Report of the Second Intergovernmental Consultation on the Establishment of a Southwest Indian Ocean Fisheries Commission

Antananarivo, Madagascar, 25-28 September 2001

ISBN 92-5-004856-4

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© FAO 2002

Preparation of this report

This is the final version of the report approved on 28 September 2001 in Madagascar by the Second Intergovernmental Consultation on the Establishment of a Southwest Indian Ocean Fisheries Commission.

Distribution:

Participants in the Session/Participants à la session

Other interested nations and international organizations/Autres Etats et organisations internationales intéressés

FAO Fisheries Department/Département des pêches de la FAO

Fishery Officers in FAO Regional

Offices/Fonctionnaires des pêches dans les Bureaux régionaux de la FAO

Abstract

Opening of the session

1. The Second Intergovernmental Consultation on the establishment of a Southwest Indian Ocean Fisheries Commission was held at the Conference Centre of the Ministry of Foreign Affairs, Antananarivo, Madagascar at the kind invitation of the Government of the Republic of Madagascar, from 25 to 29 September 2001.

2. The Consultation was attended by delegates from Australia, China, Comoros, European Community, France, Iran, Japan, Kenya, Madagascar, Mauritius, Mozambique, Namibia, New Zealand, Seychelles, South Africa, Tanzania and United Kingdom. Representatives of the Commission de l’océan Indien (COI), the Norwegian Agency for Development Co-operation (NORAD) and Russia were observers to the meeting. The list of delegates and observers is given in Appendix C.

3. The Minister of Fisheries and Marine Resources, Hon. Abdallah Houssene, welcomed the delegates to Madagascar and officially opened the Consultation. The speech of the Hon. Abdallah Houssene is attached as Appendix D to the report.

4. During the opening ceremony, a statement was made on behalf of the Director-General of FAO, Mr Jacques Diouf, the Assistant Director-General, Fisheries Department, Mr Ichiro Nomura, and the Subregional Representative for Southern and Eastern Africa, Ms Victoria Sekitoleko, by Mr Patrick Tesha, the FAO Representative in Madagascar.

5. Mr Tesha recalled that the Consultation was based on FAO Council Resolution 1/116 of June 1999 which noted the wishes of the former Southwest Indian Ocean Committee and authorised the Director-General to convene ad hoc meetings to facilitate the establishment of a regional fishery body. He outlined the important outcomes from the last consultation in Reunion, February 2001, where the zone of competence was extended, the functions of the proposed body was significantly revised and a new provision was included as recognition of the special requirements of developing States. He noted the urgency for management arrangements for developing deep-water fisheries in the southern part of the zone of competence and the wishes expressed by developing coastal states to contribute to responsible management and utilization of resources and improve the livelihoods of the people in the region. Mr Tesha welcomed the participation at this Intergovernmental Consultation of other countries with interest in the developing deep-water fisheries of the Southwest Indian Ocean. He reassured delegates of the availability of FAO to continue to work with the states throughout the establishment of the body and thereafter.

Adoption of the Agenda and arrangements for the session

6. The Committee for the Development and Management of Fisheries in the Southwest Indian Ocean was abolished by its parent body, the Indian Ocean Fisheries Commission (IOFC), at its Eleventh Session in February 1999 and therefore, there was no sitting Chairperson. Mr William Edeson, General Legal Affairs Service, FAO, facilitated the election of Officers of the Consultation.

7. The Consultation unanimously elected the following office bearers:

Chairperson, Madagascar (Mr Christophe Veloson Tsirafy);
Vice-Chair, Australia (Mr John Talbot)

Rapporteurs:

Namibia (Mr Burger Oelofsen)
Seychelles (Mr David Boulle)

8. The agenda shown in Appendix A was adopted. The documents made available to the Consultation are listed in Appendix B.

9. Before proceeding with the work of the Consultation, a report of the Ad Hoc Technical Meeting on Management of Deepwater Fisheries Resources of the Southern Indian Ocean, Swakopmund, 30 May - 1 June 2001 was presented for information. The objective of the meeting was to identify and start technical activities needed for the effective management of deepwater resources in the proposed convention area. Issues discussed included: handling of confidential data; documentation of fishing areas, fishing method, target and bycatch species; ecosystem considerations; past research and previous fishing activity; future activities and recommendations to governments. Work intended for a follow up meeting included documentation of: population biology; current national practices for data recording and reporting; catch and effort data; database structures; past oceanographic research and fishing surveys.

10. The delegation of Mauritius made a statement which made a precautionary reservation that expressed strong reservation on the possibility for a state to become a party to the Agreement on behalf of the Chagos Archipelago which forms part of the State of Mauritius under the Constitution of the Republic of Mauritius.

11. The representative of the United Kingdom made a statement to assert the sovereign rights of the United Kingdom.

Presentation of the main points and review of the draft agreement for the establishment of the Southwest Indian Ocean Fisheries Commission

12. The agenda item was introduced and reviewed on the basis of an annotated Draft Agreement for the establishment of the South West Indian Ocean Fisheries Commission (SAFR/DM/SWIO2/01/ 3), a study of the compatibility of Article XIV of the FAO Constitution with the provisions of the 1995 UN Fish Stocks Agreement (SAFR/DM/SWIO2/01/ 4) and the determination of contributions by other regional fishery bodies (SAFR/DM/SWIO2/01/ 5). The delegations expressed appreciation for the documents and revisions made to the draft agreement by the secretariat.

13. The discussions that followed were frank and undertaken in a friendly and constructive atmosphere. The new delegations (China, Japan, United Kingdom) expressed their willingness to be present at this Consultation and stated that they considered all articles of the agreement were open for discussion.

14. Modifications made to the draft agreement follow^[1]:

DRAFT AGREEMENT FOR THE ESTABLISHMENT OF A SOUTH WEST INDIAN OCEAN FISHERIES COMMISSION

PREAMBLE

The Contracting Parties

NOTING the wishes expressed to the FAO Council at its One Hundred and Sixteenth Session in June 1999 by the former members of the Committee for the Development and Management of Fisheries Resources in the South West Indian Ocean, i.e. Comoros, France, Kenya Madagascar, Mauritius, Mozambique, Seychelles, Somalia and Tanzania, for a regional organization to promote the sustainable development, conservation, rational management and best utilization of fisheries resources in the Region with special emphasis on fisheries targeted at non-tuna species;

TAKING INTO CONSIDERATION that the coastal States have established areas of national jurisdiction in accordance with the United Nations Convention on the Law of the Sea, 1982, and general principles of international law within the exercise of their sovereign rights for the purpose of exploring and exploiting, conserving and managing the living marine resources;

NOTING the objectives and purposes stated in Chapter 17 of Agenda 21 adopted by the United Nations Conference on Environment and Development in 1992;

RECOGNIZING THE RELEVANT PROVISIONS of the United Nations Convention on the Law of the Sea of 10 December 1982; the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 1995; and the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, 1993 and taking into account the Code of Conduct for Responsible Fisheries, 1995;

RECOGNIZING FURTHER economic and geographical considerations and the special requirements of developing States and their coastal communities, for equitable benefit from living marine resources;

HAVING A MUTUAL INTEREST in the proper management of the fisheries resources in the sea area in the region defined in Article 4, and desiring to further the attainment of their objectives through international cooperation which would be furthered by the establishment of a Fisheries Commission;

CONVINCED that the establishment of an organization for the long-term conservation and sustainable use of fishery resources in the South West Indian Ocean would best serve these purposes of long term conservation and sustainable use of the resources;

DESIRING cooperation between the Coastal States and with all other States and organizations having a real interest in the fishery resources of the South West Indian Ocean to ensure compatible conservation and management measures;

BEARING IN MIND that the achievements of the above will contribute to the realization of a just and equitable economic order in the interests of all humankind, and in particular the special interests and needs of developing States;

Agree as follows:

ARTICLE 1 DEFINITIONS

For the purposes of this Agreement:

(a) “1993 Compliance Agreement” means the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, adopted by the FAO Conference in 1993;

(b) “1982 Convention” means the United Nations Convention on the Law of the Sea of 10 December 1982

© “1995 Agreement” means the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 1995;

(d) “Contracting Parties” means Members and non-Members of FAO that are eligible to become Members of the Commission under Article 5 which have consented to be bound by this Agreement and for which the Agreement is in force.

(e) “Fishing” means:

(i) the actual or attempted searching for, catching, taking or harvesting of fishery resources;

(ii) engaging in any activity which can reasonably be expected to result in the locating, catching, taking or harvesting of fishery resources for any purpose including scientific research;

(iii) placing, searching for or recovering any aggregating device for fishery resources or associated equipment including radio beacons;

(iv) any operation at sea in support of, or in preparation for, any activity described in this definition, except for any operation in emergencies involving the health and safety of crew members or the safety of a vessel; or

(v) the use of an aircraft in relation to any activity described in this definition except for flights in emergencies involving the health or safety of crew members or the safety of a vessel;

(f) “Fishing vessel” means any vessel used or intended for fishing, including mother ships, any other vessels directly engaged in such fishing operations, and vessels engaged in transshipment;

(g)“SWIOFC” means The South West Indian Ocean Fisheries Commission;

(h) “Transshipment” means unloading of all or any of the fishery resources on board a fishing vessel to another fishing vessel whether at sea or in port.

Comment on Preamble and Article 1

The consultation proceeded to review the preamble but expressed the opinion that this part of the document as well as Article 1 (Definitions) would be treated after the entire document had been reviewed.

ARTICLE 2 ESTABLISHMENT OF THE COMMISSION

The Contracting Parties hereby establish [under Article XIV of the Constitution of the Food and Agriculture Organization of the United Nations, hereinafter referred to as “FAO”]. Commission to be known as "The South west Indian Ocean Fisheries Commission”.

Comment on Article 2.

Agreement was not reached on the name of the organisation.

ARTICLE 3 OBJECTIVES

The objectives of this Agreement are to ensure the long term conservation and sustainable use of the fishery resources in the area to which this Agreement applies through cooperation among the Contracting Parties, and to promote the sustainable development of fisheries in the area, taking account of the needs of developing states [of the region] which are party to this agreement.

Comment on Article 3.

After extensive discussion, the text of this article was left unchanged.

ARTICLE 4 AREA OF COMPETENCE

Except as otherwise provided, this Agreement applies to the area bounded by a line joining the following points along parallels of latitude and meridians of longitude; excluding the areas under national jurisdiction of Contracting Parties bordering on that area:

Commencing at the landfall on the continent of Africa of the parallel of 30° East; from there north-north-east along the coast of Africa to its intersection with the parallel of 10° North; from there east along that parallel to its intersection with the meridian of 65° East; from there south along that meridian to its intersection with the equator; from there east along the equator to its intersection with the meridian of 80° East; from there south along that meridian to its intersection with the parallel of 20° South; from there east along that parallel to its landfall on the continent of Australia; from there south and then east along the coast of Australia to its intersection with the meridian of 120° East; from there south along that meridian to its intersection with the parallel of 55° South; from there west along that parallel to its intersection with the meridian of 80° East; from there north along that meridian to its intersection with the parallel of 45° South; from there west along that parallel to its intersection with the meridian of 30° East; from there north along that meridian to the point where the line began as shown in the map in the Annex 1 to this Agreement.

