Daily report for 3–7 April 1995

The Fourth Substantive Session of the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks completed its second week of work in New York at United Nations Headquarters. This session of the Conference is scheduled to meet from 27 March until 12 April 1995. The Conference opened with general statements and was followed by debate on the Chair's Draft Agreement, contained in UN document A/CONF.164/22, which had been presented at the conclusion of the Third Substantive Session of the Conference. The second week of this session was devoted to concluding debate on the Chair's Draft Agreement. Nandan concluded informal Plenary negotiations at 5:00 pm on Tuesday, Wednesday and Thursday evenings to conduct informal consultations. He continued with informal consultations on Friday morning before briefly resuming Plenary to announce the issuance of his revised text and a suggested work programme to commence informal negotiations on his revised Draft Agreement. General statements were made before lunch when Nandan adjourned the Conference. He continued with informal consultations on Friday afternoon on issues of enforcement and enclaves.

CONFERENCE DOCUMENTS

A/CONF.164/26 issued on 31 March 1995 contains the Chair's opening statement to the fifth session of the Conference on 27 March 1995. Document A/CONF.164/L.49, submitted by the Russian Federation on 30 March 1995, details the "Growing threat of the destruction of Alaska pollack stocks in the Sea of Okhotsk as a consequence of large-scale unregulated and unscientific fishing in its enclave".

SUPPLEMENTARY CONFERENCE DOCUMENTATION

A document circulated by the Russian Federation during mid-week, promotes a modified definition of the term "straddling fish stocks" for inclusion in the Draft Agreement. The document also contains a listing of stocks of fin-fish, molluscs and crustaceans, except sedentary species, that are referred to in Article 77 (4) of UNCLOS.

Document A/50/98 S/1995/252 issued on 31 March 1995, details the contents of a letter from the Permanent Representative of Spain to the Secretary-General on the sustainable use and conservation of marine living resources of the high seas with particular reference to the arrest of the Spanish fishing vessel "Estai" by Canadian patrol boats using armed force in international waters on 9 March 1995.

REPORT OF THE SECOND WEEK OF THE FOURTH SUBSTANTIVE SESSION OF THE CONFERENCE

The Chair, Satya Nandan, brought the Conference to order on Monday morning by urging delegations to keep their interventions to a minimum to ensure complete passage of his Draft Agreement by the close of Wednesday morning's session. Nandan said he recognized that problems existed with the text and asked that delegates focus on substance to save valuable time. He reminded delegates that the Conference was not in session to rewrite the book of international law. Nandan's work programme for the week included issuance of a revised version of the Draft Agreement by the end of the week, although only in an English text to enable delegates to give it consideration prior to the commencement of the third week of the Conference.

NEGOTIATIONS ON A/CONF.164/22 (THE CHAIR'S DRAFT AGREEMENT)

The Chair, Satya Nandan, brought the Conference to order on Monday morning by urging delegations to keep their interventions to a minimum to ensure complete passage of his Draft Agreement by the close of Wednesday morning's session. Nandan said he recognized that problems existed with the text and asked that delegates focus on substance to save valuable time. He reminded delegates that the Conference was not in session to rewrite the book of international law. Nandan's work programme for the week included issuance of a revised version of the Draft Agreement by the end of the week, although only in an English text to enable delegates to give it consideration prior to the commencement of the third week of the Conference.

PART V—COMPLIANCE AND ENFORCEMENT

Nandan invited delegates to continue debate on Article 19 which deals with international cooperation in enforcement. Canada said he supported the proposal made by the US delegation on 31 March, but only on the proviso that the words "without prejudice to Article 111 of UNCLOS" be included. Australia supported this proposed amendment.

The EU supported the US proposal, but only if the amendment's wording clearly determines that each situation be treated on a case-by-case basis. The EU could not support the Russian proposal because it would mean subordinating the possibility of fishing on the high seas to the provisions of the coastal State. Fiji supported the US proposal.

China regretted that the US proposal extended unilateral rights to the coastal State on whether another State would enjoy the right to fish. He said enforcement measures on the high seas should be limited to regional or subregional areas, as enforcement is designed to enhance the conservation and management measures in the region. The question of fishing without authorization should be addressed through regional cooperation and arrangements and in the event of absence of such provisions, bilateral arrangements could be substituted. With regard to inspection of vessels, Brazil welcomed improvements in the Chair's text, but noted that DWFNs still could not accept the need for inspection in order to enforce compliance. Brazil could not accept the proposals submitted by Norway and the Russian Federation, but expressed some support for the US proposal, including the provision of authorization. He noted that the Russian proposal brings moratoria controls within enforcement measures. Referring to the CCAMLR regime, he thought that observation within the inspection process should be incorporated into the draft text, as the two mechanisms are mutually inclusive in enforcement measures.

Japan proposed a new additional paragraph that "Only the authorities of the flag States may try the offense and impose penalties", and said that with regard to paragraph (2), the flag State should be the subject, but reserved further comment on paragraph (4) in order to study this in the context of domestic law. Korea and Poland supported the Japanese addition. Korea said the flag State should exercise jurisdiction over its vessels that commit offenses on the high seas. Malta said it supported the draft text with incorporation of some of the Japanese alternative language. Israel supported the Japanese addition, but preferred it to be amalgamated with the EU language. Morocco supported the draft text, but also spoke in favor of the proposed US addition to paragraph (5). Poland said the proposed US addition covered a lacuna in the original text.

The Russian Federation expressed support for the US proposal, but reserved its position on the Japanese proposal. He noted that some delegates had not spoken favorably of its proposal, especially the EU, who said it conflicted with UNCLOS. He rejected this legal interpretation.

Peru said the US position does not refer to the general case of violation on the high seas, but errs in favor of the EEZ. He noted that some delegates wanted the rule of the flag State to prevail, as expressed by the EU.

