Summary report, 31 December 1994

Although the next session of the Conference on Straddling Fish Stocksand Highly Migratory Fish Stocks will not take place until March 1995,the UN General Assembly has adopted several resolutions related to theConference and fisheries management. This special year-end issue of theEarth Negotiations Bulletin will review relevant activities thathave taken place since the third session of the Conference onStraddling Fish Stocks and Highly Migratory Fish Stocks in August 1994,summarize the results of the General Assembly"s consideration of theConference and highlight upcoming events. This issue of the EarthNegotiations Bulletin is published as part of a series of year-endissues intended to summarize the current state of play in the varioussustainable development conferences and negotiations reported on by theBulletin in 1994.

A BRIEF HISTORY OF THE CONFERENCE

The problems related to high seas fisheries are not new to the UNsystem. Participants at the Third UN Conference on the Law of the Seawere well aware of the issue, however, attempts to deal with it duringthe course of the ten years of negotiations that concluded in 1982 werenot successful. The negotiators decided to leave such problems to beresolved between States concerned with high seas fisheries in differentregions. During the last decade, however, the pressure on high seasfisheries has grown rapidly, and the problems have become more urgent.A number of events in the early 1990s indicated that an internationalconference should be convened to resolve the issues related to highseas fisheries. One forum where this was discussed was the PreparatoryCommittee for UNCED. After long and difficult negotiations, participantsat the Earth Summit in Rio agreed to "convene an intergovernmentalconference under UN auspices with a view to promoting effectiveimplementation of the provisions of the Law of the Sea on straddlingand highly migratory fish stocks."

The resolution establishing the Conference on Straddling Fish Stocksand Highly Migratory Fish Stocks (47/192) was adopted by the UNGeneral Assembly on 22 December 1992. The resolution states that theConference, drawing on scientific and technical studies by FAO, should:identify and assess existing problems related to the conservation andmanagement of highly migratory and straddling fish stocks; considermeans of improving fisheries cooperation among States; and formulateappropriate recommendations. The resolution also stipulated that theConference should complete its work "as early as possible" in advanceof the 49th session of the UN General Assembly.

The organizational session for the Conference was held at UNHeadquarters in New York from 19-23 April 1993. The participantsadopted the rules of procedure and agenda, appointed a CredentialsCommittee and agreed on how its substantive work would be carried out.Satya N. Nandan (Fiji) was elected Chair of the Conference. Nandan wasasked to prepare a paper containing a list of substantive subjects andissues as a guide for the Conference, and delegations were requested tosubmit their proposals to the Secretariat.

FIRST SUBSTANTIVE SESSION

The first session of the Conference on Straddling Fish Stocks andHighly Migratory Fish Stocks met from 12-30 July 1993, at UNHeadquarters in New York. The Plenary addressed the major issuesbefore it, guided by the Chair"s summary of the issues. The Plenaryheld formal sessions on each of the issues outlined and then adjournedto allow informal consultations to continue. At each of these informalmeetings, Nandan presented the group with a working paper thatsummarized the issues raised in the Plenary and in papers submitted byinterested delegations.

The major issues discussed at the first session were: the nature ofconservation and management measures to be established throughcooperation; the mechanisms for international cooperation; regionalfisheries management organizations or arrangements; flag Stateresponsibilities; compliance and enforcement of high seas fisheries andmanagement measures; responsibilities of port States; non-parties to asubregional or regional agreement or arrangement; dispute settlement;compatibility and coherence between national and internationalconservation measures for the same stocks; special requirements ofdeveloping countries; review of the implementation of conservation andmanagement measures; and minimum data requirements for theconservation and management of these stocks. At the conclusion of thesession, the Chair tabled a draft negotiating text to serve as the basisfor negotiation at this session of the Conference.

SECOND SUBSTANTIVE SESSION

The second session of the Conference met from 14-31 March 1994, at UNHeadquarters in New York. The delegates continued their debate on theissues left unresolved at the end of the previous session and theirreview of the Chair"s negotiating text (A/CONF.164/13*).

