A **r 
•h fi * COMMISSION OF THE EUROPEAN COMMUNITIES 
Brussels, 22.11.1995 
COM(95) 591 final 
COMMUNICATION FROM THF: COMMISSION IP THF: COUNCIL 
ON THE SIGNATURE OF THE AGREEMENT FOR THE IMPLEMENTATION 
OF THE PROVISIONS OF THE UNITED NATIONS CONVENTION ON THE 
LAW OF THE SEA OF 10th DECEMBER 1982 RELATING TO 
THE CONSERVATION AND MANAGEMENT OF STRADDLING STOCKS AND 
HIGHLY MIGRATORY FISH STOCKS 

Communication from the Commission to the Council 
Part A 
Explanatory Memorandum 
On 4 August 1995. the United Nations' Conference on Straddling Stocks (stocks offish which 
are found both inside and outside exclusive economic zones) and Highly Migratory Species 
adopted, without a vote, a draft Agreement1 for the purposes of applying the provisions of the 
United Nations Convention on the Law of the Sea of 10 December 1982 as regards the 
conservation and management of these stocks. 
The Community has now to decide whether to sign this Agreement with a view to later 
ratification. 
This decision should take into account both the context of the development of international 
relations in fisheries and the negotiating instructions given by the Council. 
A detailed evaluation of the draft Agreement is attached in Annex 13. 
The Community has played an important role in the development of international fishing 
relations both by defending the interests of countries fishing the high seas and in affirming 
its commitment to effective measures to conserve and manage resources. 
This central role of the Community would be put in doubt if it were to reject the conclusions 
of this conference. It would then be in a very minority position which would exclude any 
possibility of renegotiating the terms of the Agreement and could only lead on to undesirable 
developments in international relations concerning fisheries. 
The Community has achieved the goals that it set itself in the most important areas of the 
negotiations, in particular on the three points which were considered as primordial by the 
Council of fisheries ministers held on 15 June 1995, namely the necessarily open character 
of regional fisheries organizations, safeguarding of the jurisdiction of flag states and a 
balance in obligations as between coastal states and flag states. 
In the area of the management and conservation of fishery resources, the Agreement 
introduces a number of improvements which should make it possible lo deal positively with 
the current difficult situation which is the source of manifold tensions among countries 
involved in fishery activities. 
This proposal is designed to make it possible for the Community to sign this Agreement on 
4 December, which is the date on which it will be opened for signature by the states 
concerned at the headquarters of the United Nations. 
Document A / CONF. 164/33 of 3 August 1995. 
fi-C 
This signature is an exclusive competence of the Community, on the basis of the requirement 
under the common Iisheries policy that uniform rules apply on identical terms to all 
Community nationals. This exclusive competence of the Community, which the Commission 
is determined to defend, will result in an undertaking on behalf of all the Member States, 
which in turn are responsible for adopting measures for the effective implementation of the 
Agreement to their vessels and nationals. 
/I fa 
Part B 
Proposal 
On the basis of the evaluation given above and in Annex B, the Commission proposes that 
the Council decide that 
(A) At the earliest opporlunily, the 1 European Community should sign the Agreement for 
the purposes of applying 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 stocks and highly migratory species, at the same tune depositing with the 
Secrclariat-Ceneral of the United Nations a statement in conformity with Article 47, 
paragraph 2 (a) of the Agreement as well as interpretative statements in accordance 
with Annex A hereto; 
(b) the President of the Council should appoint the person entitled to sign the Agreement 
in the name of the European Community. 
At 
ANNEX A 
Statements by the Community to he deposited 
at the time of the signing of the Agreement 
Â. Statement of competence in aceoniance with Article 47<2X;») 
B. interpretative statement 
<7 
Al 
DECLARATION OF THE EUROPEAN COMMUNITY 
MADE PURSUANT TO ARTICLE 47(2) OF THE Agreement FOR THE 
IMPLEMENTATION OF THE PROVISIONS OF UNCLOS RELATING TO 
THE CONSERVATION AND MANAGEMENT OF STRADDLING STOCKS AND 
HIGHLY MIGRATORY SPECIES 
Article 47(2)(a) of the Agreement stipulates that in cases where an international organization 
as referred to in Annex IX, Article 1, of the Convention has competence over all matters 
governed by this Agreement, at the time of signature or accession, such international 
organization shall make a declaration stating: 
(i) that it has competence for all matters governed by this Agreement. 
(ii) that, for this reason, its Member Stales shall not become States parties, except in 
respect of their territories for which the international organization has no responsibility 
and 
(iii) that it accepts the rights and obligations of States under this Agreement. 
Pursuant to this provision the European Community hereby declares 
(i) that it has competence over all matters governed by this Agreement 
(ii) that for this reason its Member States shall not become States Parties, except in 
respect of their territories for which the European Community has no responsibility 
and 
(iii) that it accepts the rights and obligations of States under this Agreement 
f 
/M 
Draft interpretative statement 
1. On signing 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 stocks and highly migratory species, the 
European Community declares that it considers that the Agreement constitutes a major 
effort in ensuring the long-term conservation and sustainable use of straddling fish 
stocks and highly migratory fish stocks and in promoting international cooperation to 
that end. 
2. The European Community notes that Article 21 is not applicable before the expiry of 
the period of two years mentioned in that Article. This transitional period gives no 
State the right to maintain or apply unilateral measures pending the establishment of 
inspection schemes by regional or subregional Iisheries management organizations or 
arrangements. 
3. For the purposes of applying Article 21 of the Agreement, it is the understanding of 
the European Community that when the Hag state declares that it will exercise its 
jurisdiction over a fishing vessel Hying its Hag on the high seas, the authorities of the 
inspecting State shall immediately abandon the vessel and leave to the discretion of 
the flag state the measures to be taken with regard to that fishing vessel, in accordance 
with Article 19 of the Agreement. Any dispute regarding this issue must be settled in 
conformity with the procedures provided for in Part VIII of the Agreement (Peaceful 
settlement of disputes). No State shall invoke such disputes to justify keeping control, 
on the high seas, of a vessel which does not fly its flag. 
