Daily report for 23 August 1994

3rd Session of the FSA

The Chair convened the Plenary for one hour yesterday to introducethe new Draft Agreement for the Implementation of the Provisions ofthe United Nations Convention on the Law of the Sea of 10 December1982 Relating to the Conservation and Management of Straddling FishStocks and Highly Migratory Fish Stocks (the "Draft Agreement"). Hesaid that it was in the form of a legally-binding agreement, whichreflects the general feeling that he had as a result of theconsultations he had undertaken. In many instances, the material ofthe Revised Negotiating Text (RNT) was redrafted to present it inan active form, as is usual in such agreements. The text, which isavailable in English, will be translated shortly into the UNlanguages. The Chair explained the major changes that he brought tothe new draft and indicated that he wanted to undertakeconsultations on a number of issues with interested delegations todiscuss the problems they still have. He then asked the delegatesif they wanted to make general comments.

SWEDEN: The Swedish delegate said that his was only a firstimpression but he felt that the document looked very well balanced,with an elegant solution to the most difficult issues. He indicatedthat Sweden was ready to undertake negotiations on the ratificationof the Draft Agreement.

NEW ZEALAND: The delegate asked that member-States of theSouth Pacific Forum Fisheries Agency remain in the room to beginconsultations.

INDIA: The Indian representative wanted to make comments onsome of the provisions of the text but was interrupted by the Chairwho asked him to save these comments for later. The delegate thenenquired how he might contact the Chair.

PERU: The delegate of Peru said that he wished he could beas optimistic as Sweden and extended his congratulations toAmbassador Valencia of Ecuador and a number of other UNCLOSveterans.

The Chair answered that the "old guard" of the Law of the Seanegotiations was now joined by a new force and he hoped that thelatter could learn from the former, and then pass it on to the nextgeneration. The Chair then adjourned the Plenary until 3:00 pm onWednesday.

DRAFT AGREEMENT HIGHLIGHTS

The 31-page revised text is produced in the form of a "draftagreement" that substantially refines the RNT. It is made up of aPreamble, forty-seven articles contained in thirteen parts, andthree annexes.

The Preamble, following the Chair's desire to maintain conformitywith the preamble of UNCLOS, is short and concise. It recalls theprinciples of UNCLOS, notes the need to improve cooperation betweencoastal States and flag States, calls for more effectiveenforcement by flag, port and coastal States of the measuresadopted for the conservation and management of straddling andhighly migratory fish stocks, while seeking to address the problemsspecifically identified in Agenda 21, Chapter 17, Programme Area C,and commits States Parties to responsible fishing. Absent is anyreference to the FAO Agreement to Promote Compliance withInternational Conservation and Management Measures by FishingVessels on the High Seas.

PART I -- GENERAL PROVISIONS: Article 1 specifies the use ofthe terms within the Draft Agreement and its scope. Article 2, theobjective, is refined and adapted from Ecuador's proposal(A/CONF.164/L.44*). Article 3, dealing with application, prescribesseparate applicability for the high seas and the EEZ. Article 4underlines the fact that nothing in the Draft Agreement prejudicesthe provisions of UNCLOS.

PART II -- CONSERVATION AND MANAGEMENT OF STRADDLING FISH STOCKSAND HIGHLY MIGRATORY FISH STOCKS: Article 5 obligates coastalStates and States fishing on the high seas to cooperate inaccordance with UNCLOS, and calls for the application of theprecautionary approach. It also requires the adoption ofconservation and management measures to ensure long-termsustainability of stocks, as well as the adoption of conservationand management measures for non-target species within the sameecosystem. In addition, it promotes the development and use ofselective and environmentally safe fishing gear and techniques tominimize pollution, waste and discards. The application of theprecautionary approach in Article 6 is diluted. Article 6explicitly refers to Annex 2 dealing, with "suggested guidelinesfor application of precautionary reference points in conservationand management of straddling fish stocks and highly migratory fishstocks". Missing is any reference to specific and criticalenvironmental problems faced by international fisheries worldwide,such as toxic pollution and ozone depletion. Article 7 oncompatibility of conservation and management measures, ifmaintained as part of a binding agreement, will require coastalStates and States fishing on the high seas to cooperate to achievecompatible management and conservation measures for the high seasand the EEZs. The concept of "biological unity" is retained inparagraph 2(b).