The first day of the Conference consisted of general statements and theConference then convened in informals until the end of the second weekwhen informal-informals were held to attempt to prepare a new "clean"version of the text. These sessions were held until the middle of thethird week, and all NGOs were excluded. As a result, five out offourteen days of negotiation were carried out behind closed doors. ThePlenary resumed briefly on Wednesday when the Chair briefed theConference on progress made during closed sessions. On the final day ofthe Conference, the Chair produced a revised negotiating text to serveas the basis for negotiations at the third session.

THIRD SUBSTANTIVE SESSION

The third session of the UN Conference on Straddling and HighlyMigratory Fish Stocks was held at UN Headquarters in New York from15-26 August 1994. During the first week, delegates reviewed theRevised Negotiating Text (RNT) as contained in documentA/CONF.164/13/Rev.1. General comments were delivered in the Plenaryand consultations were carried out in informal-informals. During thesecond week, the Chair issued a Draft Agreement for the Implementationof the Provisions of the United Nations Convention on the Law of theSea of 10 December 1982 Relating to the Conservation and Management ofStraddling Fish Stocks and Highly Migratory Fish Stocks (the "DraftAgreement"), based on the comments that delegates had made on theRNT. Informal consultations on the most difficult issues were thencarried out between the Chair and interested delegations. Delegatesreacted to the text and the last version of the Draft Agreement wasissued in document A/CONF.164/22 before the Conference adjourned.

The 31-page Draft Agreement contains a Preamble, 47 articles in 13 partsand three annexes. It is in the form of a legally-binding agreement andsome of the distant water fishing States have repeatedly expressed theiropposition to such a form. The Preamble is short and concise and recallsthe principles of UNCLOS, notes the need to improve cooperationbetween coastal States and flag States, calls for more effectiveenforcement measures and commits State Parties to responsible fishing.It does not refer to the FAO Agreement to Promote Compliance withInternational Conservation and Management Measures by Fishing Vesselson the High Seas. The 13 ensuing parts deal with the following issues:general provisions; conservation and management of straddling andhighly migratory fish stocks; mechanisms for international cooperationconcerning straddling and highly migratory fish stocks; compliance andenforcement; port State enforcement; requirements of developing States;peaceful settlement of disputes; non-participants; abuse of rights; non-parties to this Agreement; reports on implementation and reviewconference; and final provisions. Three annexes deal respectively withminimum standards for collection and sharing of data, suggestedguidelines for application of precautionary reference points andarbitration procedures. In the closing session, the Chair encourageddelegations to undertake intersessional consultations in order tofacilitate negotiations and help achieve agreement at the next session ofthe Conference. He said he would continue to liaise and consult withdelegations and, in order to maintain transparency and flow ofinformation to all delegations and observers, would report to theConference at the next session on any developments resulting from suchintersessional consultations.

INTERSESSIONAL HIGHLIGHTS

Consultations were held on the Code of Conduct for Responsible Fishingat FAO Headquarters in Rome in September 1994. The results of thesenegotiations were not entirely satisfactory as coastal States and distantwater fishing States seemed to adopt opposite positions on the wholeprocess. On the one hand, some coastal States insisted that theprovisions of the draft Code should remain in brackets until the UNeffort on straddling fish stocks and highly migratory fish stocks isfinalized. Distant water fishing States, on the other hand, saw the twoprocesses as entirely different and actually favor the FAO Code, asbased on a voluntary approach. Coastal States would rather see therestrictive measures apply solely to straddling and highly migratory fishstocks and are adamant about encroachments on their nationalsovereignty in their exclusive economic zones (EEZs). As a result, theFAO process is now being hindered by the UN Conference process andsome fear that the FAO is losing some of its edge and taking a backseat rather than proceeding on the fast track. The draft Code and thecomments made by the delegates will be transmitted to the Committee onFisheries (COFI) in March 1995.