New Zealand strongly supported the proposed US amendment because it drew upon language adopted by the 49th Session of the General Assembly. He noted that flexibility is required regarding the imposition of sanctions and penalties. China suggested incorporating the US proposal into Article 17, dealing with duties of the flag State, as this would then become an obligation of the flag State. Peru was concerned that if the flag State refrained from imposing sanctions, then the flag State would enjoy the final word and internationally agreed measures would become unworkable.

Sri Lanka said that without suitable compliance, new legislation would be of no benefit. Cooperation between States on compliance and enforcement is important and the coastal States have a vital role to play. Thailand said enforcement should be primarily conditioned by approval of the flag State and that there must be a well-founded reason to believe vessels have contravened preventive measures. Remedial action should be available if flag States fail to comply. On the US proposal, he said reference to international law was too vague and preferred for the amendment to read "generally accepted international law". Canada questioned whether broad requirements could be applied to all regions of the world and also whether non-member States should be subject to such rules. He suggested that the US proposal on paragraphs (3) and (4) could be interpreted in two different ways, but noted the well-intended introductory paragraph.

The Russian Federation supported the need for compliance and enforcement both for States fishing the high seas as well as in EEZs, and said that indisputable violations should be punished. Panama said that parties have to take into account not only the safety of the vessel, but also the rights of any State involved with the vessel. In respect of the boarding of vessels and their inspection on the high seas, this should only occur with the agreement of the flag State, with those duties being directly cross-referenced to UNCLOS.

The US said that boarding and inspection should not be limited to specific areas, but should apply in all regions to cover both SFS and HMFS. Securing access to the vessels of non-members is essential to prevent erosion of conservation and management measures. He said that the inspecting State needed obligatory feedback from the flag State and the text should include this provision. Referring to paragraph (4), he said it is based on the RNT of 1994. Similar wording appears in the Bering Sea Agreement. Compliance and enforcement needs to be effective so that fishermen can undertake their duties responsibly.

Peru said clear mandatory rules for cooperation are needed; participation of flag States and other parties must be ensured; and progressive steps must be taken with regard to UNCLOS. He cited the use of the Bering Sea Agreement as a possible step in this development. He said the text should mention coastal States. Peru also agreed that regional organizations must be open to all States and that the type of provisions proposed by Canada must be included in the revisions. The delegate of Uruguay stated that although the US proposal is balanced, measures and enforcement must ensure proper conservation and management on the high seas. He agreed that this Conference must develop the concepts established in UNCLOS. The regional nature and urgency of this problem must be dealt with by ensuring immediate implementation. In some cases, after proper and immediate notification to the flag State, monitoring States may have to presume consent to ensure that the enforcement process is not paralyzed. He said Canada's proposal should be incorporated in the final text. The delegate of Poland agreed with solutions that allow for more regional and subregional participation. He was concerned with the approach regarding non-members and concurred that the Bering Sea Agreement might offer some guidance. He suggested that the Korean proposal regarding member States' treatment could also be used, but that the Chair's reference to "fisheries" needs clarification and the use of the term "surveillance" might not be appropriate. Japan stated that the uniform scheme for joint enforcement suggested by the US is unnecessary. Regional organizations should adopt methods that they deem appropriate. In reference to paragraph (4), the Bering Sea Agreement applies to the situation of non-member States, and Article 32 paragraph (3) of the Chair's text deals with this as well. The Bering Sea Agreement does not deal directly with the issue of enforcement, so the Japanese reserved judgment. The delegate also pointed out that the US proposal does not deal effectively with the basic principles of sovereignty and flag State responsibility, and that there are greater international legal implications. The delegate of Japan, supported by Uruguay, Poland and China expressed his preference for the paragraph (4) text outlined in the Korean proposal. The EU, New Zealand and Peru could not offer support for the Korean proposal.

Australia said that it was impossible to accept Korea's amendment for Article 20 paragraph (4) because it cuts across an important provision of UNCLOS. The Chair's language in the Draft Agreement was useful, but that language should not be softened to the extent asked for by Korea. The Russian Federation said that this is not a question of preservation of resources, but of concealing nationality. Standards have to be applied in accordance with UNCLOS. Papua New Guinea, supported by the Federated States of Micronesia, said tougher action should be taken on vessels not flying a flag and noted Japan's comment that such action constitutes a flagrant violation of international law. Korea said there is no uniform rule for punishing a Stateless vessel. Indonesia supported the Chair's text in paragraphs (3) and (4), but noted that the conditions in paragraph (4) are less stringent than for paragraph (3). Canada said that the amendments on the table may not be reconcilable and that this may be difficult for the Chair. He asked the Chair if he had considered reviving the "friends of the Chair" to give proponents of different views a chance to compare notes and to find a solution. The Chair said he would begin informal consultations in due time if need be.

The Chair turned to Article 17, dealing with responsibilities of the flag State. Malta said that he wanted to be satisfied that there would be no provision contrary to any instrument covering fishing on the high seas. The Russian Federation said it was satisfied with the drafting. Concerning subparagraph (3) (b), dealing with national legislation, some regulations would require approval of the Parliament. In subparagraph (3) (g), dealing with monitoring, there is an obligation, inter alia, to develop implementation of monitoring systems in accordance with regional and national programmes. He said regionally agreed-to programmes could be adopted, but imposing them on States' national systems would be excessive. In subparagraph (3) (c), Canada said provisions for vessel registry should be accessible to the public and noted that Article 20 paragraph (5), dealing with enforcement, should be included in Article 17. Mexico objected to this and said national legislation could not provide for such transparency. The EU also said a broad definition of "transparency" could create problems. The EU agreed with the Chair's text but preferred the style and drafting to better reflect the Vienna Convention and Flagging Convention, although there should be no requirement to adopt the same terminology. He said the Russian proposal was creating non-law.

Debate ensued after Japan said that the authorization to fish should be taken from the same language as the Flagging Agreement, but the Chair indicated there could be inconsistency between the Flagging Agreement and UNCLOS. Peru said the Flagging Agreement should not be reopened. Article 17 provides for a minimum set of standards and these should not be eroded because such actions would undermine conservation and management measures.

