Vol. 7 No. 61
SUMMARY OF THE UN FISH STOCKS AGREEMENT REVIEW CONFERENCE:
22-26 MAY 2006
The Review Conference of the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UNFSA or the Agreement) convened from 22-26 May 2006, at UN headquarters in New York.
The UNFSA Review Conference was called for by UNFSA Article 36 and General Assembly resolution 59/25 of 17 November 2004, with the mandate, four years following the entry into force of the Agreement, to assess the adequacy of the Agreement’s provisions for securing the conservation and management of straddling fish stocks and highly migratory fish stocks and, if necessary, to propose means of strengthening the substance and methods of implementation of its provisions to better address any continuing problems in the conservation and management of the two types of stocks.
The Review Conference considered: the extent to which the UNFSA provisions have been incorporated into national laws and regulations, as well as into the charters and/or measures of regional fisheries management organizations (RFMOs); the extent to which these provisions are actually being implemented in practice; and the extent to which States and RFMOs are taking action to remedy instances of failure to apply these provisions in practice. Elements for reviewing and assessing the adequacy of the UNFSA provisions concerned:
The Conference negotiations were characterized by intense negotiations between parties and non-parties to the Agreement, and discussions on regional and international approaches to the conservation and management of fish stocks. By the end of the week, delegates adopted a final report that includes, inter alia: a commitment to integrate ecosystem considerations in fisheries management; the urgent reduction of the world’s fishing capacity to levels commensurate with the sustainability of fish stocks; urgent strengthening of RFMO mandates to implement modern approaches to fisheries; urgent RFMO performance reviews; a commitment to develop a legally binding instrument on minimum standards for port State measures and a comprehensive global register of fishing vessels; expanded assistance to developing countries; and continuation of a dialogue to address concerns raised by non-parties.
The final report will be transmitted to the RFMO secretariats and the UN General Assembly, among others, and delegates decided to resume the Review Conference at a date no later than 2011, in light of their general satisfaction with how the Conference formal setting and outcomes contributed to raising the profile of the Agreement and achieving broader membership.
A BRIEF HISTORY OF THE UNFSA
The UN Conference on Straddling Fish Stocks (SFS) and Highly Migratory Fish Stocks (HMS), called for by Agenda 21, the programme of action adopted at the 1992 UN Conference on Environment and Development, was convened by the UN General Assembly to address problems related to the harvesting of these stocks on the high seas. Six substantive sessions were held from 1993 to 1995, resulting in the adoption of the UNFSA in August 1995. The UNFSA entered into force on 11 December 2001, and currently has 57 parties. The UNFSA aims to ensure the long-term conservation and sustainable use of straddling and highly migratory fish stocks, and includes general principles for their conservation and management and provisions on, inter alia: application of the precautionary approach; compatibility of conservation and management measures; cooperation for conservation and management; RFMOs; collection and provision of information and cooperation in scientific research; non-members of RFMOs; duties of, and compliance and enforcement by, flag States; international, subregional and regional cooperation in enforcement; procedures for boarding and inspection; measures taken by port States; special requirements and forms of cooperation with developing countries; and dispute settlement. The Agreement establishes a set of rights and obligations for States to conserve and manage the two types of fish stocks as well as associated and dependent species, and to protect the marine environment.
An associated Assistance Fund was established by the UN General Assembly in 2003 to assist developing States parties in UNFSA implementation. Following General Assembly resolution 56/13, informal consultations of States parties (ICSP) have been held at UN headquarters in New York every year since 2002 to consider the regional, subregional and global implementation of the Agreement and prepare for the Review Conference.
ICSP-1: At its first meeting (30-31 July 2002), the ICSP discussed the review of UNFSA implementation by parties and through RFMOs, implementation of Part VII (Requirements of Developing States), including the establishment of a programme of assistance for developing countries, changes in requested information and status of the report for parties and non-parties, and the future of the General Assembly resolutions on fisheries-related issues, among other things. ICSP-1 agreed on a series of recommendations on the implementation of Part VII.
ICSP-2: At its second meeting (23-25 July 2003), the ICSP focused on the impact of UNFSA implementation on related or proposed instruments throughout the UN system, establishment of the Assistance Fund under Part VII and preparations of its draft terms of reference, facilitation of the involvement of international financial institutions in UNFSA implementation, and consideration of Part II (Conservation and Management of Fish Stocks).
ICSP-3: At its third meeting (8-9 July 2004), the ICSP discussed new developments in UNFSA implementation by parties, including: the strengthening of flag State duties; implementation at the regional level, including the establishment of new RFMOs; updates on States’ initiatives at the global level; review of implementation of Part VII provisions, including contributions to the Assistance Fund; and preparatory work for the Review Conference.
ICSP-4: At its fourth meeting (31 May-3 June 2005), the ICSP focused on the institutional, procedural and substantive issues related to the preparation for the Review Conference, also based on the Chair’s background papers on possible criteria for assessing the UNFSA’s effectiveness and possible initiatives for strengthening the substance and implementation of the Agreement’s provisions. Participants discussed a timeline and programme of work for the preparation of the Review Conference, a draft agenda for the preparatory meeting and a set of recommendations to the General Assembly related to the preparatory work and the convening of the Review Conference and its preparatory meeting.
