The Chair, Satya Nandan, opened the morning session by asking delegates to examine the revised negotiating text (A/CONF.164/13/Rev.1) section-by-section with the aim of completing this part of the process by Wednesday. He then invited comments on the preamble.
PREAMBLE: The Russian Federation said that the preamble broadly reflects the negotiations of the March session. Still lacking in the preamble are paragraphs dealing with the outstanding UNCLOS problems relating to straddling fish stocks and highly migratory fish stocks, the specific rights of coastal States, and the exclusion of Part IX dealing with enclosed and semi-enclosed seas.
The representative of Ukraine welcomed the Chair's efforts to establish international cooperation on conservation and management of straddling fish stocks and highly migratory fish stocks. He said the significance of UNCLOS needs to be more precisely introduced in the preamble. Ukraine supported the Russian Federation in properly reflecting the rights of coastal States.
The delegation of China asked that reference to Agenda 21 be amended to refer to Chapter 17, and that the enhanced reflection be extended toward Programme Areas "C" and "D" of Agenda 21. Since the question of jurisdiction exists not only on the high seas but also in the EEZs, it is necessary to refer to "living marine resources". Changing the emphasis of sustainability to sustainable utilization of fish resources would better reflect other environmental and natural factors.
The European Union, supported by Korea, Mexico, and Poland, suggested deletion of the reference to high seas fisheries in the third preambular paragraph. The EU delegate said matters of escape control are better treated by compliance with international conservation and management measures, as preferentially reflected in Agenda 21 and covered in the FAO's agreement.
The delegate of Thailand said the fishing capacity of a fleet is more important than its size. He could not support provisions suggesting that a coastal State could exercise any jurisdiction beyond its EEZ.
The delegate from Peru supported the Chair's preambular text, but suggested that if the Conference agreed to refine it, appropriate alternative language could be extrapolated from paragraphs 4 and 6 in Ecuador's proposal (A/CONF.164/L.44*).
Mexico said the preamble should include reference to the FAO's Code of Conduct and the Cancun Declaration. It would be beneficial to define the norms of responsible fishing at the world level. The delegate from Mauritania supported Mexico and Indonesia for inclusion of a reference to responsible fishing as promoted by the Cancun Declaration. Mexico and Indonesia asked that the preamble recognize the special rights of developing countries.
The delegate from New Zealand disagreed with the EU, Japan, Norway and Chile, and said he could support reference to recalling the adoption of the FAO agreement in the preambular, but not to endorsing the agreement. New Zealand and its South Pacific colleagues underlined their concerns of the FAO agreement being inappropriate, unlawful and possibly contrary to UNCLOS in excluding vessels under 24 meters. The United States, with concurrence from FAO, said that the FAO agreement applies to all vessels, including those under 24 meters, with the exception of certain administrative requirements.
Canada associated itself with Mexico, Peru and others and said it could not accept re-opening debate on the Conference mandate.
Ecuador objected to attempts to delete references to the high seas and to attempts to include references to the EEZs. He added that delegates cannot become oracles in the ministry of truth and rewrite history.
The delegate from Australia supported New Zealand in underlining the FAO agreement's shortcomings. Australia said reference to the high seas both in respect of the Conference mandate and Agenda 21 should be maintained.
The Chair said the Conference was making "heavy weather" of the preamble. He did not favor a long preamble as found in UNCLOS. The Conference is concerned with implementing the Law of the Sea. A practical approach should identify workable mechanisms.
Peru, supported by Uruguay, suggested that a final compromise might be to include the words "to complement the relevant provisions" in the penultimate paragraph of the preamble.
SECTION I -- OBJECTIVE: In consideration of Section I, the EU delegate said that the final sentence repeats the obligation that arises within UNCLOS for coastal States and flag States to cooperate in conservation and management measures, and therefore is not complementary to the Convention. The delegate from Japan said he preferred the text as presented. New Zealand supported the objective, but asked that the text be broadened to include issues of by-catch, non-target species and associated species. The delegate of the Russian Federation suggested that article 4 of the Ecuador proposal defines a better objective.