4. The European Community stresses that the use of force in Article 22 is an exceptional 
measure based on the strictest respect of the principle of proportionality and that any 
abuse will expose the inspecting State to international liability. 
The European Community considers furthermore that the wording of the Agreement 
on this issue must be rendered more specific in accordance with the relevant principles 
of international law in the framework of the regional ami subregional Iisheries 
management organizations and arrangements foreseen. 
Q> 
A 
ANNEX B 
Evaluation of the results of the United Nations Conference on straddling stocks 
and highly migratory fish stocks 
Â 
Evaluation of the results of the United Nations Conference on straddling stocks 
and highly migratory fish stocks 
On 4 August 1995 the United Nations Conference on Straddling Stocks (stocks of fish 
which are found both inside and outside exclusive economic zones) and Highly Migratory 
fish Stocks adopted, without a vote, a draft Agreement for the implementation of the 
provisions of the I Iniied Nations Convention on the Law of the Sea of 10 December 19X2 
as regards the conservation and management of these stocks.1 
In a letter addressed to the President of the Conference the Community said its 
competent authorities would evaluate the Agreement in order to verify whether the terms 
of reference•' which the United Nations General Assembly had given the Conference had 
been properly observed. 
The evaluation had also to take into account, at Community level, the negotiating 
directives4 drawn up by the Council in the light of the political priorities laid down in the 
conclusions of the Council meeting of 15 June 1995 on fisheries." 
The purpose of this paper is to set the Commission's assessment before the Council and 
Parliament so that they can make the necessary evaluation. 
I.Part One - General evaluation 
1.1. Political and economic aspects 
1.1.1. Context of international fisheries relations 
The Agreement was signed in a climate of worsening relations between states fishing on 
the high seas and coastal states. This situation was not confined to relations between the 
Community and Canada but also concerned many other countries in other regions of the 
world. 
The outcome of the Conference must be assessed in the light of the evolving pattern of 
the law of the sea with its changes and conflicts since the second world war under the 
expansionist pressure of the coastal states. 
For centuries relations between coastal states were based on the theory of the freedom 
of the seas and the jurisdiction conferred upon them by common law was generally 
confined to three miles. 
Document A/CONF.164/33 of 3 August 1995. 
Document A/CONF. 164/L50 of 7 August 1995 (see Annex III). 
Document A/RES/47/192 of 29 January 1993 (see Annex III). 
Document 8819/95 Pêche 289 of 14 July 1995 (see Annex III). 
Minutes Fisheries Council of 15 June Doc. 8098/95 of 22 June 1995 (see 
Annex III). 
2 
The legal concept of territorial waters was not adopted until the 1958 Geneva Convention 
and states did not really subsequently harmonize the limits they applied, which varied 
from 3 to 12 miles. Beyond them, the principle of the freedom of the high seas 
continued to apply. 
The concept of an exclusive economic zone (EEZ) of 200 miles emerged in the seventies 
and after a period of disagreement was enshrined in the 1982 United Nations Convention 
on the Law of the Sea (UNLOSC). The same Convention consolidated the maximum 
extent of the territorial sea at 12 miles and struck a balance of interests between the 
coastal states and the states with an interest in the traditional freedom of flic high seas. 
New concepts have since been put forward such as the "mar presencial" or custodial 
jurisdiction or the reference to the possibility of extending the EEZ to 250 or even 300 
miles. The unilateral measures adopted by Canada at the beginning of 1995 when it 
applied national decisions on the high seas to conserve fisheries resources tend in the 
same direction, although at the same time they were probably designed deliberately to put 
pressure on the Conference. 
This context must be taken into consideration in looking at the need to reach a balanced 
solution in order to put an end to disputes in international fisheries relations. 
The outcome of the Conference must be viewed in a general context of efforts to 
strengthen and stabilize the legal framework for international fisheries relations and ward 
off the danger of insidious legislation by the coastal states. The international instruments 
which have to be considered in this context are, in addition to the Agreement, the 
following: 
the United Nations Convention on the Law of the Sea. which entered into force 
in November 1994; 
the Agreement adopted under the FAO in 1993 encouraging vessels fishing on the 
high seas to observe international conservation and management measures; 
code of conduct for responsible fisheries, due to be approved by the FAO 
Conference in October 1995. 
The objective of stabilizing the legal framework for international relations is in itself 
strengthened by the incorporation in the draft Agreement of Part VIII on the peaceful 
settlement of disputes. 
All the provisions of the Agreement should make it possible actually to apply the 
principle of international cooperation laid down by the UNLOSC for effective 
management and conservation of fisheries resources and to introduce arrangements for 
supervising and monitoring fishing on the high seas which will help tackle the problem 
of fishing by vessels flying the flag of states which do not meet their international 
obligations in this respect. 
The Community cannot directly or indirectly back up failure by certain parties to act 
responsibly in supervising fishing on the high seas, since this would be bound to 
encourage certain states to take unilateral, illicit action that could ultimately give rise to 
undesirable developments in the law of the sea. 
It should also be noted that the imprecision of some of the Agreement's provisions entails 
a risk of disputes over interpretation, conflict at sea and inadmissible claims of 
jurisdiction by certain coastal states, which would undermine the objective of stabilizing 
the legal framework for international relations in this sphere. In order to reduce as far 
as possible the dangers of such a development, the Community should make certain 
interpretative statements when signing (see Annex A). 
1.1.2. Context of the Conference 
A. International context 
Overfishing worldwide has led many countries to initiate a process of improving systems 
for managing and conserving fisheries resources. 
This process, launched under the FAO in the eighties, led the United Nations Conference 
on Environment and Development (UNCED) to draw up chapter 17 of Agenda 21 on the 
protection of oceans and seas when concluding its discussions in Rio de Janeiro in 
June 1992. 
