Daily report for 21 March 1994

MORNING INFORMAL PLENARY SESSION

The Chair opened the session by introducing the FAO paper onreference points for fishery management. The FAO representativesaid that the principle of Maximum Sustainable Yield (MSY) wasadopted in UNCLOS as a target for development or rebuilding ofresources that would be efficient for humans and safe for theresource. But, with an imperfect knowledge of fish populationdynamics and incomplete understanding of socio-economic dynamics,using MSY as a management target is neither efficient nor safe.Reference therefore needs to be made to more precautionaryreference points. The concept of stock management unit is centralto conservation, and management and cooperation need to bedeveloped. The MSY concept is flawed, sometimes seriously, becausethe stock production potential is variable and the MSY shifts asfishing intensifies. There is complete uncertainty on the precisevalue of the MSY and the corresponding effort, and on the fisheriesthemselves. The optimum sustainable yield (OSY) concept has beencoined but offers little opportunity for practical application. TheFAO paper suggests that managers use more than one reference point,promote proper statistical models and take into full considerationerrors attached to assessments.

One delegate said that the unit stock is the basic principle of allmodels. Establishing target limits needs to be done over the wholerange of distribution of the stock, both within the EEZs andbeyond. A coastal State delegate strongly disagreed with this viewand said that measures on the high seas should be compatible and inagreement with the measures in the EEZs. Another representativesaid that there are positive aspects to the concept of MSY and theFAO paper gives negative aspects. These should be left to theWorking Group.

It was highlighted that the FAO document brings clarity to theconcept of Biological Reference Point (BRP), but it is stillunclear how the document on BRP should be introduced in the work ofthis Conference, since this concept and the Precautionary Approachare closely related.

A distant water fishing State delegate said that where scientificinformation is poor, the BRP should be flexible to allow morepractical approaches for step-by-step changes in fishing ratherthan imposing strict measures on the stock, such as moratoria. Butanother State said that in the absence of complete information,empirical solutions cannot be accepted, especially on astep-by-step basis. A delegate asked that the difference be madeclear between stock management and stock utilization, since theterms do not mean the same thing. An NGO representative said thatthe concept evolved when fisheries were still developing, butshould now be the upper limit where more strengthened measures haveto be used.

The Chair then said that the Working Group would pick up the debateand asked for delegates to comment on the Russian amendments to thenegotiating text. The authors of the amendments said that theyintended to adopt language closer to UNCLOS than the Chair's text.A delegate said that it should also reflect on the UNCED mandateand emphasize human-centered sustainable development.

Once again, attempts were made to reflect more strongly on measureswithin the EEZs and were just as expectedly opposed by coastalStates representatives.

It was noted by some that the Russian proposal artificiallydisintegrates measures to protect straddling fish stocks, since itrefers to long-term sustainability for straddling fish stocks andto optimum utilization for highly migratory fish stocks. But theauthors pointed to some specific stocks that should be managed ina special way, and reference was made to a list of such particularstocks.

The next amendment was on paragraph 19 of Section III on enclosedand semi-enclosed seas. The authors highlighted the lack of trustbetween countries fishing in the enclosed or semi-enclosed seas andthe differences in agreements due to the absence of objectiveappraisal. Some delegates expressed their unease at the amendmentsince it departs substantially from Article 123 of UNCLOS. Othersinsisted that the text is not so much contradictory ascomplimentary to this article. Any additional rights to the coastalStates were strongly opposed by those who saw an attempt in theRussian amendments to extend national legislation towards the highseas. The authors answered that their intention was not to infringeon the freedom of the high seas but rather to encourage cooperationamong the States involved. The Chair concluded the debate byexplaining that the problem was one of finding the right balancebetween the special interests of the coastal States and the freedomof others to fish on the high seas.

AFTERNOON INFORMAL SESSION

The Chair stated at the outset of the afternoon session that hewould open the floor for discussion on the remainder of the Russianamendments.

The Russian Federation stated that it would add a new paragraph onthe establishment of special measures to allow for increasedresponsibility of the flag State and for taking more stringentmeasures against violators.

In response, several delegations found the concept of enclavesunacceptable. A delegation was unable to explain how to integratethe concept of enclaves within the mandate of UNCLOS. The proposedphrase to be added at the end of the second sentence of paragraph22, "including urgent temporary measures adopted by the coastalState", seemed a temporary unilateral measure. These temporarymeasures could include moratoria, which would be unacceptable. Withreference to coastal States and regional organizations, coastalStates can be parties to the mechanisms, but they should notsubstitute for them. Only through regional or subregionalorganizations should conservation measures be put into force. Thereshould be a focus on the common interest of species conservationrather than on questions of whose fish it is. With respect of theproposed amendment of paragraph 22(e) on change of registration onthe high seas, Paragraph 5 of Article 3 of the FAO flaggingagreement was the maximum extent to which States could go. Othersvoiced support for paragraph 22(e) in the Chair's text as presentlydrafted. Another delegate thought that the matter is covered inArticle 92 of UNCLOS. A delegate found difficulty with the fourthamendment for inclusion of a new paragraph after paragraph 22,stating that language should be found to distinguish betweenparties and non-parties.

