[Senate Treaty Document 104-24]
[From the U.S. Government Publishing Office]



104th Congress                                              Treaty Doc.
                                SENATE   
 2d Session                                                    104-24  
_______________________________________________________________________


                AGREEMENT FOR THE IMPLEMENTATION OF THE
 
  UNITED NATIONS CONVENTION OF THE LAW OF THE SEA OF 10 DECEMBER 1982

                         RELATING TO FISH STOCKS

                               __________

                                MESSAGE

                                  from

                   THE PRESIDENT OF THE UNITED STATES

                              transmitting

 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, WITH ANNEXES (``THE AGREEMENT''), WHICH WAS 
ADOPTED AT UNITED NATIONS HEADQUARTERS IN NEW YORK BY CONSENSUS OF THE 
    UNITED NATIONS CONFERENCE ON STRADDLING FISH STOCKS AND HIGHLY 
   MIGRATORY FISH STOCKS ON AUGUST 4, 1995, AND SIGNED BY THE UNITED 
                       STATES ON DECEMBER 4, 1995




  February 20, 1996.--Agreement was read the first time and, together 
  with the accompanying papers, referred to the Committee on Foreign 
     Relations and ordered to be printed for the use of the Senate.
                         LETTER OF TRANSMITTAL

                              ----------                              

                                The White House, February 20, 1996.
To the Senate of the United States:
    With a view to receiving the advice and consent of the 
Senate to ratification, I transmit herewith 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, with Annexes (``the 
Agreement''), which was adopted at United Nations Headquarters 
in New York by consensus of the United Nations Conference on 
Straddling Fish Stocks and Highly Migratory Fish Stocks on 
August 4, 1995, and signed by the United States on December 4, 
1995. I also transmit, for the information of the Senate, the 
report of the Secretary of State with respect to the Agreement.
    The Agreement represents a considerable achievement for the 
United States in promoting better stewardship of living marine 
resources. It strikes a sound balance between the interests of 
coastal States in protecting offshore fishery resources and 
those of States whose fishing vessels operate on the high seas. 
If widely ratified and properly implemented, the Agreement 
should significantly improve the prospects for sustainable 
fisheries worldwide.
    The Agreement builds directly upon, and strengthens, the 
fishery provisions contained in the 1982 United Nations 
Convention on the Law of the Sea (``the Convention''), which I 
transmitted to the Senate for advice and consent on October 6, 
1994. As such, the Agreement further reflects the central role 
of the Convention in governing the maritime relations of the 
international community.
    Perhaps more than any other nation, the United States 
stands to benefit from widespread adherence to this Agreement. 
The Agreement will help to ensure that the harvesting of fish 
by vessels of other nations in waters beyond our exclusive 
economic zone does not undermine our domestic management of 
fisheries within U.S. jurisdiction. In addition, by promoting 
sound conservation practices generally, the Agreement can 
restore and maintain productive ocean fisheries for the benefit 
of American consumers and for U.S. fishing vessels wherever 
they operate.
    With regard to disputes concerning the interpretation or 
application of the Agreement, I intend to choose a special 
arbitral tribunal
constituted in accordance with Annex VIII of the Convention, as 
recommended in the accompanying report of the Department of 
State.
    I recommend that the Senate give early and favorable 
consideration to the Agreement and give its advice and consent 
to its ratification.