ICSP-5: At its fifth meeting (20-24 March 2006), the ICSP served as a preparatory meeting for the Review Conference. In a preliminary exchange of views on the UN Secretary-General’s report (A/CONF.210/2006/1), participants stressed the need for: broader ratification of and accession to the Agreement, in particular by key fishing States; priority action on the degradation of vulnerable marine ecosystems; the creation of new RFMOs; and the strengthening of cooperation and coordination between and among RFMOs. Non-parties expressed concern over enforcement activities in the high seas and possible abuse of the rights of flag States, while observers urged action on reporting on high seas fisheries related to discrete stocks and on prohibiting, in the interim, the use of destructive fishing practices on the high seas.
Participants discussed recommendations for consideration by the Review Conference, in particular on draft rules of procedure on voting, composition of the bureau and of the drafting committee, the Conference outputs, and possible future actions such as future review conferences and formalized meetings of parties. Discussions focused on the modalities for the participation of non-parties in the Conference and the extent to which they would be able to participate in the decision-making process. As a contact group on this matter could not reach an agreement, the Chair, Amb. David Balton (US), presented a proposal for the relevant draft rules of procedure according to which the Conference may proceed to a vote on matters of substance with parties having one vote and non-parties having the possibility to request inclusion of their views in the record of the meeting. The proposal was opposed by some non-parties, but was approved by general agreement among the parties. ICSP-5 outcomes included a provisional agenda and organization of work for the Review Conference, provisional rules of procedure, and elements for assessing the adequacy and effectiveness of the Agreement.
Vladimir Golitsyn, Director of the UN Division for Ocean Affairs and the Law of the Sea (UNDOALOS), opened the meeting on Monday, 22 May 2006. Participants elected Amb. David Balton (US) President of the Conference by acclamation.
President Balton introduced the provisional rules of procedure (A/CONF.210/2006/6) and suggested that work on matters of substance, including the final report, proceed on the basis of “general agreement” wherever possible, and that a vote should only occur if general agreement proves impossible to achieve. While China, Mexico, Peru, Guatemala, Guinea and the Republic of Korea asserted that under UNFSA Article 36 (Review Conference), parties and non-parties should participate on a full and equal footing, and expressed concern about joining consensus on the provisional rules, Canada, Iceland, Australia and Austria, on behalf of the European Union (EU), noted that agreement on the provisional rules had already been achieved at ICSP-5, and preferred to avoid voting wherever possible and to work towards general agreement.
China suggested that the rules remain provisional, and that decision making only be by consensus for matters of substance. Australia proposed formally adopting the provisional rules, whereas Canada, Iceland and the EU could accept applying the rules provisionally. President Balton suggested, and delegates agreed, that the entire set of rules of procedure be used on a provisional basis, and that their formal adoption be considered if the need arises.
Delegates adopted the provisional agenda (A/CONF.210/2006/3) and the organization of work (A/CONF.210/2006/4) without amendment. They nominated Spain, Fiji, the Russian Federation, Guinea and Brazil as party Vice-Presidents of the Conference, and China and Chile as non-party Vice-Presidents. President Balton then presented the report of ICSP-5 (ICSP5/UNFSA/REP/INF.1).
This summary focuses on discussions on the elements for review and assessment of the adequacy of UNFSA provisions and on proposed means of strengthening the substance and methods of their implementation (A/CONF.210/2006/5), and the negotiated outcomes contained in the Conference Report as approved by plenary on Friday, 26 May 2006.
REVIEW AND ASSESSMENT OF THE ADEQUACY OF UNFSA PROVISIONS
FISH STOCKS CONSERVATION AND MANAGEMENT: The Conference considered conservation and management of stocks in plenary on Monday. The drafting group discussed a draft text on the matter throughout the week. Discussions centered on applying the precautionary principle, the need to address high seas discrete stocks, subsidies, deadlines for implementing an ecosystem approach, and fishing overcapacity.
Many States and non-governmental organizations (NGOs) called for the modernization of RFMO management practices, the wide application of the precautionary principle and best available science. On overfishing and capacity management, Chile called for the elimination of subsidies to high seas fisheries, with delegates agreeing to text on eliminating subsidies that contribute to illegal, unreported and unregulated (IUU) fishing, overfishing and fishing overcapacity. The US proposed that management organizations develop plans to reduce fishing capacity to bring it into line with fisheries resource availability, by 2012 for straddling stocks, and by 2007 for highly migratory stocks, but many delegates raised concerns over references to deadlines, and these were deleted.
On fisheries not regulated by RFMOs, Iceland said the Review Conference should take steps toward developing new RFMOs to fill gaps in existing arrangements. Brazil indicated willingness in the long term to discuss regional management arrangements for areas not covered by RFMOs, while voicing concerns about the resource implications of developing new management organizations.
On effects of fishing on the marine ecosystem, New Zealand and IUCN – The World Conservation Union supported application of UNFSA principles to the conservation and management of discrete high seas stocks, with the Natural Resources Defense Council (NRDC) and Greenpeace preferring to bring all high seas stocks within the scope of the UNFSA. Delegates eventually agreed to include a reference to establishing RFMOs for conservation and management of high seas discrete stocks, where needed, and to develop management tools for all high seas stocks. Delegates also debated whether to ask the UN Food and Agriculture Organization (FAO) to undertake a technical study of UNFSA’s applicability to these stocks, with some delegates raising concerns that this would delay the Agreement’s implementation with regard to straddling and highly migratory fish stocks. They eventually agreed to include a request to the FAO to continue its work on the subject.