The complexity of the matter led to the convening of an intergovernmental conference 
on straddling fish stocks and highly migratory species. 
The Conference's terms of reference for drawing up recommendations to be adopted by 
the General Assembly were set out as follows: 
the Conference must approach fishing on the high seas in the widest possible 
sense and must not focus solely on those of the straddling stocks which are in the 
high seas; 
consideration should also be given to highly migratory species and improving 
cooperation between states; 
the FAO has been closely involved in providing the necessary scientific or 
technical information; 
the Conference may not be considered as a way of revising the relevant provisions 
of the UNLOSC. The discussions and outcome of the Conference must be in 
accordance with the provisions of that Convention, particularly as regards the 
respective rights and obligations of the coastal states and states interested in 
fishing on the high seas. 
The United Nations General Assembly confirmed and clarified the terms of reference 
given to the Intergovernmental Conference by adopting Resolution 47/192 >on 
22 November 1992. 
As soon as the preparatory work commenced, a number of serious rifts emerged between 
the parties concerned. 
On the one side were the coastal states, which either requested that the exercise be 
confined to the high seas and designed to recognize their "specific interests" for biological 
resources in the part of the high seas adjacent to the waters under their jurisdiction or 
went as far as asking for the right to impose unilateral conservation measures on the part 
of the stocks outside their FEZ. 
On the other side were the states attached to the principle of the freedom of the high seas 
established by the UNLOSC, and these included the European Community. 
From this initial stage what are termed the coastal states received the support of main' 
developing countries and also countries with a tradition of deep-sea fishing, such as 
Norway and Russia. 
As the Conference progressed, the Community succeeded in having basic principles 
concerning compatibility and cohesion in the management of stocks on the high seas and 
in the EEZ taken into account. 
The final stage of the negotiations, centred on implementing measures, was marked bv 
acceptance by a growing number of states of the solutions proposed by the President of 
the Conference with the active support of certain countries such as the United States. 
The Community played a major role in these negotiations by frequently leading the 
countries which fish on the high seas and at the same time defending rational principles 
of management and conservation of fisheries resources. 
The value placed by the Community on rigorous management principles was not always 
viewed positively by our partners and all the Community's negotiating objectives were 
not attained. 
The draft Agreement on straddling and highly migratory stocks was nevertheless widely 
supported by the international community so that there is little likelihood that it could be 
successfully renegotiated. Rejection of the Agreement should make us reflect and we 
would have to be prepared for the consequences for the Community's international 
fisheries relations. 
B. ( \wimunity context 
The need to avoid trying to renegotiate the relevant provisions of the United Nations 
Conference on the Law of the Sea was the leitmotiv of the negotiating directives adopted 
by the Council. 
Other particularh important factors for the Community were incorporated in these 
directives: 
the need to cooperate to achieve rational management of all stocks: 
the decisive role of the regional fisheries organizations and the need for them to 
be open; 
willingness for effective implementing machinery to be established with the 
maintenance, irrespective of the circumstances, of the jurisdiction of the flag state; 
the need to strike a balance between the rights and obligations of the coastal states 
and those of states fishing on the high seas. 
Over and above these objectives, the negotiating directives stressed the need to negotiate 
in a spirit which would obtain a consensus between the Member Stales themselves and 
also for approving the outcome of the Conference. By maintaining the consensus 
between the Member States until the end of the negotiations, the Community was able 
to put forward strong positions. It was sometimes difficult to work out common positions 
between the Commission and the Member States but Community coordination worked 
throughout. 
Without ignoring the flaws in the text negotiated, we may say that the Community 
therefore achieved most of its objectives on the points which the Council considered at 
its meeting on 15 June 1955 to be the most important politically: 
the fact that regional fisheries organizations have to be open, it having been 
recognized that: "States having a real interest in the fisheries concerned may 
become members of such organization" and that: "The terms for participation ... 
shall not preclude such states from membership ... nor shall they be applied in a 
manner which discriminates..." (Article 8(3)); 
maintenance of the jurisdiction of the flag stale, it being stated that "the inspecting 
state shall, at the request of the flag state, release the vessel to the flag state". 
(Article 21(12)); 
the balance in the respective obligations of the coastal states and the flag states 
is reflected in the wording of Article 7. 
The Community succeeded in obtaining substantial improvements to many other parts of 
the text but it did not manage to prevent the negotiations from producing a less successful 
outcome on a number of points. The most important of these are set out in Part Two of 
this paper. 
Annex I contains a detailed analysis of the various points of the Agreement with regard 
to the objectives defined above. 
I.Li. Effects on resource management 
The Agreement reached by the Conference adds aspects of Iisheries resources 
management and conservation which are a useful complement to the existing law of the 
sea provisions although the agreed text falls short of the optimum sought by the 
Community on certain points. 
The introduction of the concept of a precautionary approach must be considered as an 
important and positive innovation for improving fisheries 
The reference to the "biological unity ... of the stocks" is a way of countering coastal 
countries' attempts to limit the application of the Agreement solely to the high seas and 
requires a cohesive policy for the management and conservation of resources within and 
outside the EEZ on the basis of the equal rights of all the states concerned. 
The principle of "compatibility" expressed in the Agreement makes it possible to adopt 
in international waters measures which are not merely aligned on the measures taken by 
the coastal state in its EEZ; although they are covered by different legal systems they 
must tend towards the same objective of optimum management of the same stocks. 
The Agreement strengthens the international cooperation obligation already contained in 
the UNLOSC. This obligation concerns different aspects of the conservation and 
management covered by the draft Agreement. 
First of all it stresses the essential role to be played by regional fisheries organizations 
in implementing fisheries resources management and conservation measures. The role 
of these organizations is strengthened by the introduction of supervision. 
It also strengthens cooperation on the assembly and communication of information and 
cooperative efforts in scientific research, which is essential for rational use of fisheries 
and for evaluating resources in order to coordinate conservation and management 
measures more effectively. 
