile agreed, that thedrafting was not very clear and he questioned how a vessel could bedenied access if it was already in the port. If the ship is in anillegal situation it should be arrested. The EU agreed that theship should be let in rather than sent back on the high seas whereno inspection can take place. With regard to cases of forcemajeure, several States requested that it be qualified as"genuine" or "well-defined".

Japan, supported by Poland, called for caution in awarding portState authority, since the RNT assumes that both the port State andthe vessel entering the port are parties to a regional arrangementand the authority of the port State stems from the regionalarrangement itself. The authorization of the flag State is anecessary requirement since careless and unreasonable inspectioncould lead to the deterioration of the vessel's catch. Likewise,detention of a vessel should not be carried out without theauthorization of the flag State. Korea said that it had changed itsposition and could now agree to inspection at the request of theflag State as well as denial of access, but that it had problemswith the detention provisions of paragraph 38. The EU added thatthese measures should be in accordance with international law andwith GATT in particular. Poland suggested that a general clause ofnon-discrimination be added.

Brazil answered that the RNT was more balanced and the port Statedoes not need a special reason to perform inspection since theState has sovereign rights in the territorial sea. New Zealand saidthat the RNT is a minimum and expressed concern at attempts tolimit further the authority of the port State. Papua New Guineasaid that in terms of safety at sea and marine pollution, portState jurisdiction has become the norm. Morocco added that fordeveloping States, this competence also involves a weightyresponsibility. With regard to potential damage to valuable catch,New Zealand said a clause could be added, urging the port State totake all reasonable measures to preserve the catch quality. Ecuadorsuggested an amendment that would require the port State tocommunicate any evidence to the flag State. India asked that "portState" be defined clearly or even replaced with coastal State.Uruguay answered that the term was clearly defined in article 218of UNCLOS.

THINGS TO LOOK FOR TODAY

INFORMAL PLENARY: The Plenary will resume in informalsession to continue its review of the RNT at 10:00 am in ConferenceRoom 2. The delegates will start with Section VII that deals withnon-participants in regional or subregional arrangements ororganizations.

Participants

Negotiating blocs
African Union
European Union
Non-state coalitions
NGOs

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