In respect of how States might provide for compliance and enforcement through satellite monitoring, Mexico said the costs of such control would impose their own problems. Australia said satellite monitoring was a good conservation and management tool and that such controls are cost effective. Peru said the use of satellite monitoring should not be mandatorily imposed on coastal States. The International Collective in Support of Fishworkers said that paragraph (1) should include reference to international regulations specific to employment, safety and social security of fishworkers or that a new subparagraph (3) (g) (iv) be included, stating that flag States' duties shall include the implementation of international regulations specific to employment, safety and social security of fishworkers.

PART III—MECHANISMS FOR INTERNATIONAL COOPERATION CONCERNING STRADDLING FISH STOCKS AND HIGHLY MIGRATORY FISH STOCKS

The Chair said some comments on Article 8, which deals with cooperation for conservation and management, were registered during the intersessional meetings. The US delegate noted that ICCAT, as a regional organization, experienced difficulty in persuading non-members to join, and said States should be persuaded to recognize the principles of such organizations and seek membership. Paragraph (4) should specify, as in paragraph (3), that only States actively applying principles of cooperation for conservation and management should be permitted membership in regional and subregional organizations. In reference to Article 32, dealing with non-participants, the US said that non-member States who fail to apply such principles should be denied access to the fishery. The Korean delegate suggested incorporating "with the rules, procedures and practices already in effect for the participants", in the text and that the last line of paragraph (3) be amended to read "on a non-discriminatory and equitable basis". This would promote the non-discriminatory principles referred to in UNCLOS when determining the rights of States participating in regional and subregional organizations and arrangements.

The Japanese delegate expressed concern that minimum openness would include all relevant States. In reference to paragraph (5), new organizations should allow all States to participate. The EU delegate, referring to paragraphs (4) and (5), said non-members should have the right to negotiate terms of participation in regional and subregional organizations and arrangements. China, supported by Poland and Thailand, agreed with the Korean and Japanese proposals. Chile was concerned that the Chair's paragraph (3) could be interpreted so that no State should be excluded from regional and subregional organizations. He said that such organizations must be able to elect new members who have genuine interests in fishing and research. New Zealand and Argentina agreed with the US alternative language for paragraphs (3) and (4), but said the final sentence in the Chair's paragraph (3) should remain unchanged. Sri Lanka said the Indian Ocean Tuna Commission (IOTC) could provide some background guidance for formulating new text because the IOTC membership is limited to coastal States.

Colombia supported Chile's proposal for an alternative text in paragraph (3). Norway said there is consistency within the Chair's text and that it should remain. He said the Korean proposal seeking "equitable allocation" has a wide field of application that extends beyond the principle of Article 8 and that it did not flow directly from the provisions of UNCLOS. As matters of allocation are dealt with in Articles 7 and 16, the Korean proposal is without foundation in Article 8. Malta and Uruguay supported this interpretation. Norway and Australia favored incorporating elements of the US proposal into the Chair's text to give it enhanced substance. On the Japanese proposal for paragraph (3), Norway said it is not possible to apply the principle of "openness" without reference to the coastal State. He said the proposal was innovative and might usefully complement the Chair's text because it seeks a cumulative set of conditions for fishing, both in practice and for those interested in the fish stocks. The Russian Federation supported the Chair's text, but asked that paragraph (3) be amended to provide for organizations and arrangements that have an interest in fish stocks even though fishing might not be occurring.

Indonesia said the Korean proposal on "equitable allocation" was vague and unclear and could mean a contradiction of terms. Uruguay suggested, and Japan supported, that the notification procedure should be through the FAO in the first instance, but China thought this might be a burdensome process. Malta supported the Korean and Japanese proposals because they promoted non-discrimination.

Japan was concerned that fishing States might become non-members of a regional organization or arrangement. Fiji said Japan's proposal to amend paragraph (5) adequately satisfied matters of notification and openness as expressed in the US proposal.

Ecuador said it had problems with the Japanese proposal for a new paragraph (5) and it should not appear within the agreement being drafted. He preferred maintaining the Chair's draft text. Fiji supported the US proposal because it advanced the Japanese proposal on the mechanics for consultation and the notion of openness.

In Article 9, dealing with regional fisheries management organizations or arrangements, the Chair stated that a drafting change was made in subparagraph (b) to delete the relevant provisions "of the Convention" and to replace these words with the relevant provisions of "Article 7 paragraph (1)". This brings the compatibility provisions into focus, which are not included in UNCLOS. The EU said that subparagraph (a) should examine the biological unity of stocks, not the biological characteristics. Peru disagreed, saying that biological unity is only one of many elements. Peru, supported by Ecuador, proposed an additional paragraph (2) to Article 9 that discriminates against States adopting conservation and management measures that would directly affect the rights and duties of coastal States. The Russian Federation, for the same reasons as Peru and Uruguay, did not want to replace the Chair's wording on biological characteristics, since the concept of biological unity is limited and restrictive. In response to Uruguay's question on repetition in paragraph (d) in Articles 9 and 10, the Chair responded that in Article 9 there is a need to identify objectives that States should agree on when they establish a regional organization, and that in Article 10, having established the organization, there is a need to indicate implementation of those objectives. Korea said the proposal of the EU had merit, and that perhaps the wording could be changed to read "biological unity, including other characteristics". He, like Poland, had a problem with the new paragraph (2) of Peru, since it is biased in favor of coastal States' power when participating in decision-making within the framework of regional organizations. The Philippines suggested deletion in paragraph (b) of "socio-economic, geographical and environmental factors", since what is being managed is the stock. Chile said that all biological characteristics should be considered in conservation and management measures. Indonesia, supported by Papua New Guinea and Fiji, supported the Chair's terminology of "biological characteristics", as it was all-inclusive. Estonia said it is important that biological unity has priority and suggested adding a reference to other biological characteristics.