SECTION II -- APPLICATION: The Chair said that several paragraphs of section III on general principles could be included in the discussion of section II. Poland, supported by Korea, suggested amendments to make it more consistent with paragraph 1 that recognizes the concept of biological unity, and to mention the whole range of the stocks as field of application. Chile regretted attempts to blur the distinction between high seas and EEZs, and called for a clause protecting the sovereignty of the coastal States. Argentina concurred by saying that the scope of application had previously been agreed generally and that introducing too many changes to the negotiating text was not helpful. Brazil insisted that the rights and duties of States should not be separated. Ecuador asked that the exceptional character of the application in the EEZ be reinforced.
SECTION III -- GENERAL PRINCIPLES: Japan said that many of the measures listed in sub-paragraphs B and C (precautionary approach and compatibility) could apply both to high seas and EEZs, but that this should also be true for sub-paragraph A on the nature of conservation and management measures. There are only a few provisions in A that would not apply in the EEZ, such as 3(g) on sharing of data and 3(k) on discrimination, but the other provisions should apply to both zones since they deal with general principles. Other distant water fishing States supported this proposal to respect the biological unity of the stocks. This view was supported by the EU who said that the formulation needs to be more general, while respecting the sovereignty of the coastal States. The obligation of the coastal States in their EEZ should be made more specific and refer to an obligation to conserve.
Canada likened this attempt to put more burden on the coastal States as "salami tactics" on the part of the distant water fishing States, while Peru said they had an obstructionist attitude. The Chair called on all participants to calm down and said that the issue of compatibility could be solved if it is looked at in a practical way. Coastal States and distant fishing States exchanged rhetorical arguments throughout the afternoon.
While some delegates understood the need for compatibility between measures in the EEZ and on the high seas, they highlighted the fact that this should not lead to measures being identical, since some measures taken on the high seas may not be applicable to the EEZs. Canada suggested, and Australia and Indonesia concurred, that paragraph 3 be split to reflect the concerns of coastal States and where the former part A would apply exclusively to the high seas. It might then be necessary to add an additional clause to note that "nothing in this convention shall be construed as prejudicing the sovereign rights of the coastal States ...". India added that while this amendment was a helpful suggestion, it should not apply to the paragraphs dealing with the special requirements of developing States and scientific research. The US said that the sovereignty of the coastal States in their EEZs should in no way be compromised, but that the general principles in section III(A) should apply in both the EEZ and on the high seas.
China asked that a footnote be added to explain that "high seas" refers to the area beyond 200 miles. The Chair noted that this addresses cases where the coastal State has not declared an exclusive zone, but added that he was not sure that such a footnote would solve the problem. Russia suggested that "beyond the EEZ" be added after "on the high seas". It was highlighted that several other terms need to be defined carefully in view of the settlement of disputes that will arise. Canada suggested that they be inserted after the preamble and before the objective. Japan said that UNCLOS had listed highly migratory species without defining them and warned against inconsistency, but Russia answered that this imprecision was partly to blame for the fisheries crisis.
Brazil asked why paragraph 3(a) referred to economic factors as well as the best scientific evidence. The Chair answered that this was derived from article 61 of UNCLOS. India said that a reference to the best scientific evidence might not apply to developing States, and both Brazil and Sweden asked whether it was wise to retain such an old concept as that of MSY. Sweden suggested that reference be made to the long-term sustainability of fisheries.
Brazil said that nowhere in the text is mention made of special conservation areas, and he suggested that they might be established wherever oceanic ecosystems are recognized for their importance to the life cycle of the stocks.
Mexico suggested that the recommendations in III(A)(c) and (d) on species associated with target species and selective gear be dealt with through appropriate information on by-catch. Thailand and Papua New Guinea asked that the reference to the number of vessels be replaced with the capacity of vessels.
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