Major contention surrounded a reference to compatibility of measures adopted on the high seas with those in place within national jurisdictions, with non-parties calling for the primacy of coastal States’ measures in areas under their jurisdiction. Compromise was reached on the last day of the Conference, when delegates agreed to improve cooperation between flag States and coastal States to ensure the compatibility of measures for the high seas with those for areas under national jurisdiction.
Final Text: In the Report, the Conference makes the following assessments, among others:
In terms of proposed means to strengthen UNFSA implementation, the Conference recommended that States individually and collectively through RFMOs:
The Conference recommended that FAO establish arrangements for the collection and dissemination of data in accordance with Annex I of the Agreement (Standard requirements for the collection and sharing of data), and revise its global fisheries statistics database to provide information for the stocks to which the Agreement applies, as well as to high seas discrete stocks.
INTERNATIONAL COOPERATION AND NON-MEMBERS: Delegates discussed international cooperation and non-members of RFMOs in plenary on Tuesday. The issue was addressed in the drafting committee on Wednesday through Friday. Discussions focused on RFMOs as one of the primary mechanisms for carrying forward UNFSA implementation, as well as on the need to increase their accountability and undertaking a review of their performance.
Regarding the integrity of RFMO regimes and the functioning of RFMOs, discussions focused on modernizing and strengthening RFMOs, with many delegates agreeing that both non-member fishing and non-compliance by members and cooperating members undermine the effectiveness of conservation and management measures. Discussions also focused on RFMO performance reviews, including questions of transparency, objective performance criteria, best practice examples, and a possible model RFMO. Iceland said that members of each RFMO should decide on measures for RFMO performance reviews. The US underscored the need for an independent, external review of RFMO performance based on a uniform set of criteria. New Zealand called for a mechanism to make RFMOs and States accountable for their performance, suggesting that: performance indicators for RFMOs be developed; initial self-assessments be undertaken by RFMOs by 2007, followed by independent performance reviews; and results and action taken to remedy deficiencies be reported to a future UNFSA review conference. NRDC preferred that an international panel, including both legal and scientific experts, be established under the auspices of the Review Conference to assess the performance of all existing RFMOs.
During textual negotiations, some delegates insisted that only RFMO members should determine the methodology for each review, while others were adamant that an independent element in the review would be necessary to ensure transparency and rigor. During Friday’s session of the drafting committee, delegates debated language on strengthening RFMO mandates and modern approaches to fisheries management, eventually agreeing to refer to these approaches “as reflected by UNFSA and other international agreements.” Delegates also discussed whether to refer to “equitable” criteria for allocating fishing opportunities, agreeing instead to refer to “transparent” criteria. They also debated whether to recommend external RFMO performance reviews, finding consensus on identifying both internal and external reviews as a possibility.
On the model RFMO, some cautioned against agreeing to move towards the standards of a model before it has even been developed. Supporters of the proposal, such as New Zealand and Canada, highlighted that the model RFMO would apply principles already agreed upon in instruments such as the UNFSA, the UN Convention on the Law of the Sea (UNCLOS) and FAO instruments. Many delegates called for improved RFMO transparency, with the US and Brazil stressing the need for RFMOs to modernize their observer procedures, comply with scientific advice, and increase online information disclosure.
Regarding fishing activity by non-members, many highlighted the need for strong measures to prevent IUU fishing. Suggested measures included: lists of authorized and unauthorized vessels; vessel monitoring systems (VMS); observers; and implementation of systems and procedures for vessel inspections. Canada encouraged non-members fishing in an RFMO area to either join the RFMO, obey the management rules, or abstain from fishing. Australia called for better harmonization of compliance measures across RFMOs, including measures targeted at non-RFMO members. Mexico emphasized the need to move from single-species to ecosystem-based management, while Canada cautioned against competition between sectoral and integrative ecosystem-based approaches to oceans management.
Regarding participatory rights, many called for more equitable, science-based and sustainable quota systems, noting that quotas based on historical catch data disadvantage developing countries and that unfair allocation of participatory rights is a disincentive for non-members to join the UNFSA. Japan suggested using incentives, such as quota allocations and market-based incentives, to encourage non-parties to join RFMOs. The US emphasized that allocation of fishing opportunities should be based on scientific advice rather than solely on economic concerns.
On international cooperation, Spain suggested taking into account the example of other marine biodiversity conservation activities, with the World Wide Fund for Nature (WWF) calling for a single delivery mechanism for all international obligations related to marine living resources. Greenpeace called for a new implementation agreement to UNCLOS to implement measures based on the precautionary principle, the ecosystem approach and prior environmental impact assessment, and an agency to coordinate international action to combat IUU fishing.
Final Text: In the Report, the Conference made the following assessments, among others:
The Conference recommends that States, individually and through RFMOs:
MONITORING, CONTROL AND SURVEILLANCE, AND COMPLIANCE AND ENFORCEMENT: Monitoring, control and surveillance (MCS), and compliance and enforcement were discussed in plenary on Wednesday. The drafting group considered a draft text on this matter from Wednesday to Friday.
Discussions centered on sanctions, a legally binding instrument on port State controls, regulating transshipment, assistance to developing States for MCS, and alternative mechanisms.