Where for the purpose of this Agreement it is necessary to determine the position on the surface of the Earth of a point, line or area, that position shall be determined by reference to the International Terrestrial Reference System maintained by the International Earth Rotation Service, which for most practical purposes is equivalent to the World Geodetic System 1984 (WGS84)

Comment on Article 4.

Several delegations suggested that the area of competence of the future organisation should be extended eastwards to 150 E to cover the same geographical area as the former Indian Ocean Fishery Commission (IOFC) with the exclusion of the areas of the former Bay of Bengal Committee and the Gulfs Committee. It was further pointed out that 150E is also the eastern limit of the Indian Ocean Tuna Commission (IOTC).

One delegation (Namibia) emphasised that in considering the zone of competence, the primary principle should be to ensure that there are no management gaps left between the proposed organisation and adjacent fisheries organisations.

The delegation of Australia informed the Consultation that Australia was not in a position to accept the limit of the future body to be the said longitude. The delegation further informed the meeting that the convention area of the MHLC extended to 140 E.

The delegation of France expressed reservation to the extension of the zone of competence of the proposed organisation.

The delegation of Japan pointed out that the extension of the MHLC to140 E caused an overlap of convention area with IOTC, which during the MHLC negotiations Japan strongly urged to avoid.

The delegation of New Zealand proposed that any maps of the zone of competence should be marked as indicative only as it was the text of the agreement that had legal status

ARTICLE 5 MEMBERSHIP

[1. The Members of the Commission shall be such Members and Associate Members of FAO

(a) that are:

(i) Coastal States or associate members situated wholly or partly within the Area defined in Article 4,

(ii) States or Associate Members whose vessels engage in fishing in the Area,

(iii) Regional economic integration organizations of which any State referred to in subparagraphs (i) or (ii) above is a member and to which that State has transferred competence over matters within the purview of this Agreement; and

(b) that accepts this Agreement in accordance with the provisions of Article 25.1.

2. The Commission may, by a two-thirds majority of its Members admit to membership such other States that are not Members of FAO but are Members of the United Nations or of any of its Specialized Agencies or of the International Atomic Energy Agency provided that such States are coastal States situated wholly or partly within the Area or are States whose vessels engage in fishing in the Area defined in Article 4 and have submitted an application for membership and a declaration made in a formal instrument that they accept this Agreement as in force at the time of acceptance in accordance with Article 25.2.]

Comment on Article 5.

The Secretariat provided information on the compatibility of Article XIV of the FAO constitution with provisions of the 1995 UN Fish Stocks Agreement. The Consultation agreed to keep this matter under review and requested the Secretariat to advise further on other developments concerning Article XIV bodies.

Developing States made a statement on the issue of whether the organisation should be within or outside the FAO framework. The statement is reproduced in appendix E.

The delegation of Namibia put a blanket reservation on all Articles and paragraphs that would place the future body within the FAO framework.

REVISIONS TO ARTICLE 6 FUNCTIONS

Article 6 General Principles

1. In giving effect to the duty to cooperate in accordance with the 1982 Convention and international law, the Contracting parties, and where appropriate, the Commission, shall apply in particular the following principles:

1. take measures to prevent or eliminate overfishing and rebuild depleted stocks;

2. apply the precautionary approach in accordance with Article 6 ter;

3. adopt measures based on the best scientific evidence available to ensure the long term conservation of the fisheries resources to which this Agreement applies, taking into account the sustainable use of such resources;

4. ensure that fishing practices and management measures take due account of the need to minimize the harmful impact of fishing activities on the marine environment;

5. give full recognition to the special requirements of developing States [in the region] as set out in Article 15.

Article 6 bis Functions of the Commission

2. Subject to paragraph 1, the Commission shall have the following functions:

1. review the state of fishery resources, including their abundance and the level of their exploitation,;

2. evaluate the impact of fishing, other human activities and environmental factors on the fishery resources and on the marine environment;

3. develop measures to minimise waste, discards, catch by lost or abandoned gear, catch of non-target species and impacts on associated or dependent species;

4. [minimising pollution, discards, catch by lost abandoned gear, catch of non-target living marine resources and impacts on associated or dependent living marine resources, in particular, endangered living marine resources, though measures including, to the extent practicable, the development and use of selective, environmentally safe and cost-effective fishing gear and techniques;]

5. promote and co-ordinate and, as appropriate, undertake research activities on the fishery resources occurring in the Area and in contiguous areas, including non-target species and the marine environment, taking into account the environmental and oceanographic characteristics and dynamics of the area;

6. develop rules for the collection and verification of scientific and statistical data, as well as for the submission, publication, dissemination and use of such data;

7. assemble, publish and disseminate information regarding fishery resources, while maintaining confidentiality where appropriate;

8. collect, and share in a timely manner, data concerning fisheries activities, in particular on vessel position, catch of target and non-target species and fishing effort;

9. adopt, and set standards for observer programmes for the conduct of observation, including, inter alia, arrangements for the placing of observers by a Contracting Party, on vessels flying the flag of another Contracting Party, and an appropriate level of coverage for different sizes of fishing vessels;

10. develop rules and procedures for the monitoring, control and surveillance of fishery activities in order to ensure compliance with conservation and management measures adopted on the basis of the present Agreement including a system of verification incorporating observation and inspection;

11. develop measures to prevent, deter and eliminate illegal, unreported and unregulated, fishing (IUU fishing);

12. in accordance with international law and any applicable instruments, draw the attention of any State which is not a Contracting Party, to any activities which, undermine the effectiveness of conservation and management measures adopted under this Agreement.

13. formulate and adopt conservation and management measures necessary for ensuring the long term sustainability of the fishery resources based on the best scientific evidence available, taking into account the precautionary approach, such as, inter alia:

i) regulating fishing methods and fishing gear;

ii) prescribing the size or sex for individuals of specified species;

iii) regulating the total catch of any species, including the catch of non-target species, and of fishing effort and, where appropriate, their allocation among Contracting Parties;

iv) establishing open and closed fishing seasons and areas; v) designating regions and sub-regions;

vi) protection of the marine environment;

vii) other measures regulating or protecting any species as appropriate.

14. determine the nature and extent of participation in fishing.

15 Promote co-operation and co-ordination between members of the commission to ensure that conservation and management measures for straddling fish stocks in areas under national jurisdiction and measures for the same stocks on the high seas are compatible.

16 promoting scientific research in support of fisheries conservation and management

17 protecting biodiversity in the marine environment

Article 6 ter Application of the Precautionary Approach

In applying the precautionary approach, the Commission shall be more cautious when information is uncertain, unreliable, or inadequate. The absence of adequate scientific information shall not be used as a reason for postponing or failing to adopt conservation and management measures. The Commission shall also apply best international practices regarding the application of the precautionary approach, including Article 6 and Annex II of the 1995 Agreement and the 1995 Code of Conduct for Responsible Fisheries.

Article 6 quat Reporting

SWIOFC shall transmit, after each session, to the Director-General of the FAO, a report embodying its views, recommendations and decisions, and make such other reports to the Director-General of the FAO as it may deem necessary or desirable. Reports of the committees and working groups of SWIOFC provided for in Article 10 of the Agreement shall be transmitted to the Director-General of the FAO through SWIOFC.

Article 6 quint Fishing Opportunities

1. In determining the nature and extent of participatory rights in fishing opportunities, the Commission shall take into account, inter alia:

(a) the state of fishery resources including other living marine resources and existing levels of fishing effort, taking into account the advice and recommendations of the Scientific Committee;

(b) respective interests, past and present fishing patterns, including catches, and practices in the Area;

© the stage of development of a fishery;

(d) the interests of developing States in whose areas of national jurisdiction the stocks also occur;

(e) contributions to conservation and management of fishery resources in the Area, including the provision of information, the conduct of research and steps taken to establish co-operative mechanisms for effective monitoring, control, surveillance and enforcement;

(f) contributions to new or exploratory fisheries, taking account of the principles set out [in article 6.6 of the 1995 Agreement];

(g) the needs of coastal fishing communities which are dependent mainly on fishing for straddling fish stocks covered by this Agreement; and

(h) the needs of coastal States whose economies are overwhelmingly dependent on the exploitation of fishery resources.

2. In applying the provisions of paragraph 1, the Commission may, inter alia:

(a) designate annual quota allocations or effort limitations or both for Contracting Parties;

(b) allocate catch quantities for exploration and scientific research; and

© set aside fishing opportunities for non-parties to this Convention, if necessary.

3. The Commission shall, subject to agreed rules, review quota allocations, effort limitations and participation in fishing opportunities of Contracting Parties taking into account the information, advice and recommendations on the implementation of, and compliance with, conservation and management measures by Contracting Parties.

Comment on Article 6

It was decided that Article 6 as placed for consideration to the Consultation should be split into separate Articles related to Principles, Functions, Precautionary Approach, Reporting and Fishing Opportunities.

ARTICLE 7. FUNCTIONING OF THE COMMISSION

1. ´Decisions of the Commission on matters of substance, except matters dealt with under Article 8, shall be taken by consensus of the Contracting Parties present. The question of whether a matter is one of substance shall be treated as a matter of substance.

2. Decisions on matter other than those referred to in paragraph 1 shall be taken by a simple majority of the Contracting Parties present and voting.

3. [The Commission may have a Secretariat which shall be appointed in accordance with Article 14.]

4. SWIOFC may by consensus adopt and amend its own Rules of Procedure provided that such Rules of Procedure or the amendment are not inconsistent with this Agreement or with the FAO Constitution.

5. A majority of the total membership of SWIOFC shall constitute a quorum.

6. SWIOFC shall elect a Chairperson and two Vice-Chairpersons from among the Contracting Parties with the terms and conditions of appointment to be determined by the Commission. They shall hold office for two years and may be re-elected. The Chairperson and the Vice-Chairperson shall not be represented by the same Contracting Party.

7. The Chairperson of SWIOFC shall normally convene a regular session of SWIOFC every year unless otherwise directed by a majority of the Contracting Parties. The site and date of all sessions shall be determined by SWIOFC in consultation with the Director-General of FAO.

8. The Headquarters of SWIOFC shall be at the FAO Sub-Regional Office for the Southern and Eastern Africa. However, SWIOFC, after consultation with the Director-General of FAO, may decide to choose another location [within the region] provided that the costs associated with another location shall be funded from the autonomous budget of SWIOFC.

9. SWIOFC shall, by consensus of the Contracting Parties present, adopt and amend its own Financial Regulations, provided that such Regulations shall be consistent with the principles embodied in the Financial Regulations of FAO. Such Regulations shall be reported to the Finance Committee of FAO which shall have the power to disallow such Financial Regulations or amendment if it finds that they are inconsistent with the principles embodied in the Financial Regulations of FAO.

Comment on Article 7

This article needs to be reviewed following further consideration of the structure of the proposed organisation

REVISED ARTICLE 8 MANAGEMENT MEASURES

1. The measures referred to in Article [6 2.11] shall be adopted by consensus. When that is not possible to achieve, they shall be adopted by a two-thirds majority of Members of SWIOFC present and voting. The text of such recommendations shall be promptly communicated by the Secretary of SWIOFC to each Contracting Party.

