Daily report for 22 July 1993

Informal consultations continued on Thursday in Conference Room 5.Discussion focussed on the following three topics: disputesettlement, port State responsibilities and interests of developingcountries.

DISPUTE SETTLEMENT

As an introduction to the discussion on this issue, the Chaircirculated a paper, "Procedures for the Settlement of High SeasFisheries Disputes." This paper, which focusses on the UNCLOSprovisions on dispute settlement, is divided into four sections:Procedures under Regional Arrangements; Compulsory Conciliation;Special Arbitration; and Fact-Finding Procedures. Parties to theConvention are constrained to settle disputes by peaceful means andthey are also required to submit to final and binding third-partyprocedures if all others fail. Dispute settlement procedures agreedupon by this Conference must be consistent with the Law of the Sea.There are formal institutionalized dispute settlement procedures,such as the Tribunal, the International Court of Justice andarbitration, and the Convention itself provides practical andexpeditious means to settle disputes of a technical nature.

The section "Procedures under Regional Arrangements" states that ifthe management regimes for stocks is primarily regional, regionaldispute settlement procedures could be appropriate. The Conventionrecognizes the importance of regional dispute settlement mechanismsand procedures under regional agreements (Article 282). However,States fishing on the high seas include those to whom regionalprocedures may not apply and, therefore, alternative means fordispute resolution will have to be provided.

Under "Compulsory Conciliation", the management regime forstraddling and highly migratory fish stocks on the high seasinteracts with the EEZ regime for such fisheries. A coastal Statein the exercise of its sovereign rights in the EEZ, with respect toliving resources, is not subject to binding procedures, except inthe case when a coastal State "has manifestly failed to comply withits obligations to ensure through proper conservation andmanagement measures that the maintenance of the living resources inthe EEZ is not seriously endangered" (Article 297.3(b)(i)).

Resolution of issues of a technical nature is included in the"Special Arbitration" section. This special procedure is flexibleand permits variations of the procedure by agreement on an ad hocbasis for each case.

The Convention also provides for a special fact-finding approach,which could be conclusive or persuasive, whichever the partiesagree to. The Special Arbitral Tribunal could also formulaterecommendations (which do not have the force of decisions) based onthe findings of fact (Annex VIII, Article 5.3), and would beintended to provide the basis for review by the parties inquestion.

In the discussion, several countries agreed that UNCLOS provides agood mechanism for dispute resolution. Some argued against creatingnew procedures or mechanisms since agreed-upon procedures alreadyexist in UNCLOS. Others stated that the 1982 Convention does nothave adequate measures for conflict resolution on fishing matters.It was pointed out that UNCLOS has not yet entered into force andcertain countries experiencing problems with straddling stocks andhighly migratory species may not be party to the Convention. Theauthors of A/CONF.164/L.11 (Draft Convention on the Conservationand Management of Straddling Fish Stocks and Highly Migratory FishStocks on the High Seas) pointed out that Article 25 containsmechanisms for dispute settlement. Its arbitration measures arefast-acting, follow UNCLOS, and are specifically adapted to theneeds of this Conference. A contradiction in L.11 was pointed out-- it provides for three arbitrators (one nominated by each partyand one neutral member), but does not provide for cases where thereare more than two parties to a dispute. The response was thatparties can always turn voluntarily to the UNCLOS provisions.

Some developing countries expressed concern about arbitrationcosts. The Law of the Sea provides for equal sharing of costs,except under certain circumstances. L.11 does not mention thisissue.

One delegation expressed concern that the focus was not on the realproblem -- the need for better decision making in existing regionalorganizations to avoid the need to settle disputes. A number ofdelegates agreed that dispute settlement mechanisms should be alast effort to solve a problem, not a first. It was suggested thata specific tribunal composed of legal and technical experts shouldbe created. There was concern, however, that a global disputesettlement mechanism would increase the number of disputes, cost,time, etc. Disputes should be dealt with by the appropriateregional organizations. However, since some disputes occur betweena party in a regional organization and a non-party, there should besome type of a global mechanism. There was agreement that thepriority should be given to regional settlement when possible.Several delegations said that no agreement on mandatory disputeresolution is necessary at this time. Finally, some said that sincedisputes should be resolved by regional organizations, thisConference should only give recommendations.

PORT STATE RESPONSIBILITIES

It was agreed that this question is not well documented in the Lawof the Sea Convention. Nevertheless, some delegates had divergentviews on the extent of port State jurisdiction in terms of highseas fisheries. There was also disagreement on the customaryinternational law in this respect. Some delegates advocated anextended jurisdiction for the port State, based on the coastalState's special interests. Others argued that port State'sauthority was the exception rather than the rule and is limited toa number of specific cases, such as the protection of the marineenvironment and the prevention of pollution. The amount of datathat a vessel needs to provide the port State upon calling in mightbe dependent on its activity.

Port State jurisdiction might be exercised at the discretion of theport State or at the request of the flag State. This isparticularly relevant in the case of open registries whose vesselsrarely stop in their national waters. Other nations expressed theirfear that this policing action on the part of the port State mightlead to discrimination. This concern led to proposals thatguidelines be established to limit the detention powers of the portState. In addition, it was agreed that a degree of proportionalityhad to be maintained between the suspected offense and theenforcement measures the port State might take.