                                                William J. Clinton.
                          LETTER OF SUBMITTAL

                              ----------                              

                                        Department of State
                                      Washington, January 24, 1996.
The President,
The White House.
    The President: I have the honor to submit to you 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, with Annexes, 
(``the Agreement''). The Agreement was adopted on August 4, 
1995, at United Nations Headquarters in New York by consensus 
of the United Nations Conference on Straddling Fish Stocks and 
Highly Migratory Fish Stocks and signed on behalf of the United 
States on December 4, 1995. I recommend that the Agreement be 
transmitted to the Senate for its advice and consent to 
ratification.
    The Agreement has its origins in Agenda 21, the detailed 
plan of action adopted by the 1992 United Nations Conference on 
Environment and Development. Responding to the precipitous 
decline in a number of valuable fish stocks in the world's 
oceans, Agenda 21 called for an intergovernmental conference to 
strengthen the conservation and management of straddling fish 
stocks and highly migratory fish stocks.
    Straddling fish stocks are stocks which occur both within 
the exclusive economic zones (EEZs) of one or more coastal 
States and in adjacent high seas areas. Among these are 
valuable stocks of cod in the Northwest Atlantic Ocean and 
pollock in the Bering Sea. Highly migratory fish stocks are 
those which migrate extensively across the high seas and 
through the EEZs of many coastal States. Examples include tuna 
and swordfish.
    The conference began under United Nations auspices in 1993 
and successfully concluded in August 1995 with the adoption of 
the Agreement. On December 4, 1995, the first day on which the 
Agreement was open for signature, Ambassador Madeleine 
Albright, U.S. Permanent Representative to the United Nations, 
signed the Agreement on behalf of the United States, subject to 
ratification. Representatives of 24 other States signed the 
Agreement on the same day. Many other States have indicated 
their intention to sign the Agreement in the near future. 
Ratification or accession by thirty States is required to bring 
the Agreement into force.
    The Agreement, as its title indicates, builds upon certain 
provisions of the 1982 United Nations Convention on the law of 
the Sea (``the Convention'') related to fisheries. In so doing, 
the Agreement reaffirms the central role of the Convention as 
the accepted foundation and framework for this critical body of 
international law. Although the United States need not become 
party to the Convention in order to become party to the 
Agreement, we would maximize our benefits from these two 
treaties if the United States were a party to both of them. The 
Convention was transmitted to the Senate for its advice and 
consent October 6, 1994 (Treaty Doc. 103-39).
    The linkage between the two treaties is very strong. As 
discussed in more detail below, much of the text of the 
Agreement is drawn from, and elaborates upon, provisions of the 
Convention. Article 4 of the Agreement stipulates that the 
Agreement ``shall be interpreted and applied in the context of 
and in a manner consistent with the Convention.'' Part VIII of 
the Agreement also provides that disputes arising between 
parties under the Agreement (as well as under regional fishery 
agreements) are subject to resolution in accordance with the 
dispute settlement provisions of the Convention.
    As a practical matter, U.S. adherence to both treaties will 
best ensure that they are implemented in a manner consistent 
with U.S. fishery interests. A brief review of the fisheries 
provisions of the Convention demonstrates how closely tied the 
two treaties are. The Convention permits coastal States to 
establish EEZs extending 200 nautical miles from their coastal 
baselines. Under Articles 56, 61 and 62 of the Convention, 
coastal States enjoy sovereign rights and exclusive 
jurisdiction to exploit, conserve and manage living marine 
resources within their EEZs, subject to general obligations to 
prevent overfishing and to allocate surplus resources, if any, 
to other nations. Because approximately 90 percent of living 
marine resources are harvested within 200 miles of shore, the 
Convention effectively gives coastal States full control over 
the large majority of marine fisheries.
    Beyond the EEZs of any State, i.e., on the high seas, all 
States have the right for their nationals to engage in fishing. 
Articles 116-119 of the Convention qualify this right by making 
it subject to certain rights, duties and interests of coastal 
States, as well as to a general duty to conserve high seas 
resources and to cooperate with other States in conservation 
efforts. In fulfillment of these obligations, multilateral 
fishery agreements and organizations have been established to 
conserve and manage high seas fisheries in many regions of the 
world.
    Certain species and categories of fish do not remain solely 
within EEZs or solely in the high seas, but rather migrate 
across the line that separates the EEZs from the high seas. For 
anadromous stocks (such as a salmon) and catadromous species 
(such as eels), Articles 66 and 67 of the Convention, 
respectively, essentially forbid high seas harvesting. For 
straddling stocks and highly migratory species, the Convention 
contains the following general injunctions:

