ENB:07:43
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AN OVERVIEW OF NEGOTIATIONS ON ALTERNATIVE TEXTS FOR ARTICLES 14 AND 20.
Editor's Note: This overview conforms to previous editorial policy when covering informal consultations conducted by the Chair. The names of individual delegations are not revealed.
ARTICLE 14: A number of delegations stated that the four-country amendment proposal of Canada, the US, Peru and the Russian Federation is unacceptable, because coastal State conservation and management measures extending over the high seas are not in line with UNCLOS. They questioned the logical and legal merit of identification of special areas of the high seas. Many delegates pointed out that this case is similar to the Bering Sea Agreement and that general rules of compatibility as set out by UNCLOS should be used.
A delegate supporting the proposal said it was written to reflect the unique situation in those areas, and that cooperation is emphasized in the first two paragraphs. He stated that although the word "enclave" is not found in UNCLOS, neither are the terms "straddling fish stocks" or "biological unity", and pointed out introduction of these terms is part of the development of international law and UNCLOS. One delegate stated Article 14 is unnecessary, and that this situation should be handled using the best scientific data available, the precautionary approach and compatibility. Another stated that Article 13 of the Chair's text is enough to reflect the concerns required of this issue, and that text could be added to by incorporating: "concerned fishing States and coastal States, in accordance with the provisions of the Convention, shall set up multilateral organizations or arrangements in which they will cooperate to have conservation and management of stocks concerned". One delegate supporting the proposal pointed out the urgency of the situation, and that a solution could not be achieved from within existing laws. He said the proposal does not conflict with UNCLOS and international law. Another delegate was concerned that what happened in the "donut hole" should not happen here, and stated that his country has introduced domestic legislation to prevent its vessels from fishing in the Sea of Okhotsk. A delegate speaking against the proposal said that in the new text of Article 13, the reference to "the legal regimes relating to the conduct of fisheries" is unacceptable. He also said Article 14 is unacceptable because it is very close in nature to document L.47 and allows the coastal State control over fisheries in the high seas. Another delegate said in paragraph (1) of the proposal, there is no reference to data collection in the high seas, and this would extend coastal State jurisdiction to this area; in paragraph (2), the proposed text implies that measures taken in coastal State jurisdiction shall be applied in the high seas, and this is not cooperation; in paragraph (3), the reference to "practical measures" does not reflect the cooperation required by UNCLOS. He stated that the negotiations should be based Articles 116, 163 and 164 of UNCLOS.
In reaction, one of the countries responsible for the proposal stated that it is possible to have cooperation in all of these cases as reflected in UNCLOS, and that many of these measures have in fact been in place in the Sea of Okhotsk for the last 12 years. Another delegate, speaking about the interventions, said the reference in paragraph (1) to "best scientific data" refers to both coastal State jurisdiction and the high seas. He pointed out that the use of "no less effective than" in paragraph (2) (a) does not mean "identical to". Measures implemented on the high seas can be different, so long as they are no less effective. Concern over consistency with UNCLOS regarding high seas fishing prohibition is not necessary. Prohibition of high seas fishing is not the goal of the proposal. Regarding concern over the use of "in the absence of" in paragraph (2)(b), this text can be modified so long as "contrary to" remained in the text. He said paragraph (3) is based on the text of Article 7, and does not mean that there will be moratoria on the high seas while extensive fishing is allowed in the EEZs.
There was some support for the deletion of controversial terms such as "enclave", "in the absence of", and "practical measures". Reaction to these suggestions by the four-country group and their supporters was fairly flexible.