PART III -- MECHANISMS FOR INTERNATIONAL COOPERATION CONCERNINGSTRADDLING AND HIGHLY MIGRATORY FISH STOCKS: Nine articlesconstitute this Part, with four of them dealing specifically withcooperation for conservation and management, regional fisheriesmanagement organizations or arrangements, their functions, andcooperation to strengthen existing arrangements. Article 12 on thecollection and provision of information requires fishing vessels toprovide information and that States cooperate directly throughregional organizations and arrangements. Article 13 on enclosed andsemi-enclosed seas requires States to comply with Article 123(a) ofUNCLOS, while Article 14 is new text that recognizes the particularproblems and issues raised by the Russian Federation. Both articlesare to be read in conjunction with Part VIII dealing with disputesettlement procedures.

PART IV -- DUTIES OF THE FLAG STATE: Article 17 deals withthe duties of the flag State and the measures to ensure thatvessels flying its flag comply with subregional and regionalconservation and management measures.

PART V -- COMPLIANCE AND ENFORCEMENT: The three articlesmaking up this Part deal with compliance and enforcement by theflag State, international cooperation in enforcement, and regionalagreements and arrangements for compliance and enforcement. PartV represents a consolidation of ideas expressed duringconsideration of the RNT.

PART VI -- PORT STATE ENFORCEMENT: Article 21 reflects theconsiderable discussion on this subject in the RNT and representsa clearer definition of what is attainable under the provisions ofinternational law.

PART VII -- REQUIREMENTS OF DEVELOPING STATES: This Part ismade up of three articles and represents the Chair's desire tocluster all matters concerning developing States. Article 24 spellsout in clear terms the requirement of States to cooperate toestablish voluntary funds to assist developing States. States, andinternational and regional organizations "should" assist developingStates in establishing new organizations or strengthening existingorganizations and arrangements.

PART VIII -- PEACEFUL SETTLEMENT OF DISPUTES: The sevenarticles that make up this Part recognize more closely theprovisions of UNCLOS, given its imminent entry into force. Article30, however, presents an innovation by affording States thecapacity to introduce provisional measures of a practical nature,pending the resolution of a dispute. It is referred back to inAnnex 3 that deals with Arbitration Procedures.

Article 31 establishes that the provisions for the settlement ofdisputes do not affect in any way the provisions of Article 297 ofUNCLOS.

PART IX -- NON-PARTICIPANTS: Article 32 refines the RNTversion and deals with non-participants in subregional or regionalfisheries management organizations or arrangements.

PART X -- ABUSE OF RIGHTS: Article 33 requires States tofulfill in good faith, the obligations of the Draft Agreement in amanner consistent with UNCLOS.

PART XI -- NON-PARTIES TO THIS AGREEMENT: This Part requiresStates, under article 33, to encourage non-parties to accede to theDraft Agreement.

PART XII -- REPORTS ON IMPLEMENTATION AND REVIEW CONFERENCE:Two articles deal with the reports on the implementation of theagreement and require that such reports be made to theSecretary-General. Following the adoption of the agreement, andbiennially thereafter, the Secretary-General shall submit a reportto the General Assembly. A review conference shall be held 4 yearsafter adoption of the agreement, with the participation of allStates and entities entitled to become parties, as well asobservers.

PART XIII -- FINAL PROVISIONS: Eleven articles make up thisPart. Article 40 specifies that the agreement will enter into force30 days after the date of deposit of the 40th instrument ofratification, acceptance, approval or accession. This procedurefollows the one adopted for the recent Agreement on Part XI ofUNCLOS.

Annex 1 on the Minimum Standard for Collection and Sharing of Datareflects some of the debate on this annex in the Chair's RNT.Sharing of data by flag States with other flag States and relevantcoastal States is a requirement. The graphic data flow arrangementsremain the same as those in the RNT.

Annex 2 on Suggested Guidelines for Application of PrecautionaryReference Points, while expanded upon, dilutes the benefits thatwould be attainable by implementing biological reference points andmanagement reference points. Rather, it suggests that they might beintroduced, and no reference is made in the annex to the concept of"biological unity".

Annex 3 on the Arbitration Procedure is made up of fifteen articlesproviding for the expeditious resolution of fisheries disputes.

THINGS TO LOOK FOR TODAY

PLENARY: The Plenary will resume today at 3:00 pm inConference Room 2. The delegates are expected to comment on theDraft Agreement, and the Credentials Committee will submit itsreport.

NGO ACTIVITIES: NGO representatives will continue theirconsultations with the FAO on the Code of Conduct, in ConferenceRoom C at 11:00 am.

Participants

Negotiating blocs
African Union

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