          Article 63(2): Where the same stock or stocks of 
        associated species occur both within the exclusive 
        economic zone and in an area beyond and adjacent to the 
        zone, the coastal State and the States fishing for such 
        stocks in the adjacent area shall seek, either directly 
        or through appropriate subregional or regional 
        organizations, to agree upon the measures necessary for 
        the conservation of these stocks in the adjacent area.
          Article 64(1): The coastal State and other States 
        whose nationals fish in the region for highly migratory 
        species listed in Annex I shall co-operate directly or 
        through appropriate international organizations with a 
        view to ensuring conservation and promoting the 
        objective of optimum utilization of such species 
        throughout the region, both within and beyond the 
        exclusive economic zone. In regions for which no 
        appropriate international organization exists, the 
        coastal State and other States whose nationals harvest 
        these species in the region shall co-operate to 
        establish such an organization and participate in its 
        work.
          Article 64(2): The provisions of paragraph 1 apply in 
        addition to the other provisions of this Part [i.e., 
        Part V of the Convention, which sets forth, inter alia, 
        the rights and duties of coastal States with respect to 
        living marine resources in their EEZs].

    These general provisions, while establishing an agreed 
framework for cooperation and conservation, have not proven 
sufficiently specific to curb overharvesting that has plagued 
several of the world's key fish resources. Indeed, since 1989, 
total marine catches have begun to decline. The United Nations 
Food and Agriculture Organization reports that about 70 percent 
of marine fish stocks are fully to heavily exploited, 
overexploited, depleted or slowly recovering. Of particular 
concern to the United States, the Aleutian Basin pollock stock 
collapsed in the late 1980's, while the stock of Western 
Atlantic bluefin tuna has become severely depleted.
    The agreement gives the international community the chance 
to reverse these trends and to create mechanisms needed to 
ensure sustainable marine fisheries. Its 50 articles and two 
annexes strengthen and make more specific the provisions of the 
Convention, and back those provisions up with effective 
enforcement techniques and compulsory dispute settlement. The 
following analysis provides a review of the salient aspects of 
the Agreement.

Part I (Articles 1-4)

    Article 1 of the Agreement defines several key terms, 
including ``Convention'', ``conservation and management 
measures'', ``fish'', ``arrangement'' and ``States Parties''. 
The Agreement does not define either ``straddling fish stock'' 
or ``highly migratory fish stock''. However, the negotiators 
understood the former term to mean those fish stocks referred 
to in Article 63(2) of the Convention. Similarly, the latter 
term is understood to mean those fish stocks referred to in 
Article 64 of the Convention and listed in Annex I to the 
Convention. In fact, the list in Annex I to the Convention 
includes certain species which are not fish, such as cetaceans. 
The Agreement, however, only covers fish stocks and so would 
not apply directly to the conservation and management of whales 
or other non-fish species.
    Article 2 sets forth the objective of the Agreement to 
promote long-term conservation and sustainable use of these 
fish stocks through effective implementation of the Convention.
    Article 3 generally limits application of the Agreement to 
the high seas, i.e., to waters beyond the fisheries 
jurisdiction of any nation. However, Articles 3(1) and 3(2) 
require coastal States to apply the conservation and management 
provisions of Articles 5 through 7 within their respective EEZs 
in their regulation of fisheries.
    While the Agreement elaborates considerably upon general 
provisions of the Convention, none of its requirements, 
including those relating to enforcement, are inconsistent with 
the Convention. To confirm this, Article 4 of the Agreement 
provides that

        Nothing in this Agreement shall prejudice the rights, 
        jurisdiction and duties of States under the Convention. 
        This Agreement shall be interpreted and applied in the 
        context of and in a manner consistent with the 
        Convention.

Part II (Articles 5-7)