On investigation and penalization for violations, the European Commission (EC) underscored the need for States to evaluate on a regular basis sanctions applied at the national level, and to exchange information with other countries. Canada proposed, and delegates agreed, to develop regional guidelines for fisheries sanctions to ensure adequate disincentives to non-compliance.
On the use of port State measures, Norway, supported by many States and NGOs, proposed establishing a global legally binding instrument involving all port States, based on the FAO model scheme on port State control. Japan was able to cautiously consider such a legally binding instrument, but called for a balance between a global, centralized approach and a targeted one. Delegates agreed to initiate a process within the FAO to develop a legally binding instrument on minimum standards for port State measures.
IUCN urged States to consider a system, through RFMOs, for the inspection and regulation of transshipments, while the EC proposed prohibiting transshipments on the high seas. Delegates agreed to adopt “stringent measures” to regulate transshipment.
On international cooperation, several developing countries emphasized the need to strengthen developing States’ capacity with regard to MCS and VMS initiatives. The US proposed developing a comprehensive global register of fishing vessels, ensuring that all high seas fishing vessels carry VMS by 2008. Delegates agreed to the global register, but deleted reference to a timeline.
Discussions on boarding and inspection were among the most controversial of the Conference. Non-parties considered language on alternative mechanisms to boarding and inspection essential to address their concerns, which were also discussed at length during negotiation of the draft text on non-parties. Mexico preferred cooperative initiatives such as onboard observers and market controls to inspection and boarding, arguing that these should take place only with the consent of the flag State. Parties reiterated that boarding and inspection are key elements of the UNFSA package, cautioning against re-interpreting or weakening the Agreement’s provisions.
On Friday morning, the drafting committee discussed at length bracketed text on promoting alternative mechanisms “for inspection and surveillance.” Party delegates suggested moving text on alternative mechanisms to the Conference report section on non-parties. In the end, delegates reached agreement on text recognizing the development within RFMOs of alternative mechanisms “for compliance and enforcement,” including other elements of a comprehensive MCS regime, as well as noting that some participants indicated that consideration of such mechanisms could include onboard observers, utilization of VMS, fish tracking and verification systems, fleet performance review, and catch documentation schemes.
Final Text: In the Report, the Conference made the following assessments, among others:
With respect to concerns raised about boarding and inspection, it was noted that provision is made in the Agreement for alternative mechanisms in RFMOs, with some participants pointing to onboard observer programmes, utilization of VMS, and fish tracking and verification systems, among others. In terms of proposed means of strengthening UNFSA implementation, the Conference recommended that States, individually and collectively through RFMOs:
DEVELOPING STATES AND NON-PARTIES: Delegates discussed the provisions of the Agreement on developing States and non-parties in plenary on Thursday and in the drafting committee on Friday. Debates focused on ways to increase assistance to developing countries and to address barriers to ratification caused by diverging views on UNFSA provisions on general principles, the precautionary approach, the compatibility of conservation and management measures, enforcement, and inspection and boarding.
Developing States: Delegates discussed special requirements of developing States, including financial assistance, capacity building, specialist training, human resource development, technology transfer, and the exchange of knowledge and expertise. Many called for increased contributions to the Agreement’s Assistance Fund. Some delegates underlined the importance of ensuring developing States’ equitable access to fishing resources, and noted that financial constraints should be taken into account when formulating member States’ financial contributions to RFMOs. Others called for assistance in meeting importing countries’ quality control requirements and ensuring developing States’ access to markets for fish products.
India advocated bilateral cooperation and the exchange of best practices among RFMOs. The EC said that rather than increasing financial assistance, the international community should assist developing countries in formulating policies to make rational use of such assistance. Canada called on development assistance agencies to develop coherent approaches to international fisheries issues, bearing in mind the specific policy, science, management and enforcement needs and priorities of developing States. Many delegates underscored the importance of allocation rules for new entrants to RFMOs, with IUCN urging that scientific advice be respected.
During Friday’s negotiations in the drafting committee, delegates agreed to expand a list of target areas for assistance to include: compliance with market-based measures and meeting market access requirements; development of developing States’ fisheries for SFS and HMS; and information sharing, including vessel information.
Non-parties: Increasing adherence to the Agreement was another contentious issue debated at length during the Conference. Delegates discussed ways to overcome barriers to ratification and accession. Several non-party delegates pointed to UNFSA Articles 21 (Subregional and regional cooperation in enforcement) and 22 (Basic procedures for boarding and inspection) as obstacles to broader adherence to the Agreement. Cuba, supported by Ecuador and Colombia, urged the adoption of general recommendations for the implementation of UNFSA provisions on boarding and inspection, to clarify issues fueling non-party concerns. Mexico called for developing a technical annex to the UNFSA on procedures for inspection and boarding, including a compensation mechanism for damage and economic losses caused by boarding contrary to international law, and favored alternative means of monitoring and surveillance such as independent onboard observers. The Republic of Korea also favored alternative mechanisms such as observer programmes, vessel registers, lists of vessels and trade documentation. China suggested developing transparent and reasonable guiding principles on the use of force, and, supported by Indonesia, recommended including compensation mechanisms. In addition, the Republic of Korea and Indonesia called for safeguards for the human rights of crews during inspection and boarding.