It means that fisheries will be placed more firmly in the context of environmental issues, 
since account will be taken of the fact that species belong to the same ecosystem and of 
the need to maintain biodiversity and reduce discards. It also incorporates., precise 
references in the direct management of the levels of fishing effort. 
These various aspects should help improve fisheries management overall and they are 
aimed at the same objectives as the common fisheries policy. 
In order to make the provisions of the Agreement fully effective, the Community must 
not only make an effort to participate and make proposals within the various fisheries 
organizations to which it belongs but also encourage the setting-up of organizations of 
this kind wherever necessary. 
IL Part Two - Particular difficulties 
ILL Use of force 
The reference to the use of force is a subject of serious concern to the Community, as it 
has emphatically made known throughout the negotiations and in the address delivered 
at the end of the Conference. 
This reference is new in relation to the texts examined at previous sessions of the 
Conference. Because on the high seas they could undertake certain policing operations 
on vessels other than those flying their flag, certain coastal states felt this'implicitly 
allowed the use of force. At the request of certain Member Stales, the Community asked 
for the use of force to be explicitly prohibited in order to remove this ambiguity. 
While regretting that the President of the Conference did not take fuller account of the 
Community's objections, the Commission notes that the text put to the Conference limits 
the use of force to legitimate defence and cases where inspectors are prevented from 
carrying out their duties. 
The use of force should be an exceptional measure based on observance of the principle 
of proportionality and any excessive or misplaced use of force by the inspecting state 
should entail its international responsibility. 
The financial responsibility clause specific to the policing operations under this 
Agreement should act as a deterrent against undue use of force. 
In order to limit the possible disadvantages of this reference, the Commission considers 
its necessary: 
on the one hand, when the Agreement is being signed, to produce a formal 
declaration by the Community giving an interpretation that is in accordance with 
international law of the circumstances in which force might be used to apply the 
Agreement and to urge the strict observance of the principle of proportionality; 
on the other hand, to make systematic approaches to the regional fisheries 
organizations of which the Community is a member to have protocols adopted by 
them on the particular circumstances in which civilized nations' legal and 
administrative systems allow the use of force. 
H.2. General enforcement 
The outcome of the negotiations does not fully coincide with the Community's views on 
this point either. 
The Community position on the principle of tacit consent to control operations on the 
high seas by a vessel other than the flag vessel made acceptance conditional upon the 
existence of a control system multilateral^ approved by the regional fisheries 
organizations concerned. 
This condition is not fulfilled in the draft Agreement. As a result of the Community's 
objection, however, the Conference adopted an overall control system which guarantees 
that a minimum amount of procedure will be followed in the event of boarding on the 
high seas. It has furthermore been acknowledged that the rules of the regional 
organizations take precedence over the procedures laid down in the draft Agreement, the 
latter being applicable only two years after the adoption of the Agreement. 
The Community should therefore use this period to get the regional fisheries organizations 
of which it is a member to adopt rules of procedure which guarantee effective 
implementation of the management and conservation measures decided on by those 
organizations and real protection of the individual rights of the Community fishermen 
who fish in the waters covered by these organizations. 
The Commission will consequently make appropriate proposals to the Council for each 
of the organizations to which the Community belongs. These proposals will be adapted 
in line with the characteristics of the fishing activities managed by each of these 
organizations. 
11.3. Application to the developing countries 
The specific reference to developing countries is new in relation to the UNLOSC. 
Article 3(3) allows these countries to derogate from the strict requirements of the 
Agreement regarding conservation and management within their exclusive economic 
zones. 
Even if a developing country were to make use of this derogation, however, it would still 
be obliged, in view of the general principle of taking due account of others' rights and 
obligations ("due regard principle"), to take a minimum number of the conservation 
measures needed to avoid undermining the conservation measures taken by the states 
fishing in the adjacent sector of the high seas. 
The other provisions of the Agreement concerning the developing countries, set out in 
Part VIL largely correspond to the guidelines generally followed by Community 
development aid policy on iisheries. 
III. Part Three - Competence 
1. In the preparatory work of the United Nations Conference on straddling stocks and 
highly migratory species, the Commission and the Member States preferred to avoid 
entering into fruitless, acrimonious discussions on spheres of competence at a time when 
the Community should be concentrating on problems of substance arising during the 
various sessions of the Conference. In this way the Commission and the Member States 
focused their efforts on drawing up the common position in order to ensure that the 
Community look part in the Conference in as effective, cohesive and unified a manner 
as possible. 
The issue of the allocation of competence arose when the revised negotiating directives 
were being worked out for the final session of the Conference in August 1995. At its 
meeting on 30 May, the Working Party on the External Fisheries Policy had asked the 
Council's Legal Service to provide it with a written opinion on the allocation of 
competence between the European Community and its Member States in order that the 
draft New York Agreement could be signed and concluded on the basis of the draft text 
which existed following the fifth session of the Conference. The Council's Legal Service 
considered in its opinion delivered on 26 June that the draft Agreement in its entirety 
came within the sole competence of the Community under the common fisheries policy 
and that the final clauses should be adapted accordingly. This position backs up the 
argument for exclusive competence which the Commission has always put forward in 
these circumstances. 
In its decision of 13 July authorizing the Commission to negotiate at the 
New York Conference (Doc. 8819/95 PECHE 289), the Council stressed, however, that 
the revised negotiating directives did not prejudge the issue of the allocation of 
competence between the European Community and its Member States on the basis of the 
draft text resulting from the fifth session of the Conference. 
In its statement of 30 June to the Permanent Representatives Committee the Commission 
noted that the Council's decision not to prejudge the issue of competence enabled the 
Commission to negotiate neutral final clauses. ':fc^ 
2. •This is flie context in which the Commission negotiated the final clauses, which do not 
settle the matter of competence. Article 47 makes provision for the Community's 
^cession under the two possible conditions, with either joint competence (Article 47(1)) 
«r exclusive competence (Article 47(2)). 
