Daily report for 16 March 1994

MORNING INFORMAL-INFORMALS

FAO began the session with an introduction to its paper on theconcept on the Precautionary Approach in fisheries management. Thispaper outlines the confusion between Precautionary Approach and thePrecautionary Principle which results from slack usage of theterms. Principle 15 of the Rio Declaration defines what the mostrelevant definition would be for this Conference - "theprecautionary approach shall be widely applied by States accordingto their capabilities. Where there are threats of serious orirreversible damage, lack of full scientific certainty should notbe used as a reason for postponing cost-effective measures toprevent environmental degradation".

Seven main points were presented: (1) the precautionary approachgives the benefit of doubt to the resource; (2) precaution is notnew; (3) precautionary approach requires preventive action; (4) theneed to agree to minimum standards, reference points, and criticalthresholds while recognizing the potentially non-precautionarynature of the MSY reference; (5) quantitative criteria andstandards required for precautionary ecosystem management; (6)fisheries must have an impact on the resources and the ecosystem ifthey are to play a role as a human life-support system; and (7) theprecautionary approach requires substantial support from fisheryresearch.

In the discussion that followed, one delegation argued that theprecautionary approach cannot be used as an excuse not to usescientific research. Another stated that any management decisionsmust take into account the biological unity of the stocks inquestion and that the precautionary approach should apply to allstocks across the board. Another delegate said that strategies forfishing management should be based on optimizing the dialoguebetween man and nature, and we should come up with a decision thatfavors nature. Others said that the precautionary approach cannotbe used as an excuse for not having proper commercial exploitationof species. Application of the precautionary approach at theregional level should be coordinated with the regionalorganizations.

Several delegations said that action taken inside the EEZs areuseless if no action is taken outside. Reference was made again toL.11/Rev.1, as the proposals in this document would focus attentionon practical aspects of the approach. Several delegations suggestedthat the working group give content to the precautionary approach.Some expressed reservations about the precautionary approach, asresearch indicates that it applies solely to marine degradation andnot to fisheries.

Moratoria must not be confused with the concept of theprecautionary principle. Several delegations said that such adrastic measure must be based on solid scientific information.Others said that moratoria would not be necessary if fisherymanagers acted in cautious ways in their decision making, and thatmoratoria should have deadlines. It was pointed out that the draftNorth Pacific Donut Hole Convention sets specific biomassthresholds and that moratoria would automatically apply to it.

A delegate said that before imposing management measures, thesituation of small island States should be considered sinceresources are scarce for use of scientific measures. The economicand social concerns of local communities should also be taken intoaccount. Two NGOs said that the precautionary approach should befully integrated into management decisions and that it should applyto all stocks, and not only once problems arise.

AFTERNOON PLENARY SESSION

The Plenary resumed in the afternoon with an examination of SectionIV on the duties of the flag States. The Chair opened the sessionwith a reminder that flag States have the primary responsibility toensure that the vessels flying their flag adhere to conservationand management measures applying to high seas fisheries.

Some delegates called for stricter measures for flag States toensure that their vessels' activities do not undermine or harm theeffectiveness of international conservation measures. It was alsosuggested that flag States and coastal States cooperate to reducethe costs of onboard inspectors and observers. A distant fishingState observed that the presence of these observers would need tobe prescribed by the regional organizations themselves when thevessels are on the high seas.

An additional sub-paragraph was suggested that would forbid vesselsgiven the right to fly a State's flag to engage in any activityharmful to international conservation and management measures. Anadditional proposal establishes special procedures to allow a shipto fly a State's flag, including the prohibition of reflaggingwhile at sea.

A delegate asked why the word "effectively" was used in referenceto conservation and management measures but not with regard to themeasures taken up by the flag State. Deletion of this word wassuggested, but the Chair remarked that this language is drawnverbatim from UNCLOS. An amendment was also proposed that wouldrequire flag States to enforce temporary unilateral measures of anurgent nature taken by the coastal State.

Numerous references were made to the FAO flagging agreement, butthe extent to which the text can be integrated within the Chair'sdocument remains unclear. Some delegates were of the view that itcannot be integrated or that references cannot be made to it tooexplicitly since its adoption by major distant fleets is stilluncertain. A delegate remarked that the Chair's text had beenprepared before the flagging agreement was drafted and that the FAOeffort should be considered. Small island representatives fearedthat the FAO agreement would not be ratified by the flags ofconvenience under which substantial distant fishing takes place.Strengthening the current text would thus be preferable.

With regards to enforcement measures, a member of the Like-MindedStates recommended that the provisions of L.11/Rev.1 on that matterbe reproduced in the Chair's document. CCAMLR was also mentioned asan agreement under which the enforcement measures are effective andcould be replicated at this Conference.