The Moroccan delegate expressed support for the Peruvian addition of paragraph (2). Korea pointed out that references to Article 112 of UNCLOS do not constitute an extension of jurisdiction beyond 200 miles. Peru said his proposal focused on conservation and management measures implemented by regional and subregional organizations that may affect measures implemented within the jurisdictions of coastal States. These should take into account the duties, rights, and interests of coastal States as provided for by Article 116 of UNCLOS. Mexico and Iceland also supported Peru and were concerned for the interests of coastal States and the sovereignty over conservation and management of HMFS and SFS in EEZs. Japan felt that the Peruvian proposal appeared to adopt the language of Article 116 of UNCLOS and said this problem was partially dealt with in discussions on Article 7. Japan expressed concern that any new discussion of Article 7, at this juncture, would create imbalance in the text. Uruguay and Canada supported the Peruvian amendment. Peru stated there is no specific reference to the rights and duties of coastal States in Article 7 paragraph (2) (a), and thus no repetitiveness prevails in the proposed amendment. The EU said the Peruvian proposal is good in isolation, but doubted its compatibility with the remainder of the text. Indonesia accepted Korea's proposal and said many reasons existed why States do not subscribe to regional organizations, so specific interests should be taken into account. Poland expressed doubt about the language of the Peruvian proposal. He suggested that in the second line, the term "decisions" should be broadened, and that the last part, including "shall take duly into account", represented a departure from the language of Article 116 of UNCLOS.

The Russian Federation proposed a new text for Article 10, which deals with the functions of regional fisheries management organizations and arrangements. This would ease applicability of measures on a national basis. Brazil supported the concept of Peru's proposal for a new paragraph (2), but was concerned that the measures in coastal State jurisdiction should be of primary importance and should not be diluted by the subregional, regional, or international organizations. The Article should reflect the importance of the coastal State measures and conservation and management experience. China said Peru's proposal is in accordance with Article 119 in UNCLOS; however, he was concerned about the legitimacy and scientific application of use of the terms "decisions" and "measures". He pointed out that if a regional organization, in accordance with its scientific data, determines an allowable catch in agreement with its members, but a member coastal State adopts incompatible management measures, conflict could ensue. He said that these issues should be dealt with by the regional organizations. Peru stated that it is always interested in improving the text to make it harmonious with Article 116 of UNCLOS. He agreed, in principle, with the Russian Federation and said mechanisms must be found to deal harmoniously with violations. The Korean delegate said that Peru's proposal should be amended with a subparagraph (b), by including "without discrimination and on the basis of equitable distribution to all States concerned".

Mexico agreed that the second version of the text proposed by Peru, reflecting the sovereignty and rights of coastal States, should be used. The Chair asked for discussion on the Korean proposed amendment, subparagraph (b). Australia stated that it could not support the Korean proposal and that the text should describe allocations of allowable catches and other participatory rights. China, supported by Poland, agreed with the Korean proposal. Japan said that each sovereign State, not the regional organization, should have the final say in the punishment of violations. He pointed out that Article 18 paragraph (3) already provides guidance in this area. Mexico, supported by Venezuela, said that in Article 10 subparagraph (a), conservation and management measures should ensure the long-term viability of the stocks on the basis of acceptable scientific evidence. He thought that in subparagraph (c), responsible fishing could be covered by a reference to the Code of Conduct for Responsible Fishing. Uruguay said that the Code did not contain a set of binding norms. The International Collective in Support of Fish Workers suggested inserting in subparagraph (a) "phasing out of non-selective fishing gear and techniques". Greenpeace said that in subparagraph (j), exemption clauses made firm conservation measures difficult to implement.

The Chair moved on to Article 11, dealing with strengthening existing organizations and arrangements. The US, Canada and Morocco circulated a trade-related amendment. This is a non-binding provision and encourages regional organizations to address multilateral action consistent with trade rules under the World Trade Organization (WTO). While awaiting the opinion of its GATT expert, the EU said the amendment seemed a useful supplement to conservation and management measures. China, backed by Malaysia, Mexico, Malta and Sri Lanka, said the conservation of fish resources is being confused with trade issues, and objected to the proposal. Japan supported the amendment.

On Article 12, dealing with collection and provision of information, Peru proposed a new Article 12 (bis) on cooperation for scientific research. The Chair said it would be better to incorporate Peru's concerns, and that Article 12 would also be used to strengthen the provisions for developing countries. The delegate of Chile asked if the relationship between the Article and Annex 1 would be examined. The Chair responded that Chile could address both at the same time. Chile supported comments and amendments made by Japan and the US on Annex 1. He was concerned that data made available by coastal States to regional organizations should not be disseminated without permission. He also said that the data flow chart in Annex 1 could be deleted. Malta asked for a cross-reference regarding the obligations of scientific collection and dissemination of data in Article 23, subparagraph (2) (a) and that provisions for developing States should not be optional. Argentina supported the comments made by Chile with regard to the data flow chart. He stated that arrangements in EEZs are sufficiently covered in Articles 16 and 17. Peru agreed with Chile and Argentina. Malta pointed out that in Annex 1 paragraph (2) the use of "should" is not consistent with the main body of the text, which uses "shall". He stated that this could allow for interpretation that the Annex is optional. The Chair said he would examine this.

Opening debate on Article 13, which deals with enclosed and semi-enclosed seas, the delegate of the Russian Federation, supported by Peru, Canada and the US, emphasized that his amendment, tabled in document A/CONF.164/L.47, draws attention to the reference in Part IX of UNCLOS of enclosed and semi-enclosed seas. Due to the geographical, environmental, and other particularities of these areas, the special concerns of coastal States should be given emphasis because Article 123 of UNCLOS obliges States with enclosed or semi-enclosed seas to cooperate with States in conservation and management. Article 13 should be consistent with UNCLOS to ensure such cooperation.