On the other hand, party delegations stressed the importance of the boarding and inspection provisions of the Agreement, noting that the UNFSA already achieves a careful balance of rights, duties and obligations that must all be implemented with integrity. The US called for RFMO members to develop mutually acceptable provisions on boarding and inspection.
During Friday’s negotiations in the drafting committee, delegates discussed preambular language referring to impediments to increased adherence to the Agreement, with different views on whether to describe these impediments as objective facts or subjective perceptions. Delegates then debated whether to launch an informal process of consultations and exchange of ideas on issues connected with UNFSA provisions on, among other things, boarding and inspection, to promote increased adherence to the Agreement. They eventually agreed to recommend an exchange of ideas on ways to promote further ratification and accession to the UNFSA through a continuing dialogue to address concerns raised by non-parties.
Final Text: In the Report, the Conference made the following assessments, among others: increasing adherence to the Agreement is vital to promoting full UNFSA implementation and achieving its objective; assistance is needed for developing States, among others, in the areas of data collection, scientific research, MCS, human resources development, information sharing and technical training and assistance; the Assistance Fund pursuant to Part VII of the agreement is a useful step taken to assist developing States’ implementation of the Agreement; further assistance is needed for capacity building and facilitation of participation in RFMOs; and several non-parties identified impediments to becoming a party, including lack of capacity and resources for implementation.
In terms of proposed means of strengthening UNFSA implementation, the Conference recommends that States:
The Conference recommends that FAO and UNDOALOS further publicize the availability of assistance through the Assistance Fund, solicit views from developing States parties regarding the application and award procedures of the Assistance Fund, and consider changes where necessary to improve the process. The Conference further recommends that States, collectively through RFMOs, establish a link to the Assistance Fund homepage on their organization’s website.
Several delegations were in favor of further reviews. The EU supported a periodic five-year review of the Agreement, whereas New Zealand, Senegal and the US favored a four-year cycle. Iceland proposed to hold informal consultations every second year, with every third consultation being held in a more formal setting. WWF and Greenpeace preferred convening annual informal meetings and a review conference every four years. Norway preferred that biennial informal meetings of parties conduct a review every six to eight years. Suggestions also included regional review conferences and regular meetings between RFMOs to facilitate information exchange and the identification, compilation and dissemination of best practices, with Mexico proposing ongoing informal consultations to examine obstacles to broader adherence to the Agreement.
On Friday, in the drafting committee, delegates debated whether further meetings of parties should serve as future review conferences or whether meeting of parties and future review conferences should be considered separately. Some delegates called for a precise timeframe for a future review conference, such as 2012 or 2011. They eventually agreed to decide on the date at a future meeting of parties, but that the review conference be resumed no later than 2011, and to request the UN Secretary-General to convene such meetings. The drafting committee decided to forward the Conference report to the secretariats of all RFMOs, FAO, the UN General Assembly and the International Maritime Organization. Participants discussed whether or not to also transmit the report to the meeting of States parties to UNCLOS, but decided against it, as parties noted that this would be redundant.
Final Text: In the report, the Conference agreed to request the Conference President to transmit the final report of the Review Conference to the secretariats of all RFMOs, including, where possible, those under negotiation, as well as to the UN General Assembly, the International Maritime Organization, FAO and other relevant organizations, and to highlight relevant recommendations and requests for action contained in the report.
The Conference also agreed: that the Conference has provided a useful opportunity to assess the effectiveness of the Agreement and its implementation, and that further review is necessary; and to continue the informal consultations of States parties and keep the Agreement under review through the resumption of the Review Conference at a date no later than 2011, to be agreed at a future ICSP, and to request the UN Secretary-General to convene such meetings.
On Friday morning, Credentials Committee Chair Amarawansa Hettiarachchi (Sri Lanka) presented the plenary with the report of the credentials committee (A/CONF.210/2006/13), which was approved without amendment. FAO reported on the status of the Assistance Fund, stating that the Fund’s administration is proceeding smoothly and with a short turnaround time, and highlighting UNDOALOS and FAO’s efforts to disseminate information about the Fund.
Plenary was suspended for most of the day to allow the drafting committee to finalize outstanding text. In the evening, plenary reconvened, and delegates adopted the Review Conference Report, as forwarded to plenary by the drafting group, without amendments. In his closing remarks, President Balton noted that, in comparison with the negotiations of the Agreement that focused on the rights and duties of States, the Review Conference had centered on increasing UNFSA effectiveness, strengthening its provisions, providing greater assistance to developing States and increasing adherence to the Agreement. The EU noted that the Conference had been successful in seriously considering non-parties’ concerns, and hoped that this would pave the way for them to join the Agreement. In light of the decision to resume the Review Conference no later than 2011, President Balton gaveled the Conference into “suspension” at 9:31 pm.
A BRIEF ANALYSIS OF THE UNFSA REVIEW CONFERENCE
When the UN Fish Stocks Agreement was concluded in 1995, it was widely predicted to herald the beginning of a new era of sustainable fisheries management and conservation. Eleven years later the Agreement’s Review Conference, in assessing the level of its implementation, shed some light on the accuracy of this prediction.
The Conference was significant for putting under the spotlight two complementary means for strengthening implementation of the Agreement: aiming at the universality of the Agreement by increasing its membership and augmenting its acceptance by non-parties; and identifying concrete measures to fully operationalize its specific provisions and principles.