INTERESTS OF DEVELOPING COUNTRIES

This topic was not included in the Chair's list of issues(A/CONF.164/10), but emerged as an item that required discussion.A number of developing States highlighted their dependence onmarine resources, both for food and for livelihood. They commendedthe work of the FAO in this field and expressed their appreciationfor documents A/CONF/ 164/L.11 and A/CONF/164/L.8, which recognizetheir special interest and needs. The debate, however, centeredaround the type of assistance that should be given to developingcountries. It was agreed that assistance will enable developingStates to fulfill their obligation to conserve and managestraddling and highly migratory fish stocks. However, an importantpoint that was raised was that forms of assistance should not belimited to the development of fishing within national jurisdiction.Developing States expressed their intention to develop distantwater fishing fleets and argued that the high seas fisheries shouldnot be ear-marked for developed States that are already harvesting.

Another point that gave rise to debate was how financial flowswould be channeled. The creation of special development funds wasmentioned as well as coordinating efforts through the Commission onSustainable Development (CSD) or the Global Environment Facility(GEF). The CSD will be dealing with Chapter 17 of Agenda 21 on theoceans in 1996 but, in the meantime, the GEF can be used to fundprojects through its focal point on international waters. Some,however, expressed their fear that the issue of high seas fisherieswould be diluted within the global context of sustainabledevelopment and called for a regional organizations approach. Itwas felt that through regional organizations the developing coastalStates would find it easier to shoulder the burden of participationin the regional management regimes. It was mentioned that the levyof participation fees in regional organizations should beproportional to the level of catch, but adjusted by GNP or percapita income levels.

In addition to the transfer of financial resources, countriesrequested the transfer of technology and training of personnel.Countries in transition to market economies explained that theywere unable to provide developing States with financial assistance,but were more than willing to train personnel in the relevantfields. Developing countries used this discussion to expressconcern with their difficulties in complying with conservation andmanagement measures, both in terms of data collection andenforcement and monitoring. It was also recognized that access tomarkets should be facilitated for developing countries.

IN THE CORRIDORS I

Toward the end of Thursday's meeting, the Chair spoke about thedifficulties in reflecting the content of the day's discussions onthe interests of developing countries and sources of funding in adocument that deals with principles. Some delegates were surprisedby this comment, as they had been under the impression that theChair was favoring a longer process leading to the elaboration ofa legally-binding instrument. The Chair's suggestion to adopt aresolution on the needs of developing countries also met with someconfusion. It is not clear what the outcome of this session will beand how such a resolution would relate to the outcome. Finally,there was talk that the Chair might submit a report, rather thanrecommendations, to the 48th Session of the General Assembly thisfall and request additional funds to continue negotiations towarda legally-binding instrument. Although he may be consultingprivately with delegations, Nandan has not yet made public hisdefinitive thoughts on these matters.

IN THE CORRIDORS II

Although most NGOs have been barred from observing the informalmeetings, they have been busy in the corridors. NGO comments havebeen tabled on the EC paper on suggested guidelines forconservation and management and international cooperation. Thecomments include the idea that in addition to ecosystems, theviability of the coastal fisheries and the communities that dependon them must be addressed. The right of the marine ecosystem toexist unimpaired must be the paramount consideration. The marinehabitat also needs protection and monitoring. "Acceptableuncertainty" is not a criterion that can be defined for globalapplication, since it is subject to arbitrary decision-makingprocesses. Transparency must include public access to information.The precautionary principle is a fundamental tool for fisheriesmanagement that must be applied at all times. Part II of the paperstates that the regional bodies must be nested in a globalframework, both to set minimum standards and to encouragecooperation to manage highly migratory stocks throughout theirgeographic range. The NGOs also urged nations to move beyondUNCLOS.

NGOs have also drafted a statement on the consistency principle.For straddling and highly migratory fish stocks, a consistentconservation and management regime based on an ecosystem approachis needed. Such a regime must be applied throughout the ranges ofthe stock as a safeguard against over-exploitation. Any elaborationof States' rights regarding the stocks must deal withresponsibility for conservation of the stocks and protection of themarine habitat.

THINGS TO LOOK FOR TODAY

PLENARY: For the first time since Monday, Plenary will meetthis morning at 10:00 am in Conference Room 2. The topic ofdiscussion will be Item VIII in the Chair's list of issues,A/CONF.164/10: Compatibility and coherence between national andinternational conservation measures for the same stocks. Nandanrequested that delegates focus their comments on conservation andmanagement of the two types of stocks. He added that it will serveno purpose to enter into a prolonged debate over who has rights andinterests and where those rights and interests can be exercised.The concentration should be on how this Conference can producecompatible regimes without compromising the rights of coastalStates to use resources in their EEZs.

INFORMAL CONSULTATIONS: Following the conclusion of thePlenary's discussion on Item VIII, informal consultations willbegin on monitoring, control and surveillance. At the conclusion ofThursday's informal session, Nandan proposed that theseconsultations take place in Conference Room 2 so that everyone canattend. He suggested that the nameplates could be removed to retaina degree of informality. This decision was, in part, based on thestanding-room-only crowds in Conference Room 5 on Thursday, whereDelegates had to exchange seats to allow others to use themicrophones. At one point, a delegate commented that the room hadbecome like the adjacent high seas and, as a new entrant, he onlygot the surplus.