ENB:07:34
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PLENARY
The Conference Chair, Satya Nandan, opened proceedings by asking delegates to keep their statements short and precise so that the first reading of his revised negotiating text (RNT) could be completed quickly. The morning's informal Plenary focused mainly on Section III, General Principles, of the RNT, although some delegations spoke on earlier discussions of Sections I, the Objective, and Section II, the Application.
SECTION III -- GENERAL PRINCIPLES: The delegate of Indonesia said that if paragraph 3(a) was applied in the EEZ it would represent a complete negation of the EEZ. With regard to paragraph 3(f), on developing countries, it is necessary to help those countries fulfill their obligations but also to provide mechanisms to enable their participation in high seas fisheries. The Chair suggested that all developing country issues could be clustered together.
The delegate of India, supported by Thailand, agreed that there was no legal duty to cooperate on resources in the EEZ. Regarding the best scientific advice, this can only be attained with the consent of the State concerned. The delegate of Kenya emphasized the need to strengthen capacity building. He was concerned that environmental factors should be more expressly taken into account under Section III.B that deals with the precautionary approaches to fisheries management.
Korea said that Section III.C.7(d) should be amended to better reflect that the management measures established on the high seas would be no more stringent than those established in the EEZ. Poland suggested that the paragraph be deleted, while China maintained that the requirement be given vice-versa status.
The delegate from Ukraine said that biological unity should not be prejudicial to the sovereign rights of the coastal State. Canada's contention yesterday that Section II, dealing with application, be split into two parts. This was supported by Fiji. Sweden tendered three specific observations on Section III: that decisions on conservation and management measures should be based on the state of the marine environment; that the interest of local communities and indigenous peoples should be adequately taken into account when negotiating regional and subregional agreements; and that clearer guidelines be established in the sub-section on the precautionary approach to fisheries management, Section III.B.4(d). An alternative Swedish text underlines the need for States to be more cautious in managing a resource about which little might be known, and additionally seeks amendment to the RNT's Annex 2 so that the maximum sustainable yield should be viewed as a limit for fisheries management.
Fiji said it was necessary to include the full rights and obligations of coastal States as defined by UNCLOS and keep the principles enshrined in the FAO's compliance agreement. The European Union said that it was not necessarily the five percent of fish caught outside the EEZ that caused management problems inside the EEZ and it was not proper to use different principles when dealing with the biological unity of fish stocks.
Thailand supported the Indian position that a quotas concept should only apply with regard to a fair and equitable distribution of high seas resources. Referring to the collection of data, Thailand, supported by Ecuador, said this should be available free of charge since it is necessary to give developing States the means to apply effective management measures. The US delegate said there is a need to collate common data throughout the entire geographic range of the stock. Poland said he could not accept any extension of the rights of coastal States, but he could accept the rights to cooperate on an equal footing. He could not support the concluding sentence of the chapeau in Section III.C.7 requiring States to respect measures and arrangements adopted by relevant coastal States in accordance with UNCLOS.
Poland circulated alternative text on paragraph 8 dealing with the dispute settlement mechanisms under which States are to settle disputes over incompatible and uncoordinated conservation and management measures.
With regard to part B on the precautionary approaches to fisheries management, the representative of Japan said the RNT recognized the intense discussions of the Working Group held in March. The US delegate did not agree and said both part B and its accompanying annex needed strengthening since it did not reflect the Working Group's text. The Russian Federation said that "minimum standards" in paragraph 4(d) was not a careful precautionary approach to fisheries conservation and management. The term "optimum standards" is more applicable. The EU said the provision to widely apply the precautionary approach in the chapeau of paragraph 4 is not clear. Clarity can be promoted by ensuring that the concept of biological unity is applied to the entire stock throughout its entire area of distribution. The delegate from Chile, and former Chair of the Working Group on the Precautionary Approach, said that as the text properly reflected his report, he could not support any amendments.
The Japanese delegate said that the second sentence of UNCLOS Article 64 dealing with cooperation by relevant coastal States where no appropriate regional or other organization exists, is missing in paragraph 5(b), and circulated alternative language to cover this anomaly.
In Section III.C, compatibility, China said it was necessary to introduce the concept of rational utilization when agreeing upon the conservation of fish stocks in the area adjacent to the EEZ of a coastal State. Regarding the Russian intervention for inclusion of a new paragraph 3(g) in respect of temporary measures necessary to prevent overfishing in enclosed and semi-enclosed areas, the Chinese delegate said this would provide for unilateral coastal State action contrary to UNCLOS. The delegate from India supported the use of UNCLOS language in paragraph 8 on dispute settlement provisions.
