The Chair convened the Plenary for one hour yesterday to introduce the new Draft Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (the "Draft Agreement"). He said that it was in the form of a legally-binding agreement, which reflects the general feeling that he had as a result of the consultations he had undertaken. In many instances, the material of the Revised Negotiating Text (RNT) was redrafted to present it in an active form, as is usual in such agreements. The text, which is available in English, will be translated shortly into the UN languages. The Chair explained the major changes that he brought to the new draft and indicated that he wanted to undertake consultations on a number of issues with interested delegations to discuss the problems they still have. He then asked the delegates if they wanted to make general comments.
SWEDEN: The Swedish delegate said that his was only a first impression but he felt that the document looked very well balanced, with an elegant solution to the most difficult issues. He indicated that Sweden was ready to undertake negotiations on the ratification of the Draft Agreement.
NEW ZEALAND: The delegate asked that member-States of the South Pacific Forum Fisheries Agency remain in the room to begin consultations.
INDIA: The Indian representative wanted to make comments on some of the provisions of the text but was interrupted by the Chair who asked him to save these comments for later. The delegate then enquired how he might contact the Chair.
PERU: The delegate of Peru said that he wished he could be as optimistic as Sweden and extended his congratulations to Ambassador Valencia of Ecuador and a number of other UNCLOS veterans.
The Chair answered that the "old guard" of the Law of the Sea negotiations was now joined by a new force and he hoped that the latter could learn from the former, and then pass it on to the next generation. The Chair then adjourned the Plenary until 3:00 pm on Wednesday.
The 31-page revised text is produced in the form of a "draft agreement" that substantially refines the RNT. It is made up of a Preamble, forty-seven articles contained in thirteen parts, and three annexes.
The Preamble, following the Chair's desire to maintain conformity with the preamble of UNCLOS, is short and concise. It recalls the principles of UNCLOS, notes the need to improve cooperation between coastal States and flag States, calls for more effective enforcement by flag, port and coastal States of the measures adopted for the conservation and management of straddling and highly migratory fish stocks, while seeking to address the problems specifically identified in Agenda 21, Chapter 17, Programme Area C, and commits States Parties to responsible fishing. Absent is any reference to the FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas.
PART I -- GENERAL PROVISIONS: Article 1 specifies the use of the terms within the Draft Agreement and its scope. Article 2, the objective, is refined and adapted from Ecuador's proposal (A/CONF.164/L.44*). Article 3, dealing with application, prescribes separate applicability for the high seas and the EEZ. Article 4 underlines the fact that nothing in the Draft Agreement prejudices the provisions of UNCLOS.
PART II -- CONSERVATION AND MANAGEMENT OF STRADDLING FISH STOCKS AND HIGHLY MIGRATORY FISH STOCKS: Article 5 obligates coastal States and States fishing on the high seas to cooperate in accordance with UNCLOS, and calls for the application of the precautionary approach. It also requires the adoption of conservation and management measures to ensure long-term sustainability of stocks, as well as the adoption of conservation and management measures for non-target species within the same ecosystem. In addition, it promotes the development and use of selective and environmentally safe fishing gear and techniques to minimize pollution, waste and discards. The application of the precautionary approach in Article 6 is diluted. Article 6 explicitly refers to Annex 2 dealing, with "suggested guidelines for application of precautionary reference points in conservation and management of straddling fish stocks and highly migratory fish stocks". Missing is any reference to specific and critical environmental problems faced by international fisheries worldwide, such as toxic pollution and ozone depletion. Article 7 on compatibility of conservation and management measures, if maintained as part of a binding agreement, will require coastal States and States fishing on the high seas to cooperate to achieve compatible management and conservation measures for the high seas and the EEZs. The concept of "biological unity" is retained in paragraph 2(b).