2. Subject to the provisions of this Article, the Contracting Parties of SWIOFC shall give effect to any measures made by SWIOFC under Article [6 2.11] from the date determined by SWIOFC, which shall not be before the period for objection provided for in this Article has elapsed.

3. [A Contracting Party which has voted against a measure under Article 6 2.3 or which was absent during the meeting at which the decision was made may, within sixty days of the adoption of the decision object to it and in that event shall not be under obligation to give effect to that measure. A Contracting Party may at any time withdraw its objection and give effect to a measure. The measure shall however remain binding on all other Contracting Parties unless the Commission decides otherwise. ]

4. Any Contracting Party which has voted against a measure under paragraph 3 shall at the same time provide a written explanation of its reasons for making the objection and, where appropriate, its proposals for alternative measures which the Contracting Party is going to implement. The explanation shall specify inter alia whether the basis for the objection is that:

(i) the Contracting Party considers that the measure is inconsistent with the provisions of this Agreement;

(ii) [the Contracting Party cannot practicably comply with the measure;]

(iii) the measure unjustifiably discriminates in form or in fact against the Contracting Party; or

(iv) [other special circumstances apply;]

5. The Chairperson of SWIOFC shall notify each Contracting Party immediately upon receipt of each objection or withdrawal of objection.

6. In the event that any member invokes the objection procedure set out in this Article the Commission shall hold an extraordinary meeting at the request of any other member in order to review the relevant measure. At the time of such a meeting and within 30 days following the meeting, any other Member shall have the right to object to the measure according to paragraph 3 above, in which case, the Member shall no longer be bound by the measure.

7. Pending the conclusion of an extraordinary review meeting called in accordance with paragraph 6 above, any Member may request an ad hoc expert panel established on the basis of procedures adopted by the Commission, to make recommendations on any interim measures aimed at ensuring the conservation and management of the resources to which the measure under objection applies. Subject to paragraph 8 below, such interim measures shall be binding on all Members if all Members (other than those which notified the objections at the basis of the procedure) agree that the long term sustainability of the resources covered by this Agreement would be undermined in the absence of such interim measures.

8. Any Member which invokes the procedure set out in this Article may at any time withdraw its objection. In such case, the member shall become bound by the measure immediately if it is already in effect or at such time as it may come into effect under this Article.

9. This Article is without prejudice to the right of any member to invoke the dispute settlement procedures set out in Article [XXI] in respect of a dispute concerning the interpretation or application of this Agreement, in the event that all other methods to settle the dispute, including the procedures set out in this Article, have been exhausted.

Comment on Article 8

The thrust of the modifications was to ensure that the objection procedure would not be used as an opt-out strategy

ARTICLE 9 COMPATIBILITY OF CONSERVATION AND MANAGEMENT MEASURES

1. In the case of straddling stocks, conservation and management measures established for the high seas and those adopted for areas under national jurisdiction shall be compatible in order to ensure conservation and management of fish stocks in their entirety. To this end, the Contracting Parties have a duty to cooperate for the purpose of achieving compatible measures in respect of such stocks as occur in the area to which this Agreement applies and in areas under the jurisdiction of any Contracting Party. This compatibility shall be ensured in such a way which does not undermine measures established in accordance with articles 61 and 119 of the 1982 Convention.

1 bis. In determining compatible measures, Contracting Parties shall take into account the biological unity and other characteristics of the stocks and the relationship between the distribution of the stocks, the fisheries and the geographical peculiarities of the region concerned, including the extent to which the stocks occur and are fished in areas under national jurisdiction.

2. The coastal States and the Commission shall develop and agree on standards for reporting and exchanging data on fisheries for the stocks concerned as well as statistical data on the status of the stocks.

3. Each Contracting Party shall keep the Commission informed of its measures and decisions taken in accordance with this article.

Comment on Article 9

With regard to straddling fish stocks, the modification aimed at ensuring that conservation measures taken by the Organisation did not adversely affect the management of stocks under National Jurisdiction.

ARTICLE 10 COMMITTEES, WORKING GROUPS AND SPECIALISTS

1. SWIOFC may establish a scientific committee, a compliance committee, and such temporary, special or standing committees or working groups to study and report, and where appropriate, decide, on matters pertaining to the purposes of SWIOFC.

1 bis Each Contracting Party shall be entitled to appoint one representative to the scientific committee, compliance committee, and any other committees or working groups that may be established. Such representative may be accompanied by advisers.

2. The committees and working groups referred to in paragraph 1 above shall be convened by the Chairperson of SWIOFC at such times and places as are determined by the Chairperson in consultation with the Director-General of FAO, as appropriate.

3. The establishment of committees and working groups referred to in paragraph 1 above and the recruitment or appointment of specialists shall be subject to the availability of the necessary funds in the relevant chapter of the approved budget of SWIOFC. Before taking any decision involving expenditures in connection with the establishment of committees and working groups and the recruitment or appointment of specialists, SWIOFC shall have before it a report from the Secretary of SWIOFC on the administrative and financial implications thereof.

An alternative proposal was put forward by the European Community, however, there was no time for it to be considered. It was agreed that the text would be included as alternative text for future consideration.

Proposed new title and working of Article VIII - Committees, Working Groups and Specialists

Article 10 Subsidiary Bodies

1. The Commission shall establish a Permanent Scientific Committee, of which it shall define the functions. Among these will figure, in particular, to provide the Commission with scientific advice and recommendations for the formulation of conservation and management measures for fishery resources covered by this Agreement, and to encourage and promote co-operation in scientific research in order to improve knowledge and review of the state of such resources.

2. The Commission shall establish a Permanent compliance committee, of which it shall define the functions. Among these shall figure, in particular co-ordinating the review of the implementation of, and compliance with, the conservation and management measures adopted on the basis of this Agreement.

3. The Commission may also establish such temporary, special or standing committees to study and report on matters pertaining to the purposes of the SWIOFC and working groups to study and recommend on specific technical problems.

4. The committees and working groups referred to in paragraphs 1,2, and 3 above shall be convened by the Chairperson of the SWIOFC at such times and places as he or she determines.

5. The establishment of committees and working groups referred to in paragraph 3 above and the recruitment or appointment of specialist shall be subject to the availability of the necessary funds in the relevant chapter of the approved budget of the Commission. Before taking any decision involving expenditures in connection with the establishment of committees and working groups and the recruitment or appointment of specialists, the SWIOFC shall have before it a report from the Secretary of the SWIOFC on the administrative and financial implications thereof.

Comment on Article 10

The consultation felt that the scientific and compliance committee would be mandatory. All other committees should be established as the need arises taking into account the cost-effectiveness. Several proposals were put forward which would have to be reconsidered in future

One delegation (Japan) emphasized that assistance to coastal developing states should not be overlooked but this would need to be addressed in another part of the agreement. The matter would need to be reconsidered further in relation to the objectives of the organisation.

ARTICLE 11 COOPERATION WITH OTHER ORGANIZATIONS

1. SWIOFC shall cooperate closely with other international fisheries and related organizations in matters of mutual interest, in particular with those organizations active in the region. The Commission may invite the organizations referred to as well as of other intergovernmental or non-governmental organizations to attend sessions of SWIOFC or meetings of the committees or working groups.

Article 11 Bis Transparency

The Commission shall promote transparency in its decision-making processes and other activities. Representatives from intergovernmental organizations and non-governmental organizations concerned with matters relevant to the implementation of this Agreement shall be afforded the opportunity to participate in the meetings of the Commission and its subsidiary bodies as observers or otherwise as determined by the Commission. The rules of procedure of the Commission shall provide for such participation. The procedures shall not be unduly restrictive in this respect. Such intergovernmental organizations and non-governmental organizations shall be given timely access to pertinent information subject to the rules and procedures, including those concerning confidentiality requirements, which the Commission may adopt.

Comment on Article 11

The consultation agreed that the proposed body should always be under the control of members. Participation by non-members is defined in Article 20 and that the criteria for inviting non-members and NGOs will be defined in the rules of procedure. It was also agreed that transparency should be located in its own article and that there would need to be provisions included on the confidentiality of information.

ARTICLE 12 FINANCES

1. Each Contracting Party shall pay its share of the autonomous budget of SWIOFC in accordance with the criteria included in the Financial Regulations of the Commission that it will adopt.

2. At each regular session, SWIOFC shall adopt its budget by consensus of its Contracting Parties, provided however that if, after every effort has been made, a consensus cannot be reached in the course of that session, the matter will be put to a vote and the budget shall be adopted by a two-thirds majority of its Contracting Parties.

3.

(a) The amount of the contribution of each Contracting Party of SWIOFC shall be determined in accordance with a scheme which SWIOFC shall adopt and amend by consensus.

(b) The scheme adopted or amended by SWIOFC shall be set out in the Financial Regulations of SWIOFC.

4. Contributions shall be payable in freely convertible currencies unless otherwise determined by SWIOFC with the concurrence of the Director-General of FAO.

5. SWIOFC may also accept donations and other forms of assistance from organizations, individuals and other sources for purposes connected with the fulfilment of any of its functions.

6. Contributions and donations and other forms of assistance received shall be placed in a Trust Fund administered by the Director-General of FAO in conformity with the Financial Regulations of FAO.

7. A Contracting Party of SWIOFC which is in arrears in the payment of its financial contributions to SWIOFC shall have no right to vote in SWIOFC if the amount of its arrears equals or exceeds the amount of the contributions due from it for the two preceding calendar years. SWIOFC may, nevertheless, permit such a Contracting Party to vote if it is satisfied that the failure to pay was due to conditions beyond the control of the Contracting Party, but in no case shall it extend the right to vote beyond a further two calendar years.

Comment on Article 12

One delegation (New Zealand) placed a reservation on this article while another delegation (China) wished to defer the discussion on this matter at a later stage.

ARTICLE 13 EXPENSES

1. Expenses incurred by delegates, their alternates, experts and advisers when attending, as government representatives, sessions of SWIOFC, meetings, its committees and working groups, as well as the expenses incurred by observers at sessions, shall be borne by the respective governments or organizations. The expenses of experts invited by SWIOFC to attend, in their individual capacity, meetings of SWIOFC, its committees or working groups shall be borne by the budget of SWIOFC.

2. The expenses for publications and communications and the expenses incurred by the Chairperson and Vice-Chairpersons of SWIOFC, when performing duties on behalf of SWIOFC between SWIOFC sessions, shall be determined and paid from the budget of SWIOFC.

3. The expenses of research and development projects undertaken by individual Contracting Parties of SWIOFC, whether independently or upon recommendation of SWIOFC, shall be determined and paid by the Contracting Parties concerned.

4. SWIOFC may accept voluntary contributions generally or in connection with specific projects or activities of SWIOFC. Such contributions shall be paid into a Trust Fund to be established by FAO. The acceptance of such voluntary contributions and the administration of the Trust Fund shall be in accordance with the Financial Regulations and Rules of FAO.