X Hie qsestkm of competence must now be settled and the Commission considers that 
tfee Community has sole cmapetmce over the Agreement (see Annex il). 
It is therefore tmûy the European Community which may sign and accede to the 
Agreement in accordance with Article 47(2) of the Agreement 
Ï0 
CONCLUSION 
fhe New York Agreement is the fruit of a lengthy, difficult negotiating process, fhe 
stales which took part in the Conference were pursuing, in most areas, different interests, 
which were in many cases incompatible, and this is reflected in the laboriously drafted 
provisions of the Agreement. 
fhe European Community was in the minority camp of the Conference, particularly when 
the United States changed direction at the 4th session. 
In this difficult context, the European Community took part in negotiations which gave 
rise to a final text which admittedly causes us problems but nevertheless contains useful 
aspects helpful to our interests. 
following adoption of the Agreement without a vote by the Conference, the 
European Community has a choice between three main options: 
Total rejection of the Agreement 
The European Community refuses to sign and ratify the Agreement on the 
grounds that it is inadequate and unbalanced. The main consequence of this 
would be to isolate the European Community, which would be excluded from 
future developments in international fisheries law and would face serious political 
difficulties in its bilateral relations with countries such as the United States. 
Canada, Norway. Argentina and other Latin American countries, the Pacific states 
and many developing countries which are in favour of the Agreement. Even if 
the Community is not party to the Agreement and even if (he Agreement cannot 
be invoked against the Community, the Agreement will nevertheless constitute 
international law recognized by a considerable majority of the international 
community. 
Signing of the Agreement accompanied by a statement that it will be impossible 
to ratify the Agreement until the text has been improved. 
This approach would mean seeking renegotiation of the Agreement, which could 
definitely not happen - or if it did, the Community would find itself renegotiating 
in even more difficult and unfavourable conditions, with doubtful prospects as to 
the outcome. The European Community would be accused of calling into 
question the overall balance of the text, based on delicate compromises in which 
it itself took part. It seems highly unlikely that the discussions would be 
re-opened and this would not necessarily yield a better result. 
Signing of the Agreement with an interpretative statement on the points which 
cause the European Community difficulty (use of force - jurisdiction of the flag 
state on the high seas). Ratification will take place at a later stage. 
This is the option which is most favourable in terms of cost/political benefit ratio 
and which must therefore be proposed by the Commission. We would in this way 
avoid being isolated from the rest of the world and we could 
(a) play an active part and so supervise implementation of the Agreement at 
the level of the regional organizations; 
(b) play an active part in any dispute settlement procedures and in developing 
the resulting case law; 
(c) promote our image as advocates of responsible fisheries, along the lines 
of the role we played at the FAO in the drawing-up of the Code of 
Conduct; 
(d). avoid bilateral difficulties with our main partners, which are in favour of 
the New York Agreement. 
12 
ANNEX I 
Technical evaluation of the content of the Agreement 
The terms of reference adopted for this Conference by Resolution 47/192 of the 
United Nations General Assembly of 22 December 1991 stipulated, inter alia, that 
the Conference should promote effective application of the provisions of the 
United Nations Convention on the Law of the Sea concerning fish stocks and that 
the discussions and outcome of the Conference should be fully in accordance with 
the relevant provisions of that Convention (subsequently referred to as 
"UNLOSC"). 
The title alone of the text of the Agreement adopted without a vote at the closing 
meeting of the Conference on 4 August 1995 (subsequently referred to as "NYT") 
illustrates that it is meant to be a legal instrument aimed specifically at 
implementing the relevant UNLOSC provisions. Article 4 oflhe NYT lays down 
that nothing in this Agreement shall prejudice the rights, jurisdiction and duties 
of states under the Convention and that this Agreement shall be interpreted and 
applied in the context of and in a manner consistent with the Convention. This 
context shows clearly that the NYT fits properly into a hierarchy of law with the 
UNLOSC at the top and the NYT second. The NYT is therefore to be interpreted 
and applied in the light of the Convention and not vice versa. There will certainly 
be attempts, however, to claim that the Agreement reflects the real aim of the 
Convention or to raise it to the same level as the Convention. Although it cannot 
be denied that the Agreement is intended to clarify certain provisions of the 
Convention on fisheries, it is clear that it cannot go against either the letter or the 
spirit of the Convention. This interpretation is backed up by Article 311 of the 
Convention, which prohibits the conclusion of agreements the provisions of which 
run counter to the principles of the UNLOSC. It is also a consequence of the fact 
that, unlike the Agreement concerning Part XI, the NYT is not designed to form 
an integral part of the UNLOSC. 
Articles 5. 6 and 7 of the NYT contain basic provisions on the measures to be 
taken to ensure, in a compatible manner, effective conservation of the resources 
in waters under the coastal states' national jurisdiction and also in waters subject 
to the rules for the high seas. 
Article 5 of the NYT sets out the general conservation principles already laid 
down in Article 61 of the UNLOSC on coastal slates and in Article 119 of the 
UNLOSC on states which fish on the high seas. It also incorporates the principles 
which emerged from developments which took place after the UNLOSC, i.e. 
Agenda 21. 
Article 6 of the NYT, which concerns the precautionary approach, does indeed 
introduce new aspects. It nevertheless stipulates that the measures based on the 
precautionary approach must be revised in the light oi~ new scientific data. The 
clause therefore confirms the principle laid down in Articles 61 and 119 of the 
UNLOSC whereby conservation measures must be taken on the basis of the most 
reliable scientific data. Article 6(7) of the NYT, which provides for emergency 
measures, is worded in neutral terms which cannot be said to grant the coastal 
states special rights. 
Article 7(1) of the NYT, which deals with the compatibility of the conservation 
measures to be taken within the zones falling under the coastal states' national 
jurisdiction and on the high seas expressly confirms the coastal states' sovereign 
rights within their zones and all states' rights to fish on the high seas. 