Debates during the Conference clearly indicated that UNFSA principles are now settled as the rules of the game for straddling and migratory fish stocks management, even for most non-parties. Indeed, most of those States who are not signatories nonetheless framed their interventions in UNFSA language, and were keen to note their ongoing compliance, or earnest desire to comply, independent of their intention to formally join the Agreement. On the other hand, a concerted effort to improve implementation is still critically needed. This brief analysis will assess the accomplishments and missed opportunities of the Review Conference, within the context of the dynamics of the negotiations, and consider the future of high seas fisheries management.
INDIVIDUAL, REGIONAL AND INTERNATIONAL ACTION
Discussions on concrete measures to step up implementation of the Agreement focused equally on what could be achieved by States, RFMOs and through other international instruments and organizations. An early drafting breakthrough occurred when most of the recommendations in the draft text, previously divided into different actions for States and RFMOs, were combined into a single list for action “by States individually and collectively through RFMOs.” This piercing of the sometimes artificial distinction between regional bodies and their constituent members signaled a refreshing admittance by the Conference that RFMOs are only as effective as States want them to be.
While the Conference certainly placed much emphasis on the role of RFMOs as a key mechanism to implement the Agreement, the prevailing sentiment was that most RFMOs are not performing impressively in their core duty, which is to achieve the long-term sustainability of fish stocks. After all, according to FAO, over half of global fish stocks are already fully exploited, and a further 25% are overexploited, depleted, or recovering from depletion. Tellingly, the call for improvement by many RFMOs focused on their need to better apply precautionary, ecosystem-based management and transparent decision making based on the best available science – principles that are among the fundamentals of the UNFSA. As had already been highlighted at the 6th meeting of the UN Open-ended Informal Consultative Process on the Law of the Sea (UNICPOLOS-6), reaching agreement on the need to undertake RFMO performance reviews is a key step towards enhanced RFMO effectiveness. However, contention continues to surround the modalities for such reviews, and consequently the elements of independence, objectiveness and transparency, heartily called for by several States and NGOs, were in the end included in the negotiated outcome as subject to selective interpretation and application in each review.
Another recognition emerging from the Conference was that global action is needed to complement actions being undertaken at the regional level. The Conference Report includes a number of noteworthy measures in this respect, and although the progress achieved is incremental, some ideas that were previously unable to achieve consensus support in global multilateral oceans forums have been endorsed by this Conference. For example, there are strong calls in the text for: reducing global fishing capacity; eliminating subsidies; enforcing flag State controls on support vessels as well as fishing vessels; developing a comprehensive global register of fishing vessels that incorporates information on beneficial ownership; a legally binding agreement on port State controls; and stricter rules on transshipments. While such progress demonstrates increasing international will to genuinely improve fisheries management, the lack of any time-bound commitments in the Conference Report is considered by some a missed opportunity.
While delegates seemed to be resolute in supporting the full application of the ecosystem approach to fisheries management, observers noted the lack of any concrete measures to achieve this in the Conference Report. For example, no concrete measures are outlined for protecting vulnerable marine ecosystems from destructive fishing practices, notwithstanding the discussions on this matter at ICSP-5 and the interventions on interim measures against bottom-trawling by Palau, Brazil and NGOs. While the recommendation to address derelict fishing gear and discards is welcome, more glaring is the absence of any progress on designing measures to reduce bycatch. In addition, the development of biodiversity conservation tools, including marine protected areas, is called for only on a case-by-case basis. These weaknesses reflect the scant attention devoted to broader issues of biodiversity conservation at the meeting, and the paucity of references to relevant developments in other multilateral oceans and environmental forums. They indicate that the fisheries sector is still some way from achieving a genuine and multi-sectoral understanding of ecosystem-based management – a challenge that may be confronted at UNICPOLOS-7 in two weeks’ time.
UNIVERSALITY AND PARTIES/NON-PARTIES DYNAMICS
Of the two means for improving implementation, achieving universality was arguably considered more important. Given the transboundary nature of the fish stocks in question, the breadth of the UNCLOS freedom to fish and the current threats posed by IUU fishing and over-exploitation, for many the success of this Agreement depends heavily on achieving the broadest membership possible, and therefore the Review Conference took special care to heed non-party views.
General Assembly resolution 60/31 provided for non-party participation in the Review Conference on an equal footing, but the provisional rules of procedure that emerged following divisive debates at ICSP-5 still allowed the possibility of voting. The resulting non-party fears of being excluded from decision-making processes threatened to re-emerge throughout the Conference, as parties and non-parties formed the two major negotiating blocs on contentious issues. However, the specter of voting ended up a distant memory by late Friday night, and to many the Conference served to raise awareness of the differing perceptions and expectations of the two groups. At the end of the meeting, a general and sincere sense of satisfaction was palpable in the room, in light of the emergence of the complementary strategies for encouraging further adherence: highlighting the benefits of membership and providing further incentives, as well as addressing non-party concerns about barriers to ratification.
Discussions between developing and developed countries on incentives such as capacity building and assistance proceeded amicably, with parties and non-parties alike recognizing that giving further assistance to developing State parties should be an effective measure to encourage further ratification by developing States, as well as directly contributing to better management of the shared fish stocks. Perhaps the revelation that monies are still available in the Assistance Fund, and Canada’s pledge to increase its contribution, averted the usual calls for increased funding, and instead assisted delegates to focus constructively on identifying priority areas for using the Fund.