Comment on Article 13

It was suggested that the previous paragraph 4 of this article should be moved to article 12

ARTICLE 14 SECRETARIAT

1. [The Secretary of the Commission (hereinafter referred to as the "Secretary") shall be appointed by the Director-General with the approval of the Commission, or in the event of appointment between regular sessions of the Commission, with the approval of the Commission.] The staff of the Commission shall be appointed by the Secretary and shall be under the Secretary's direct supervision. The Secretary and staff of the Commission shall be appointed under the same terms and conditions as staff members of FAO; they shall, for administrative purposes, be responsible to the Director-General.

2. The Secretary shall be responsible for implementing the policies and activities of SWIOFC and shall report thereon to SWIOFC. The Secretary shall also act as Secretary to other subsidiary bodies established by SWIOFC, as required.

3. The expenses of SWIOFC shall be paid out of its budget except those relating to such staff and facilities as can be made available by FAO. The expenses to be borne by FAO shall be determined and paid within the limits of the biennial budget prepared by the Director-General of FAO and approved by the FAO Conference in accordance with the General Rules and the Financial Regulations of FAO.

Comment on Article 14

Editorial changes were suggested but discussion on the substantive issues was deferred until the structure of the body in relation to FAO was decided. This same observation applies to all other articles, which is related to the principles of an article XIV body under the FAO framework.

ARTICLE 15 RECOGNITION OF THE SPECIAL REQUIREMENTS OF DEVELOPING STATES [IN THE REGION]

Notwithstanding the provisions of Article 4, this Article applies to fishery resources and fishing within the area to which this Agreement applies and in the areas under national jurisdiction of Contracting Parties bordering on the area.

1. The Contracting Parties shall give the full recognition to the special requirements of developing States [in the region] in relation to conservation and management of fishery resources and the sustainable development of such resources.

2. The Contracting Parties recognize, in particular:

a) the vulnerability of developing States [in the region] which are dependent on the exploitation of living marine resources, including for meeting the nutritional requirements of their populations or parts thereof;

b) the need to avoid adverse impacts on, and ensure access to fisheries by, subsistence, small-scale and artisanal fishers and women fishworkers; and

c) the need to ensure that such measures do not result in transferring, directly or indirectly, a disproportionate burden of conservation action onto developing States [in the region]

3. The Contracting Parties shall cooperate through the Commission and other subregional or regional organizations involved in the management of fisheries resources: a) to enhance the ability of developing States [in the region] to conserve and manage fishery resources and to develop their own fisheries for such resources; and b) to assist developing States [in the region] to enable them to participate in fisheries for such resources, including facilitating access in accordance with this Convention.

4. Cooperation with developing States [in the region] for the purposes set out in this article shall/may include the provision of financial assistance, assistance relating to human resources development, technical assistance, transfer of technology, and activities directed specifically towards:

a) improved conservation and management of the fishery resources covered by this Convention through collection, reporting, verification, exchange and analysis of fisheries data and related information;

b) Stock assessment and scientific research; and

c) Monitoring, control, surveillance, compliance and enforcement, including training and capacity-building at the local level, development and funding of national and regional observer programmes and access to technology.

Comment on Article 15

The consultation recognised that there were two main issues involved: the high seas and waters under national jurisdiction. With regard to coastal fisheries it noted that the current formulation was acceptable to some delegations. For high seas fisheries, the consultation agreed to draw on the experience of precedents in other international fisheries bodies. The consultation also agreed that the principles would apply to straddling stocks and certain delegations considered that it would be necessary to establish a separate framework to deal with other deep-sea stocks. The majority of the delegations expressed the wish for the brackets to be removed while retaining the words ‘in the region’. However some delegations insisted that the brackets and the words therein should be deleted and that this matter needed to be reviewed

The Consultation acknowledged suggested proposals made by one delegation on this article but agreed to take up the suggestion at the next meeting.

ARTICLE 16 OBLIGATIONS OF CONTRACTING PARTIES

1. Each Contracting Party shall, in respect of its activities within the area to which the Agreement applies:

(a) collect and exchange scientific, technical and statistical data with respect to fisheries resources covered by this Agreement;

(b) ensure that data are collected in sufficient detail to facilitate effective stock assessment and are provided in a timely manner to fulfil the requirements of the Commission;

© take appropriate measures to verify the accuracy of such data;

(d) provide annually to the Commission such statistical, biological and other data and information as the Commission may require;

(e) provide to the Commission in the manner and at such intervals as may be required by the Commission, information concerning its fishing activities, including fishing areas and fishing vessels in order to facilitate the compilation of reliable catch and effort statistics; and

(f) provide to the Commission at such intervals as it may require information on steps taken to implement the conservation and management measures adopted by the Commission.

2. Each coastal State shall, in respect of activities that occur in its area of national jurisdiction relating to straddling stocks of fishery resources, provide to the Commission data required in accordance with paragraph 1.

3. Each Contracting Party shall promptly implement this Agreement and any conservation, management and other measures or matters which may be agreed by the Commission.

4. Each Contracting Party shall take appropriate measures, in accordance with the measures adopted by the Commission and international law, in order to ensure the effectiveness of the measures adopted by the Commission.

5. Each Contracting Party shall transmit to the Commission an annual statement of implementing and compliance measures, including imposition of sanctions for any violations, it has taken in accordance with this article.

6. Fishing opportunities granted to the Contracting Parties by the Commission shall be exercised exclusively by vessels flying the flag of Contracting Parties.

7. Each coastal State shall regularly inform the Commission of the measures they have adopted for fishery resources within areas of water adjacent to the area to which the Agreement applies.

8. Without prejudice to the primacy of the responsibility of the flag State, each Contracting Party shall, to the greatest extent possible, take measures, or cooperate, to ensure that its nationals fishing, including fishing vessels owned or controlled by it nationals, in the area to which the Agreement applies comply with the provisions of this Agreement. Each Contracting Party of the Commission shall, to the greatest extent possible, at the request of any other Contracting Party, and when provided with the relevant information, investigate any alleged violation by its nationals, or fishing vessels owned or controlled by its nationals, of the provisions of this Agreement or any conservation and management measure adopted by the Commission. A report on the progress of the investigation, [including details of any action taken or proposed to be taken in relation to the alleged violation,] shall be provided to the Contracting Party making the request and to the Commission as soon as practicable [and in any case within two months of such request] and a report on the outcome of the investigation shall be provided when the investigation is completed. For the purpose of this Article, a national includes a natural or a legal person.

Comment on Article 16

The consultation discussed at length paragraph 8 of this article. The present formulation incorporates the changes suggested by delegations. Some delegations (EU, China, Japan) placed reservations on that paragraph. One delegation (Australia) requested that it be reformulated.

ARTICLE 17 FLAG STATE RESPONSIBILITIES

1. Each Contracting Party shall take such measures as may be necessary to ensure that:

(a) fishing vessels flying its flag comply with the provisions of this Agreement and the conservation and management measures adopted pursuant hereto and that such vessels do not engage in any activity which undermine the effectiveness of such measures; and

(b) fishing vessels flying its flag do not conduct unauthorized fishing within areas under the national jurisdiction of any Contracting Party.

2. No Contracting Party shall allow any fishing vessel entitled to fly its flag to be used for fishing in the Area covered by this Agreement beyond areas of national jurisdiction unless it has been authorized to do so by the appropriate authority or authorities of that Contracting Party. A Contracting Party shall authorize the use of vessels flying its flag for fishing beyond areas of national jurisdiction only where it is able to exercise effectively its responsibilities in respect of such vessels under this Agreement and in accordance with international law Each Contracting Party shall take appropriate measures in respect of vessels flying its flag which are in accordance with measures adopted by the Commission and which give effect thereto, and which take account of existing international practices. These measures shall include, inter alia:

(a) measures to ensure that a flag State investigates immediately and reports fully on actions taken in response to an alleged violation for which there exist reasonable grounds by a vessel flying its flag of measures adopted by the Commission;

(b) control of such vessels in the area to which this Agreement applies by means of fishing authorization;

© requirements for marking of fishing vessels and fishing gear for identification;

(d) requirements for recording and timely reporting of vessel position, catch of target and non-target species, catch landed, catch transshipped, fishing effort, verification of such records and other relevant fisheries data;

(e) regulation of transshipment to ensure that the effectiveness of conservation and management measures is not undermined;

(f) measures to implement any observer programme agreed to by the Commission;

(g) measures to require the use of a vessel monitoring system as agreed by the Commission; and

(h) measures to minimise [pollution], discards, catch by lost or abandoned gear, catch of non-target living marine resources and impacts on associated or dependent living marine resources.

3. Each Contracting Party shall ensure that vessels flying its flag do not undermine measures agreed by the Commission through unauthorised fishing within areas adjacent to the Convention Area on stocks occurring in the Convention Area and the adjacent area.

Comment on Article 17

Delegations expressed concern with the proposal of the delegation of Australia to incorporate measures to minimise pollution, discards, catch by lost or abandoned gear, catch of non-target living marine resources and impacts on associated or dependent living marine resources. One delegation (Japan) placed a reservation to the inclusion of this particular proposal.

Two delegations (China, Japan) placed reservation on the inclusion of ‘ measures to permit access by observers from Contracting parties to carry out functions as agreed by the organisation’.

Certain delegations suggested that issues related to the marine environment should be incorporated in the section on Flag State Responsibilities.

ARTICLE 18 RECORD OF FISHING VESSELS

1. Each Contracting Party shall, for the purposes of effective implementation of this Agreement, and in compliance with international law, maintain a record of fishing vessels entitled to fly its flag and authorized to fish for stocks covered by this Agreement in the area covered by this Agreement, and shall ensure that all such fishing vessels are entered in that record.

2. Each Contracting Party shall provide annually to the Commission, in accordance with such procedures as may be agreed by the Commission, the information set out in Annex 2 to this Agreement with respect to each fishing vessel entered in the record required to be maintained under paragraph 1 and shall promptly notify the Commission of any modifications to such information.

3. Each Contracting Party shall also promptly inform the Commission of:

(a) any additions to the record;

(b) any deletions from the record by reason of:

(i) the voluntary relinquishment or non-renewal of the fishing authorization by the fishing vessel owner or operator;

(ii) the withdrawal of the fishing authorization issued in respect of the fishing vessel under paragraph 2;

(iii) the fact that the fishing vessel concerned is no longer entitled to fly its flag;

(iv) the scrapping, decommissioning or loss of the fishing vessel concerned; and

(v) any other reason,

specifying which of the reasons listed above is applicable.

Comment on Article 18

The consultation agreed to delete any reference to the Compliance Agreement. It was agreed to exclude tuna vessels and to specify the species covered under the agreement. Several delegations expressed concern about the details of information being sought in Annex II. In the view some of the delegations, it was essential to include in the Annex II of the Agreement only elements that could be effectively implemented.

ARTICLE 19 PORT STATE DUTIES AND MEASURES TAKEN BY A PORT STATE

1. Measures taken by a port State in accordance with this Agreement shall take full account of the right and the duty of a port State to take measures, in accordance with international law, to promote the effectiveness of subregional, regional and global conservation and management measures. When taking such measures, a port State shall not discriminate in form or in fact against the fishing vessels of any State.