Article 7(2)(a). most of which is worded in line with the drafting proposal made 
by the Community at the last negotiating session and which therefore meets one 
of the priority objectives set by the Council at its meeting on 15 June 1995. 
namely restoring the balance of the text on this point, seems rather to place the 
emphasis on the measures taken by the coastal state. This seems to tie in with 
Article 116 of the UNLOSC. which lays down that all slates have the right for 
their nationals to engage in fishing on the high seas subject to the rights and 
duties as well as the interests of coastal states. This is only one aspect among 
others to be taken into consideration, the others being for example the 
conservation measures taken by the regional fisheries organizations and the 
biological unity of the stocks (also aspects included in Ihe text at the Community's 
instigation). Consequently, this clause does not make it obligatory for other states 
to align their action on the measures taken by the coastal state. The balanced 
nature of this clause stems also from the fact that it is not accompanied by a 
clause which, if the states concerned fail to agree on compatible measures, 
compels the court required to give a ruling to lay down protective measures solely 
on the basis of the coastal state's conservation measures. Already at the third 
United Nations Conference on the Law of the Sea Argentina and Canada had 
consistently called for the inclusion of a clause of this kind, fhe provisions of 
Article 7(4) and (5) nevertheless guarantee that a proper course of action will be 
followed. 
A problem remains, however, regarding the precise meaning of the words "mutatis 
mutandis" in Article 3(2) of the NYT in relation to the conservation measures to 
be taken by the coastal state. If it is merely another way of expressing the legal 
difference between the arrangements applicable in the waters under the coastal 
states' national jurisdiction on the one hand and those applicable in the waters 
covered by the rules on the high seas on the other, this clause does not seem 
prejudicial, but precludes any control by international authorities over measures 
adopted within the EEZ. 
fhe NYT places the emphasis on closer cooperation in order to ensure effective 
conservation of the fisheries resources. Article X of the NYT identifies as a 
means of cooperation the obligation to join a regional fisheries organization or to 
agree to apply the conservation measures established by these organizations. The 
words "agreeing to apply" obviously entail a degree of negotiation and so there 
is no automatic alignment with the conservation measures. In that sense, these 
words leave intact the traditional freedom to fish on the high seas. Furthermore, 
as an essential corollary in this context, Article 8(3) of the NYT sets out the 
principle that the regional fisheries organizations must be open. This too is a 
point which the Council regarded as essential at its meeting on 15 June 1995 and 
on which the Community has obtained full satisfaction. States with a real interest 
in these fisheries can in this way properly meet their obligation to cooperate. 
Article 8(4) of the NYT prohibits access to the resources concerned for states who 
refuse to cooperate as laid down. It should be pointed out that, even under the 
present system, for a country only starting to fish on the high seas, the "due 
regard" requirement would be presumed to favour established usage over new 
usage and so would entail limits on access foi that eouiiliv if the resource 
concerned were to become scarce. In that sense. Article X(-l ) of the NYT does not 
seem to be a step back in relation to the existing arrangements. 
For Article 11(e) of the NYT which, in relation to the new members or 
participants, states that, inter alia, the needs of coastal states whose economies are 
overwhelmingly dependent on the exploitation of living marine resources should 
be taken into account, it should be noted that here too this is only one factor 
among others to be taken into account and it is not a priority factor. The clause 
therefore gives no preferential right to the coastal states concerned. 
Taken literally. Article 16 of the NYT, which deals with the situation of part of 
the high seas entirely surrounded by the exclusive zone of a single coastal state 
("enclaves") is neutrally worded. It is nevertheless a situation in which it is 
particularly important to ensure the compatibility of the conservation measures 
involved. If Article 16 is compared with Article 7. particular significance seems 
to be accorded in Article 16 to the measures laken by the coastal stale concerned. 
Although it is a very specific case, this clause confirms the general principle of 
compatibility, which, in normal circumstances, must work both ways. 
As a corollary to the freedom of the high seas, Article 92 of the UNLOSC gives 
the flag state sole jurisdiction over vessels flying its flag on the high seas. This 
jurisdiction of the flag state is exclusive in the sense that, in areas of the sea 
covered by the arrangements pertaining to the high seas, it prohibits any 
intervention by another state and prevails over the jurisdiction of the state from 
which the crew originates. Article 92(1) of the UNLOSC lays down that this 
principle applies other than in exceptional cases provided for in international 
treaties or in the Convention itself. An exception to this principle is not therefore 
contrary to the Convention. 
Provision has already been made on this basis for certain exceptions: piracy, the 
transport of slaves or unauthorized broadcasting. In these cases, the UNLOSC 
provides not only for the transfer of the right of intervention to a state other than 
the Hag state but also the right for the intervening state to take sanctions against 
persons on board the vessels concerned. It is also on the basis of the options 
contained in Articles 92( 1 ) and 110 of the UNLOSC that international joint 
inspection arrangements have been introduced. On the same basis slates quite 
frequently conclude agreements on the control of partner states' fishing vessels. 
To quote some examples relevant to fisheries, there is the 1987 fisheries 
agreement between the Pacific island states and the United States which provides 
for intervention rights over and above inspection, the 1994 Bering Sea Agreement 
which gave rise to the concept of continued boarding and finally ihe agreement 
between the Community and Canada to step up control in NAFO waters. 
The NYT provisions are geared to the idea that any effective conservation scheme 
must necessarily be accompanied by equally effective arrangements for ensuring 
that the conservation measures are observed. If the starting point is effective 
conservation, it is difficult to find a reply to the argument that improved control 
mechanisms are needed to cope with a situation where the Hag slate is either 
unable or unwilling to lake the required control measures in respect of its fishing 
vessels and hence properly to assume its responsibilities as flag state. 
mmmjmmmflmM 
In these circumstances, there are no legal objections to accepting the control 
system laid down in Articles 21 and 22 of the NYT since international law leaves 
states every freedom to conclude international agreements with one another on 
transferring the Hag slate's powers. It is more a question of advisability. 