    Part II of the Agreement lays out the conservation and 
management measures that Parties are to apply. Although most of 
these measures relate specifically to straddling fish stocks 
and highly migratory fish stocks, several provisions in this 
Part recognize the need to address marine ecosystems as a whole 
if fishery conservation and management is to succeed.
    Article 5 sets forth general principles for fishery 
conservation and management that build upon the provisions of 
Articles 61 and 117 of the Convention, including obligations 
to:
          ensure the long-term sustainability of these stocks;
          take measures that are based on the best scientific 
        evidence available;
          assess relevant environmental impacts;
          adopt conservation and management measures for other 
        stocks belonging to the same ecosystem;
          minimize catch of non-target species; and
          take measures to prevent or eliminate overfishing and 
        excess fishing capacity.
    Article 6, in conjunction with the two Annexes to the 
Agreement (particularly Annex II), obligates Parties to apply a 
precautionary approach to fishery conservation and management. 
This approach requires, inter alia, States to be more cautious 
in their management efforts when information is uncertain, 
unreliable or inadequate.
    Article 7 preserves a critical distinction set forth in the 
Convention between the treatment of straddling fish stocks and 
that of highly migratory fish stocks. Specifically, Article 
7(1) makes clear that conservation and management measures 
adopted on a multilateral basis for straddling fish stocks 
apply only on the high seas, while such measures for highly 
migratory fish stocks apply both on the high seas and within 
relevant EEZs.
    Article 7 also requires that, for both categories of 
stocks, conservation and management measures applicable within 
the EEZ and those applicable for the high seas must be 
compatible. Both coastal States and States whose vessels fish 
on the high seas are required to cooperate to achieve the 
compatibility of such measures, taking into account a series of 
factors set forth in Article 7. Should Parties be unable to 
achieve the compatibility of such measures within a reasonable 
time, any Party could bring the matter to compulsory, binding 
dispute settlement in accordance with Part VIII of the 
Agreement.

Part III (Articles 8-16)

    The negotiators of the Agreement recognized that most of 
the actual conservation and management work for these fish 
stocks must be carried out through regional fishery 
organizations or arrangements that have been, or may be, 
established in accordance with the Convention. They also 
realized, however, that the operations of such organizations 
must be strengthened to address the growing, and in some cases 
severe, conservation problems that have arisen.
    Part III of the Agreement contains rules for improving the 
functioning of such regional fishery organizations. Articles 8 
requires both coastal States and States whose vessels fish on 
the high seas to cooperate in these endeavors. Of particular 
importance is Article 8(3), which requires any State whose 
fishermen wish to harvest a stock that is governed by such an 
organization either to join the organization or agree to apply 
the conservation and management measures established by such 
organization. This rule, if properly implemented, would greatly 
reduce the problems of ``non-party'' fishing that have 
undermined the effectiveness of regional fishery organizations.
    Article 9 describes the issues that must be addressed in 
the context of regional fishery organizations and agreements 
while Article 10 lists a variety of functions that such 
organizations must perform to be effective.
    Article 11 deals with the difficult question of new members 
or participants, i.e., States whose fishing vessels seek access 
to regulated fisheries for the first time. This Article 
reflects the view that the determination of participatory 
rights for such vessels must proceed on a case-by-case basis, 
taking into account a variety of factors.
    Article 12 requires transparency in the operations of 
regional fishery organizations and arrangements. 
Representatives from other intergovernmental organizations and 
from non-governmental organizations (including environmental 
and industry groups) must be afforded an opportunity to 
participate in the work of these organizations without undue 
restrictions.
    Article 13 calls upon States to strengthen existing 
fisheries organizations, while Article 14 (in conjunction with 
Annex I) provides for the collection and dissemination of data 
and the conduct of scientific research related to fisheries 
conservation and management.
    Articles 15 and 16 address those high seas areas that are 
either enclosed or semi-enclosed seas (as those terms are 
defined in Article 122 of the Convention) or that are 
completely surrounded by waters under the fisheries 
jurisdiction of a single coastal State, such as the central 
part of the Sea of Okhotsk.
    The United States is a member of several regional fishery 
organizations concerned with straddling fish stocks and highly 
migratory fish stocks, including the International Commission 
for the Conservation of Atlantic Tunas, the Inter-American 
Tropical Tuna Commission, the Commission for the Conservation 
of Antarctic Marine Living Resources and, most recently, the 
Northwest Atlantic Fisheries Organization. Moreover, on 
December 8, 1995, the Convention for the Conservation and 
Management of Pollock Resources in the Central Bering Sea 
entered into force. While this treaty does not create a formal 
organization, it constitutes an ``arrangement'' for purposes 
of, and thus would be strengthened by, the Agreement.