2. Each Contracting Party shall, in accordance with measures agreed by the Commission, inter alia, inspect documents, fishing gear and catch on board fishing vessels, when such vessels are voluntarily in its ports or at its offshore terminals.

3. Port States shall not permit landings, transshipment, or supply services in relation to vessels unless they can be satisfied that fish on board the vessel have been caught in a manner consistent with the measures adopted by the Commission.

[3b Port states shall provide assistance to flag States, as appropriate and in accordance with the national laws of the port State and national law, when a fishing vessel is voluntarily in a port or at an offshore terminal of the port State and the flag State of the vessel requests the port State to provide assistance in ensuring compliance with the provisions of this Convention.]

4. In the event that a port State considers that there has been a violation by a Contracting Party vessel of a conservation and management or control measure adopted by the Commission, the port State shall draw this to the attention of the flag State concerned and, as appropriate, the Commission. The port State shall provide the flag State and the Commission with full documentation of the matter, including any record of inspection. In such cases, the flag State shall transmit to the Commission details of actions it has taken in respect of the matter.

5. Nothing in this article affects the exercise by States of their sovereignty over ports in their territory in accordance with international law.

Comment on Article 19

Australia drew attention to its proposals for consideration.

ARTICLE 20 NON- PARTIES TO THIS AGREEMENT

1. The Contracting Parties shall, either directly or through the Commission, request non-parties to this Agreement whose vessels fish in the area to which this Agreement applies to cooperate fully with the Organization either by becoming a Contracting Party to the Agreement or by agreeing to apply the conservation and management measures adopted by the Commission with a view to ensuring that such measures are applied to all fishing activities in the areas to which this Agreement applies. Such non-parties to this Agreement shall enjoy benefits from participation in the fishery commensurate with their commitment to comply with conservation and management measures in respect of the relevant stocks.

2. Contracting Parties may exchange information between each other or through the Commission on, and shall inform the Commission of activities of, fishing vessels flying the flags of the non-parties to this Agreement which are engaged in fishing operations in the area to which this Agreement applies, and of any action taken in response to fishing by non-parties to this Agreement. The Commission shall share information on such activities with other appropriate regional or subregional organizations and arrangements.

3. The Contracting Parties may, either directly or through the Commission, take measures, which are consistent with international law, and which they deem necessary and appropriate, to deter fishing activities by fishing vessels of non-parties to this Agreement which undermine the effectiveness of conservation and management measures adopted by the Commission.

4. The Contracting Parties shall, individually or jointly, request fishing entities which have fishing vessels in the area to which this Agreement applies to cooperate fully with the organization in implementing conservation and management measures, with a view to having such measures applied de facto as extensively as possible to fishing activities in that area. Such fishing entities shall enjoy benefits from participation in the fishery commensurate with their commitment to comply with conservation and management measures in respect of the stocks.

5. The Commission may, in accordance with its Rules of Procedure, invite non-parties to this Agreement to send observers to its meetings, or to the meetings of any subsidiary bodies of the Organization.

Comment on Article 20

The discussion centred on paragraph 4. After a lengthy discussion the Consultation agreed to retain the existing formulation of the paragraph.

ARTICLE 21 TRANSSHIPMENT

1. [In order to support efforts to ensure accurate reporting of catches, the Contracting Parties shall encourage their fishing vessels, to the extent practicable, to conduct transshipment in port.] A Contracting Party may designate one or more of its ports as transshipment ports for the purposes of this Agreement, and the Commission shall circulate periodically to all Contracting Parties a list of such designated ports.

2. Transshipment at a port or in an area within waters under the national jurisdiction of a Contracting Party shall take place in accordance with applicable national laws.

3. The Commission shall develop procedures to obtain and verify data on the quantity and species transshipped both in port and at sea in the area to which the Agreement applies and procedures to determine when transshipment covered by this Agreement has been completed.

4. Transshipment at sea in the area to which the Agreement applies beyond areas under national jurisdiction shall take place in accordance with any procedures established by the Commission once these have been established pursuant to paragraph 3 of this article. Such procedures shall take into account the characteristics of the fishery concerned.

Comment on Article 21

While the article was retained some delegations cautioned in applying the provisions of this article. It was stated that paragraph 4 should be clear that it did not prohibit transhipment pending the formulation of procedures by the Organisation

ARTICLE 22 GOOD FAITH AND ABUSE OF RIGHTS

Each Contracting Party shall fulfil in good faith the obligations assumed under this Agreement and shall exercise the rights recognized in this Agreement in a manner which would not constitute an abuse of rights.

Comment on Article 22

Accepted

ARTICLE 23 RELATION TO OTHER AGREEMENTS

This Agreement shall not alter the rights and obligations of Contracting Parties which arise from the 1982 Convention and other agreements compatible with the 1982 Convention and which do not affect the enjoyment by other Contracting Parties of their rights or the performance of their obligations under this Convention.

Comment on Article 23

Several delegations expressed concern at the possible inclusion of a reference to the 1995 Fish Stocks Agreement. The delegation of NZ had proposed an amendment. Two delegations (China and Japan) placed reservations on any inclusion of the 1995 Fish Stocks Agreement in the article.

ARTICLE 24 AMENDMENTS

SWIOFC may amend this Agreement by a two-thirds majority of the Contracting Parties. Amendments to this Agreement shall be reported to the FAO Council, which shall have the power to disallow them if it finds that such amendments are inconsistent with the objectives and purposes of FAO or the provisions of the FAO Constitution. If the Council considers it desirable, it may refer these amendments to the FAO Conference, which shall have the same power. However, any amendment involving new obligations for Contracting Parties shall come into force with respect to each Contracting Party only on formal acceptance of it by that Contracting Party, through an instrument of acceptance deposited with the Director-General of FAO, after two-thirds of the Contracting Parties have accepted the amendment concerned. The Director-General of FAO shall inform all the Contracting Parties, all Contracting Parties and Associate Contracting Parties of FAO, as well as the Secretary-General of the United Nations, of the receipt of instruments of acceptance and of the entry into force of such amendments. The rights and obligations of any Contracting Party that has not accepted an amendment involving additional obligations shall continue to be governed by the provisions of this Agreement as they stood prior to the amendment.

ARTICLE 25 ACCEPTANCE

1. Acceptance of this Agreement by any Member or Associate Member of FAO, including the regional economic integration organizations, referred to in Article 5.1 above, shall be effected by the deposit of an instrument of acceptance with the Director-General of FAO.

2. Acceptance of this Agreement by any State referred to in Article 5.2 above, shall be effected by the deposit of an instrument of acceptance with the Director-General of FAO. Acceptance shall become effective on the date of admission of the State, by the Commission.

3. The Director-General of FAO shall immediately inform all Contracting Parties, all Members and Associate Members of FAO and the Secretary-General of the United Nations of all acceptances that have become effective.

4. Acceptance of this Agreement may be made subject to reservations in accordance with the general rules of public international law as reflected in the provisions of Part II, Section 2 of the Vienna Convention on the Law of Treaties of 1969.

ARTICLE 26 ENTRY INTO FORCE

This Agreement shall enter into force as from the date of receipt by the Director-General of FAO of the fifth instrument of acceptance.

ARTICLE 27 WITHDRAWAL

1. Any Contracting Party may withdraw from this Agreement at any time after the expiration of two years from the date upon which the Agreement entered into force with respect to that Contracting Party, by giving written notice of such withdrawal to the Director-General of FAO who shall immediately inform all the Contracting Parties and the Members of FAO of such withdrawal. Notice of withdrawal shall become effective three months from the date of its receipt by the Director-General of FAO.

2. Any Contracting Party that gives notice of withdrawal from FAO shall be deemed to have simultaneously withdrawn from SWIOFC.

ARTICLE 28^[2] INTERPRETATION AND SETTLEMENT OF DISPUTES

1. If any dispute arises between two or more Contracting Parties concerning the interpretation or implementation of this Convention, those Contracting Parties shall consult among themselves with a view to resolving the dispute, or to having the dispute resolved by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice.

2. In cases where a dispute between two or more Contracting Parties is agreed by the parties to the dispute to be of a technical nature, and the Contracting Parties are unable to resolve the dispute among themselves, they may refer the dispute to an ad hoc expert panel established in accordance with procedures adopted by the Commission. The panel shall confer with the Contracting Parties concerned and shall endeavour to resolve the dispute expeditiously without recourse to binding procedures for the settlement of disputes.

3. Where a dispute is not referred for settlement within a reasonable time of the consultations referred to in this Article, such dispute shall, at the request of any party to the dispute, be submitted for binding decision in accordance with procedures for the settlement of disputes provided in Part XV of the 1982 Convention or, where the dispute concerns one or more straddling stocks, by provisions set out in Part VIII of the 1995 Agreement. The relevant part of the 1982 Convention and the 1995 Agreement shall apply whether or not the Parties to the dispute are also Parties to these instruments.

4. A court, tribunal or panel to which any dispute has been submitted under this Article shall apply the relevant provisions of this Convention, of the 1982 Convention, of the 1995 Agreement, as well as generally accepted standards for the conservation and management of living marine resources and other rules of international law, compatible with the 1982 Convention and the 1995 Agreement, with a view to ensuring the conservation of the fish stocks concerned.

ARTICLE 29 TERMINATION

This Agreement shall be automatically terminated if and when, as the result of withdrawals, the number of Contracting parties drops below three.

ARTICLE 30 CERTIFICATION AND REGISTRATION

Two copies in the Arabic, English, French and Spanish languages of this Agreement and of any amendments to this Agreement shall be certified by the Director-General of FAO. One of these copies shall be deposited in the archives of FAO. The other copy shall be transmitted to the Secretary-General of the United Nations for registration. In addition, the Director-General of FAO shall certify copies of this Agreement and transmit one copy to each Member and Associate Member of FAO.

Comment on Articles 24 to 30

Since these articles relate to the principles of an article XIV body under the FAO framework, and although a number of delegations commented on some of the articles, in particular, article 24 (Amendments), article 25 (Acceptance), article 26, (Entry into Force) and article 28 (Interpretation and Settlement of Disputes), discussion was deferred.

Other matters

15. The consultation was informed by the delegation of Australia that a technical meeting on deepwater resources was planned to be held in Australia April 2002.

16. The delegation of Namibia suggested that a permanent chairperson be identified to guide the consultation through the negotiation process. The consultation agreed that delegations would provide nominations for the permanent chairperson to the secretariat for deliberation by a selection committee consisting of Australia, Mauritius, Mozambique and South Africa. The selection committee will provide a shortlist of candidates for election of a permanent chairperson at the start of the next meeting. The position of honorary chairperson will remain with the host country.

17. The Secretariat thanked Mauritius, Madagascar, France and the European Union for the invaluable assistance that has been provided with regards the holding of the four meetings so far. The Consultation was informed that there was a need to identify resources to facilitate the organisation of further meetings.

18. The consultation requested the Vice-Chair (Australia), the European Commission, France and Mauritius to produce follow-up recommendations.