In response to the Russian proposal, Turkey, supported by Tunisia, suggested that "the measures to be adopted by the States bordering enclosed or semi-enclosed seas, in implementing the provisions of the Draft Agreement, should be mutually agreed upon by those coastal States" be incorporated in the Chair's text. The EU said it could not support the Russian proposal, and preferred the Chair's text.

Norway expressed sympathy with the general thrust of L.47 in respect of Articles 13 and 14 because the situations referred to in the Russian proposal are special and specific provisions should take those situations into account. He said that good general rules on enforcement might reduce the need for specific rules, and supported both the Peruvian and US amendments.

Poland said that in order to face realities, Article 13 of the Chair's text is needed, as it includes reference to Article 123 of UNCLOS. He could not accept L.47 because it attempts to introduce new notions into the Chair's text. He said that the duties and interests of the coastal State should be referred to in L.47 and not coastal States' rights and interests. Papua New Guinea expressed sympathy with L.47 and said that Article 123 of UNCLOS does not exist in isolation because it refers to the definition of enclosed or semi-enclosed seas in Article 122 of UNCLOS. He preferred that the Chair's text be amended so it did not restrict the application of the relevant articles of Part IX of UNCLOS. China said that it had not received L.47 and reserved comment on it, but proposed that subparagraph (2) (a) of the Chair's text be deleted because there is a need to invoke Article 123 of UNCLOS in its entirety and not in part. Tunisia suggested that the word "legal" be replaced with "relevant".

The Russian Federation could not accept the EU position that special problems should not be reflected in the Chair's text and said it was for this reason that Part IX of UNCLOS was developed. It is appropriate to take into account the appropriate fishing regimes in enclosed or semi-enclosed seas, as cooperation with other States does consider such fishing regimes. UNCLOS takes into account legal regimes of other maritime areas. He offered to consider all the comments in a reworking of L.47 covering Article 13.

Japan could not accept the L.47 text and said subparagraph (a) of the Chair's text should remain, as all other paragraphs in Article 13 refer to fishing. New Zealand supported the L.47 text because his country has a high seas enclave and special issues need to be addressed within the Draft Agreement.

Israel said Part IX of UNCLOS is important to Article 13 and Article 123 of UNCLOS should be fully used rather than just subparagraph (a). Mexico endorsed this proposal. Ecuador said the Chair's text is acceptable, but incorporation of the language in L.47 could improve the Chair's text.

Estonia said the Russian proposal is inconsistent with the General Assembly mandate. Argentina said the Russian Federation's concerns are consistent with the mandate, as the issue refers to questions of SFS and HMFS. Malta considered that any reworking should focus specifically "in respect of SFS and HMFS" and he could not support any future reference to the "legal circumstances of the conduct of a fishery". Poland endorsed this concern. Chile, Argentina and others preferred to await a revised Russian text prior to continuing with debate on Article 13.

On Article 14, dealing with areas of high seas forming an enclave surrounded entirely by areas under the national jurisdiction of one State, the Russian Federation said one of the most complicated and unregulated problems that has arisen is that of conservation of living resources in small portions of the high seas surrounded by the EEZs, referred to as "enclaves". This problem must be resolved in terms of UNCLOS. The essence is non-admission of fishermen in contravention or in the absence of conservation measures. The Russian proposal, submitted in L.47, seeks to control conservation when the combined effort of coastal States and DWFNs conservation measures are not successful. Poland stated that all areas of the high seas have equal status and cannot be differentiated. He said Article 7 paragraph (2) covers the situation. Article 14 is repetitious, not legally justified, and contrary to Article 89 of UNCLOS, dealing with the invalidity of claims of sovereignty over the high seas. Canada supported the Russian proposal and said it includes rights, responsibilities and interests. Peru fully agreed with the Russian proposal because there is a need for a special rule for a special reality, and to aid progressive development of UNCLOS. China agreed with Poland and said the international community cannot make exceptions for the special circumstances of one State and wanted deletion of Article 14. The US supported the Russian proposal and said it accurately captures the urgency of the issue and focuses attention on the special problems of the area. The EU said Article 14 is unnecessary. The problem raised should be dealt with in the framework of Article 7 of the Chair's text. Korea, supporting Poland, China and the EU, said no part of the high seas can be put under the sovereign control of a coastal State. Ecuador said UNCLOS foresaw specific regimes for specific cases, and backed the Russian proposal. Uruguay said Article 89 of UNCLOS does not attempt to change natural realities. Japan said the idea presented by the Russian Federation goes far beyond UNCLOS because it means the jurisdiction of the relevant coastal State extends to the high seas. The Chair spoke of the need to compromise to help the Draft Agreement and at the same time point to better cooperation in conservation and management in such situations.

In consideration of Article 15 on transparency in the subregional and regional fisheries management organizations or arrangements, the US referred to circulation of its proposed amendment to paragraph (2) of the Chair's text. The proposal has several objectives: to assure that NGOs have the right to attend meetings of such organizations as "participating" observers; that records of meetings, data and other information be made available in a timely fashion to NGOs; and that such organizations shall be barred from levying excessive fees that would serve to exclude or prevent NGOs from participating. The US reminded delegates that the term NGO constitutes a variety of non-governmental organizations that also includes members of fishing communities.

The Russian Federation supported the Chair's text and attached great importance to such transparency, but in light of intersessional discussions at Geneva, he proposed a new paragraph (1) to precede the Chair's paragraphs (1) and (2) so that "States shall ensure transparency in their decision-making regarding conservation and management measures in respect of SFS and HMFS, and compliance with and enforcement of such measures in their national jurisdiction zones".

Venezuela supported transparency, but felt that the US proposal might be unduly restrictive and suggested that the text be amended "to ensure that NGOs have the right to participate in the work of such bodies". The Japanese delegate said he failed to understand the reason for the Russian proposal, but he supported the concept of transparency in decision-making. He said that the US proposal is tilted too much toward the importance of NGO participation. The essence of the US proposal suggested that governments are incapable of acting without assistance from NGOs.