CODE OF CONDUCT FOR RESPONSIBLE FISHING

Consultations were held on the Code of Conduct for Responsible Fishingat FAO Headquarters in Rome in September 1994. The results of thesenegotiations were not entirely satisfactory as coastal States and distantwater fishing States seemed to adopt opposite positions on the wholeprocess. On the one hand, some coastal States insisted that theprovisions of the draft Code should remain in brackets until the UNeffort on straddling fish stocks and highly migratory fish stocks isfinalized. Distant water fishing States, on the other hand, saw the twoprocesses as entirely different and actually favor the FAO Code, asbased on a voluntary approach. Coastal States would rather see therestrictive measures apply solely to straddling and highly migratory fishstocks and are adamant about encroachments on their nationalsovereignty in their exclusive economic zones (EEZs). As a result, theFAO process is now being hindered by the UN Conference process andsome fear that the FAO is losing some of its edge and taking a backseat rather than proceeding on the fast track. The draft Code and thecomments made by the delegates will be transmitted to the Committee onFisheries (COFI) in March 1995.

UN CONVENTION ON THE LAW OF THE SEA

Under the terms of the United Nations Convention on the Law of theSea, the International Seabed Authority (ISBA) held its inaugural sessionin Kingston, Jamaica, from 16-18 November 1994. The meeting, which wasattended by 80 member and 17 observer countries, served as both acommemoration of the long and eventually successful negotiations toachieve a widely accepted Law of the Sea treaty and as the initiation ofthe ISBA as the organization that will oversee activities related to theexploration and exploitation of the resources of the deep seabed.Discussions regarding the implementation of the Convention in otherareas continued informally, particularly with regard to the establishmentof the International Tribunal for the Law of the Sea.

The November meeting did not grapple with either procedural orsubstantive issues. Instead, it provided an opportunity for Parties toexpress their views on both the past and the future. There wasuniversal acceptance of the agreement opened for signature in July1994, that modified the provisions of the Convention with regard to thedeep seabed. This agreement substantially revised the seabed provisionsof the Convention and many countries, both developed andindustrialized, felt it necessary to reconfirm support for it.

On the Monday following the ISBA session, Parties to the Convention andsignatories to the July agreement met in New York to address thecreation of the International Tribunal for Law of the Sea. The partiesagreed, in light of the fact that many countries are still in theratification process, to postpone the appointment of members of theTribunal until 1996.

GENERAL ASSEMBLY HIGHLIGHTS

The UN General Assembly"s Second Committee began its consideration ofthe UN Conference on Straddling Fish Stocks and Highly Migratory FishStocks (Agenda Item 89(c)) from 19-21 October 1994. Delegates hadbefore them a report of the third and fourth sessions of this Conferencein document A/49/522.

The following are some of the highlights of the debate.

Hans Corell

Counsel for the UN Office of Legal Affairs,presented two reports, one that deals with the issue of drift-net pelagicfishing and the other with the UN Conference on Straddling Fish Stocksand Highly Migratory Fish Stocks. On the issue of drift-net fishing, hesaid that the report of the Secretary General, as contained in documentA/49/469, is intended as a follow-up on activities inconsistent withGeneral Assembly Resolution 46/215. This document is intended as animplementation report and will be followed by subsequent annualreviews. In spite of the resolution, the document shows that drift-netfishing is still being carried out.

GERMANY (ON BEHALF OF THE EU):

Dr. Wolfgang Runge said thatthe EU believes that it will be able to find solutions to the remainingquestions in the Conference on Straddling and Highly Migratory FishStocks. The concepts of biological unity of the fish stocks concernedand the compatibility of conservation and management measuresapplicable in areas under national jurisdiction and in the adjacent highseas, as well as effective enforcement provisions, are crucial elements toprotect the stocks for the next generation.

ICELAND:

Amb. Ossur Skarphedinsson, on behalf of the Nordiccountries, said that they have been actively participating in the fishstocks Conference and believe that, although there are still outstandingissues, a satisfactory solution can be found and the Conference can besuccessfully concluded next year. Particular attention should also bepaid to the issue of pollution by so-called "persistent organicpollutants."

ARGENTINA:

Ambassador Ral Estrada-Oyuela noted that in aworld where broad sectors of humanity are deprived of basic sustenancewe cannot continue to witness the disorderly exploitation of the highseas. He urged the international community to agree on an internationallegally-binding instrument that establishes an effective regime for thepreservation of living resources in the high seas and the interests ofcoastal States.