The Chair stated that the major concerns seemed to be over the paragraphs (1) and (2). In reference to the question of the necessity of the Article, it might be helpful to put the issue of an area of high seas surrounded by the EEZ of one State in a separate paragraph, and then apply elements from paragraphs (1) and (2) to both situations. There was general agreement with this approach. One of the four-country group members identified some important elements missing from the Chair's newly revised text that made it unsuitable: there must be negotiations prior to the initiation of fishing in an enclave; measures implemented in the high seas should be no less effective than those taken under national jurisdiction; and the rights and special interests of the coastal State must be taken into consideration. Other delegates agreed that the Articles could be accepted with minor changes. At this point, a number of delegates reasserted that Article 14 was not necessary to the Agreement, citing the multiple cross-references in the Chair's newly revised text, the continuing development of Article 7, and a lack of consistency with UNCLOS. The Chair called for continued informal discussion to resolve this issue.
ARTICLE 20: The Chair suggested a paragraph-by-paragraph review of the revised text. Referring to paragraph (2), one delegate said the right of boarding should be granted only if "well-founded suspicion" exists. Regarding paragraph (3), some fishing States supported changing the text to note that "adequate evidence" or "clear evidence" must be available to the non-fishing State. A coastal State delegate pointed out that Article 220 of UNCLOS, which says "if evidence warrants", might provide guidance . A fishing State delegate then questioned possible interpretations in paragraph (3), of "undermines the effectiveness", and stated that a reference to paragraph (2) is necessary to avoid interpretational disputes. The Chair pointed out that Articles 4, 5 and 6 cover this concern.
Regarding what should occur in the time between notification of the flag State and assumption of flag State control of the vessel, some coastal States said that control over the vessel should be maintained to collect evidence and prevent further violation. Other States questioned the use of the term "control", and said the concept of "continuous boarding" introduces the possibility of coastal State control over a vessel without flag State consent. Discussion over possible terms to replace "control" brought forth such suggestions as "take appropriate action", "inspect and remain on board", and "exert its authority", although some States questioned the validity of the need for the inspecting State to remain on board the fishing vessel once the inspection has been completed.
Regarding the time allowed for the flag State to respond to coastal State notification, the delegate of a developing coastal State suggested flexible wording such as "promptly", or "within a reasonable amount of time". After further discussion, it was generally agreed that the text should read "within 3 working days". It was also generally agreed that a "point of contact" should be established for notification and response, and that regional organizations and arrangements should designate such contact points as well.
There followed considerable discussion over the concept of "deemed consent" established in paragraph (4) of an earlier Chair's draft. A coastal State suggested that in the case of a flag State not replying or refusing to take action, consent might be assumed, but the actions available to the inspecting State should not include prosecution. In response, a delegate pointed out that refusal to take action was hardly tacit consent. Another delegate stated that until the obligation of flag States to enforce could be guaranteed, this concept must remain. It was suggested that this could be resolved by rewording the text to state that once control of the vessel is established, it should be taken to port for a full inspection. Alternatively, the text could read "in light of sufficient evidence, the inspecting State may take control and take enforcement action".
A DWFN stated that concrete evidence of violation must be presented, and prior expressed consent from the flag State be given before any arrest or detention could occur. The need for flag State consent before any imposition of penalties was reaffirmed by a number of fishing States and some coastal States. Another State suggested that the scope of enforcement should be based on Article 73 of UNCLOS, which deals with enforcement of laws and the requirements of the coastal State. A delegate from a developing coastal State repeated his call for remedial measures to address situations of unwarranted boarding and inspection, particularly should there be any resulting deterioration of the catch. It was pointed out that there were procedures for settlement of disputes, if required.
A fishing State delegate supporting regional and subregional application of this Agreement was concerned that in areas covered by these arrangements or organizations, where procedures for non-flag State boarding and inspection of vessels have not been agreed on, it is possible that the national regulations of a coastal State member might be applied to a non-member fishing vessel. The delegate suggested that the setting up of rules and regulations for boarding and inspection of non-member fishing vessels by non-flag members of the region should precede this right, and these organizations and arrangements must maintain open membership. Other delegates disagreed with this view, stating that the right to board and inspect within the regional scheme is necessary even in the absence of rules specific to this circumstance, and that a general standard consistent with UNCLOS for global measures should be set up to provide guidance to the regional and subregional arrangements and organizations.