Part IV (Article 17)

    Part IV of the Agreement contains provisions covering the 
obligations of Parties that are not members of regional fishery 
organizations, as well as the rights of members of those 
organizations with respect to vessels of non-members that 
engage in fishing for regionally regulated stocks. Article 
17(1) and (2) reinforce the rule of Article 8(3), by barring 
vessels from regulated fisheries if the flag State is not a 
member of the relevant regional fishery organization or 
otherwise does not agree to apply the fishing rules established 
by such organization.
    Article 17(3), along with Article 1(3), also provides a 
mechanism through which Taiwan, and the many fishing vessels 
flying the Taiwanese flag, may be brought within the ambit of 
such organizations. Article 17(4) provides for States to deter 
fishing operations of non-member vessels which undermine the 
effectiveness of regional conservation and management measures.

Part V (Article 18)

    Part V of the Agreement articulates a broad range of 
obligations for flag States whose fishing vessels operate on 
the high seas. These obligations, which build on the general 
flag State responsibilities set forth in the Convention, are 
drawn largely from, and are consistent with, the provisions of 
the 1993 Agreement to Promote Compliance with International 
Conservation and Management Measures by Fishing Vessels on the 
High Seas, to which the Senate gave its advice and consent in 
1994. Like the 1993 Agreement, Part V requires all States to 
ensure that their vessels fish in accordance with regional 
fishery rules and should thus deter individuals from reflagging 
their vessels as a means of avoiding the application of those 
rules. Such reflagging schemes undermine the effectiveness of 
regional fishery organizations and should be regarded as 
antithetical to the purpose of the Agreement.
    Article 18 requires flag States that are Party to the 
Agreement to ensure that their vessels comply with regional 
fishery measures and do not engage in any activity that 
undermines the effectiveness of such measures. Flag States may 
only authorize their vessels to fish on the high seas if they 
can exercise effective control over those vessels. These 
provisions would strictly curtail the use of flags of 
convenience by fishing vessels wishing to avoid fishery 
restrictions.

Part VI (Articles 19-23)

