ENB:07:35
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PLENARY
Conference Chair, Satya Nandan, opened the proceedings by inviting delegates to complete work on Section IV, International Cooperation.
SECTION IV -- INTERNATIONAL COOPERATION: Sweden said that with regard to paragraph 14 and access to organizations, the only way to stop over-exploitation is to encourage open membership, and not to restrict it to those States especially interested in fishing. A closed membership would exclude new entrants and thus discriminate against developing countries, especially if the license fees are high.
The delegate of Poland suggested that paragraphs 13 and 14 be amalgamated, but that in respect of paragraph 16, he supported the alternative Japanese text. Regarding paragraph 20(d) on data collection, the work of the FAO in drafting the Code of Conduct on Responsible Fishing should be reflected.
Speaking in further support of Section IV, the delegate from Canada suggested regrouping a number of paragraphs to tighten the overall structure. Taking up an earlier point made by the EU, he said he could not support the deletion of "biological characteristics" in 17(a) with replacement by "biological unity" because biological unity is just one of many characteristics of a fish stock. The EU delegate replied that his delegation preferred specific inclusion of "biological unity" in the RNT.
Ukraine commented that international cooperation is the only means of achieving sustainability of fish stocks, but the structure of Section IV is insufficiently clear for translation into a legally binding-document. He favored Chile's restructuring proposal, since the basis for cooperation is chiefly the obligation of the States who harvest the fish stocks. In respect of inter-governmental organizations and NGOs, he supported their admission as observers only. India favored some provision to withhold the transmission of data if it is deemed incompatible with the coastal State's national interest.
Concluding the discussion on Section IV, the World Wide Fund for Nature said that in recognizing the important role played by regional agreements, it is necessary for membership to be open and non-discriminatory and include those parties with an interest in conservation and sustainability.
Prior to moving to Section V on enforcement measures, the Chair reflected on the question of form. He said that informal consultations with delegates remain incomplete and will continue, as some delegations feel that the development of content and form should proceed together. He urged delegates to complete the review of the RNT by Friday evening, if necessary, by limiting the length of interventions.
Australia made a general statement on behalf of the sixteen members States of the South Pacific Forum Fisheries Agency (SPFFA) on the form of the Conference's final outcome. Members of the SPFFA remain united in their resolve to achieve a strong and substantial result from the Conference and feel that substantial progress had been made towards reaching agreement on problems that seemed unresolvable twelve months ago, but it is necessary to reach a consensus on the form. A legally-binding outcome must contain four essential elements: international standards to achieve the long-term sustainability of the stocks; consistency with UNCLOS preserving the rights of coastal States while maintaining flexibility to allow cooperation and conservation between coastal States and distant water fishing States; strong, detailed and meaningful provisions relating to flag State responsibility and effective mechanisms for compliance and enforcement; and, agreement on the timely collection and exchange of data. The SPFFA member States do not have the human or financial resources to engage in protracted negotiation and he urged all delegations, especially distant water fishing States, to work to finalize a legally-binding agreement as soon as possible.
Canada welcomed the Australian statement. The delegate from India said he was prepared to support a convention provided that arrangements could be found to accommodate exploitation of high seas fish stocks by developing States. The Japanese delegate said his position remained unchanged because consensus had not been reached on the form. The EU delegate expressed sympathy with the SPFFA, but said that consensus on the substance is required or the form will not be secured.
SECTION V -- COMPLIANCE WITH AND ENFORCEMENT OF HIGH SEAS FISHERIES CONSERVATION AND MANAGEMENT MEASURES: Korea said his government was now prepared to accept boarding and inspection of its vessels, but cannot accept the detention of fishing vessels on the high seas, as this is contrary to the provisions of UNCLOS. Japan said that Part A, on duties of the flag State, generally follows what currently exists in the FAO compliance agreement, but, under paragraph 29, fishing masters should not be indiscriminately sanctioned. Detention of a flag State vessel by a coastal State should only be with the consent of the flag State.
Panama said that it is currently complying with most of these requirements, but could not accept inspection of its vessels other than by inspectors authorized by Panama. Malaysia said that the RNT represented a move away from flag State control and this is acceptable because of the serious level of over-fishing.
The Cook Islands, supported by Vanuatu, said the RNT does not provide adequate provision for developing coastal States that are also flag States and the problems facing these developing States must be recognized.
The Russian Federation, while supporting the general provisions of Section V, introduced a new paragraph under Part C on regional agreements and arrangements, which include the right to prohibit a vessel to fish on the high seas in contravention of conservation and management measures. Argentina said the efficiency of the regime depends on the system of compliance and enforcement and it could not support deletion of the reference to detention and arrest of violating flag State vessels.