REPUBLIC OF KOREA:

Wonil Cho stressed the need for themandate of the Conference to be carried out within the framework ofUNCLOS. The Chair"s revised draft should reflect greater balancebetween the positions of coastal and distant water fishing States. Thesections dealing with new participants, compliance and enforcement, portState jurisdiction, and the abuse of rights and enclaves should befurther improved during the upcoming sessions. He expressed concernabout the issue of arrest and detention by coastal States and portStates. The outcome of the Conference should be the formulation ofappropriate recommendations rather than a legally-binding instrument.

RUSSIAN FEDERATION:

The representative said that the outcomeof the fish stocks Conference should be binding.

CANADA:

Amb. John Fraser noted that the Conference onStraddling and Highly Migratory Fish Stocks has made progress. Thetabling of a draft agreement in convention form reflects the consensusto achieve a binding agreement. An effective regime for high seasfisheries should include effective conservation management measures,appropriate surveillance and control, and binding dispute resolutionmechanisms.

NEW ZEALAND:

John McKinnon expressed satisfaction with thework of the Straddling and Highly Migratory Fish Stocks Conference andconcern on the report that drift-net fishing still takes place in theMediterranean and the Bay of Biscay.

MEXICO:

The representative said that the elaboration of a newdraft agreement should be carried out in coordination with the work ofthe FAO on the Code for Responsible Fishing.

CHINA:

Yan Yanyi said that: the work of the Conference shouldbe consistent with UNCLOS; no agreement has been reached on the formof the final document; developing countries should receive specialassistance; coordinated and integrated conservation and managementmeasures should be adopted in the entire range of the stocks; moreflexibility should be given to the provisions for regional organizations;no unilateral action should be allowed on the high seas under thepretext of conserving and managing the fish stocks; and there shouldbe greater coordination among UN specialized agencies to avoidduplication of efforts.

PAPUA NEW GUINEA:

Amb. Utula Samana said that member Statesof the South Pacific Forum have played an active part in thenegotiations of the Conference on Straddling and Highly Migratory FishStocks and are also concerned with the issue of transboundarymovement of toxic wastes in their region.

SRI LANKA:

Amb. Stanley Kalpage said that Sri Lanka believesthat regional organizations, such as the Indian Ocean Marine AffairsCooperation, should be utilized in the implementation of the new regimein the high seas.

INDONESIA:

Marwah Daud Ibrahim supported the draft agreementon straddling and highly migratory fish stocks and said that it shouldserve as a good basis for future negotiations.

TRINIDAD AND TOBAGO:

Evans King, on behalf of the memberStates of the Caribbean Community, said that they had always urged forimmediate action with regard to marine living resources on the highseas. He highlighted the progress achieved in the Straddling and HighlyMigratory Fish Stocks Conference. UNCLOS provides a broad legalframework for the conservation of those species and the dual regimeestablished for the Exclusive Economic Zones and the high seas shouldnot be compromised by the process. He highlighted the precautionaryprinciple that is prevalent in the draft agreement and the acceptablestandards for conservation and management measures that are to takeinto account the best scientific evidence available. He urged all States toparticipate in the process so that it reflects a global consensus.

AUSTRALIA:

Anastasia Carayanides, on behalf of the South PacificForum (SPF), said that States have a duty to conserve fisheriesresources responsibly and the SPF welcomes the emergence of a legally-binding document on the issue of straddling and highly migratory fishstocks. Some members of the SPF do not have the resources to engagein protracted negotiations and yet remain committed to the process. Shealso said that a cohesive regional approach had been facilitated by theSouth Pacific Regional Environment Programme (SPREP). She alsoexpressed concern at reports that drift-net fishing may be continuing insome parts of the world, although no longer in the South Pacific.

MICRONESIA:

Amb. Yosiwo P. George supported the elaboration ofa binding legal document as the outcome of the Conference onStraddling and Highly Migratory Fish Stocks.

UKRAINE:

The representative said that Ukraine advocatesresponsible fishing management on the basis of international agreementsand cannot accept the attempts made in violation of UNCLOS to legalizeunilateral measures and apply them to the high seas.