With respect to obstacles to ratification and accession, the diverging interpretations of the inspection and boarding provisions of the Agreement occupied the lion’s share of Thursday and Friday’s debates. Non-party Latin American States and distant water fishing nations expressed several concerns about possible abuses of these provisions, calling for new negotiations on limits, procedures and compensation. In addition, they advocated that “alternative mechanisms,” most notably onboard observers, would ensure the respect of the Agreement in a preventative, rather than punitive, way. On the other hand, parties were resolute not to re-negotiate these provisions, which they see as the indispensable and well-balanced “teeth” of the Agreement, and many openly expressed that a “stick rather than carrot” alternative of increased boarding, inspection and sanctions would be necessary if more conciliatory approaches fail. The drafting committee managed to strike an acceptable balance in the Conference Report, entrusting RFMOs with the development of alternative mechanisms for compliance and enforcement, recognizing that these mechanisms can facilitate further adherence to the Agreement, and deciding to continue the process of addressing non-parties’ concerns through “dialogue.” Thus, bridging the gap between parties and non-parties has progressed, but clearly requires further work.
YESTERDAY, TODAY AND TOMORROW
As pointed out by President Balton, the subject and tenor of discussions have changed since the conclusion of the Agreement. Certain principles of the UNFSA that were won only after long hours of negotiations back in 1995, such as ecosystem and precautionary approaches to management, are now accepted by parties and non-parties alike. Other provisions, however, remain perennially contentious, such as inspection and boarding. Overall, discussions revealed a shift in dynamics from the original negotiations, which were ripe with tussles over the respective rights and duties of various States along a fairly distinct distant water fishing State/coastal State divide. By contrast, a party/non-party divide was prominent during the Review Conference, both on substantive and procedural matters.
Considering that increasing adherence to the Agreement is clearly considered a prerequisite for its improved effectiveness, continued dialogue between parties and non-parties on addressing obstacles to new ratifications or accessions is necessary. A formal setting for such consultations such as the Review Conference was considered by many a crucial factor in raising the profile of the Agreement and attracting more ratifications or accessions – remarks justified by President Balton’s announcement, in Friday’s press conference, that another 14 States intend to join the Agreement in the near term.
Much of the hard work to give effect to the Conference outcomes is now expected to take place within RFMOs, where parties and non-parties alike might have the best opportunity to resolve their differences and improve the Agreement’s implementation. Perhaps when the Review Conference is resumed, by 2011 at the latest, the effectiveness of the Agreement should be judged not only on the number of new members, but also on the actual status of the world’s fish stocks struggling for survival.
INTERNATIONAL WHALING COMMISSION 58TH ANNUAL AND ASSOCIATED MEETINGS: The 58th meeting of the International Whaling Commission (IWC) and its pre-sessional meetings takes place from 24 May - 20 June 2006, in Frigate Bay, St. Kitts and Nevis, with the Commission’s main session scheduled for 16-20 June. For more information, contact: IWC Secretariat; tel: +44-1223-233-971; fax: +44-1223-232-876; e-mail: firstname.lastname@example.org; internet: http://www.iwcoffice.org/meetings/meeting2006.htm
COFI SUB-COMMITTEE ON FISH TRADE - 10TH SESSION: This FAO meeting will take place from 30 May - 2 June 2006, in Santiago de Compostela, Spain, and is expected to discuss: proposed FAO guidelines for responsible fish trade; fish labeling to promote responsible trade and “traceability” systems; the role of the fish trade in strengthening food security in the developing world; and rehabilitation of fisheries in tsunami-affected countries. For more information, contact: William Emerson, FAO Fisheries Department; tel +39-06-57056689; fax: +39-06-57055188; e-mail: email@example.com; internet: http://www.fao.org/fi/NEMS/events/detail_event.asp?event_id=31581
EXPERT CONSULTATION ON ECONOMIC, SOCIAL AND INSTITUTIONAL CONSIDERATIONS OF APPLYING THE ECOSYSTEM APPROACH TO FISHERIES MANAGEMENT: This FAO meeting will take place from 6-9 June 2006, in Rome, Italy. For more information, contact: Cassandra De Young, FAO Fisheries Department; tel: +39-06-57054335; fax: +39-06-57056500; e-mail: firstname.lastname@example.org; internet: http://www.fao.org/fi/NEMS/events/detail_event.asp?event_id=33581
UNICPOLOS-7: The seventh session of the UN Informal Consultative Process on Oceans and the Law of the Sea (UNICPOLOS) will be held from 12-16 June 2006, at UN headquarters in New York. The Consultative Process will focus its discussions on ecosystem approaches and oceans. For more information, contact: UNICPOLOS Secretary; tel: +1-212-963-3962; fax: +1-212-963-2811; e-mail: email@example.com; internet: http://www.un.org/Depts/los/consultative_process/consultative_process.htm
