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CONSERVATION AND MANAGEMENT GAINS

THE PRECAUTIONARY APPROACH TO FISHERIES MANAGEMENT: One of the essential new elements in high seas fisheries management is the acceptance of the "precautionary approach" concept. The FAO was mandated by the first substantive session to produced a document that could serve as a discussion document for delegates. The FAO document, A/CONF.164/INF/8, outlined the confusion between the Precautionary Approach and the Precautionary Principle that had dogged earlier discussion. Debate sometimes referred to the Precautionary Approach as a "mixed bag of options." DWFNs were concerned that the concept would be adopted by coastal States as an open licence to adopt "moratoria" as a new management norm. The Precautionary Approach requires that scientific uncertainty be taken into consideration when deciding upon catch levels, especially when developing new or exploratory fisheries. It represents a major step forward from an environmental perspective, particularly because the absence of adequate scientific information shall not be used as a reason for postponing or failing to take effective conservation and management measures. The Agreement requires that States apply a seven-point guideline for the application of the Precautionary Approach, but the Agreement still maintains reference back to the MSY concept, which some delegates eloquently argued has long passed its "sell-by-date."

OBLIGATORY DATA COLLECTION: Who really knows what the true catch is on the high seas? Depending on whose views are last listened to, then the picture of high seas fishing catches could vary as much as the climatic conditions of New York. The Agreement obligates States to collect and share data on SFS and HMFS. This obligation represents not only a beneficial step forward in high seas fisheries management, but also in international law. The absence of composite data collection from high seas fishing practices has been a fundamental flaw in fisheries management. The collection of good and reliable data is essential to good fisheries management. The dissemination of fisheries data to the regional organizations and other interested parties represents a major step forward that can only enhance the work of the international fisheries scientific community. However, it remains to be seen if political decision-making will continue to overrule the sound advice of fisheries managers, as has so frequently and sadly happened in the past.

RIGHT TO BOARD AND INSPECT: Fundamental to high seas fisheries management and conservation measures is a requirement to board and inspect any fishing vessel that may be in contravention of the subregional or regional organization or arrangement. In the beginning, coastal States desired the right to board, detain and "arrest." These procedures have now been watered down to "board and inspect" and further investigate if necessary. This new rule does not remove flag State control over the vessel, but requires the flag State to take responsive and meaningful action after an inspection has revealed a contravention of the rules. Flag States, especially Japan, are concerned that the "use of force" defined in regard to boarding and inspection procedures should be used in the "narrow" sense and not broadly. The Agreement has struck consensus and it would be extremely disheartening to see an emergence of "gunboat diplomacy" under this provision.

NGO IMPACT: At the beginning, unnecessary and unhelpful comments were registered by delegates regarding the anticipated level of NGO participation. Delegates feared that the Conference would be dogged with similar numbers of NGOs as had attended the Earth Summit. Some delegates had no desire to accommodate any form of NGO involvement, while others recognised the input value that NGOs could contribute to the scientific and social aspects of the debate. The Rules of Procedure adopted provided for the Chair to invite NGO participation with the agreement of the Conference. This initially was an uneasy process and during the early informal consultations NGOs were barred from attending. An informal agreement struck with the Chair, later provided for very limited NGO admission. NGOs were able to strike alliances with some delegations that secured additional or modified provision of the text. During the earlier sessions NGOs maintained an active agenda, often working with a common sense of purpose and direction, but as the Conference work became extended by twelve months, financial and other constraints impinged upon the potential to feed constructive criticism into the negotiation process. NGOs had limited opportunity in the final session to tender new comments, because the session was effectively devoted to harmonising text. NGO representatives in their closing statements afforded the Chair and delegations complimentary remarks, but reminded the Conference that the Agreement represented a "first step" in further development of the global fisheries regime.

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