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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.