    Part VI of the Agreement requires States Parties to ensure 
compliance with, and enforcement of, fishery conservation and 
management measures. These provisions represent a considerable 
advance over the enforcement rules of most international 
fishery regimes. While Part VI of the Agreement reaffirms the 
primary responsibility of flag States to ensure that their 
vessels fish in accordance with applicable rules, it also gives 
other States certain rights to take enforcement action with 
respect to vessels of other States Parties to the Agreement 
fishing on the high seas, primarily through boarding and 
inspection to ensure compliance with regional fishery rules.
    Article 19 requires flag States to ensure compliance by 
their vessels with regional conservation and management 
measures. Flag States must fully investigate alleged violations 
and promptly penalize offenders. Sanctions must be adequate in 
severity to discourage further violations and to deprive 
offenders of the benefits of their illegal activities.
    Article 20 promotes international cooperation in compliance 
and enforcement efforts, including through the exchange of 
information about alleged violations and through joint 
activities to deter fishing violations. Article 20(6) also 
requires a flag State to cooperate with a coastal State where 
there are reasonable grounds for believing that a vessel of the 
former that is presently on the high seas has previously 
engaged in unauthorized fishing within the EEZ of the latter. 
In such cases, the forms of cooperation include authorizing the 
coastal State to board and inspect the vessel on the high seas.
    The Agreement reflects the recognition that exclusive 
reliance on flag-State enforcement has not served the 
international community well in the conservation and management 
of high seas fishery resources. Although many flag States act 
responsibly with respect to its fishing vessels on the high 
seas, others are either unable or unwilling to exercise such 
responsibility. Thus, Articles 21 and 22 of the Agreement set 
forth a carefully crafted regime under which States other than 
flag States may take action to investigate and to respond to 
fishing violations on the high seas that may be committed by 
vessels of other Parties to the Agreement.
    Article 21 authorizes any Party to the Agreement that is a 
member of a regional fishery organization to board and inspect 
vessels of another Party fishing on the high seas of that 
region for the purpose of monitoring compliance with fishery 
rules applicable in that region. The regional organizations are 
to develop procedures to govern such boarding and inspection. 
If a regional organization has failed to develop such rules 
within two years of the adoption of the Agreement (i.e., by 
August 1997), the basic procedures for boarding and inspection 
contained in Article 22 shall apply in that region.
    Article 21(4) requires States who wish to conduct boardings 
and inspections pursuant to this regime to inform other States 
whose vessels fish in the relevant region of the form of 
identification issued to duly authorized inspectors. The 
vessels used for boarding and inspection shall be clearly 
marked and must be identifiable as being on government service. 
As such, the Agreement permits all U.S. Government vessels to 
conduct such boardings and inspections, both those that are 
presently authorized, as well as any others that may be so 
authorized in the future.
    Under Article 21(5), where an inspecting State uncovers 
evidence that a vessel has violated an applicable conservation 
and management measure, that State shall secure the evidence 
and immediately notify the flag State. Article 21(6) requires 
the flag State to respond to such notification (generally 
within three working days) and either to investigate and take 
any appropriate enforcement action against the vessel or to 
authorize the inspecting State to conduct such investigation on 
its behalf. If the flag State chooses the latter option, and 
the evidence produced by the investigation so warrants, Article 
21(7) obligates the flag State to take enforcement action 
against the vessel or to authorize the investigating State to 
do so.
    Article 21(8) provides that, if the flag State fails to 
respond to the initial notification, or fails to take the 
required action described above, and if the violation in 
question is serious (as broadly defined in Article 21(11)), the 
inspectors may stay on board and direct the vessel to port for 
further investigation. If the violation is not serious, the 
inspectors must disembark the vessel (but the inspecting State 
may pursue dispute settlement against the flag State).
    These provisions are designed primarily to compel a flag 
State that is a Party to the Agreement to act responsibly where 
there are reasonable grounds to believe that one of its fishing 
vessels on the high seas has violated applicable fishery rules. 
If the flag State does not act responsibly, other States in the 
region may take action promptly to prevent any serious 
violation from continuing.
    The Agreement includes a number of safeguards to ensure 
that States other than the flag State do not abuse these rights 
to board, inspect and take further action. First, as mentioned 
above, whenever a non-flag State boards a vessel, it must 
immediately notify the flag State. The flag State must also be 
notified promptly of any further action taken. Second, under 
Article 21(10), inspectors must observe international rules and 
generally accepted practices and procedures relating to the 
safety of the vessel and the crew, minimize interference with 
fishing operations and, to the extent practicable, avoid action 
which would adversely affect the quality of the catch on board. 
Boarding and inspection may not be conducted in a manner that 
would constitute harassment of any fishing vessel. Third, if 
boarding or inspection occurs unlawfully or in a manner that 
exceeds what is reasonably required, Article 21(18) renders the 
inspecting State liable for damage or loss.
    Finally, Article 22(1) contains a series of specific 
safeguards and procedures that must be followed in any boarding 
and inspection conducted pursuant to Article 21. Article 
22(1)(f) requires inspectors to avoid the use force, except for 
their own protection and where they are obstructed in the 
execution of their duties. During negotiations on this issue, 
the United States successfully opposed proposals that would 
have limited the use of force in such situations to self-
defense. Article 22(1)(f) clearly authorizes the use of force 
not only for self-defense but also to ensure the successful 
completion of the inspection.
    As noted above, these safeguards and procedures apply in 
their entirety in any region where a regional organization has 
not, by August 1997, developed procedures of its own. Even 
where a regional organization tailors its own procedures, those 
procedures must be consistent with those of Article 22.
    The regime set forth in Articles 21 and 22, while 
representing an advance in terms of fisheries enforcement, 
remains faithful to the general principle of international law 
that States other than the flag State may only take fisheries 
enforcement action against a vessel on the high seas with the 
consent of the flag State. By becoming a Party to the 
Agreement, a State gives its consent for its vessels to be 
subject to the regime of regional fisheries enforcement set 
forth in Articles 21 and 22.
    The negotiators of the Agreement recognized that one or 
more regional organizations may develop alternative mechanisms 
to ensure compliance and enforcement that would render the 
application of the regime for boarding and inspection 
prescribed in Articles 21 and 22 unnecessary in that region. 
Accordingly, Article 21(15) permits States within such a region 
to limit application of the regime as between themselves.
    Article 23 reflects the rule of international law that port 
States may also take actions with respect to foreign flag 
vessels voluntarily in their ports to promote effective fishery 
conservation and management. Article 23(3) also specifies that 
States may prohibit landings and transshipments of fish that 
have been taken in a manner that undermines the effectiveness 
of measures adopted by the international community on a 
subregional, regional or global basis.

