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PART II—CONSERVATION AND MANAGEMENT OF STRADDLING FISH STOCKS AND HIGHLY MIGRATORY FISH STOCKS

Peru said that Article 5, dealing with general principles, should be drafted to include a list of the regimes in which States fish. He proposed an additional subparagraph (k) be added requiring States to refrain from activities on the high seas that are inconsistent with regional, subregional, or global rules and regulations. The Chairman reminded Peru that references contained in Article 18 paragraph (1) effectively incorporate these goals. The Argentine delegate said the language of subparagraph (e) must be strengthened with special reference to juvenile fish. Japan proposed the addition of a new subparagraph (f) that makes reference to the impact of other non-fishing activities on living marine resources. The US said it could support this addition. Poland and Korea expressed concern over the phrase "producing the maximum sustainable yield", in paragraph (b) and suggested revision to include the concept of long-term sustainability. Korea pointed out that this would be more consistent with Article 22, which addresses the special requirements of developing States. In consideration of the Japanese proposal, Brazil, India and Uruguay asked for clarification of the term "integrated strategy for conservation and management". The EU supported Japan, but asked that the word "pollution" be deleted from the preceding subparagraph (e) because it is inappropriate to say fishing activities create pollution. Japan said the effects of human activity combined with positive effects of an enhancement programme, was what he meant by "integrated strategy". Chile said the Japanese proposal covers the impact of fishing in minimizing pollution. Peru said that use of fishing gear does not pollute, but it disturbs the seabed. Greenpeace said he was encouraged by Japan's proposal as it relates to marine pollution.

The Chair began debate on Article 6, which deals with the application of the precautionary approach, and its supporting Annex 2, on the suggested guidelines for application of precautionary reference points in conservation and management of SFS and HMFS. Amb. Couve (Chile) said that differences exist between Article 6 in the draft document and that which was produced by the Working Group (WG) in March 1994. He stated that in the interests of transparency, it is important to understand these differences and cited a number of instances where the WG text differs in terms of broadness of application, promotion of appropriate conservation measures, and the level of obligation in regard to Annex 2. He expressed concern over the ability of developing States to collect data due to technical limitations. The Chair said that although the WG text lacked unanimity, it served the purpose of expanding the negotiating text. Concerning the use of the term "ecologically related" and "ecosystem", the Chair recommended use of the least broad term. Uruguay agreed with the substance of Article 6, but suggested some points for restructuring. The precautionary approach should be aimed at setting stock-specific minimum standards. He was concerned that the means for application and minimum standards of the precautionary approach be defined. When scientific data is deficient, it must not be used as an excuse for failing to adopt minimum standards. States shall disseminate and take into account the best scientific data available to improve decision-making processes. Standards must not be rigid and set in time. In reference to specific stocks, the aims of the precautionary approach should be examined. Subparagraphs 3 (d) and (e) could be merged to include all species under the Agreement. The text of the article must reflect the need to apply the precautionary principle while at the same time providing for the compilation of new data for decision-making.

The US delegate said the precautionary approach text is an important and controversial issue. In referring to the WG report produced one year ago, he regretted that more of the WG's text was not embodied in the Chair's Draft Agreement. The US could not fully endorse the Chair's text but said that the annex must be mandatory for the article to work. Fish stocks need to return to full production and an agreement must be reached on data collection and management techniques. The EU underscored the need for delegates to refer back to the WG reports. He said that only the term "relevant reference points" should be used, and that the word "precautionary" should not be used with "reference points". Japan said that since his proposal deals with wider areas such as human activity, environmental factors, and stock enhancement programmes, he preferred it not be incorporated into subparagraph (c). Peru said it is important to take into account the use of "dependent stock" and that the WG had looked at this. He agreed with Chile that developing countries cannot move apace and they may be accused of being irresponsible if they cannot comply with all the technical measures of Annex 2. India, supported by Morocco, said that in referring to the precautionary reference points, Article 6 and not the Annex would have to clarify that these are the points below which stocks must not be further depleted. Canada stated that previous debates on the outcome of the Conference and the use of the precautionary principle on the high seas and in EEZs had resulted in agreement among coastal States. But the application of the precautionary approach should not jeopardize the sovereign rights of coastal States in their own EEZs. Canada supported India's statement on the need to assist developing countries in attaining new and advanced technical goals. The Russian Federation said that he attaches great significance to the precautionary approach in management of SFS and HMFS. He supported India in limiting reference points beyond which fishing would not occur. Papua New Guinea, supported by the Philippines, said that without technical assistance, developing countries would be unable to implement some of the precautionary measures. Poland said that precautionary measures should apply to the whole stock, or the precautionary approach will have no strength. New Zealand said that changing "precautionary reference points" to "relevant reference points" would be an unacceptable change of substance. Peru argued against any reduction of rights of the coastal State due to the imposition of additional international obligations. The representative of the Natural Resources Defense Council said that making Annex 2 mandatory was central to the draft agreement.

