ENB:07:22
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MORNING PLENARY SESSION
The Chair first gave the floor to those delegates who wanted to make general statements.
Sweden reiterated the position that this Conference is a child of UNCED and that the previous statements have too often been a confrontation of antagonistic legal perspectives. He reminded the delegates that the CSD would review their work in 1996 and that concrete results must be achieved by then. He then offered a series of important elements that should form the core of the final document of this Conference, including: a preamble, general principles, regional cooperation, mandatory membership to those organizations, timely, compulsory and binding dispute settlement, strict enforcement and compliance measures as well as a follow-up process that would involve UNCLOS, and a close partnership of the CSD and the FAO. An Intergovernmental Negotiating Committee (INC) would be established for negotiating a convention.
General statements were also made by Sierra Leone and Indonesia. It was highlighted that technical support must be provided to developing countries and special consideration must be given to their needs. Specific comments were also made on the sections of the text dealing with the nature of the conservation and management measures to be established through exploitation, the precautionary approach, entrance to fisheries by new members, settlement of disputes and the special requirements of developing countries.
The discussion then continued with a review of Section V, Compliance and Enforcement of High Seas Fisheries Conservation and Management Measures. The Chair briefly introduced this part of the text by highlighting that everyone agrees that there should be conservation and the flag States agree they have prerogatives to take the appropriate measures, but vessels that fish on the high seas are fishing at great distances from their nation and it is impractical for flag States to observe what is happening on the high seas. As part of the regional arrangements, assistance is needed for the flag States to ensure that their vessels are cooperating. The first delegate agreed that such assistance is needed, but the text does not specify whether this responsibility is shared by the coastal State or the regional mechanisms.
The Chair's text calls for a transfer of competence from the flag State to the coastal State within the framework of the regional organization alone, whereas in L.11/Rev.1 the competence to enforce would be conferred on any part vis-a-vis any other party of a universal convention. Adjustments and reconciliation between these two texts need to be made. It should still be made clear that the competence of the coastal State is subsidiary in nature, a residual competence that could be exercised only provided the flag State does not take the appropriate measures. A distant water fishing State re-emphasized the importance of having those measures applied through specific regional organizations. The text cannot go beyond UNCLOS. A series of "technical details" were also highlighted by a delegate to show inapplicability of Section V. Other countries saw this section as the "pillars" of the negotiating text.
Some argued that direct action by the coastal State can only be allowed in a number of particular cases, such as fishing when fishing is banned, without permission, and when the national quota has already been filled. Compensation schemes could then be established if the sanctions cause damages.
A delegate said that the text should not go further than the FAO flagging document that was agreed upon. Another delegate answered that since not all negotiating parties present acceded to the FAO agreement, it should not be mentioned too generally.
References to stateless vessels proved troublesome and a delegate argued that a vessel that has a nationality but is not registered should not be treated as stateless as provided by UNCLOS. The Chair answered that by flying a false registry the vessel has put itself in the position of a stateless vessel. The question of knowing what to do with the vessel before its nationality is established is still open.
A delegate mentioned that some of the measures to be adopted would violate some States' constitutions, and this led to the latest legalistic debate on the applicability, signature and ratification of UNCLOS and its Article 117.