The EU accepted the coastal State concept of application of transparency in EEZs, but said the US proposal is too detailed. New Zealand and Australia supported the involvement of NGOs in regional meetings and bodies, but noted that the US proposal did not include any reference to IGOs. The Philippines wanted NGOs to participate in discussions, but not in decision-making processes. China supported the Chair's text, and also supported the Russian proposal.

Argentina supported the Chair's text and said that NGO involvement in the Conference had not been reflected in a positive manner. Malta supported the Chair's text but objected to some expressions within the US proposal and said he did not like reference to NGO rights in treaty text. Mexico and Peru spoke in support of NGO participation in meetings of organizations and bodies. Peru reminded delegates that NGOs play an important role in the continuing development of the Code of Conduct.

Representatives from Greenpeace International and the ICSF said the issue of NGO access to participation in regional fisheries issues is of great concern. They were encouraged to hear delegates support for NGOs. Article 71 of the UN Charter establishes the right of NGO participation. ICSF reminded delegates that southern NGOs cannot raise funds to attend meetings of importance to them and it is essential that fees should not be levied against them.

On Article 16, which deals new participants, the delegate of Iceland, supported by Canada, Uruguay, Indonesia, Micronesia, Mexico, and the Marshall Islands, said that the list of criteria should take into account the needs of coastal fishing communities. He proposed adding a new subparagraph (d) stating that "the interests of coastal States whose economies are overwhelmingly dependent on the exploitation of living marine resources" should be taken into account. The Korean delegate said his proposed changes concerning Articles 8 and 10 would be unnecessary if Article 16 subparagraph (b) could be amended to conclude with "on the basis of equitable sharing of the stocks". Norway, supported by the Russian Federation, suggested that the compatibility of conservation and management measures of Article 7 paragraph (2) could be moved into this Article. The present subparagraph (e) would then subparagraph become (f). Norway could not support the proposals submitted by Iceland and Korea. Peru supported the principles of the Icelandic proposal but said that a cross-reference to Article 7 (2) (b) was unnecessary. He also could not support the Korean proposal. The delegate of China supported the Korean proposal and the deletion of subparagraph (d). He stated that coastal States' national interests should not be given special consideration. Chile supported the proposal of Iceland and stated that subparagraph (d) could be clarified by adding "the needs of coastal States with fishing communities". The delegate of Australia, supported by New Zealand, approved of the Chair's text, but did not support the Korean proposal. Thailand, supported by the Philippines, was concerned that the text does not accommodate the equitable sharing of stocks in keeping with new trends and democratization in international law while taking into account the needs of developing countries. Uruguay stated that the Chair's text, with the proposed changes by Iceland, was well balanced and reflected equity. He could not accept the Korean proposal. Papua New Guinea supported the Chair's draft and stated that amendments should be kept to a minimum and, with the Marshall Islands, expressed his doubts about the use of the term "equitable". Poland supported the proposal of Korea saying that it reflected the framework of UNCLOS and takes a non-discriminatory approach.

PART IX—NON-PARTICIPANTS

The Chair said that Article 32, dealing with non-participants in subregional or regional fisheries management organizations or arrangements, would be placed after Article 16 dealing with new participants in his revised text. The delegate of Brazil expressed doubts concerning the relationship between Article 32 and the General Principles outlined in Article 1. He stated that as non-participating entities are identified in Article 32, they should be similarly identified in Article 1 to ensure comprehensive coverage. The Chair agreed that a mechanism is needed to develop Article 1, paragraph (3) and that a reference might be included in this Article. Peru, supported by New Zealand, stated that paragraph (1) should end "in accordance with the relevant provisions of UNCLOS and this Agreement", thus ensuring that non-participants are obliged to participate in the conservation and management of stocks. The Russian Federation, supporting Peru, said that regional and subregional arrangements must not by threatened by non-participating States and that flags of convenience are of particular concern. He also stated that Article 17, dealing with the responsibilities of the flag State, should be strengthened to make the regime more effective. The Korean delegate, supported by Poland, stated that in paragraph (1), it should be made clear that membership in regional and subregional arrangements and organizations should be open to all States without discrimination. Iceland said the text should be amended to reflect that such organizations be competent. China expressed concern that the word "obligation" in paragraph (1) should be followed by "in accordance with the relative provisions of the Agreement". Mexico supported China's proposal and questioned the reference to non-member and non-participating vessels in paragraph (3). The Chair said something must be done to deal with vessels that are non-members and that do not fish in accordance with regional or subregional measures. The delegate of the EU stated that the relationship between Article 32 and Article 8, dealing with cooperation for conservation and management, is very important. The open nature of these agreements should be made clear. He agreed with Australia, New Zealand, Norway, Argentina, and the Marshall Islands, that the Korean proposal has more relevance to Article 8, and expressed support for the US proposal if it is linked to Article 8 as well. Poland supported the proposals of China and Peru. Mexico said the US text is similar to the Chair's, but expressed concern that all possible conservation and management measures should be examined. Morocco supported the Chair's text. Lebanon said the presence of international agreements should provide the basis for action concerning "any violation of a non-member".

Noting delegates reference back to Article 8, Korea said, that in his view, the last sentence of paragraph (3) imposes conditions for the participation of interested States in order to become a participant. Paragraph (4) states that only those States that participate in regional organizations shall have access to the fishery. He argued for the Korean proposal to be inserted into Article 32.

Peru said he had some difficulty with paragraph (3) because the term "internationally agreed" could refer to just two States. He suggested the wording "in conformity with this agreement" conclude the final sentence. He rejected any provision in the text that implied "open ended" participation, as this would be in direct conflict with Article 8.

Uruguay agreed with the Chair's text and said the obligation to cooperate is consistent with UNCLOS, He thought the US amendment could be incorporated into the text and supported Peru with regard to the scope of field of application of fishing in the particular region. The Chair reminded delegates that the safeguard clause in paragraph (3) does require States to take measures consistent with this Agreement and international law. Indonesia said reference should simply be to UNCLOS. China said the Chair's text in paragraph (2) should remain.