Follow-up actions

19. The consultation agreed on the following recommendations:

1. Urge all participants to co-operate in a spirit of compromise to establish a regional fisheries organisation in accordance with International Law, in the light of experience gathered in the general framework of other similar fisheries organisations. To this end:

• to consider procedures such as working groups to facilitate the drafting of this agreement;

• to consider the appointment of a continuing chair;

• to continue the momentum towards an agreement by meeting again within a period of six months.

2. Call participants to provide the Secretariat with views, in writing, on avenues for progress on the three issues identified below within a three-month period.

3. Request the Secretariat to provide participants for the next meeting with an assessment, in light of these comments, of possible options regarding issues central to the negotiation for resolution in a spirit of compromise, in particular:

• the accommodation of the interests of all participants in an agreement or agreements regarding high seas fisheries and straddling stocks;

• a possible framework to promote co-operation towards the sustainable development of fisheries in the areas under the jurisdiction of coastal States bordering on the Area of competence of the future Agreement;

• the role of FAO within the context of the future Agreement.

4. Call on all participants to examine options to provide assistance in planning, organising and funding future negotiations.

5. Call on participants to provide the Secretariat with nominations and appropriate details of candidates to be considered for election as the permanent chairperson at the next Consultation.

Date and place of next meeting

20. The Consultation acknowledged and discussed the offer of the delegation of the European Community to partly fund the next consultation. The Consultation acknowledged the offer of South Africa, subject to official clearance, to hold the next consultation within a period of six months. The venue and date will be agreed upon between the authorities of South Africa and the Director-General of FAO.

21. The Consultation expressed its gratitude to the Government of Madagascar for its kind hospitality in serving as the host for this Intergovernmental Consultation.

Adoption of the report

22. This report was adopted by the Intergovernmental Consultation on 9 February 2001 subject to the inclusion of the modified articles of the Draft Agreement.

Appendix A: Agenda

1. Opening of the session

2. Adoption of the Agenda and arrangements for the session

3. Presentation of the main points and review of the draft agreement for the establishment of the Southern and Western Indian Ocean Fisheries Commission.

4. Other matters

5. Follow-up actions

6. Date and place of next Meeting

7. Adoption of the report

Appendix B: List of documents

Appendix C: List of participants

Australia/Australie

TALBOT John
Head of Delegation
Manager
Agriculture Fisheries and Forestry
POB 858, Barton Act 2600
AUSTRALIA
Fax: (612) 62724875
Tel: (612) 62725760
Email: [email protected]

BOUWHUIS Stephen
Principal Legal Officer
Attorney General's Dept,
48A Deloraine Street
Lyons Act 2606
AUSTRALIA
Tel: (61 2) 6250 6071
Email: [email protected]

ROHAN Geoffrey
General Manager Operations
Australian Fisheries Management Authority,
Box 7051 CMC
Canberra ACT 2610
AUSTRALIA
Fax: (612) 62723265
Tel: (612) 62725052
Email: [email protected]

TILZEY Richard
Senior Fisheries Scientist
AFFA c/BRS, POB E11,
Kingston ACT 2604
AUSTRALIA
Fax: (61 0) 262724014
Tel: (61 0) 262724044
Email: [email protected]

RETIF Simone
Senior Assessment Officer, Sustainable Fisheries, Environment Australia
John Gorton Building,
Parks GPO Box 787 Canberra, ACT 2601
AUSTRALIA
Fax: (61 2) 6274 1006
Tel: (61 2) 6274 1412
Email: [email protected]

China/Chine

LIU Xiaobing
Head of Delegation
Director
Division of International Cooperation
Bureau of Fisheries, Ministry of Agriculture
No. 11 Nongzhanguan Nanli,
100026 Beijing
Fax: (86) 10 6419 2951/6419 2961
Tel: (86) 10 6419 2974/6419 2928
Email: [email protected]

YIN Wenqiang
Attache
Treaty and Law Department,
Ministry of Foreign Affairs
No. 2 Chaoyang Men Nan Avenue
100701 Beijing
CHINA
Fax: (86) 10 6596 3276
Tel: (86) 10 6596 3260
Email: [email protected]

WANG Lin Tang
Director
Distant Water Fisheries Department
China National Fisheries Corp.
No. 31 MingFeng Lane
100031 Beijing
CHINA
Fax: (86) 10 8806 7212
Tel: (86) 10 8806 7210

Comoros/Comores

ABDOU Soimadou Ali Mmadi
Chef de délégation
Secretaire Général
PB 41 Ministère de la Production et de l'Environnement
Moroni
COMOROS
Fax: (269) 744630/736418
Tel: (269) 744632
Email: [email protected]

HALIFA Mohamed
Directeur Général de la Pêche
PB 41 Ministère de la Production et de l'Environnement
Moroni
COMOROS
Fax: (269) 735630
Tel: (269) 735630
Email: [email protected]

RAODDAH Ibrahim
Gestionnaire Finances
Chargeé du suvi des projets et Conventions Internationales
PB 41 Ministère de la Production et de l'Environnement
Moroni
COMOROS
Fax: (269) 735630
Tel: (269) 735630
Email: [email protected]

European Community/Communauté européenne

CANDELA-CASTILLO Fuensanta
Head of Delegation
Principle Administrator
200, rue de la Loi B-1049
BRUXELLES
Fax: (32 2) 2955700
Email: [email protected]

LE VILLAIN Christophe
200, rue de la Loi B-1049
BRUXELLES
Fax: (32 2) 2955700
Tel: (32 2) 2953195
Email: [email protected]

SINQUIN Valérie
Responsable de la délégation Communauté européenne- France
Chargée de mission relations internationales
Secrétariat d'Etat à l'Outre Mer, 27 rue Oudinot
75358 Paris 07 SP
FRANCE
Fax: (33 01) 53692197
Tel: (33 01) 53692746
Email: [email protected]

ESCLAPEZ Vincent
Membre de la délégation Communauté européenne- France
Adjoint au Directeur
Affaires Maritimes La Réunion
11 Rue de la Compagnie
Saint Denis
REUNION
Tel: (262) 901960

THOMAS Benjamin
Membre de la délégation Communauté européenne- France
Chargé de Mission pour la Coopération Régionale
BP 7190 - 97719 St-Denis Messag
Cedex 9
LA REUNION
Fax: (262) 487071
Tel: (262) 487338

ENILORAC Jean René
Membre de la délégation Communauté européenne- France
Expert
Président Comité Régional des Pêches de la Réunion
Rue Maréchal Galieni
REUNION
Fax: (262) 422375
Tel: (262) 422405

France

SILVESTRE Daniel
Chef de délégation
Chargé de mission
Secrétariat Général de la Mer, 16 boulevard
Raspail 75007 Paris
FRANCE
Fax: (3301)53634178
Fax: (33 01) 53634153
Email: [email protected]

DAHALANI Youssouf
Adjoint au chef,
Services des pêche
DAF, BP 103, 97600 Mamoudzou
MAYOTTE
Fax: (269) 611282
Tel: (269) 6135 13
Email: [email protected]

BAMANA Younoussa
Président du Conseil Général
Rue de l'hopital
97600 Mamoudzou
MAYOTTE
Fax: (269) 611018
Tel: (269) 611233

LEMERCIER Philippe
Délégué IFREMER à la Réunion
IFREMER, rue Jean Bertho,
BP 60, 97822 Le Port
REUNION
Fax: (262) 433684
Tel: (262) 420340
Email: [email protected]

Iran

HOJATI SAEIDI Mohsen
Representant du Ministere l'Agriculture de la Republique d'Iran
BP 3920
Antananarivo
MADAGASCAR
Fax: (261) 20 2222298
Tel: (261) 20 2228527

Japan

NAGAHATA Daishiro
Director of International Negotiations
Fisheries Agency
Ministry of Agriculture, Forestry and Fisheries
Kasumigaseki, chiyoda-ku
100 8907 Tokyo
JAPAN
Fax: (81) 3 3502 0571
Tel: (81) 3 3591 1086
Email: [email protected]

FUKUI Shingo
Section chief, International Affairs Division
Fisheries Agency
Ministry of Agriculture, Forestry and Fisheries
Kasumigaseki, chiyoda-ku
8907 Tokyo
JAPAN
Fax: (81) 3 3502 0591
Tel: (81) 3 3591 1086
Email: [email protected]

SAITO Akira
Premier Secrétaire
Ambassade de Japon à Madagascar
BP 3863
101 Antananarivo
Fax: (261 20) 22 217 69
Tel: (261 20) 22 261 02
Email: [email protected]

TAKAGI Noriaki
Director
Japan Deep Sea Trawlers Association
Ogawacho-yasuda bldg 601
6 Kanda-ogawacho 3-chome chiyodaku
101-0052 Tokyo
JAPAN
Fax: (81) 3 3233 3267
Tel: (81) 3 3291 8508
Email: [email protected]

NAKAYAMA Munemoto
Director
Japan Deep Sea Trawlers Association
Ogawacho-yasuda bldg 601
6 Kanda-ogawacho 3-chome chiyodaku
101-0052 Tokyo, JAPAN
Fax: (81) 3 3233 3267
Tel: (81) 3 3291 8508

OIKAWA Masaki
Expert en Pêche de la JICA du MPRH
BP 1699
101 Antananarivo
Fax: (261 20) 22 439 27
Email: [email protected]

Kenya

KARIUKI Johnson
Assistant Director of Fisheries
Fisheries Department
Museum Hill
PO Box 58187
Nairobi, KENYA
Fax: (254-2) 743699
Tel: (254-2) 742320/742349
Email: [email protected]

Madagascar

RABESALAMA Aimé Robert
Chef de Délégation
Directeur de la pêche
Ministère de la pêche et des ressources halieutiques
BP 1699, Antananarivo
MADAGASCAR
Fax: (261) 20 22 416 55
Tel: (261) 20 22 406 50

CHRISTOPHE Veloson Tsirafy
Directeur du Cabinet
Ministère de la pêche et des ressources halieutiques
BP 1699, Antananarivo
Fax: (261) 20 22 416 55
Tel: (261) 20 22 406 41/409 01
Email: [email protected]

RAHERISOA Frediss Alvin
Chef Projet - Chef Service Legislation
Contentieux
Ministère de la Pêche, et des ressources halieutiques
BP 1699, Antananarivo
MADAGASCAR
Fax: (261) 20 22 40907
Tel: (261) 32 0755850

EDALY
Directeur Appui Côntrole, Surveillance
Ministère de la pêche, et des ressources halieutiques
BP 1699, Antananarivo
MADAGASCAR
Fax: (261) 20 22 408 94
Tel: (261) 20 22 40650
Email: [email protected]

RAZAIHARIDERA Noro Olga
Service législation et contentieux
Ministère de la pêche, et des ressources halieutiques
BP 1699, Antananarivo
MADAGASCAR
Fax: (261) 20 22 40907
Tel: (261) 32 02 10501

LAUZIERE Jean Louis
Conseiller Surveillance
Centre de Surveillance MPRH - UE
B P 746 Antananarivo
MADAGASCAR
Fax: (261)2022 49014
Tel: (261) 32 07 875 06
Email: [email protected]

