The widespread feeling at the end of the March session was that while all the participants agreed on the gravity of the situation, States were not yet willing to face the costs of a compromise, and this was reflected by the diametrically opposed views of distant water fishing States and coastal States. Many had also felt that too much of the process was behind closed doors and, in this respect, appeared as a step back from Rio. At the end of this third substantive session, however, this Conference has taken a new turn and appears closer to success than ever before, and the Chair's tactics appear to have paid off. Significant changes in attitude were noted on the part of distant water fishing States (DWFS), such as Korea, Japan and the EU, while coastal States, like Canada, have also taken a much more conciliatory approach.
This is most apparent in the form and substance of the Chair's final negotiating text, which may appear in the form of a legally-binding agreement, but nonetheless reflects widely on the interests of both DWFS and coastal States. Notwithstanding the "posturing" speeches of the last two days of this session, the new text was relatively well received because it appears to embed the necessary compromises. While both sides would rather see their own interests prevail, they are now fairly conscious that they have to work with the other side if they are to avoid a possible exhaustion of straddling and highly migratory fish stocks.
The strengths of the two dominant caucus groups, the Like-Minded group, and its influential core group (Argentina, Canada, Chile, Iceland, New Zealand, Norway and Peru), and the South Pacific Forum Fisheries Agency (SPFFA) remained in strong evidence throughout this session. Their strengths are derived from the individual, and in some instances collective, problems that arise from the indiscriminate actions of DWFS. Their blatant disregard for conservation and management measures is apparent as their vessels continue to decimate straddling and highly migratory fish resources. The coastal States remain united in seeking a permanent solution to poaching, depredatory and illegal fishing practices in the form of a legally-binding agreement. Australia, on behalf of the 16 member States of the SPFFA, unequivocally underlined this in a mid-week intervention as delegates wrestled with the RNT. Seeking discussion on form, Australia's intervention met with support from other coastal States.
The Like-Minded core group has consistently argued for a legally-binding agreement, supported by draft conventions submitted in documents A/CONF.164/L.11 and A/CONF.164/13/ Rev.1 and supported by Ecuador in document A/CONF.164/L.44. The translation of the Chair's revised RNT into a Draft Agreement augurs well for those affected coastal States.
Nine weeks of negotiation and debate have all too frequently clouded the real strength that can be secured from a legally-binding convention: that of replenishment of fish stocks. The constituent parts of biomass replenishment are built not only into the legally-binding nature of the draft agreement, but also into its components on dispute settlement, compatibility and coherence, and the compulsory dissemination of collected data to other parties. Only comprehensive data collection and its aggregated assessment can provide for the consistency of timely outputs in the form of maximum allowable fishing effort without the destruction of future stocks of fish.
The best way to evaluate the outcome of this session is to look at the latest version of the Chair's text through the use of a classic marketing framework -- the SWOT analysis, which identifies strengths, weaknesses, opportunities and threats.
STRENGTHS: A redeeming strength of the Draft Agreement is that it provides teeth for the regional and subregional organizations and arrangements. The Draft Agreement not only strengthens the provisions of UNCLOS, especially Part VII, but begins to reward, after more than 12 years of frustration, coastal States that registered dissatisfaction with the straddling stocks provisions of UNCLOS. This is also important for the DWFS that have long argued that general principles should be avoided and that the decisions are better left to the regional and subregional organizations and arrangements. If minimum standards are set up in the Draft Agreement, the regional organizations will be bound to a series of measures to achieve the sustainable development of the stocks, but they will also have the latitude to adopt more stringent standards. This will only be possible through a frank and direct cooperation among all those involved. As Sweden rightly highlighted, this will not necessarily be limited to those States fishing on the high seas (both DWFS and coastal States), but also all those who have an interest in the stocks, even if it is not a fishing interest. This approach will put an end to a situation where only the industry is represented in the organizations and tended to privilege its short term interest, sometimes to the detriment of the stocks conservation in the long term.
WEAKNESSES: The greatest weakness of this agreement is that, like any legally-binding instrument, it will only bind those States that have become party to it. This was clearly understood by the Chair who waited as long as possible before he issued his text in this form. The distant water fishing States themselves have argued that it would be premature to envisage such an instrument as long as there was no consensus on the substance. This is similar to UNCLOS before Part XI was amended. Sixty-four States had ratified the Convention and it was about to enter into force, but the States most concerned with the provisions on deep seabed mining -- the industrialized nations -- had set up their own parallel agreement. The Draft Agreement can only be strong if it has garnered the cooperation of the DWFS.
While the legal framework of an agreement may be falling into place, there still remains a degree of unwillingness to address all of the biological characteristics and influences on the ecosystem. Industrial toxic waste into the food chain and the consequences of ozone depletion on small marine organisms and the natural habitats of coral reefs and mangrove swamps remain unaddressed. Conservation and management measures that fail to address the concept of ecosystem management will likely cause unnecessary and complicated management problems in the immediate future. Anything less than a holistic approach to the conservation and management of straddling and highly migratory fish stocks is a visible weakness in the draft agreement and represents a collective failure of all delegates to address once and for all the interdependence of marine species.