Part VII (Articles 24-26)

    This Part of the Agreement deals with the concerns of 
developing States and suggests the forms of cooperation and 
assistance that may be provided to them, either directly or 
through existing international mechanisms. The provision of 
such assistance should improve the effectiveness of fishery 
management by developing States, to the benefit of all States 
who wish to exploit living marine resources, particularly 
highly migratory fish stocks whose ranges extend across many 
EEZs and the high seas. The Administration envisions that 
private joint ventures, referenced in Article 25(2), would be a 
principal vehicle for the provision of such assistance.

Part VIII (Articles 27-32)

    Part VIII of the Agreement generally provides that disputes 
arising under the Agreement, as well as those arising under 
regional fishery agreements, are to be resolved in accordance 
with the provisions for compulsory, binding dispute settlement 
set forth in the Convention.
    Articles 27, 28 and 29, respectively, require States to 
settle disputes peacefully, to prevent disputes by instituting 
expeditious decision-making procedures within regional 
organizations and, where appropriate, to utilize expert panels 
in resolving disputes of a technical nature.
    Article 30(1) makes the dispute settlement provisions set 
forth in Part XV of the Convention applicable to any dispute 
between States Parties to the Agreement concerning the 
interpretation or application of the Agreement, whether or not 
those States Parties are also party to the Convention. Article 
30(2) makes those same provisions applicable to disputes 
between States Parties to the Agreement concerning the 
interpretation or application of regional fishery agreements 
relating to straddling fish stocks and highly migratory fish 
stocks, whether or not those States Parties are also party to 
the Convention.
    Article 30(3) stipulates that, for any State Party to the 
Agreement that is also a State Party to the Convention, the 
procedure for the settlement of disputes that has been accepted 
by that State in accordance with Article 287 of the Convention 
shall also apply to dispute settlement under the Agreement, 
unless that Party declares otherwise. For any State Party to 
the Agreement that is not a State Party to the Convention, 
Article 30(4) permits such a State to choose, by means of a 
written declaration, one or more of the procedures set out in 
Article 287 of the Convention for the settlement of disputes 
under the Agreement.
    In conjunction with the transmittal of the Convention to 
the Senate in October 1994, I recommended that, for fishery 
disputes arising under the Convention, the United States choose 
a special arbitral tribunal constituted in accordance with 
Annex VIII of the Convention as the appropriate dispute 
settlement procedure. See Sen. Treaty Doc. 103-39, pp. ix-x. To 
be consistent, I recommend that the United States choose the 
same procedure for disputes arising under the Agreement.
    Article 30(5) specifies the law that a court or tribunal 
shall apply in resolving such disputes. Applicable law shall 
include the Convention, the Agreement, any relevant regional 
agreement, as well as generally accepted standards for the 
conservation and management of living marine resources and 
other rules of international law not incompatible with the 
Convention. This inclusive listing directs a court or tribunal 
to consider a broad range of conservation norms, which would 
cover, for example, the moratorium on the use of large-scale 
pelagic driftnets on the high seas as called for in United 
Nations General Assembly Resolution 46/215.
    Article 31 allows States Parties to seek, and authorizes a 
court or tribunal to prescribe, provisional measures pending 
final settlement of a dispute. Article 32 makes clear that 
Article 297 of the Convention, which exempts any dispute 
concerning fishery conservation and management measures adopted 
by a coastal State within its EEZ from binding dispute 
settlement, also applies to dispute settlement under the 
Agreement.