The Chair said that Chile's introductory remarks had set the tone of the debate on Article 6. The Chair wanted to hear the reactions of scientists to Chile's proposal of substituting "ecologically related" with "associated and dependent species". After a few moments, the Chair said that silence was consensus. The US said that Annex 2 was a descriptive list that should be mandatory and not be considered as a voluntary application. Uruguay said that evolving science would require periodic review of the reference points and this should be taken into account when considering Annex 2. Peru, supported by Chile, said that rules are compulsory in a binding agreement, while guidelines are orientations. Australia said the focus should be on determining the reference points. The proposal submitted by Chile is vague and avoids setting precautionary reference points by States.

The Chair said the real issue raised by Chile, and supported by Peru, is that allowance must be made for the evolution of science and technology, so the guidelines should be subject to review. It would be helpful to introduce wording in the Annex that clearly states that the guidelines are subject to review, and that the revised guidelines, if adopted, shall become effective immediately.

Poland said he preferred the language of the original draft over the Chile proposal. The US was concerned that the lowest common denominators are being met rather than higher ones. Making the guidelines mandatory recognizes that some States will not be able to bind themselves to the treaty. The US recognizes that there are many developing countries present that do not have the tools to reach those conservation and management measures we are striving for. He said this is a fertile area in which the provision of international technical assistance can be made to developing coastal States. Provision should be made for the Annex to be revisited in 4-5 years' time to identify any need for change. The Chair informed delegates that the FAO report stated that 20% of the fishing States on the high seas harvest half of the world catch.

The Federation of Russia said that Annex 2 needs to be mandated as guideline for use by States. He said that in subparagraphs (b), (d) and (e) where the words "associated ecosystems" or "ecologically related species" are used, guidance should be taken from Article 63 (2) of UNCLOS. The Federated States of Micronesia supported New Zealand and Australia regarding the language of Article 6 and the precautionary approach. The EU commented that it was unclear about the scientific approach and its application and that methodology devices are not necessarily included within the Annex. He also expressed concern over the fundamental principle of the Convention regarding the use of the "best scientific information" and called for clarity in this area. Lebanon noted that several recent international conventions on the environment have given preferential treatment to developing countries, for example, a grace period in order that change may be effected prior to compliance. He said such grace periods were good incentives for joining.

The Chair said some developing countries already have the capability to implement the guidelines, and some do not. He said it is necessary to reflect on these issues. Sri Lanka agreed that lack of scientific data cannot be used as reason for failure to implement appropriate measures. He pointed out the difficulties faced by developing countries involved in capital-intensive activities and stressed that mandatory reference points would impose considerable burden on developing countries.

Chile questioned the cohesiveness of Article 6 and said that subparagraph (d) would make the document difficult to comply with in the near future. Strict management principles that are mandatory would make implementation unworkable. He said there are stylistic drafting problems in subparagraph (d) where the reference points seem to be more important than determining the management strategy. Chile could not accept subparagraph (d). Uruguay said the Chair's proposal is constructive. A paragraph should be included stating Annex 2 can be amended without being subject to an amendment process.

