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

ARTICLE 5 - GENERAL PRINCIPLES: This Article describes the measures necessary to give effect to the duty to cooperate in accordance with the Convention. States shall: adopt measures to ensure long-term sustainability and promote the objective of optimum utilization; ensure that such measures are based on the best scientific evidence available and designed to maintain maximum sustainable yield as qualified by relevant environmental and economic factors; apply the precautionary approach in accordance with Article 6; assess the impacts of fishing and other activities on target stocks and species belonging to the same ecosystem; adopt measures for species belonging to the same ecosystem with a view to maintaining or restoring populations above levels at which their reproduction may be seriously threatened; minimize pollution, waste, discards, catch by abandoned gear, and catch of non-target species through measures including, to the extent practicable, the use of selective fishing gear.

States shall also: protect biodiversity in the marine environment; take measures to prevent or eliminate over-fishing and excess capacity; take into account the interest of artisanal and subsistence fishers; collect and share, in a timely manner, complete and accurate data on fishing activities as set out in Annex I; promote and conduct scientific research and develop appropriate technologies; and implement and enforce conservation and management measures through effective monitoring, control and surveillance.

An informal working group composed of several Latin American States was convened to propose modifications to Annex I, although some States objected that Annex I was complete. The required use of selective gear generated considerable controversy during informal consultations, and provoked several strong statements from NGOs. However, the issue received surprisingly sparse comment on the floor during informal plenary. The US proposed alternative language for Article 5(f) that required promotion, but not the use of, selective gear, but some delegations objected. Nonetheless, the final text qualifies all the requirements of Article 5 to "coastal States and States fishing on the high seas" and requires the development and use of selective gear "to the extent practicable."

ARTICLE 6 - APPLICATION OF THE PRECAUTIONARY APPROACH: This Article provides that States shall apply the precautionary approach widely to conservation, management and exploitation of SFS and HMFS. Paragraph (2) holds that States shall be more cautious when information is uncertain, unreliable or inadequate. The absence of scientific of adequate scientific information shall not be used as a reason for postponing or failing to take conservation and management measures, and paragraph (3) provides requirements for implementation. Discussion focused on the scope and strength of the language, with Peru and Uruguay proposing an additional paragraph which would apply when fish stocks are in danger of depletion because of factors other than natural phenomena. The US, the EU, Norway and the Russian Federation all commented that the word "apply" in paragraph (3), should not be changed to "observe" because the connotation is less stringent. DWFN and coastal states disagreed over the insertion of the word "widely" when referring to application, and delegations made several suggested amendments to the language, leading the Chair to prompt delegates to "cool off."

ARTICLE 7 - COMPATIBILITY OF CONSERVATION AND MANAGEMENT MEASURES: This Article states with respect to SFS, coastal States and States whose nationals fish for such stocks in the adjacent high seas area shall seek to agree upon the measures necessary for the conservation of these stocks. With respect to HMFS, coastal States and others who fish for such stocks in the region shall cooperate with a view to ensuring conservation and promoting the objective of optimum utilization of such stocks throughout the region. It also requires, inter alia, that conservation and management measures within EEZs and the high seas shall be compatible, and describes the factors to be accounted for in determining compatibility.

States shall also "make every effort to agree" on compatible measures, and absent an agreement, may invoke dispute settlement procedures. Until agreement is reached, States shall endeavor to enter into "provisional arrangements of a practical nature." Delegates again voiced disagreement over the balance between coastal States and DWFN interests, particularly regarding the elements for determination of compatible measures. The EU said that the linkages with other articles in the Agreement were not being considered in terms of the overall balance of the text and the Article must be made more explicit. Coastal states, however, sought to expand the language requiring that biological unity and characteristics be accounted for, thereby increasing consideration for coastal State measures.

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