OPPORTUNITIES: The draft agreement represents new and enhanced opportunities for developing States to secure privileged access to the resources of the high seas. Yet a failing by those States to accept the limitations of the resource in terms of new access and harvesting potentials will breed greater dissatisfaction in the longer term than it will generate in short-term protein security and economic stability. Opportunities generate costs and, in the first instance, these will be borne by the DWFS as they begin a process of enhanced technology transfer to the developing coastal States. A second cost will be an obligation on DWFS to forgo free access to high seas fisheries, and to instead pay a premium for the right to fish. This premium, or license fee arrangement, should generate finances to assist the regional and subregional arrangements and organizations to implement more effective enforcement and surveillance, and will also improve conservation and management measures through compatible managing of data both within national jurisdiction and in the adjacent high seas area. These aspects of fisheries management combine to provide effective "integrated" fisheries management measures that recognize its constituent parts: comprehensiveness, aggregation and consistency.
Building up finances through the Voluntary Fund will give the regional and subregional arrangements and organizations funds with which to add teeth to their institutional structures, which in the past have been much criticized for ineffective and poor management. The opportunity to empower these institutions will be welcomed and assist in the de-centralization of the FAO's bureaucratic structures to the regional structures where expertise, effort and money are desperately needed.
There is a global over-capacity of fishing vessels. Much of this over-capacity has been driven by excessive subsidization of the fleets by developed States within their own individual national fishing associations. The European Union currently suffers from extensive over-capacity and this was well illustrated recently during conflicts over access to albacore tuna stocks in the Bay of Biscay. Reduction in over-capacity is a taxing problem for national governments because the issue is a highly emotional political one. Governments invariably have difficulty in finding the financial resources to enter into a meaningful "buy-back" scheme and, more often than not, refuse to pay the political cost of adopting desperately needed restructuring measures. Opportunities will exist for developed States to displace some of their excess capacity to the developing coastal States and, thus, prevent an escalation of a massive building programme in technology transfer arrangements.
THREATS: The earlier rhetoric, repeated frequently, between the distant water fishing States and the coastal States was noticeably reduced during this session, with the EU's shift to a more moderate position. But one should not disregard the potential threats by both parties. As far as the distant water fishing States are concerned, the promotion of a legally-binding agreement will take them into a position similar to the one they were in at the time of the emergence of the EEZ concept, when their fleets were displaced throughout the oceans and the concept of "pulse" fishing abounded. Some capacity for joint venture arrangements continued throughout the late 1970s and 1980s, but when national fishing fleets were developed, foreign flagged vessels became displaced. A renewed displacement can be expected as a consequence of a legally-binding agreement, and this is what concerns the DWFS most. They also express the legitimate concern that developing coastal States need to do more to enhance national conservation and management measures. However, the threat of actions that the distant water fishing States can take is now a declining one, because failure on their part to move with the progression of the Draft Agreement will reflect poorly on their future access to regional and subregional organizations and arrangements. New access for the developing coastal States to the high seas will also require the introduction of new structures to ensure their access to markets.
The threats by the coastal States, while more of an implied nature in this session, tend to be stated more aggressively by the Latin American coastal States. Their trump card is that of unilateral EEZ extension should the Draft Agreement not attain consensus support.
The previously moderate position of the US is now clear and is based on undeniable support for a legally-binding agreement. The US, regarded as both a coastal State and a distant water fishing State, can massage the progression of a binding agreement as its explicit support will help stem the more aggressive coastal States from stepping outside the boundaries of UNCLOS. Some coastal States complain that any agreement that provides for the exchange of data from the EEZ to a supra-national body, such as a regional commission, undermines the sovereignty or the strategic interests of the coastal State. Greater willingness needs to be shown by some coastal States in this regard or transparency in decision-making will remain unattainable.
One threat that remains outside the confines of this Conference is the non-State status of Taiwan, whose vast deep sea fishing fleet capacity continues to roam the oceans with flagrant disregard for conservation and management practices. Taiwan's slow acceptance of the UN Driftnet Ban does not augur well, in the short term, for any legally-binding agreement. Illegal fishing practices and poaching are extensively catalogued in current Taiwanese fishing practices. A number of delegations have made reference to such activities and some have stimulated the legal provisions of UNCLOS by apprehending vessels in "hot pursuit" initiatives. Meanwhile, China continues with the development of its distant water fishing fleet as it strives to meet a goal of 20 million tons of harvest from the seas by the year 2000.
The remaining threat, which is slowly being addressed through bilateral arrangements, and was recently highlighted through successful arrests in the North Atlantic Fisheries Organization area, is the influence of flag of convenience (FOC) registers. The displacement or reduction of FOC registers not only will affect the traditional registers, such as those of Panama, Honduras and Liberia, but will also affect the growth of such registers in developing coastal States that are also flag States, such as the Cook Islands and Vanuatu. A reduction of fishing vessel registers with the FOC States will require a quid pro quo to provide an alternative source of funds to ease the economic burdens and hardships that will naturally follow.
CONCLUSION: After three sessions of negotiation, the Chair has finally revealed what he had in mind in terms of form of the outcome: an agreement to complement UNCLOS. Only half-seriously, the Russian Federation said that Russians believe in the Holy Trinity and added that, since Nandan has already produced two "papers" related to UNCLOS, he wondered what the third one would cover. This statement may have been delivered rather flippantly, but it may nonetheless reflect on likely developments on the Law of the Sea. Because it was of such global dimension, UNCLOS has left a number of issues that still need to be resolved among interested parties. The two precedents that Nandan has set in the "Boat Paper" (the UNCLOS Part XI Agreement on deep seabed mining), and now in the "Fish Paper" (the Draft Agreement), are symptomatic of the need for the parties to cut through the endless rhetorical debates and finally reach a viable agreement acceptable to all. It will be interesting to see what issues will be tackled next and whether this apparently successful approach will be reproduced.
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