RABEARINTSOA Simon
Chef Service pêche maritime
Ministère de la pêche, et des ressources halieutiques
BP 1699, Antananarivo
MADAGASCAR
Fax: (261) 20 22 40907
Tel: (261) 32 0755850
Email: [email protected]

RAZAFIMBELO Honoré
Chef du centre de surveillance des pêches
MPRH/Madagascar
BP 746, Antananarivo
MADAGASCAR
Fax: (261) 20 22 490 14
Tel: (261) 20 22 406 50
Email: [email protected]

Mauritius/Maurice

MUNBODH Munesh
Head of Delegation
Chief Fisheries Officer
Albion Fisheries Research Centre
Ministry of Fisheries
Port Louis
Fax: (230) 2384184
Tel: (230) 2384925
Email: [email protected]

SANDIAN Jean Noel
Ambassadeur
BP 6040 Ambanidia
Antananarivo
Fax: (261 20) 22 219 39
Tel: (261 20) 22 218 64
Email: [email protected]

DOMAH S. Booshan
Parliamentary Counsel
Attorney General's Office
5^th Floor, NPF Building
Port Louis
Fax: (230) 211 5139
Tel: (230) 212 3988
Email: [email protected]

SUBHAS Gujadhur
Second Secretary
Mauritius Embassy
BP 6040 Ambanidia
Antananarivo
Fax: (261 20) 22 219 39
Tel: (261 20) 22 218 64
Email: [email protected]

RATHACHAREN Shyama
Scientific Officer
Albion Fisheries Research Centre
Ministry of Fisheries
Port Louis
Fax: (230) 2384184
Tel: (230) 238 4100
Email: [email protected]

Mozambique

BILA Rodrigues Armando
Permanent Secretary
Ministry of Fisheries
Rua Consiglieri Pedroso no. 347
CXP 1723, Maputo
MOZAMBIQUE
Fax: (258 1) 425087
Tel: (258 1) 300961

DENGO Angelica
Head of Department International Co-Operation
Ministry of Fisheries
Rua Consiglieri Pedroso no. 347
CXP 1723 Maputo
MOZAMBIQUE
Fax: (258 1) 425087
Tel: (258 1) 427443/300961
Email: [email protected]

Namibia/Namibie

OELOFSEN Burger
Head of Delegation
Director Resource Management
Ministry of Fisheries
P/Bag 13355 Windhoek
NAMIBIA
Fax: (264 61) 220558
Tel: (264 61) 246318

AMBABI Steven
Chief Control Fisheries Inspector
Ministry of Fisheries
P O Box 1594, Walvis Bay
NAMIBIA
Fax: (264) 64 205008
Tel: (264) 64 2016111
Email: [email protected]

ROCHER Pierrre
Gendor Fishing
P O. Box 3041, Walvis Bay
NAMIBIA
Fax: (264) 64 207047
Tel: (264) 64 207045
Email: [email protected]

New Zealand/Nouvelle Zélande

EMERSON William
Head of Delegation
Senior Advisor
Ministry of Fisheries
POB 1020, Wellington
NEW ZEALAND
Fax: (64 4) 4702669
Tel: (64 4) 4702650
Email: [email protected]

McIVER Jennifer
Legal Advisor
Ministry of Foreign Affairs and Trade,
Private Bag 18901 Wellington
NEW ZEALAND
Fax: (64 4) 4732103
Tel: (64 4) 4948338
Email: [email protected]

Seychelles

BOULLE David
Head of Delegation
Research Manager
Seychelles Fishing Authority,
POB 449 Victoria, Seychelles
Fax: (248) 224508
Tel: (248) 224597
Email: [email protected]

HOAREAU Basil
State Counsel
Legal Department
POB 48 Victoria Mahé
SEYCHELLES
Tel: (248) 224597
Email: [email protected]

South Africa/Afrique du Sud

TILNEY Robin
Head of Delegation
Deputy Director: Research
Marine & Coastal Management,
PVT Bag 2 Rogge Bay, 8012,
Cape Town
SOUTH AFRICA
Fax: (27 21) 4127406
Tel: (27 21) 4023105
Email: [email protected]

ROSE Barrie
Observer (Resource Manager)
Irvin & Johnson Ltd.
South Arm No 1
Cape Town Rocks
Pvt Bag X5
Waterfront 8002
SOUTH AFRICA
Fax: (27 21) 402 9902
Tel: (27 21) 402 9933
Email: [email protected]

United Republic of Tanzania/République-Unie de Tanzanie

URONU Janet Samuel
Head of Delegation
Principal Fisheries Officer
Fisheries Division
Ministry of Natural Resources and Tourism
PO Box 2462 Dar-es-Salaam
TANZANIA
Fax: (255 22) 110352
Tel: (255 22) 2122930, 2116159
Email: [email protected]

KITANA Caroline
Legal officer Foreign Service
Ministry of Foreign Affairs
PO Box 9000
Dar-es-Salaam
TANZANIA
Fax: (255) 22 211 6600
Tel: (255) 22 2111 906/11
Email: [email protected]

United Kingdom/Royaume-Uni

GRIFFITHS Nicholas
Head, Maritime Section
Foreign and Commonwealth Office
King Charles St
London SWIA 2AH
United Kingdom
Fax: (207) 270 3189
Email: [email protected]

OBSERVERS/OBSERVATEURS

Norwegian Agency for International Development/Organisme norvégien pour le développement international

LOBACH Terje
Senior Legal Advisor
Directorate of Fisheries
Box 185, 5804 Bergen
NORWAY
Fax: (47 55) 238090
Tel: (47 55) 238000
Email: [email protected]

Russian Federation/Fédération de Russie

YAKUNIN Alexandre
Chef Adjoint du Département de la Coopération Internationale
Comité d'Etat de la Pêche de la Fédération de Russie
Bvd. Rozhdestvnesky, Moscou
RUSSIE

MIGATCHEV Alexandre
Chef Expert du Département de la Coopération Internationale
Comité d'Etat de la Pêche de la Fédération de Russie
12, Bvd. Rozhdestvnesky, Moscou
RUSSIE
Email: [email protected]

VLASSOV Victor
Attaché d'Ambassade de Russie à Madagascar
BP 4006 Ambohijatovo, Ivandry
101 Antananarivo
MADAGASCAR

FOOD AND AGRICULTURE ORGANIZATION OF THE UNITED NATIONS/ORGANISATION DES NATIONS UNIES POUR L'ALIMENTATION ET L'AGRICULTURE

SATIA Benedict
Chief/Chef
International Institutions and Liaison Service/Service des institutions internationales et de liaison
Fishery Policy and Planning Division/Division des politiques et de la planification des pêches
Fisheries Department/Département des pêches
Rome, Italy/Italie
Tel: (39 06) 5705 2847
Fax: (39 06) 5705 6500
Email: [email protected]

EDESON William
Senior Legal Officer/Juriste principal
General Legal Affairs Service/Service des affaires juridiques générales
Rome, Italy/Italie
Tel: (39 06) 5705 3476
Fax: (39 06) 5705 4408
Email: [email protected]

HARRIS Aubrey
Senior Fishery Officer/Fonctionnaire principal des pêches
Subregional Office for Southern and East Africa/Bureau sous-régional pour l'Afrique australe et orientale
PO Box 3730
Harare, Zimbabwe
Tel: (263 4) 253655, 253657,
Fax: (263 4) 700724, 703497
Email: [email protected]

SSENTONGO George
Fishery Officer/Fonctionnaire des pêches
Subregional Office for Southern and East Africa/Bureau sous-régional pour l'Afrique australe et orientale
PO Box 3730
Harare, Zimbabwe
Tel: (263 4) 253655, 253657,
Fax: (263 4) 700724, 703497
Email: [email protected]

SHOTTON Ross
Fishery Resource Officer/Spécialiste des ressources halieutiques
Marine Resources Service/Service des ressources marines
Fishery Resources Division/Division des ressources halieutiques
Fisheries Department/Département des pêches
Via delle Terme de Caracalla
00100 Rome Italy/Italie
Fax: (3906) 57056481
Tel: (3906) 57053020
Email: [email protected]

SECRETARIAT/SECRÉTARIAT

HOST GOVERNMENT/GOUVERNEMENT HÔTE

FAO

Appendix D: Speech of The Honourable Abdallah Houssene, Minister of Fisheries and Marine Resources, Madagascar

Very conscious as I am of the honour of being afforded the opportunity to speak at the start of these few days of serious discussions on the establishment of the Southwest Indian Ocean Fisheries Commission, I should like first of all to offer a warm welcome to the various participants, particularly those who do not live in Madagascar. To these delegates, I wish also a pleasant stay and success in their endeavours while they are here with us. I think that outside the hours of work involved in this meeting, they will also be expected to undergo the “torture” of sampling the myriad delights of this country!

The conservation and management of fishery resources have always been a matter of concern for many nations and the FAO is untiring in its efforts to support the various countries in this domain. This currently takes the concrete form of, and is reinforced by the application of, the Code of conduct for responsible fisheries; the concept of such a code was introduced in 1991 at the level of the FAO Committee for Fisheries. It has a worldwide scope and is addressed to every country, and especially to those which, both near and far, are concerned about the conservation of fishery resources, as well as the planning and development of fisheries. Madagascar adheres to this code and implements the appropriate measures in its management and development of fishery resources policy, including the promotion of co-operation between governments, particularly at the level of the Southwest Indian Ocean sub-region in which our country is situated. Indeed, Madagascar is developing, to a certain extent, a policy related to its geographical position and, in particular, is taking advantage of such a situation, to better share with its neighbours ideas regarding fishery management, planning and development. And this is why we are delighted to host this meeting and delighted too that you have very kindly responded to our appeal.

The present meeting is called under Resolution 1/116 adopted at the one hundred and sixteenth session of the FAO Council held in June 1999. This provision authorises the FAO to organise meetings with the members of the former Committee for the Development and Management of Fisheries in the Southwest Indian Ocean in order to complete the processes of establishing new organisations that have been provided for, and to take necessary measures concerning the management of fishery resources in the areas of competence of the former Committee.

It might be useful to remind you at this point that, under the aegis of the FAO, two technical ad hoc meetings on the future of the Southwest Indian Ocean Committee as well an Intergovernmental Consultation on the Establishment of the Southwest Indian ocean Fisheries Commission have already taken place, respectively in January 2000 in Mauritius and in July 2000 here in Madagascar and finally in Reunion in February 2001. All of these meetings have as a whole suggested strengthening regional collaboration through the establishment of a regional fisheries organisation, and a draft agreement in this respect has been discussed at different meetings. We are assembled here to continue these discussions which have progressed in a truly remarkable manner and your presence here is proof of these steps forward.

