After six weeks of intense negotiations at this and the previous session of the Conference, some delegates and many NGOs are beginning to question the seriousness of the States involved to resolve the issue of the sustainable management of high seas fisheries. At the end of the first substantive session there was a general feeling that the Conference had fulfilled two of the three parts of the mandate given to it by the General Assembly: (1) to identify and assess existing problems related to the conservation and management of highly migratory and straddling fish stocks; and (2) to consider means of improving cooperation among States with regard to fisheries management. It was therefore expected that efforts at this session of the Conference would be made towards achieving the third part of the mandate; to formulate appropriate recommendations. Instead it appeared that many delegates were working to ensure that the interests of their own States would not be compromised at the expense of formulating consensus recommendations. This has resulted in two diametrically opposed positions; coastal States want to have special rights on the high seas adjacent to their EEZs and that the provisions of this Conference be limited to the high seas with a legally binding document as the outcome of the process; while the DWFS would rather see a series of loose recommendations that apply within and beyond the EEZs and equal rights for all on the high seas.
Frequently, States have used legalistic arguments to defend their own interests. No where was this more obvious than in the contradictory legal interpretations that were made of UNCLOS. Since UNCLOS is the result of negotiations that produced a "package deal" that included compromise on the part of all who negotiated it, the Law of the Sea Convention is, by definition, subject to interpretation. Unfortunately this has led to attempts on the part of the delegates to select only those provisions that serve their interests best, and they have used UNCLOS as both a sword and a shield in countering other States' arguments. One delegate challenged credibility when he argued that the fact that UNCLOS has not yet entered into force is symptomatic of the lack of consensus on some EEZ provisions. He overlooked the fact that the Convention has not come into force because of the provisions of Part XI on deep sea bed mining. Another representative of a DWFS was interrupted by the Chair when he renewed his tactic of smothering the delegates with quotes from legal scholars on the absence of coastal State special rights on the high seas.
One delegate pointed out that those States that rejected the special rights of the coastal States were DWFS whose coastal waters were not directly at threat. What the same delegate failed to mention, however, is that the coastal States themselves argued for the special rights of the coastal States on the high seas adjacent to their EEZs, while at the same time opposing strongly any idea that the result of this Conference would apply anywhere but on the high seas. "Tho' much is taken, much abides", and, in our analysis of the first substantive session, this double bind in which the coastal States have put themselves had already become apparent.
A number of issues were passed on from the previous session and still remain to be resolved. The question of compatibility and coherence is one that has pitched coastal States and DWFS against one another most directly. The aim of compatibility and coherence provisions is to ensure that the measures adopted for the high seas are compatible with those the coastal States take within their own EEZs. A successful negotiation at this Conference rests on acceptance of the concept of biological unity, under which the stock(s) are to be managed throughout their entire range. Coastal States recognize the concept but refuse to support it for fear of undermining their own sovereign rights in managing resources within their EEZs. DWFSs argue that the biological unity of stocks is one principle on which they will not compromise. There was little progress on this point at the second substantive session of the Conference.
This lack of progress is also striking when one looks at the working documents. Last July, the Like-Minded core group States indicated their flexibility by negotiating along the lines of the Chair's text while keeping their own L.11/Rev.1 as an alternative negotiating text. In this second session, the negotiations focused once again on Nandan's text, but several Like-Minded coastal States waited until the last day of this Session to circulate yet another draft-convention. This may be interpreted as political posturing but, along with Canada's implicit threat of unilateral measures to extend its national jurisdiction over high seas resources, it serves as a reminder to the DWFSs that coastal States have the capacity to take matters into their own hands if they are not satisfied that drastic measures will be taken to address the current crisis. It remains unclear if this sends a clear message to the DWFSs, who maintain a rather strong position of rejecting the need for a legally-binding document. They have been equally clear in stating that they will ignore an outcome that contradicts their own interests.
It would seem that now, two years after UNCED, the spirit of compromise and consensus that marked the final days of the Rio Conference has all but disappeared. Although the "Fish Conference" was convened as a result of Chapter 17 of Agenda 21 on the sustainable use and conservation of marine living resources, attempts to link this process to the future work on the Commission on Sustainable Development (CSD) were opposed by "veterans" of the UNCLOS negotiations. These negotiators argued that this Conference has little to do with sustainable development and much more with the Law of the Sea. In this respect, there was a clear feeling that some of the delegates longed for the "old boys network" that had prevailed during the 10 years of UNCLOS negotiations. A delegate, in what appeared to many as particularly condescending, remarked that another delegate's interpretation of a provision was clearly erroneous because that same delegate had not participated in the UNCLOS negotiations. A third delegate stepped in to remark that it was a good thing this forum was not restricted to veterans of these negotiations since, if that were so, there would not be many negotiators around.
Some delegates have expressed their wish to see the mandate of this Conference extended for another year, either to provide time for the combatants to finally reach agreement on the most crucial substantive issues, or to push for the adoption of a Convention. As time goes by, however, rifts have appeared among Like-Minded States and some of the extremists pushing most for a new regime now threaten to take unilateral action. In this respect, more is to be feared from no action at all. The Chair referred to this possibility as a return to the "law of the jungle". Another reason why extending the mandate would not necessarily be appropriate is that in the coming year UNCLOS will come into force and the UN Office of Legal Affairs and the Law of the Sea will be too busy implementing all its implications (e.g. the Law of the Sea Tribunal, the Sea Bed Authority, the settlement of boundaries disputes, etc.) to deal with these issues separately.
We are now facing the all too familiar point in international negotiations where all the parties acknowledge that a problem common to all ought to be addressed but where none is ready to pay the price of solving it. When the outcome of the Conference was discussed at this session, two of the most outspoken of DWFSs argued that the costs of a new legally binding instrument would be too high to implement. Not surprisingly, these were also some of the flag States who, in the short term at least, have most to gain from the status quo.
It would appear that things may get worse before they get any better. Governments should look at these negotiations in terms of a new regime that might be established for the conservation and management of living resources on the high seas. But, in the absence of any hegemonic power, the States concerned still find it too expensive to set up a new set of goals, rights, duties, and procedures that would allow for sustainable resource exploitation. Yet the continued collapse of fish stocks will eventually force States to pay a substantial price, in the form of restrictive and costly domestic economic policies, or in terms of limitations of their sovereign rights in their EEZs for the coastal States and on the high seas for the distant water fishing states and the coastal States. Until then, the States are caught in a series of prisoners' dilemmas because they lack the political will to cooperate in earnest negotiations and fruitful dialogue to achieve consensus towards establishing a new regime.
The solution is close at hand, because, during their technical consultations, the States have identified the tools needed to achieve sustainable management of fish stocks. These are broadly reflected in the Chair's revised negotiating document and the delegates now have a blueprint of the actions they need to take, if -- and when -- they can muster the political momentum required to overcome the short-term interests of each and every individual State. In this respect, the final session of this Conference, to be held next August, will be a litmus test of the commitment by States to finally solve the real world-wide fisheries crisis.
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