Some delegations found the proposed amendments to be coherent inmeeting the mandate of the Conference. They deal with real problemsof high seas fisheries. The freedom to fish the high seas as seenin Article 116 of UNCLOS is subject to the rights, obligations andinterests of the coastal States, because these resources areintimately linked to coastal States' ecosystems. The discussionboiled down to the special rights of coastal States, and the Chairhad to interrupt the representative of a distant water fishingState after he quoted distinguished legal scholars at excessivelength.

The Chair then invited delegates to comment on Section IX of thetext on compatibility and coherence. He said he had tried toreconcile the jurisdictional division between high seas and EEZsand the fundamental biological unity of the stocks.

The first delegate felt that the balance was not right with regardto the burden that weighs on the distant water States or theimpacts born by the coastal States. Some minimum standards mustapply to all States.

The representative of a coastal State answered that there arefundamental differences that are reflected in UNCLOS, and theparties to this Conference cannot start from scratch but need tobuild on the Law of the Sea. Coastal States and States fishing onthe high seas need to cooperate, but there is no need to tell thecoastal States how they should organize within their EEZs. Measuresshould be stricter on the high seas than within EEZs and themeasures in both areas will not always be equivalent. The interestsof the coastal States are most vulnerable, and the rights of allStates therefore cannot be put on the same footing.

Another delegate said that five principles should apply: thesovereign rights of coastal States within their EEZs must berespected; States have a right to fish on the high seas; thebiological unity of stocks must be recognized; regionalorganizations will play a particularly important part to achievemanagement goals; and there must be mutual respect of rights andobligations under UNCLOS.

WORKING GROUP ON FISHERIES MANAGEMENT REFERENCE POINTS

Chair Satya Nandan opened the Working Group on Monday afternoon,thirty-five minutes later than planned because of difficulties indesignating the Working Group Chair. Vice Chairs of the Conference,he said, were not numerous, but it was especially valuable toappoint a Chair with technical competence. His suggestion of Dr.Andy Rosenberg (USA) was endorsed by delegates. Nandan remindeddelegates of the two management concepts contained in UNCLOS, butin terms of developing a revision of the negotiating text, he saiddelegates should deal with MSY as defined by UNCLOS and notabstractly.

Initially, delegates reflected on the FAO paper (A/CONF.164/INF/9),which many described as an authoritative document in the classicalsense and valuable to the stimulation of debate.

One distant water fishing (DWF) State asked for clarification as towhether the suggested annex would be an annex for paragraph 5 or anannex to the negotiating text. The Chair replied that it would benecessary to define an annex for both the Precautionary Approachand the MSY.

One delegate suggested that MSY be introduced into the Chair'stext. A Like-Minded core group delegate said the Chair's proposalto create a framework in which concepts, reference points andguidelines could be adopted was a sound proposition. The Chairresponded by indicating that the technical annex could be used todescribe reference points for different purposes in managementstrategies. He asked that delegates give their comments to developthe technical ideas which could then be related back to paragraph5. Delegates endorsed the Chair's five-point draft action planthat identifies: the need for an introduction to discuss thecontext of the issue and its relationship with both the BRPs andthe Precautionary Approach; the importance of setting managementobjectives and their interdependence; the need to describe anddistinguish between management targets and conservation referencepoints; the requirement to identify the issue of uncertainty; andthe linkage between concepts of precautionary approach andreference points and the practical implementation of management. ADWF State delegate said there would be a need to distinguishbetween BRPs and Management Reference Points. One delegate said theMSY concept is now outdated and should only be treated as aphilosophical reference point, rather than a mathematical one. TheFAO Representative said that management objectives neededclarification. One delegate argued the need to recognize theimportance of non-target species and the ecosystem approach.

The Chair underlined the need to define objectives preventingnon-sustainable fishing. A Like-Minded core group delegatesuggested that International Council for the Exploration of theSeas (ICES) "safe biological limits" could be developed whileanother core group member said it was necessary to defineobjectives and reference points for both established fisheries andnew fisheries. The FAO said that some reference points arestrategic to the management of fisheries, but others are purelytactical. The Chair asked delegates to submit their writtenproposals by 10:00 am today. The Chair will then synthesize theproposals received and produce a draft text which will be madeavailable prior to the second session.

THINGS TO LOOK FOR TODAY

PLENARY: Discussion will resume this morning on Section IXof the Chair's negotiating document. Debate will focus on thespecial rights of coastal States and coherence of measures withinthe EEZs and on the high seas. The revised text on thePrecautionary Approach, Section I, paragraph 5 Rev.2*, should beavailable today.

WORKING GROUP ON FISHERIES MANAGEMENT REFERENCE POINTS: This Working Group will resume this afternoon to consider the drafttext. This text should be available at 1:00 pm from the WorkingGroup in Conference Room 6.