PART VII—REQUIREMENTS OF DEVELOPING STATES

On Article 22, dealing with the recognition of the special requirements of developing States, Brazil proposed additional text to subparagraph (2) (b) to "ensure access to fisheries by" subsistence, small scale, "artisanal and women fish workers, as well as indigenous peoples" in developing countries. In subparagraph (2) (c) he proposed that the measures "do not hinder the development of fisheries for straddling fish stocks and highly migratory fish stocks". He said the text had been borrowed from one NGO paper circulated at the beginning of this session.

The delegate from the Philippines said the livelihoods of all those involved in fishing are at stake. Peru and Venezuela supported the Brazilian proposal and said that fish workers and their associations clearly understood the thrust of the proposal. Uruguay and Indonesia questioned whether the requirements of developing States actually meant "developing coastal States". The US expressed general satisfaction with the Chair's text and endorsed comments to improve the text to recognize the needs of small island developing States (SIDS).

Uruguay applauded the Brazilian proposal, which covers important social aspects of developing States, and supported Indonesia's suggestion that the text recognize any disproportionate burden should not be met by developing States.

Papua New Guinea said that in his country, fishing development is not just a matter of economic exploitation, but also one of nutritional exploitation. He said the Chair's draft text places emphasis on conservation and management, but hinders the development of fisheries of SFS and HMFS, thus creating a contradiction in terms.

Prior to concluding debate on the remainder of his text, the Chair recognized the delegate from Peru in consideration of Article 6 (bis) (Rev.1) dealing with interim measures in cases of emergency. Peru, supported by Canada, said the revision represented an attempt to incorporate comments made during the first reading of Article 6 (bis). He said the focus had changed in that coastal States can no longer refer to an attempt to extend their national jurisdictions. The revised article is to provide a solution to emergency situations that can arise due to unforeseen natural phenomena. The EU recognized the concept of establishing interim measures in an emergency, but expressed reservation on Peru's drafting style. He said paragraph (2) gives priority to the decisions of the coastal State and runs counter to Article 7, paragraph (2) dealing with compatibility. He expressed concern over the reference "the decision of an arbitral tribunal" and said the Chair's text would apply to any parties in a dispute. Uruguay said specific reference to an arbitral tribunal should not be made because that it would restrict other possibilities of dispute settlement. Israel said the Article title identifies too closely with that of Article 265 of UNCLOS and suggested another title be adopted.

Canada, the EU, Venezuela and Uruguay supported Japan's amendment proposal for Article 8, paragraph (6) on action taken by IGOs having competence with respect to living marine resources.

PART X—ABUSE OF RIGHTS AND : PART XI—NON-PARTIES TO THIS AGREEMENT

The Chair moved quickly over Article 33, which deals with good faith and abuse of rights, and Article 34 dealing with encouragement of accession because no comments were made by delegations.

PART XII—REPORTS ON IMPLEMENTATION AND REVIEW CONFERENCE

On Article 35, which deals with reports on the implementation of the Agreement, Japan referred to paragraph (1), and asked what would happen if the Agreement enters into force later than the stipulation requires. The Chair said a resolution would be submitted to the General Assembly calling for provisional reporting. Peru said that we need a follow-up on issues covered in the text. Uruguay said that constitutional requirements in his country may not permit acceptance of a provisional application. China agreed with the Chair and said that a review should only be effected after the Agreement's entry into force. Israel, supported by Uruguay, asked if it would be possible to make reference to Article 319 (2)(a) of UNCLOS in the text. Chile, supported by Argentina, said that despite the Chair's good efforts, considerable time might pass before a sufficient number of States ratify the Agreement for it to enter into force. There is immediacy in the concern of conservation of the stocks in question. He suggested returning to Article 7, pertaining to compatibility of conservation and management measures, since delegates spoke there about provisional compatibility measures. The Russian Federation, supported by Indonesia, advocated the Agreement's earliest possible entry into force, and suggested reducing the number of instruments of ratification to 20. The Chair reminded delegates that provisional application occurred in the case of Part XI of UNCLOS on deep sea-bed mining. The issue is one of political will. The EU said before contemplating agreement on provisional application, it is necessary to know whether the final agreement will be balanced and the substance reflective of a broad consensus. He added that not all provisions have the same urgency, but said there should be a reasonable number of ratifications.

The Chair that the reference to "implementation" should be changed for the sake of clarity. He pointed out that the same problem arises in dealing with Article 36 with the use of the term "after the adoption", and said that it would be best to wait until the end of the Conference to identify how to ensure provisional application. The delegate of Indonesia stated that he had difficulties with paragraph (1). The Chair responded that its status would depend on the decision on provisional application.

The Chair said that legal advice recommends that Article 36, which deals with review conference, be re-examined in light of the changes to Article 35.

PART XIII—FINAL PROVISIONS

The Chair said some of the language in Article 37, which deals with signature arrangements, refers to Namibia and is no longer applicable. He pointed out that Articles 37 through 48, which deal with accession, entry into force, relations to other conventions, amendments, denunciation, status of annexes, depositary and authentic text provisions, to a large degree follow the provisions of UNCLOS. He stated that Article 40 paragraph (2) should read "Each State or entity...".

The Chair concluded debate on his Draft Agreement by saying that the changes suggested to Annex 1 on minimum standard for collection and sharing of data, will be integrated into his revised text.