Ladies and gentlemen,

Madagascar attaches great importance to this Second Intergovernmental Consultation on the Establishment of the Fisheries Commission for the Southwest Region of the Indian Ocean. As far as we are concerned, this Commission can only be of benefit to the member countries, as it makes possible, on a permanent basis, an exchange of views on stocks and fisheries. In this context, within the framework of the activities of the Indian Ocean Commission, (which includes the five islands of the Southwest Indian Ocean) we have taken part in a regional workshop aimed at setting up a fishery monitoring project, which was held in Mauritius at the beginning of September 2001. This concerns only the highly migratory fish species, but such a project, in many respects, ties in well with this future Commission which we want to set up. Relatively speaking, I am convinced of the complementary nature of the two matters, the backdrop to which is none other than the conservation and management of fishery resources. Therefore Madagascar intends to place at the disposal of this noble mission its willingness to co-operate and share its experience. We are ready to discuss and help advance the establishment process of this Commission. In a word, we praise the initiative of this Commission, and we are going to deploy the maximum of effort to bring it about; we are convinced other countries will support this idea. May diversity and our respective specific characteristics serve as a link to unite us.

At the origin of all this, we must unanimously acknowledge the role of the FAO which has served, is serving and will continue to serve as the mainspring of this great project. So I should like to offer thanks to the FAO for its remarkable work, as much with regard to the objectives as to the material organisation, and for doing all of this for a number of years, as I mentioned previously. Madagascar has always benefited from the support of the FAO in the area of fishing and we have greatly appreciated its intervention in many aspects of the development of fishing, both in the form of institutional support as well as direct support to the producers. In the case of this Intergovernmental Consultation, I should particularly like to express my gratitude to the FAO Sub-Regional Representative, who has certainly been most generous with providing funds and skills in organising this meeting. Once again, thank you.

I should also like to thank the countries represented here for having replied positively to our invitation and for having also agreed that this meeting be held in Antananarivo. Despite the distance and their work load in their respective countries, the delegates have made the journey by air (perhaps a little apprehensively, in the light of recent events). But you are here, confident and determined to move forward. I am not forgetting the international and regional organisations which have wanted to grace these proceedings with their presence. A moment ago, I made mention of the regional co-operation within the Indian Ocean Commission regarding fishing activities, and I think that the obvious display of interest shown by the international and regional organisations for our work says a great deal about their intention to support and help us. To each of them, I also say THANK YOU.

I wish all the participants courage in their task, and complete success in the work of the Intergovernmental Consultation on the Establishment of the Southwest Indian Ocean Fisheries Commission. Long live Regional Co-operation, and I thank you for your kind attention.

I now declare open “the Second Intergovernmental Consultation on the Establishment of the Southwest Indian Ocean Fisheries Commission” which takes place from 25 to 28 September 2001 at Antananarivo - Madagascar.

Thank you.

Appendix E: Report of the developing States group^[3] on the FAO or non-FAO issue

Purpose of Meeting of the Developing States

At its meeting of 27^th September 2001, the developing states met to consider the proposal of the high seas fishing nations on the question of whether the compromise solution was acceptable to them on one burning issue at this meeting.

The Issue

The issue is whether the Southwest Indian Ocean Fisheries Commission should exist under the aegis of the FAO framework or outside it. At an earlier meeting, the developing coastal states had taken the view that there was no question of SWIOFC falling outside the framework of the FAO. On the other hand, the high seas fishing nations have taken the view that SWIOFC should fall outside the framework of the FAO.

The Compromise proposed by the Fishing Nations

It was reported that the high seas fishing nations had met the night before and were proposing a compromise solution. This consisted of developing a Protocol for the benefit of developing coastal states where the interests of these states would be adequately catered for. The proposal is that while this Protocol would operate under the FAO, the SWIOFC would exist outside FAO.

Decision Reached

The developing coastal states, while continuing to express their qualms about the proposal, considered that it was too fundamental a matter to be considered at the last hour of the Consultation. The best course of action for them was to go back to their government in as much as the issue involved a substantial matter of governmental policy.

They also wondered whether instead of relegating the interests of developing coastal states to a Protocol, it would not be better to produce a document with Part 1 dealing with high seas fishing with those involved retaining an autonomy of operation, if some safeguards; Part II, dealing with interests of developing coastal states, under FAO; and Part III, with such co-operation and collaboration as may be appropriate between the fishing nations and the coastal developing states.

Mutual Understanding of Concerns

While they promised their entire collaboration on the resolution of the issue, they wanted to feel sure that every one involved was working for a legal frame-work where all interests were adequately and fairly catered for and effectively pursued, in accordance with international law and, more particularly the provisions of UNCLOS.

Conclusion

However it be, delegates of developing coastal states felt that

1. they have been taken unaware on such a fundamental issue, contrary to their expectations.

2. the issue involved governmental policy in which they were incompetent to decide and needed deeper reflection at all levels and could not be resolved at this Conference out of the blue; and

3. it was not a nature that could be prompted one way or the other without an exhaustive and open consideration of all the pros and cons

Appendix F: Summary of major conclusions and recommendations

PRESENTATION OF THE MAIN POINTS AND REVIEW OF THE DRAFT AGREEMENT FOR THE ESTABLISHMENT OF THE SOUTHWEST INDIAN OCEAN FISHERIES COMMISSION

The new delegations (China, Japan, United Kingdom) expressed their willingness to be present at this Consultation and stated that they considered all articles of the agreement were open for discussion.

(paragraph 13)

Modifications made to the draft agreement follow:

(paragraph 14)

PREAMBLE and ARTICLE 1: Definitions. The Consultation expressed the opinion that these Articles would be treated after the entire document had been reviewed

(page 3)

ARTICLE 2: Establishment of the Commission. Unchanged

(page 4)

ARTICLE 3: Objectives. Unchanged

(page 5)

ARTICLE 4: Area of competence. Unchanged

(page 5)

ARTICLE 5: Membership. The Consultation agreed to keep this matter under review and requested the Secretariat to advise further on other developments concerning Article XIV bodies

(page 6)

ARTICLE 6: Functions. Modified and split into separate Articles related to Principles, Functions, Precautionary Approach, Reporting and Fishing Opportunities

(page 6)

ARTICLE 7: Functioning of the Commission. To be reviewed following further consideration of the structure of the proposed organisation

(page 9)

ARTICLE 8: Management measures. Modified

(page 10)

ARTICLE 9: Compatibility of conservation and management measures. Modified

(page 11)

ARTICLE 10: Committees, working groups and specialists. Modified. Several proposals were put forward which would have to be reconsidered in future

(page 11)

ARTICLE 11: Co-operation with other organizations. Modified. The consultation agreed that the proposed body should always be under the control of members. It was also agreed that transparency should be located in its own article and that there would need to be provisions included on the confidentiality of information.

(page 13)

ARTICLE 12: Finances. Modified

(page 13)

ARTICLE 13: Expenses. Modified

(page 14)

ARTICLE 14: Secretariat. Discussion on the substantive issues was deferred until the structure of the body in relation to FAO was decided. This same observation applies to all other articles, which is related to the principles of an article XIV body under the FAO framework

(page 14)

ARTICLE 15: Recognition of the special requirements of developing states [in the region]. Unchanged. The consultation recognised that there were two main issues involved: the high seas and waters under national jurisdiction. For high seas fisheries, the consultation agreed to draw on the experience of precedents in other international fisheries bodies. The consultation also agreed that the principles would apply to straddling stocks. The Consultation acknowledged suggested proposals and agreed to take these up at the next meeting

(page 15)

ARTICLE 16: Obligations of contracting parties. Modified

(page 16)

ARTICLE 17: Flag state responsibilities. Modified

(page 17)

ARTICLE 18: Record of fishing vessels. Modified. The consultation agreed to delete any reference to the compliance agreement. It was agreed to exclude tuna vessels and to specify the species covered under the agreement.

(page 18)

ARTICLE 19: Port state duties and measures taken by a port state. Modified

(page 19)

ARTICLE 20: Non-parties to this agreement. After a lengthy discussion the Consultation agreed to retain the existing formulation of paragraph 4 of this Article.

(page 19)

ARTICLE 21: Transhipment. Retained

(page 20)

ARTICLE 22: Good faith and abuse of rights. Accepted

(page 21)

ARTICLE 23: Relation to other agreements. Unchanged

(page 21)

ARTICLES 24 TO 30: Amendments, Acceptance, Entry into force, Withdrawal, Interpretation and settlement of disputes, Termination, Certification and registration. Since these articles relate to the principles of an article XIV body under the FAO framework, discussion was deferred

(page 21)

OTHER MATTERS

The consultation agreed that delegations would provide nominations for the permanent chairperson to the secretariat for deliberation by a selection committee consisting of Australia, Mauritius, Mozambique and South Africa. The selection committee will provide a shortlist of candidates for election of a permanent chairperson at the start of the next meeting. The position of honorary chairperson will remain with the host country. (paragraph 15)

FOLLOW UP ACTIONS

The consultation agreed on the following recommendations:

1. Urge all participants to co-operate in a spirit of compromise to establish a regional fisheries organisation in accordance with International Law, in the light of experience gathered in the general framework of other similar fisheries organisations. To this end:

• to consider procedures such as working groups to facilitate the drafting of this agreement;

• to consider the appointment of a continuing chair;

• to continue the momentum towards an agreement by meeting again within a period of six months.

2. Call participants to provide the Secretariat with views, in writing, on avenues for progress on the three issues identified below within a three-month period.

3. Request the Secretariat to provide participants for the next meeting with an assessment, in light of these comments, of possible options regarding issues central to the negotiation for resolution in a spirit of compromise, in particular:

• the accommodation of the interests of all participants in an agreement or agreements regarding high seas fisheries and straddling stocks;

• a possible framework to promote co-operation towards the sustainable development of fisheries in the areas under the jurisdiction of coastal States bordering on the Area of competence of the future Agreement;

• the role of FAO within the context of the future Agreement.

4. Call on all participants to examine options to provide assistance in planning, organising and funding future negotiations.

5. Call on participants to provide the Secretariat with nominations and appropriate details of candidates to be considered for election as the permanent chairperson at the next Consultation.

(paragraph 19)

DATE AND PLACE OF NEXT MEETING

The Consultation acknowledged and discussed the offer of the delegation of the European Community to partly fund the next Consultation. The Consultation acknowledged the offer of South Africa, subject to official clearance, to hold the next consultation within a period of six months

(paragraph 20)

Back cover

This document is the final report of the Second Intergovernmental Consultation on the Establishment of a Southwest Indian Ocean Fisheries Commission, which was held in Antananarivo, Madagascar, from 25 to 28 September 2001. A draft agreement for the establishment of a regional fisheries body in the Southwest Indian Ocean was reviewed. The Consultation was attended by delegates from Australia, China, Comoros, European Community, France, the Islamic Republic of Iran, Japan, Kenya, Madagascar, Mauritius, Mozambique, Namibia, New Zealand, Seychelles, South Africa, the United Republic of Tanzania and the United Kingdom. Representatives of the Indian Ocean Commission (IOC), the Norwegian Agency for International Development (NORAD) and the Russian Federation were observers to the Consultation. The Consultation visited most of the articles of the agreement and considered numerous proposals. Three substantive issues need to be resolved for progress: accommodating all interests within an agreement or agreements on high seas fisheries and straddling stocks; a framework for cooperation in the sustainable development of fisheries under the jurisdiction of coastal developing states; the role of FAO in the future Agreement.