The debate then turned to yet another theoretical confrontationover the interpretation of UNCLOS with regards to the rights andduties of the coastal States in their EEZs and the applicability ofthis Conference to the high seas, the EEZs, or a combinationthereof. A distant water fishing State triggered the debate withits request that the reference to the high seas be deleted in thechapeau of paragraph 22 which deals with the measures to be takenby the flag States. Representatives of the coastal States wereadamant that jurisdictional matters within the EEZ are not theconcern of this Conference. Nandan reflected on the fundamentaldichotomy on references to the high seas throughout the text, butadded that in the particular matter of enforcement, there can be nodoubt whatsoever as to the extent of the coastal Statejurisdictional rights in the management of the EEZ livingresources, regardless of whether the stock straddles or migrates tothe high seas or not.

PRECAUTIONARY APPROACH WORKING GROUP

The Working Group convened on Wednesday afternoon, initially underthe Chairmanship of Satya Nandan, who said that there appeared tobe general acceptance of the Precautionary Approach, but that theparticularities needed to be worked out. He suggested that theWorking Group elaborate by considering the addition of an annex tothe negotiating text and that the Working Group should notreiterate political views. Because of a simultaneous meeting of theinformal he appointed Vice Chairman Andres Couve (Chile) asChairman of the Working Group.

The initial speaker said the Precautionary Approach was a difficultissue and represented a "mixed bag". He noted that the WorkingGroup was not strictly a scientific meeting. There was a need todevelop a debating structure for the meeting to proceed. The basicissue was the state of stocks, especially multispecies. Hesuggested that for successful management, it had to establish aseries of reference points: how much information was known; whatthe "Biological Reference Points" (BRP) might be; and what sort ofmanagement effort might be the most appropriate. On the BRP he feltthere was a need to reflect on the MSY discussion paper, becausethe MSY is no longer a valid management target.

Another delegate proposed tabling an alternative paragraph 5 of theChair's negotiating text by incorporating and expanding upon theFAO approach. He felt there was a need to adopt an ecosystemapproach, identify pre-management thresholds, recovery programmesconsistent with recovered productivity, and that new fishinggrounds required cautious development, to maintain thesustainability of new stocks.

One delegate referred to document L.22 and suggested thatdiscussion should include what might constitute BRPs, but theWorking Group should not prejudge the forthcoming discussion onMSY. During the early part of the Working Group there seemed to besome reluctance of States to participate in discussion, but thecirculation of written alternative language eventually stimulateddebate.

A distant water fishing (DWF) State suggested the Chairman'snegotiating text was a satisfactory starting point for discussionand only a few minor amendments were needed. These included theneed to define and elaborate on the migratory range of resources.Principle 15 of the Rio Declaration should be used to provide theexact text. If the word "moratorium" is used in any text, it shouldhave qualifying parameters. There was a fear that the PrecautionaryApproach could be interpreted simply as a means to declare amoratorium without further qualification. The Chair asked forthese amendments to be circulated in writing. Under paragraph 5 (e)in exploratory fisheries, a delegate suggested that to introducesafer fishing technology, industry incentives should be awarded.

Annex 2 in document L.11/Rev.1 was promoted by more than onedelegation. In specific reference to "thresholds", the thresholdneeds to be based on the total biomass of the resource or the totalbiomass of the targeted stock. Delegates suggested that discussionof the Precautionary Approach was closely linked to the MSYconcept.

Another delegate said it was necessary to make a distinctionbetween the amount and the kinds of information the State may havein deciding what sort of "trigger" mechanisms might be the mostbeneficial to promote precaution. He said that the MSY had becomethe "holy cow" of UNCLOS and fisheries management, but it does nothave the same status now as when first promoted. He tenderedcaution in rushing into agreement on BRPs because it would beunwise to enshrine them in the same manner as is the MSY concept.

One DWFS delegate felt that the Working Group was suggesting twoseparate threshold measures while another suggested there was aneed to define the meaning of threshold. Another delegate feltthere was a need to define the precautionary kinds of thresholds.He asked how it would be possible to balance increasing risksagainst costs. In response to the concern of the use of the word"moratoria", one coastal State suggested an alternative byestablishing zero quotas rather than promoting the concept ofmoratoria.

With regard to the ecosystem approach to management, one DWFSrecognized the importance of this emerging concept and shared theshift in that direction. On the question of the burden of proof,there was a need to clarify the meaning of this in a definitiveform. A coastal State felt that while ecosystem management waswholly desirable, it may not be either practicable or attainable.

In reflecting on the MSY, the FAO representative said that becausemost fisheries management efforts are already beyond the MSY level,it might become a minimum standard for the re-building of depletedstocks. He said that there was a need to take into account thelifespan of fishing vessels, and that resources have to be managedwhether or not they are affected by man or environmental factors.

The Working Group concluded its first session following a statementfrom an NGO who suggested that the Precautionary Approach isimplicitly required in UNCLOS practices. The Chairman adjourned theWorking Group after three hours of discussion.

THINGS TO LOOK FOR

PLENARY: The Plenary will resume this morning. The delegateswill examine Section V on compliance and enforcement measures butmay first revert back to the proposed Russian amendments on flagState jurisdiction when they have been translated. The Chairexpressed the hope that it would be available in all languages butthat the examination would begin as soon as an English text isavailable.

PRECAUTIONARY APPROACH WORKING GROUP: The Working Group willreconvene today in the afternoon with a revised draft text on the Precautionary Approach.