NAMIBIA:

The delegate said that although the establishment of aneffective high seas fisheries regime is important, the interests of smallcoastal States must not be compromised in the process.

GENERAL ASSEMBLY RESOLUTIONS

The Second Committee adopted four draft resolutions on fisheries issues.These resolutions are expected to be formally adopted by the Plenary ofthe General Assembly before Christmas.

UN CONFERENCE ON STRADDLING FISH STOCKS AND HIGHLY MIGRATORY FISH STOCKS

The Second Committee adopted the draft resolution on the United NationsConference on Straddling Fish Stocks and Highly Migratory Fish Stockson 23 November 1994. The draft resolution, as contained in documentA/C.2/49/L.5, takes notes of the recommendation of the Conferenceregarding the convening of two further sessions in 1995 to enable theConference to complete its work. The seven operative paragraphs: notethe progress made by the Conference; approve the convening in NewYork of two further sessions of the Conference from 27 March to 12April 1995 and from 24 July to 4 August 1995; request the Secretary-General to provide services for those two sessions of the Conference,including facilities for holding two simultaneous meetings; urge theConference to complete its work before the 50th session of the GeneralAssembly; request governments and regional economic integrationorganizations to contribute to the voluntary fund; request theSecretary-General to submit to the 50th session of the General Assemblythe final report on the work of the Conference; and requests theinclusion of the report of the Conference on the provisional agenda forthe 50th General Assembly.

UNAUTHORIZED FISHING IN ZONES OF NATIONAL JURISDICTION AND ITS IMPACT ON THE LIVING MARINE RESOURCES OF THE WORLD"S OCEANS AND SEAS

This resolution (A/C.2/49/L.20) was adopted by consensus, as orallyamended, by the Second Committee on 7 December 1994. Co-sponsorsinclude: Algeria, Antigua and Barbuda, Argentina, Australia, Bahamas,Benin, Canada, Cape Verde, Cuba, Ecuador, Eritrea, Fiji, Grenada,Indonesia, Maldives, Marshall Islands, Mauritania, Micronesia, Morocco,Namibia, New Zealand, Nicaragua, Papua New Guinea, Philippines, Samoa,Senegal, Sierra Leone, South Africa, Sri Lanka, Suriname, Togo, Trinidadand Tobago, Tunisia and the United States.

The draft resolution calls upon States to take the responsibility,consistent with their obligations under the United Nations Convention onthe Law of the Sea, to ensure that no fishing vessels entitled to flytheir national flag fish in zones under the national jurisdication of otherStates, unless they are duly authorized by the competent authorities inthe coastal State or States concerned. The resolution also calls upondevelopment assistance organizations to make it a high priority tosupport efforts by developing coastal States to improve monitoring andcontrol of fishing activities and the enforcement of fishing regulations.The Secretary-General is requested to submit to the General Assembly atits 50th session a report on the steps taken and on the problemsencountered in the implementation of this resolution.

After adoption, Japan noted that measures in this resolution should notprejudge the work in other fora, including the Conference on Straddlingand Highly Migratory Fish Stocks and the FAO. The Russian Federationsaid that it has faced problems regarding overfishing in its EEZ in theBering and Barents Seas. Russia has been damaged by overfishing andwants to end unauthorized fishing in zones of national jurisdiction. TheRepublic of Korea joined the consensus, but noted that other fora andorganizations are dealing with unauthorized fishing. This resolutionshould not prejudge or undermine action in these fora or organizations.China expressed support for the resolution, but noted that at the sametime overfishing in zones of national jurisdiction contibute to depletionof fish stocks. Turkey said that it would interpret this resolution torefer solely to the articles on fishing matters in the Law of the Sea.

LARGE-SCALE PELAGIC DRIFT-NET FISHING AND ITS IMPACT ON THE LIVING MARINE RESOURCES OF THE WORLD"S OCEANS AND SEAS

This draft resolution (A/C.2/49/L.24) was co-sponsored by a number ofStates including: Argentina, Australia, Canada, Marshall Islands,Micronesia, New Zealand, Singapore, South Africa and the United States.It was adopted by consensus by the Second Committee on 7 December1994.