INTERNATIONAL WORKSHOP ON GOVERNANCE AND THE GLOBAL WATER SYSTEM: This workshop, scheduled to take place from 20-23 June 2006, in Bonn, Germany, will seek to identify institutions, actors and scales that are of key relevance for enhancing adaptive capacity of governance regimes towards global environmental change. For more information, contact: Daniel Petry, Global Water System Project, International Project Office; tel: +49-228-736186; fax: +49-228-7360834; e-mail: firstname.lastname@example.org; internet: http://www.gwsp.org/gov_workshop.html
ASCOBANS MOP-5: The fifth meeting of the Parties to the Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas (ASCOBANS) will take place from 18-22 September 2006, in Egmond aan Zee, the Netherlands. For more information, contact: ASCOBANS Secretariat; tel: +49-228-815-2416; fax: +49-228-815-2440; e-mail: email@example.com; internet: http://www.ascobans.org/index0401.html
CONFERENCE ON IMPLEMENTING THE ECOSYSTEM APPROACH TO FISHERIES: This conference will be held from 26-28 September 2006, in Bergen, Norway. Organized by the Nordic Council of Ministers, it aims to review concepts and address implementation issues related to applying the ecosystem approach to fisheries. For more information, contact: Kari Østervold Toft, Norwegian Institute of Marine Research; tel: +47-5523 8538; fax: +47-5523 8586; e-mail: firstname.lastname@example.org; internet: http://cieaf.imr.no
THIRD INTERNATIONAL TROPICAL MARINE ECOSYSTEMS MANAGEMENT SYMPOSIUM: ITMEMS-3 will be held from 15-20 October 2006, in Cozumel, Mexico. ITMEMS is a major activity of the International Coral Reef Initiative. ITMEMS-3 aims to provide an opportunity for marine and coastal managers and stakeholders to exchange experiences and knowledge, and define future action for the management of tropical marine ecosystems. For more information, contact: ITMEMS-3 Organizing Committee; e-mail: email@example.com; internet: http://www.itmems.org
SECOND INTERGOVERNMENTAL REVIEW OF THE GLOBAL PROGRAMME OF ACTION FOR THE PROTECTION OF THE MARINE ENVIRONMENT FROM LAND-BASED ACTIVITIES: GPA IGR-2 will take place from 16-20 October 2006, in Beijing, China, to strengthen GPA implementation at the national, regional and global levels. For more information, contact: GPA Coordination Office; tel: +31-70-311-4460; fax: +31-70-345-6648; e-mail: firstname.lastname@example.org; internet: http://www.gpa.unep.org/
TECHNICAL CONSULTATION ON DEVELOPMENT OF INTERNATIONAL GUIDELINES ON ECOLABELING OF FISH AND FISHERY PRODUCTS FROM INLAND AND MARINE FISHERIES: This FAO meeting will be held from 17-20 October 2006, in Rome, Italy. For more information, contact: Rolf Willmann, FAO Fisheries Department, tel: +39-06-5705-3408; fax: +39-06-5705-6500; e-mail: email@example.com; internet: http://www.fao.org/fi/NEMS/events/detail_event.asp?event_id=33207
ICES SYMPOSIUM ON FISHING TECHNOLOGY IN THE 21ST CENTURY: This symposium, organized by the International Council for the Exploration of the Sea (ICES), will be held from 30 October – 3 November 2006, in Boston, US, and will focus on integrating commercial fishing and ecosystem conservation. For more information, contact: Christopher Glass, Symposium Secretariat; tel: +1-603-862-0122; fax: 1-603-862-7006; e-mail: firstname.lastname@example.org; internet: http://www.ices2006boston.com/
THE EAST ASIAN SEAS (EAS) CONGRESS 2006: Sponsored by the GEF/UNDP/IMO Regional Programme on Partnerships in Environmental Management for the Seas of East Asia (PEMSEA), this meeting is scheduled to be held from 12-16 December 2006, in Haikou City, China. It will bring together international organizations, experts and multi-sector stakeholders to exchange knowledge and build capacity in developing strategies to implement the Millennium Development Goals and World Summit on Sustainable Development goals for the region’s coasts and oceans. For more information, contact: EAS Congress Secretariat; tel: +632-9-202211; fax: +632-9-269712; e-mail: email@example.com; internet: http://www.pemsea.org/eascongress
JOINT MEETING OF REGIONAL TUNA FISHERIES MANAGEMENT ORGANIZATIONS: This meeting will take place from 22-26 January 2007, in Kobe, Japan, and will bring together secretariats of tuna RFMOs. Expected outcomes include an action plan and recommendations to further harmonize tuna conservation and management among RFMOs. For more information, contact: Akihiro Mae, Japanese Fisheries Agency; tel: +81-3-3502-8459; fax: +81-3-3502-0571; e-mail: firstname.lastname@example.org; internet: http://www.iotc.org/files/proceedings/2006/s/IOTC-2006-S10-03%5BEN%5D.pdf
CITES COP-14: The fourteenth Conference of the Parties to the Convention on the International Trade in Endangered Species will take place from 3-15 June 2007, in The Hague, the Netherlands. For more information, contact: CITES Secretariat; tel: +41-22-917-8139; fax: +41-22-797-3417; e-mail: email@example.com; internet: http://www.cites.org
UNFSA REVIEW CONFERENCE: The review conference to the UN Fish Stocks Agreement will resume no later than 2011. The date will be determined at a future informal consultation of the States parties to the Agreement. For more information, contact: UNDOALOS Secretariat; tel: +1-212-963-3962; fax: +1-212-963-5847; e-mail: firstname.lastname@example.org; internet: http://www.un.org/Depts/los/