Informal-informal consultations began on Thursday, 24 March, between the Chair, Satya Nandan, and delegates of coastal States and Distant Water Fishing States (DWFS) with consideration of a revised Section I and II of the negotiating text. These sessions, which were closed to observers, continued during the day Monday and Tuesday, and again on Wednesday morning. (Editor's note: Reporting on these closed-door sessions in this issue of the Earth Negotiations Bulletin is based on interviews with forthcoming government delegates.)
The first edition of Section I of the revised text was issued without the text on Precautionary Approach. A revised Section I* appearing on Monday morning and dated 28 March detailed not only inclusion of a new Section on Application, but also referred to the original text of Section I as a new Section II. Under Part C in revised Section I* is old Section IX on compatibility and coherence. The reworking of Section I* in this form provides for the most contentious high seas and coastal States issues to be contained in one section. Section I* consists of two paragraphs dealing with Application, which caused a number of alternative texts to be tabled. These came from Canada, the European Union and from a further revised text of the Chair. Consultations on Section I* lasted throughout the day on Monday. Delegates indicated that Nandan attempted to achieve a relative consensus prior to moving on to other sections.
An alternative text on compatibility worked up by a caucus group appears to have received the Chair's approval, and with minor amendments is broadly included in Section I* (C). Discussion on paragraphs 1 and 2 focused on the need for restructuring so as to develop specificity between the objective and application. The European Union's alternative text sought to delete paragraph 2 but to include emphasis on the biological unity of stocks in paragraph 1. Further alternative text by the European Union was proposed for paragraphs 6 and 7 on compatibility. Discussion focused on long and rambling interpretations of Article 116 of UNCLOS. One DWFS delegate indicated that he could accept most of the requirements of the Conference, while he could not let the "special interests" of the coastal States prevail over conservation and management of high seas resources. One delegate expressed disillusionment with the repetitive and rhetorical legal statement-making.
A proposal by the core group of the Like-Minded States tabled alternative text for insertion as paragraph 6, while Chile proposed alternative text for insertion as a new paragraph 7, which made explicit reference to Article 116 of UNCLOS.
Notable omissions in the new text in (B) on Precautionary Approaches to Fisheries Management are references to thresholds and moratoria much objected to by DWFSs. Emphasis is given to the preservation of the marine environment, and it mentions that where management reference points are exceeded, recovery plans shall be implemented "immediately" to restore stock(s). An alternative text tabled by the European Union on Precautionary Approaches to Fisheries Management cites reference to the biological unity in the exploitation of stocks with States taking into account the ecosystem management approach. Unlike the Chair's revised text, the European Union alternative text seeks reference to Annex X, the text of which is fully given in document A/CONF.164/WP.2, the Report of the Working Group on Reference Points for Fisheries Management.
Delegates indicated that Nandan deserved high credit for accepting alternative language that sought consensus and compromise, especially on the question of compatibility. Latin American west coast States were sensitive about aspects of sovereignty on port State and flag State implementation, and one delegate described their actions as a major filibustering exercise. The remaining differences on compatibility are likely to be brokered by the US during the intersessional period. Canada has maintained a prominent role in these informal negotiations in order to keep the other core group members of the Like-Minded on board. Some criticism was leveled at Nandan for permitting frustrating legal arguments to evolve throughout the informal consultations, rather than concentrating on the core issue of conservation and management of fish stocks.
A caucus of NGOs, including the National Audubon Society, Worldwide Fund for Nature and others, forwarded a three-page document to delegates during the informal consultations. This document noted that in order for the Conference to succeed, three fundamental objectives need to be satisfied: the establishment of meaningful international minimum standards; the provision of a legally-binding regime with an immediate global impact; and the establishment of a binding and compulsory dispute settlement procedure. The document concludes that neither narrow self-interest nor UNCLOS must be a barrier to a mutually beneficial, binding and enforceable agreement to regulate straddling and highly migratory fish stocks throughout their respective ranges of distribution.
On the question of an extended mandate, the Chair maintained his desire to conclude the Conference at the August session. Delegates discussed the possibility of a longer summer session to consider the many remaining disparate views. This idea lacks support from the UN Secretary-General. But delegates have noted that if signs of progress are made, an extension of the Conference's mandate by the General Assembly may be possible.
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