The resolution reaffirms the importance of compliance with Resolution46/215 of 20 December 1991, which calls for full implementation of aglobal moratorium on all large-scale pelagic drift-net fishing on the highseas of the world"s oceans and seas, including enclosed seas and semi-enclosed seas. The resolution acknowledges and expresses itsappreciation of the measures taken and the substantial progressachieved since 1992 in implementing and supporting Resolution 46/215.Despite the progress made, the resolution expresses further concernthat there are reports of continuing conduct and activities inconsistentwith the terms of Resolution 46/215, and urges members of theinternational community to take greater enforcement responsibility toensure that their nationals and fishing vessels comply with thisresolution and impose appropriate sanctions against their nationals andfishing vessels that act contrary to the terms of Resolution 46/215. Thefinal paragraph of the resolution calls on all members of theinternational community, intergovernmental organizations, regionaleconomic integration organizations and NGOs to provide the Secretary-General with information relevant to the implementation of Resolution46/215.

FISHERIES BYCATCH AND DISCARDS AND THEIR IMPACT ON THE SUSTAINABLE USE OF THE WORLD"S LIVING MARINE RESOURCES

This resolution (A/C.2/49/L.50/Rev.1) was adopted by consensus by theSecond Committee on 13 December 1994. Co-sponsors included: Argentina,Australia, Costa Rica, Guyana, Marshall Islands, Micronesia, New Zealand,Oman, Papua New Guinea, Suriname, Trinidad and Tobago and the UnitedStates.

The operative paragraphs of the resolution note the important role thatfisheries play in contributing to a sustainable food supply and livelihoodof present and future generations. The issue of bycatch and discards infishing operations warrants serious attention by the internationalcommunity and a continued and effective response is necessary toensure the long-term and sustainable development of fisheries. Theresolution invites the FAO to formulate bycatch and discards provisionsin its international code of conduct for responsible fishing, taking intoaccount work being done elsewhere. The resolution also invites the UNConference on Straddling Fish Stocks and Highly Migratory Fish Stocksto elaborate fisheries bycatch and discards provisions, taking intoaccount work being done elsewhere. Finally, the resolution invitesrelevant subregional and regional fisheries management organizationsand arrangements and the FAO to review, within their respectivecompetencies, the impact of fisheries bycatch and discards on thesustainable use of living marine resources.

After adoption, the Republic of Korea, the Russian Federation andPanama said that the General Assembly is not the proper forum fordealing with this issue. This issue should be discussed by the FAO andthe UN Conference on Straddling Fish Stocks and Highly Migratory FishStocks. Mexico said that the draft resolution does not correspond to theimportance of this issue and future resolutions should be more specificwith regard to measures to decrease bycatch.

THINGS TO LOOK FOR IN 1995

The Conference onStraddling Fish Stocks and Highly Migratory Fish Stocks will hold itsfourth substantive meeting from 27 March - 12 April 1995, and its fifthsubstantive meeting from 24 July - 4 August 1995. Both meetings will beat UN Headquarters in New York. The Conference is supposed tocomplete its work before the 50th session of the General Assembly in1995.

FUTURE WORK OF THE CONFERENCE:

The Conference onStraddling Fish Stocks and Highly Migratory Fish Stocks will hold itsfourth substantive meeting from 27 March - 12 April 1995, and its fifthsubstantive meeting from 24 July - 4 August 1995. Both meetings will beat UN Headquarters in New York. The Conference is supposed tocomplete its work before the 50th session of the General Assembly in1995.

INTERNATIONAL SEABED AUTHORITY (ISBA):

The ISBA will resumeits first session from 27 February - 17 March 1995, and again on 24July - 4 August 1995. Both meetings will be in Kingston, Jamaica. Thesesessions will address the adoption of rules of procedure, elections ofofficers of the ISBA Assembly and the head of the Secretariat, andcreation of the Council and the Finance Committee. Responsibility foroversight of seabed mining will be transferred from the UN Office ofOcean Affairs and Law of the Sea to the ISBA after the Secretariat isestablished. With the adoption of the rules of procedure, watch for thebeginning of NGO participation in the ISBA process.