The priority points set out by the Council on 15 June 1995 included the 
maintenance, irrespective of circumstance, of the Hag stale's jurisdiction in 
accordance with international law. Under the control procedure set out in 
Article 21 of the NYT and for the stages following inspection, the flag state 
retains control over its vessels. It decides, at the inspecting state's request, on the 
subsequent action it considers appropriate. It may attach conditions to its 
authorization and so limit the action which can be taken by the inspecting state. 
The flag slate can resume control over its vessels at any stage. Lastly, the legal 
proceedings come within its remit. The fact of being able to impose conditions 
on the inspecting state is particularly important because this introduces the 
principle of having specifically to obtain the consent of the flag state. The fact 
that the flag state is still responsible for the legal proceedings shows clearly that 
the procedure still falls far short of the action provided for. by way of example, 
in Article 109 of the UNLOSC concerning unauthorized broadcasting on the high 
seas. 
On the other hand. Article 21 is not completely clear regarding resumption of 
control over the vessel by the flag state. The European Community should 
therefore lodge an interpretative statement (see Annex A of the Communication). 
The flag ship would not be able simply formally to express its wish to exercise 
its jurisdiction over the vessel. Article 21 of the NYT obliges the flag state 
effectively to investigate its vessel and if necessary take enforcement action with 
respect to it. 
The failure of the flag state to act after it has formally declared its willingness to 
exercise its jurisdiction over its vessel does not give any other state any right of 
unilateral interpretation in order to assess whether the flag state has met its 
obligations as set out in Article 19 of the NYT. Any dispute has to be dealt with 
under the dispute settlement procedure. 
The following can be gleaned from the above: the NYT does not affect the 
principle enshrined in the UNLOSC of the 200 nautical mile limit as the 
maximum limit for waters under the coastal states' national jurisdiction. As 
described above, the NYT contains nothing which might lead one to say that the 
coastal states, simply by the fact of being coastal states, are enjoying preferential 
and special rights for unilaterally imposing conservation measures outside their 
waters. On the contrary, the NYT confirms that, within these waters, the coastal 
states do not have absolute sovereignty devoid of any legal obligation regarding 
in particular the conservation and management of fisheries resources. 
In accordance with the UNLOSC, the NYT confirms that fishing on the high seas 
is not unlimited but subject to the equal right of other states and the rules on 
effective conservation of the fisheries resources concerned. 
In appropriate cases and by international agreement, the Convention makes it 
possible to restrict the principle of the exercise of sole jurisdiction of the flag state 
on the high seas. The control procedure provided for (on a subsidiary basis) in 
Articles 21 and 22 of the Agreement does not call this jurisdiction fundamentally 
into question. The Convention enables other members of the regional 
organizations to initiate the random inspections needed to protect resources while 
ensuring that as long as they are carried out in accordance with the rules of good 
faith (Article 300 of the Convention) no misconduct occurs. 
17 
ANNEX II 
Exercise of Community competence 
1. The Community's exclusive competence for the conservation and management of 
fisheries resources 
The Community's exclusive competence for the conservation and management of fisheries 
resources, based on Article 43 of the EC Treaty and Article 102 of the 1972 Act of 
Accession, is recognized by the Court of Justice. 
Consistent case law (see judgments of 14 July 1976, Kramer. 3/76, 4/76 and 6/76. 
ECR p. 1279; of 16 February 1978, Commission v Ireland. 61/77. ECR p. 417: of 
25 July 1991, Commission v Spain, C-258/89, ECR p. 1-3977; and of 24 November 1992, 
Poulsen and Diva Navigation, C-286/90, ECR p. 1-6019) shows that for the high seas the 
Community has, in matters within its powers, the same legislative competence as that 
attributed by international law to the flag state or the state in which the vessel was 
registered. 
In its judgment of 24 November 1993 in Case C-405/92 (Etablissement Mondiet SA 
v S.a.r.l. Armement Islais, ECR 1993, p. 6166), the Court of Justice of the European 
Communities held that the Community was competent to adopt measures for the 
conservation of fishing resources on the high seas in respect of vessels flying the flag of 
a Member State or registered in a Member State. 
The question is whether the New York Agreement comes under exclusive Community 
competence in the light of Court of Justice case law. 
2. The draft agreement for the implementation of the provisions of the United Nations 
Convention on the Law of the Sea of 10 December 1992 relating to the conservation and 
management of stocks of fish which are found both inside and outside exclusive 
economic zones and highly migratory fish stocks 
The subject and the objective of the Agreement are set out in the preamble and Article 2. 
It is laid down in Article 2 that the objective of the Agreement is to ensure the long-term 
conservation and sustainable use of straddling fish stocks and highly migratory fish stocks 
through effective implementation of the relevant provisions of the Convention. 
The same objective is set out in the second recital of the preamble. 
Part II of the Agreement (Articles 5, 6 and 7) contains the basic provisions on the 
measures to be taken to attain the objective of conservation and management in order to 
ensure both the viability and the optimum use of stocks on scientific bases by applying 
the precautionary approach in accordance with Article 6. The parties are also obliged to 
ensure that the conservation and management measures taken for the high seas and those 
taken for zones covered by national jurisdiction are compatible. The parties are subject 
to the obligations set out in Article 7 in order to ensure this compatibility. 
It is obvious that the objective and the provisions of Part II on the conservation and 
management of the stocks concerned come under the exclusive competence of the 
Community. 
--'ii .ni i provides for the means, methods and mechanisms for attaining the 
. m •.* set out i; Article 2. 