Peru proposed a new Article 6 (bis) on interim measures in cases of an emergency situation. He cited ecological factors such as El Niņo, where situations may arise that may make it necessary to introduce provisional measures based on scientific non-discriminatory information to deal with the problem of States who encounter difficulties. It is not an attempt to expand jurisdiction, but to find jointly-agreed solutions for the interim. Uruguay said that it is a necessary supplement to ensure conservation and management of fish stocks when they are imperiled. These measures would not be taken unilaterally. This situation could involve the EEZ of more than one State. CPPS said this is interesting and mentioned El Niņo as a threat to many countries that have suffered from drought and other phenomena. As a regional organization, it greatly valued Peru's intervention. Indonesia, Canada, Colombia, Ecuador, Argentina, and the Russian Federation agreed. Lebanon suggested working with the International Seabed Authority to see how a compromise could be developed. Uruguay said it is a textbook case of developing UNCLOS. Chile said Peru's proposal includes the precautionary concept, and that it deals with an interim measure. The EU, Japan, the Republic of Korea, and Malta could not accept Peru's proposal, based on Articles 117 and 118 of UNCLOS. China asked for clarification on the definition of an "emergency situation" and wanted to know who would sit in judgement. The representative of the Woman's Caucus, Irene Novaczek of the Canadian Oceans Caucus, said that in recognition of the important roles of women in fish harvesting, marine science, and seafood processing, as well as their largely unpaid labor in supporting the fishing industry, States should enshrine in the Draft Agreement the rights of women and other representatives of coastal communities to participate in international and regional bodies dealing with the conservation and management of fish stocks.

In consideration of Article 7, which deals with compatibility of conservation and management measures, Iceland referred to his country's unique situation and proposed a new subparagraph (2)(d) that would "take into account the interest of coastal States whose economies are overwhelmingly dependent on the exploitation of living marine resources". Kiribati and Thailand supported Iceland's proposal. The Philippines, supported by Thailand, suggested that in subparagraph (1)(b), "optimum" be replaced with "sustainable" for consistency with the objective of the Agreement in Article 2. The Chair said, and Peru concurred, that the language comes from UNCLOS. Subparagraph (1)(a) comes from Article 63.2 and subparagraph (1)(b) from Article 64. Uruguay, with support from Chile, proposed the inclusion of "management" in subparagraph (1)(a) because "conservation and management" are the objectives of the agreement. In subparagraph (2)(b), he proposed the inclusions of "in time and volume", since the volume of stocks fluctuate over time.

The Republic of Korea said the inclusion of "in accordance with Article 61 of UNCLOS" in subparagraph (2)(a) would enhance the guiding principles of coastal States with respect to conservation measures in their EEZs.

Thailand said that Article 23 subparagraph (1)(a), dealing with forms of cooperation with developing States, is well-balanced and should remain unchanged. Chile proposed a concrete application of the precautionary approach that establishes provisional measures to protect fisheries in the absence of formulated measures. New Zealand said UNCLOS language should not be tampered with and the concept of an optimum limit on sustainable use is confusing. Peru said that in (1)(bis), harmonization should fall to the responsibility of the coastal State. Norway said the overall balance of the text is acceptable and is a good basis for general agreement. The proposal by Iceland goes well beyond what can be accepted in this text and that has to do with the specific situation of Iceland. Iceland's capacity to compete for resources on the high seas should not be supported by special provisions. Article 7 is important to all other provisions contained in the draft, whether they concern technical regulations, the establishment of TAC, distribution of quotas, or enforcement. The Russian Federation said the Chair's text reflects consensus, but he wanted fuller recognition of the role of coastal States in the conservation of SFS and HMFS. Indonesia said that he had a problem with Articles 5, 6 and 7 if these apply to areas under national jurisdiction in accordance with Article 3, because many additional obligations would be imposed on the developing coastal States. The implementation of these articles should be made easier for developing coastal States. Thailand said the objective is the sustainability of fish stocks and not their optimum utilization. Greenpeace said that Articles 5, 6 and 7 are a package for precaution and conservation and are necessary to affect the long-term sustainability of SFS and HMFS. World Wide Fund for Nature (WWF) spoke in support of Indonesia's concerns regarding the imposition of obligations on developing States. Annex 2, he said, contains a general package of guidelines that could provide creative, holistic and less expensive means of monitoring than purely Western sources.

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