China argued that there should be no change from the provisions of UNCLOS in regard to violating flag vessels. Sweden said that in order to halt over-exploitation of fish stocks, it is necessary to agree on enhanced enforcement measures as promoted in Parts A and B of the RNT. Mexico spoke in support of licenses to fish on the high seas, but said that monitoring programs cannot be established quickly and efficiently without the transfer of technology.
Canada endorsed the position of the EU that there should be flexibility for regional organizations, but acknowledged that flexibility should be in the procedures themselves and recommended maintaining paragraph 31. This would then allow each regional or subregional organization to adopt procedures to suit their own circumstances. Member States of regional organizations should agree on procedures for execution, but implementation of the principles would fall to the organization. Canada wants to adopt a binding international convention through which flag States agree ahead of time to the detention of vessels flying their flags in respect of paragraph 34. He endorsed the proposal by the Russian Federation that promotes a ban on reflagging on the high seas. Canada also supported the inclusion of additional text promoted by Ecuador on illegal incursions into the EEZ and also raised by Argentina and Indonesia. Canada associated itself with Australia by wanting to keep as much possible of the Chair's RNT. Canada supported the proposal by Samoa that high seas fishing vessels carry appropriate vessel positioning equipment and the communication facility to transmit that information.
The delegate of Vanuatu supported Australia, Samoa and the Solomon Islands for retention of the text in Section V.
The EU supported maintenance of the FAO agreement that, he said, should be applied generally and cover fishing activities for all species. Poland said that flag States are responsible and he could not agree to give coastal States more control than the provisions of UNCLOS, but acknowledged the importance of the FAO compliance agreement. Korea spoke in support of strengthening flag State responsibility for fishing on the high seas. Uruguay praised the text and suggested that, if adopted, it would require a few modifications. He supported Mexico on the provisions of observer programs.
The US said extensive modification of the text would be required before it could become binding. He said the FAO agreement, although misunderstood, did have teeth. There was no loophole in respect of vessels less than 24 meters. The United States gave advance notice of a roundtable to consider the FAO compliance agreement where delegates and NGOs will be welcome. He also gave notice of an October workshop, with FAO participation, that will address enforcement measures in the exclusive zones of developing countries and explain the state-of-the-art equipment to assist in enforcement.
SECTION VI -- PORT STATES: Brazil suggested amending the text so that it refers to the fact that another member State can require an inspection. Argentina suggested that inspections be carried out to ensure compliance with international conservation and management standards as set up by the regional organization. The Chair agreed that it would make no sense for a flag State to ask a port State to enforce its own laws.
Russia said that some of the provisions in this section already exist since the port State has the right to take enforcement measures within its own territorial waters. He suggested that paragraphs 37 and 38 be linked since the measures are taken at the port State's initiative or at the request of a State party to the regional arrangement. Paragraph 38 would not appear as separate from the standards that are set up in paragraph 37. He suggested an amendment under which violation of the conservation and management measures in the preceding three years is a violation under the port State's legislation.
Argentina suggested, and Canada concurred, that the interdiction measures become mandatory, but several delegates felt that it would be contrary to the sovereign rights of the port State and suggested a chapeau specifying that these measures should not prejudice these sovereign rights. Indonesia said, and Chile agreed, that the drafting was not very clear and he questioned how a vessel could be denied access if it was already in the port. If the ship is in an illegal situation it should be arrested. The EU agreed that the ship should be let in rather than sent back on the high seas where no inspection can take place. With regard to cases of force majeure, several States requested that it be qualified as "genuine" or "well-defined".
Japan, supported by Poland, called for caution in awarding port State authority, since the RNT assumes that both the port State and the vessel entering the port are parties to a regional arrangement and the authority of the port State stems from the regional arrangement itself. The authorization of the flag State is a necessary requirement since careless and unreasonable inspection could lead to the deterioration of the vessel's catch. Likewise, detention of a vessel should not be carried out without the authorization of the flag State. Korea said that it had changed its position and could now agree to inspection at the request of the flag State as well as denial of access, but that it had problems with the detention provisions of paragraph 38. The EU added that these measures should be in accordance with international law and with GATT in particular. Poland suggested that a general clause of non-discrimination be added.
Brazil answered that the RNT was more balanced and the port State does not need a special reason to perform inspection since the State has sovereign rights in the territorial sea. New Zealand said that the RNT is a minimum and expressed concern at attempts to limit further the authority of the port State. Papua New Guinea said that in terms of safety at sea and marine pollution, port State jurisdiction has become the norm. Morocco added that for developing States, this competence also involves a weighty responsibility. With regard to potential damage to valuable catch, New Zealand said a clause could be added, urging the port State to take all reasonable measures to preserve the catch quality. Ecuador suggested an amendment that would require the port State to communicate any evidence to the flag State. India asked that "port State" be defined clearly or even replaced with coastal State. Uruguay answered that the term was clearly defined in article 218 of UNCLOS.