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A/CONF.164/13/Rev.1 - REVISED NEGOTIATING TEXT

The "Revised Negotiating Text" was distributed by the Chair on the final morning of the Conference. Structurally it departs markedly from the layout of the original draft, but represents the Chair's attempt to bring the contentious issues to the front of his text and consolidate earlier sections under core headings. The revised negotiating text, A/CONF.164/13/Rev.1, contains a preamble, ten sections and three annexes.

The Preamble refers to UNCED and UNCLOS as the two processes that guide the work of the Conference and highlights the need to strengthen fisheries conservation and management, in the context of sustainable development, while promoting the availability of fish resources for present and future generations. It explicitly refers to the FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, and for all members of the international community to strengthen their cooperation in conservation and management of all living marine resources, by adopting measures that apply to the stocks overall.

Section I, on "Objective" is a new section promoting the concept of biological unity of stocks, and underscores the need for coastal State and DWFS cooperation to achieve compatible measures to effectively conserve and manage straddling fish stocks and highly migratory fish stocks.

Section II on "Application" identifies the provisions of the document that apply to straddling fish stocks and highly migratory fish stocks, but acknowledges that the coastal State has responsibility for the conservation and management of such stocks in areas under national jurisdiction.

Section III brings together many of the contentious issues under "General Principles". The section is conveniently divided into three subsections on: (A) the nature of conservation and management measures; (B) precautionary approaches to fisheries management, and; (C) compatibility (previously labeled as Section IX under A/CONF.164/13). Throughout, there is specific reference to the word "shall" rather than "should". Subsection (B) on precautionary approaches differs from its predecessor by introducing the preservation of the marine environment, but falls short of underscoring the ecosystem approach to fisheries management. It satisfies distant water fishing States' concerns by not including moratoria management options and emphasizes the need to implement recovery plans "immediately" to restore stocks if management reference points are exceeded. The supporting Annex 2 on the "Suggested Guidelines for applying Precautionary Reference Points in Managing Straddling Fish Stocks and Highly Migratory Fish Stocks" are contained in five watered-down paragraphs from the elaborately crafted technical guidelines of the Working Group on Reference Points. The concept of "uncertainty" is loosely referred to without definition and the distinction between "target reference points" and "limit reference points" is blurred.

Section IV deals with "International Cooperation" and is divided into two subsections: (A) mechanisms for international cooperation, and; (B) regional fisheries management organizations or arrangements. This section brings together old Sections II and III. In sub-section (A) States are to pursue cooperation through regional, subregional fisheries organizations or arrangements by taking into account the specific characteristics of the subregion or region, while highlighting such cooperation shall be to agree on conservation and management measures as required by UNCLOS. It urges States to enter into consultations in good faith and without delay and notes that subregional and regional fisheries management organizations and arrangements shall be open to participation on a "non-discriminatory" basis. Subsection (B) requires States to take into account the biological characteristics of the stocks concerned and the nature of the fisheries involved. States shall comply with Article 123 of UNCLOS in establishing a regional fisheries management arrangement or organization in respect of an enclosed or semi-enclosed sea. With respect to States fishing on the high seas, they shall agree on and comply with conservation and management measures to ensure the sustainability of stock(s) by agreeing on participatory rights, adopting and apply international minimum standards for the responsible conduct of fishing and establish a scientific body. New members of, or new parties to, a subregional or regional fisheries management organization or arrangement shall be entitled to accrue benefits in exchange for the obligations that they undertake. Substantial emphasis is directed to the need for effective data collection and processing, while developing and sharing new resource assessment methodologies, management models and other analytical techniques.

Section V on "Compliance with and Enforcement of High Seas Fisheries Conservation and Management Measures" consists of three subsections: (A) duties of the flag State; (B) compliance and enforcement by the flag State; and (C) regional agreement and arrangement for compliance and enforcement. This reworked section brings together old Sections IV and V of A/CONF.164/13*. Subsection (A) requires flag States vessels fishing on the high seas to comply with applicable conservation and management measures and sets out a package of management measures to be adhered to by the flag State. Subsection (B) sets out a package of compliance measures that flag States shall enforce on their vessels. Subsection (C) calls flag States, in addition to fulfilling their duties in respect of vessels entitled to fly its flag, to cooperate directly with coastal States and through regional or subregional organizations or arrangements in the development of surveillance and law enforcement measures. These measures shall include agreement to board, inspect and arrest flag State fishing vessels.

Section VI on "Port States" highlights the duties of port States, in accordance with international law, not to discriminate against the vessels of any State. It encourages States to enact legislation empowering relevant national authorities to prohibit landings of catch that undermine the effectiveness of agreed conservation and management measures.

Section VII deals with the "Non-Participants in Subregional or Regional Organizations or Arrangements" and emphasizes that where a State does not participate in the work of a regional or subregional organization or arrangement the State is not discharged from the obligation to cooperate in the conservation and management of the regulated stock(s). Furthermore, a State that does not cooperate in such regional or subregional organizations or arrangements shall not authorize its flag vessels to operate in fisheries subject to the conservation and management measures established by the appropriate organization or arrangement.

Section VIII on "Dispute Settlement" has an attached Annex on arbitration procedures and encourages States to settle their disputes by peaceful means. The supporting Annex increases tribunal membership from three to five members, with the party instituting the proceedings "appointing" one member rather than adopting one member. Responses by the other party to the dispute is increased to 20 days and the time frame for notification for hearings is increased from 30 to 40 days. The Annex stipulates that the President would cast a deciding vote where there is a tie. An introduced caveat in the finality of award gives the parties to the dispute a procedural let-out clause.

Section IX deals with the "Special Requirements of Developing States", but insufficient time in the informal-informal negotiations prevented closed-door discussion on this section. Calls in the Plenary for enhanced recognition of the special requirements of developing States are emphasized in this section. These, in particular, deal with the vulnerability of the developing States dependent upon living resources for nutritional requirements and the avoidance of adverse impact on subsistence and small scale commercial fisheries, but underscore the specific areas of assistance that developing coastal States require in order to fulfill their obligations in respect of the conservation and management of straddling fish stocks and highly migratory fish stocks. Developed States shall cooperate to enhance the ability of developing coastal States to conserve, manage and develop their own national fisheries for straddling and highly migratory fish stocks both in the exclusive economic zone and on the high seas.

Section X on "Review of the Implementation of Conservation and Management Measures" requires States, regional, subregional organizations and arrangements to report biennially to the Secretary-General who, in turn, shall report biennially to the General Assembly. The Secretary-General shall also report as required to the CSD. A five-year review, following adoption of the negotiating text, shall be undertaken by a conference.

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