Japan said that this proposal on subparagraph 5(b) is no more or less than what is provided in UNCLOS. New Zealand stated that even though the language comes from UNCLOS, it did not mean that such language must be completely reflected in the RNT. The delegate from India favored keeping the chapeau of paragraph 7 as it is. In paragraph 8, he supported use of language from UNCLOS regarding a dispute settlement mechanism. The delegate from New Zealand supported making the provisions of paragraph 4(b) mandatory, especially programs for collection of data on fishing on non-target species.
The representative of Canadian Ocean Caucus said that under Section III.A.3(b)(ii), limits to fishing effort should include capacity, along with the number of fishing days. The representative of the Worldwide Fund for Nature said that Section B of the RNT, "Precautionary approaches to fisheries management", requires that the precautionary approach be widely applied to fisheries management, both on the high seas and within EEZs, in order to protect the marine environment. The representative of the Alaska Marine Conservation Council suggested incorporating an amendment on impacts suffered by the marine ecosystem and fish stocks from toxic pollution.
The Chair stated that common ground has now been found on the objectives. The Conference is working to ensure long-term sustainability of straddling fish stocks and highly migratory fish stocks. There is broad agreement on the application of some of the basic principles. He said that everyone agrees that principles relating to the precautionary approach should be applied throughout the range of the stocks, taking into account their biological unity. There is common ground on compatibility to ensure stocks in the EEZ and the high seas are managed on the basis of common minimum standards. The Chair said that the area presenting difficulty is the application of minimum standards in the economic zone and in the adjacent high seas. The problem is one of respect for the sovereign rights of coastal States to manage their resources and the interrelationship of the stocks found in the adjacent high seas. The Chair suggested the possibility of a roundtable to examine the problem of enclosed and semi-enclosed seas.
SECTION IV -- INTERNATIONAL COOPERATION: Most delegates said that this section of the text represents a good balance of the various interests involved. Papua New Guinea suggested that it be shortened without losing the essence of its provisions. Chile said that this section deals with two different aspects, international cooperation and regional fisheries management organizations, and he suggested that it be divided accordingly.
Japan proposed that a new paragraph be added in part A that deals with mechanisms for international cooperation. This new draft paragraph deals with the effects of actions taken in application of a non-fishery organization that have an implication on the conservation and management measures taken by a fisheries organization or arrangement.
The issue of openness or exclusiveness of the organizations was debated at length, with China arguing that any country, irrespective of its geographical location, has a right and duty to participate in the conservation and management measures of living marine resources in any area of the high seas. States with an interest in the stocks concerned should therefore be deleted at the end of paragraph 14. Argentina, and others, suggested that only those with a fishing interest should be admitted in the regional organization. Uruguay said that those with no interest at all should not be admitted.
The Russian Federation said that despite the freedom of fishing, certain straddling stocks are fully utilized by the coastal State itself, and a regime should not violate the rights of coastal fishers utilizing the resource on a primary basis. India agreed that the coastal States should have preference in areas adjacent to their EEZs. The EU also called for openness and said that exclusiveness could undermine the measures taken on the part of non-members. Korea estimated, and Thailand concurred, that the subparagraphs a, b, c, and d, of paragraph 21 are all discriminatory against new entrants and conferred a preferential treatment on existing members, which is unacceptable.
Norway, supported by the US, Argentina and Chile, answered that the principle of openness should apply, subject only to the terms of participation of the organization itself. Canada agreed and suggested an amendment to that effect, while adding that access would be on a non-discriminatory basis. The Russian Federation said that it had concerns over paragraph 18 and its reference to article 123 of UNCLOS with regard to enclosed and semi-enclosed seas. Russia called for a more extended wording of this paragraph.
In paragraph 21, which deals with the criteria for allocation of participatory rights to new members of the organizations and arrangements, Norway said that the criteria should also apply to the distribution of stocks among all members. Both Norway and Canada asked that the biological unity of the stocks be respected in this regard. One cannot simply assume that there are new members but must first look at how the decision to accept new members is taken. Chile also highlighted some important oversights such as decision-making in the organizations and how the organizations are set up. He added that coastal States are a minority and distant water fishing States the majority but the coastal States are not indifferent to the way in which the organizations are formed or how decisions are taken within them.
Senegal highlighted the importance of international cooperation and regional arrangements to develop fisheries. Several references to coastal fishing communities and coastal developing States gave rise to debate since the EU, Korea and others wanted to delete the word "coastal". The representative of a Latin American State accused the distant water fishing States of just trying to delete any reference to coastal, wherever they are.
The US suggested that reference be made to the integrity of the regional organizations. With regard to sub-paragraphs (g) and (k) of paragraph 20, Thailand argued that they were vesting authority in a supra-national entity that would have jurisdiction over non-members, which is contrary to the law of treaties. Uruguay answered that some obligations apply even to non-parties, as is the case with the protection of endangered species.