; I'iCse are ihe mechanisms for international cooperation (e.g. organizations and 
arrangements for managing subregional and regional fisheries, their functions and internal 
structures, (he collection and communication of information and cooperation on scientific 
research), obligations on the part of non-member states and non-participants in the 
regional organizations, the measures to be taken by the port state, the means by which 
the developing countries can participate in the implementation of the Agreement, dispute 
settlement procedures, safeguard clauses and final clauses. 
Ihe Agreement as a whole comes under the exclusive competence of Ihe Community if 
the parts of the Agreement mentioned above are of an accessory nature in relation to the 
main objective of the Agreement or if they are covered by the common fisheries policy. 
Parts III and IV (Articles 8 to 17) concern international cooperation on fisheries by the 
parties concerned. This cooperation, which is designed to implement as fully as possible 
the conservation and management measures laid down in Articles 3 to 7. is also covered 
by the common fisheries policy. 
This is why the Community is a member of many regional and subregional fisheries 
organizations. For example, the Community is a member of the NAFO. the NEAFC. and 
the Baltic Sea Commission, and it alone executes the obligations imposed by these 
agreements. The Community has also concluded many fisheries agreements with other 
countries containing various types of obligations such as scientific and technical 
cooperation and aid for training fishermen in the developing countries. It has concluded 
what is termed a "second-generation agreement" with Argentina and this contains 
provisions for the setting-up of joint ventures, etc. The Community's exclusive 
competence on the basis of the common fisheries policy has been recognized in many 
cases, including agreements which are varied and complex in content. 
Articles 18 to 23 lay down the means to be deployed by slates in order properly to meet 
the commitments made in Articles 5 to 7. These provisions are intended for the flag 
state, which, in accordance with the rules of public international law. is responsible for 
vessels flying its flag. These Articles do not concern the right to lly a flag as such, for 
which it is obviously the Member States that are competent. 
Articles 18 to 23 oblige the flag states to use the instruments available to them under 
public international law and their national law to ensure implementation of the measures 
set out in the Agreement. 
In administrative and practical terms it may be the Member States which will have to 
honour commitments accepted by the Community in an international agreement on the 
basis of Community competence; this would include control measures and administrative 
sanctions in the event of infringement. This is customary under the Community's legal 
system (see Article 228(7) of the Treaty) and has no impact on the scope of the 
Community's competence for concluding an international agreement. Il is only legislative 
competence which is considered for concluding international agreements and not 
administrative competence (see Opinion 2/91 of the Court, recital 34). 
The rules on the inspection of fishing vessels have already formed the subject of 
internatioital agreements concluded by the Community, for example with the NAFO or 
" •••&;*&SSttJ 
Canada. Provisions of this type are instruments for implementing conservation or 
management measures, which may be one of the main subjects of an agreement 
concluded by the Community under the common fisheries policy. Under the consistent 
case law of the Court, the Community's competence for legislating on a matter (e.g. 
Article 43 of the Treaty for the common organization of agricultural markets or the 
common fisheries policy) includes competence for making Member States adopt 
implementing measures, which, as and where needed to ensure proper implementation of 
Community standards, may include control measures and administrative sanctions. 
More especially, with regard to the matter of judicial proceedings and sanctions for 
infringements (Article 19(2)) and legal assistance between parties to the Agreement 
(Article 20(5)), there is Community competence for implementing administrative 
sanctions (see judgment of 27 October 1992 in Case C-240/90 - Germany v Commission). 
As regards penal sanctions and legal assistance (notification of proof to the authorities 
of other contracting parties), the Member States are bound, under the Treaty, to lay down 
sanctions of this kind in their respective national legislation, if they are necessarv to 
ensure observance of Community law. A general duty of this kind is recognized by the 
Court's case law (see judgments of 21 September 1989 in Case 68/88 -
Commission v Greece, ECR 1989. p. 2965; of 27 March 1990 in Case C-9/89 - Spain 
v Council, ECR 1990, p. 1-1383 (1-1412) and Community legislative practice (examples 
are Article 7(1 )(b) of Council Regulation (EEC) No 3842/86 (O.I No L 357, p. 1 ): 
Articles 31 and 32 of Council Regulation (EEC) No 2847/93 (O.I No L 261, p. 1.)). Even 
this part of the Agreement does not require the Member States' participation in the 
Agreement because the provision in question does not go beyond this general duty of the 
Member States and the customary clauses in Community legislation. 
The fact that Article 21(5),(6) and (7) lays down a system whereby a state which has 
carried out an inspection and ascertained that the Agreement has been infringed may 
board and possibly take control of the vessel does not alter this situation. 
It would seem advisable, in order to dispel any possible misunderstandings, to stress that, 
despite the existence of Community competence for accepting undertakings in this sphere, 
the Member States still have competence for - and the duty to take - the general and 
special implementing measures required under Community law. In specific cases, it 
would be the authorities of the flag state which would have to give - or refuse -
authorization for inspection by non-nationals. 
On the subject of the Articles on dispute settlement, the Court of Justice decided in its 
Opinion 1/94 delivered on 15 November 1994 that competence for participating in the 
mechanisms of dispute settlement arose from competence concerning the main provisions. 
The principle whereby the decision on the main issue applies to accessory matters applies 
to the Articles on certain procedures or particular problems, such as Article 14, which 
covers the collection and provision of information and cooperation in scientific research 
for the purposes of the conservation and management of fisheries resources. 
The provisions of Articles 24 to 26 in Part VII of the Agreement - "Requirement of 
developing states" - are of an accessory nature in relation to the main objective of the 
Agreement. These Articles provide for the means for effective participation of the 
developing countries in the long-term conservation and sustainable use of the stocks. 
These provisions are not concerned with the economic development of the developing 
countries but set out the forms of cooperation with these states, which to a certain degree 
20 
•p.M. :;: i:.- I lateral fisheries agreements concluded by the European Communitv 
lie ACP states, for example. (Technical assistance, training and financing of 
amines for these purposes, etc.) 
7-/ 
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COM(95) 591 final 
DOCUMENTS 
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ISBN 92-77-96698-X 
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