PLENARY, 7 APRIL 1995

The Chair opened the Plenary late on Friday morning, by saying that he had been in informal consultations on Article 20, which deals with enforcement, and reported on those consultations for the sake of transparency. The Chair said he thought that delegates were close to a broadly-agreed text. There have been some questions of enforcement on the high seas by non-flag States, boarding and inspections, and the governing procedures. Australia said that foremost among the issues still to be resolved is the issue of enforcement. A satisfactory resolution of this issue is fundamental to the success of this Conference. Peru said that he had circulated two definitions, the first being that of a coastal State: "coastal State means, in relation to any State referred to in this Agreement about SFS or HMFS, the State or States in whose national jurisdiction, as well as on the high seas, these stocks occur". The second definition was that of a State fishing on the high seas: "A state whose nationals fish on distant waters of the high seas beyond the zones of national jurisdiction of other States". The Chair closed the session by saying that he would continue to hold informal consultations to consider questions of enclaves and enforcement. Brazil urged the Chair to make certain that comments regarding the entire text would be heard so that delegates would go home with a full and viable draft. The Chair asked for everyone's cooperation.

GENERAL COMMENTS ON REVISED DRAFT AGREEMENT

The Chair opened the Plenary late on Friday morning, by saying that he had been in informal consultations on Article 20, which deals with enforcement, and reported on those consultations for the sake of transparency. The Chair said he thought that delegates were close to a broadly-agreed text. There have been some questions of enforcement on the high seas by non-flag States, boarding and inspections, and the governing procedures. Australia said that foremost among the issues still to be resolved is the issue of enforcement. A satisfactory resolution of this issue is fundamental to the success of this Conference. Peru said that he had circulated two definitions, the first being that of a coastal State: "coastal State means, in relation to any State referred to in this Agreement about SFS or HMFS, the State or States in whose national jurisdiction, as well as on the high seas, these stocks occur". The second definition was that of a State fishing on the high seas: "A state whose nationals fish on distant waters of the high seas beyond the zones of national jurisdiction of other States". The Chair closed the session by saying that he would continue to hold informal consultations to consider questions of enclaves and enforcement. Brazil urged the Chair to make certain that comments regarding the entire text would be heard so that delegates would go home with a full and viable draft. The Chair asked for everyone's cooperation.

REVISED DRAFT AGREEMENT, A/CONF.164/22(Rev.1)

During Thursday afternoon, Nandan circulated a partial package of his revised text in a 19-page document dated 6 April 1995. This document was superseded by the issuance of a complete revised text on Friday morning. The new revised Draft Agreement is contained in a 29-page document described as an "unofficial draft".

A BRIEF ANALYSIS OF THE REVISED DRAFT AGREEMENT

The Chair's Unofficial Revised text of the Draft Agreement, A/CONF.164/22 (Rev. 1) of 7 April 1995 contains a number of changes from the Draft Agreement of 23 August 1994. In the Preamble, States Parties would commit themselves to responsible "fisheries" rather than responsible "fishing". In Article 1 dealing with use of terms and scope, new definitions of "conservation and management measures" and "fish" appear.

In Article 3, dealing with application, a new sentence has been added to paragraph (1) on the exercise of coastal States' sovereign rights for the purposes of exploring and exploiting, conserving and managing SFS and HMFS. In paragraph (2), consideration for "capacity of developing States" and their need for assistance has been added.

In Article 5, new subparagraphs dealing with impacts of fishing and other human activities on target species; the interests of artisanal and subsistence fishers; and, the implementation and enforcement of conservation and management measures have been added.

In Article 6, dealing with the precautionary approach, paragraph (1), States shall apply the precautionary principle "widely". A new paragraph (3) (b) has been added on stock-specific reference points. Paragraph (5) deals with emergency conservation and management measures.

Article 7, on compatibility of conservation and management measures now includes a reference to Article 61 of UNCLOS in subparagraph (2) (a); subparagraph (c) includes a reference to "available information" on biological unity and other characteristics of the stock(s); a new paragraph (7) deals with coastal States notifying States fishing on the high seas, of conservation and management measures taken by coastal States; a new paragraph (8) deals with States fishing on the high seas regularly notifying other interested States of measures adopted for control of vessels flying their flag that fish for SFS and HMFS on the high seas.

In Article 8, dealing with cooperation for conservation and management, paragraph (6) has been added, dealing with action taken by an intergovernmental organization.

In Article 10, dealing with obligations of States that cooperate through regional fisheries management organizations and arrangements, paragraph (1) (m) on transparency has been added.

Article 12 which deals with the collection of information in scientific research, contains a new paragraph (3) on cooperation to strengthen research capacity.

Article 13 on enclosed and semi-enclosed seas contains added language on the geographical and ecological characteristics of the sea and the legal regimes relating to the conduct of fisheries therein.

Article 14 dealing with areas of high seas surrounded by areas under the national jurisdiction of a single State, now mentions a cross-reference to compatible conservation and management measures in Article 7. A new subparagraph (e) dealing with the needs of coastal States whose economies are overwhelmingly dependent on the exploitation of marine living resources has been added to Article 17 which deals with non-participants, and a new paragraph (4) has been added, covering cooperation with subregional or regional fisheries organizations or arrangements.

In Article 19, on compliance and enforcement by flag States, paragraph (2), on compliance by their nationals with subregional or regional conservation and management measures has been deleted.

Article 20 dealing with international cooperation in enforcement, contains a new paragraph (5), on unauthorized fishing within an area under jurisdiction of a coastal State.

Article 24 deals with forms of cooperation with developing States and includes reference to SIDS and LDCs in subparagraphs 1 (a) and (b).

Article 29 dealing with settlement of disputes, has been completely redrafted.

THINGS TO LOOK FOR THIS WEEK

INFORMAL CONSULTATIONS: Look for further informal consultations on enforcement in Conference Room 6 from 8:30 to 10:30 this morning.

INFORMAL PLENARY: The informal Plenary will resume at 10:30 am in Conference Room 4. The Chair will then open negotiations on his revised Draft Agreement. Articles will be considered sequentially. The Chair must complete negotiations on his revised text by the end of today in order that delegates can return home on Wednesday with a harmonized text in all UN languages.

NGO ACTIVITIES: NGO representatives will continue their consultations in Conference Room A.