PART III -- MECHANISMS FOR INTERNATIONAL COOPERATION CONCERNING STRADDLING AND HIGHLY MIGRATORY FISH STOCKS: Nine articles constitute this Part, with four of them dealing specifically with cooperation for conservation and management, regional fisheries management organizations or arrangements, their functions, and cooperation to strengthen existing arrangements. Article 12 on the collection and provision of information requires fishing vessels to provide information and that States cooperate directly through regional organizations and arrangements. Article 13 on enclosed and semi-enclosed seas requires States to comply with Article 123(a) of UNCLOS, while Article 14 is new text that recognizes the particular problems and issues raised by the Russian Federation. Both articles are to be read in conjunction with Part VIII dealing with dispute settlement procedures.
PART IV -- DUTIES OF THE FLAG STATE: Article 17 deals with the duties of the flag State and the measures to ensure that vessels flying its flag comply with subregional and regional conservation and management measures.
PART V -- COMPLIANCE AND ENFORCEMENT: The three articles making up this Part deal with compliance and enforcement by the flag State, international cooperation in enforcement, and regional agreements and arrangements for compliance and enforcement. Part V represents a consolidation of ideas expressed during consideration of the RNT.
PART VI -- PORT STATE ENFORCEMENT: Article 21 reflects the considerable discussion on this subject in the RNT and represents a clearer definition of what is attainable under the provisions of international law.
PART VII -- REQUIREMENTS OF DEVELOPING STATES: This Part is made up of three articles and represents the Chair's desire to cluster all matters concerning developing States. Article 24 spells out in clear terms the requirement of States to cooperate to establish voluntary funds to assist developing States. States, and international and regional organizations "should" assist developing States in establishing new organizations or strengthening existing organizations and arrangements.
PART VIII -- PEACEFUL SETTLEMENT OF DISPUTES: The seven articles that make up this Part recognize more closely the provisions of UNCLOS, given its imminent entry into force. Article 30, however, presents an innovation by affording States the capacity to introduce provisional measures of a practical nature, pending the resolution of a dispute. It is referred back to in Annex 3 that deals with Arbitration Procedures.
Article 31 establishes that the provisions for the settlement of disputes do not affect in any way the provisions of Article 297 of UNCLOS.
PART IX -- NON-PARTICIPANTS: Article 32 refines the RNT version and deals with non-participants in subregional or regional fisheries management organizations or arrangements.
PART X -- ABUSE OF RIGHTS: Article 33 requires States to fulfill in good faith, the obligations of the Draft Agreement in a manner consistent with UNCLOS.
PART XI -- NON-PARTIES TO THIS AGREEMENT: This Part requires States, under article 33, to encourage non-parties to accede to the Draft Agreement.
PART XII -- REPORTS ON IMPLEMENTATION AND REVIEW CONFERENCE: Two articles deal with the reports on the implementation of the agreement and require that such reports be made to the Secretary-General. Following the adoption of the agreement, and biennially thereafter, the Secretary-General shall submit a report to the General Assembly. A review conference shall be held 4 years after adoption of the agreement, with the participation of all States and entities entitled to become parties, as well as observers.
PART XIII -- FINAL PROVISIONS: Eleven articles make up this Part. Article 40 specifies that the agreement will enter into force 30 days after the date of deposit of the 40th instrument of ratification, acceptance, approval or accession. This procedure follows the one adopted for the recent Agreement on Part XI of UNCLOS.
Annex 1 on the Minimum Standard for Collection and Sharing of Data reflects some of the debate on this annex in the Chair's RNT. Sharing of data by flag States with other flag States and relevant coastal States is a requirement. The graphic data flow arrangements remain the same as those in the RNT.
Annex 2 on Suggested Guidelines for Application of Precautionary Reference Points, while expanded upon, dilutes the benefits that would be attainable by implementing biological reference points and management reference points. Rather, it suggests that they might be introduced, and no reference is made in the annex to the concept of "biological unity".
Annex 3 on the Arbitration Procedure is made up of fifteen articles providing for the expeditious resolution of fisheries disputes.
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