Parts IX, X, XI and XII (Articles 33-36)

    These Parts of the Agreement address a variety of 
subsidiary matters. Part IX (Article 33) calls upon Parties to 
encourage other States to become party to the Agreement and to 
deter activities of non-parties that undermine the effective 
implementation of the Agreement. Part X (Article 34), which is 
based on Article 300 of the Convention, requires Parties to 
fulfill their obligations under the Agreement in good faith and 
to exercise their rights in a manner that would not constitute 
an abuse. Part XI (Article 35) restates the general principle 
that States are liable in accordance with international law for 
damage or loss attributable to them in regard to the Agreement. 
Part XII (Article 36) provides for a review conference to 
convene four years after the Agreement enters into force to 
assess the adequacy of its provisions.

Part XIII (Articles 37-50)

    Part XIII of the Agreement contains the ``final clauses,'' 
covering such matters as signature of the Agreement, its entry 
into force, reservations, amendments, denunciation, the 
depositary and authentic texts. All States and certain eligible 
non-State entities (such as the European Union) may become 
party to the Agreement. In accordance with Article 40, the 
Agreement will enter into force 30 days after the date of 
deposit of the thirtieth instrument of ratification or 
accession.
    Article 41 permits States and eligible entities to apply 
the Agreement provisionally. The Department of State does not 
recommend the exercise of this option by the United States at 
this time. We are instead hopeful that the Agreement will enter 
into force quickly and that the United States will be among the 
initial parties to it. In the meantime, the Department of State 
and other concerned departments and agencies have already begun 
to consider how the provisions of the Agreement may be utilized 
to strengthen the regional fishery organizations of which the 
United States is a member.
    Articles 42 and 43 track analogous provisions in the 
Convention. While no reservations or exceptions are permitted 
to the Agreement, a State may make certain declarations or 
statements when signing, ratifying or acceding to the 
Agreement. The Department of State does not recommend any such 
declarations or statements.
    Article 44 addresses the legal relationship of the 
Agreement to other treaties. Pursuant to Article 45, no 
amendment may enter into force for a Party except upon the 
deposit of an instrument of ratification or accession of such 
amendment by that Party. Article 46 permits a Party to denounce 
the Agreement at any time, effective one year after 
notification of denunciation. Articles 47 through 50 deal with 
ancillary matters such as participation in the Agreement by 
international organizations, the status of the Annexes to the 
Agreement, the depositary for the Agreement and the authentic 
texts.
    The Magnuson Fishery Conservation and Management Act, as 
amended (16 U.S.C. Sec. 1801 et seq.), provides legislative 
authority on which to carry out the obligations of the 
Agreement relating to conservation and management of fishery 
resources within the U.S. EEZ. Title I of the Fisheries Act of 
1995 implements those obligations of the Agreement concerning 
the operations of U.S. fishing vessels on the high seas. 
Finally, various statutes authorizing U.S. participation in 
regional fishery organizations; e.g., the Tuna Conventions Act 
of 1950 (16 U.S.C. Sec. 951 et seq.), the Atlantic Tunas 
Convention Act of 1975 (16 U.S.C. Sec. 971 et seq.), the South 
Pacific Tuna Act of 1988 (16 U.S.C. Sec. 973 et seq.), the 
Antarctic Marine Living Resources Act of 1984 (16 U.S.C. 
Sec. 2431 et seq.) and the Northwest Atlantic Fisheries 
Convention Act of 1995, provide any additional authority to 
carry out the obligations of Part III of the Agreement 
concerning the operations of such organizations. Therefore, no 
new legislation is necessary for the United States to implement 
the Agreement.
    This Agreement represents a major step forward in the 
conservation and management of living marine resources on a 
sustainable basis. Properly implemented, it will improve the 
health of the 
world's marine ecosystems and protect the interests of 
fishermen, consumers and all others who depend on the oceans.
    Accordingly, I recommend that this Agreement be transmitted 
to the Senate as soon as possible for its early and favorable 
advice and consent to ratification.
    Respectfully submitted.
                                                Warren Christopher.



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