    [Senate Treaty Document 109-1]
    [From the U.S. Government Publishing Office]

    109th Congress
     1st Session                     SENATE                     Treaty Doc.
                                                                      109-1
    _______________________________________________________________________

        CONVENTION CONCERNING MIGRATORY FISH STOCK IN THE PACIFIC OCEAN

                                   __________

                                    MESSAGE

                                      from

                       THE PRESIDENT OF THE UNITED STATES

                                  TRANSMITTING

     CONVENTION ON THE CONSERVATION AND MANAGEMENT OF THE HIGHLY MIGRATORY
    FISH STOCKS IN THE WESTERN AND CENTRAL PACIFIC OCEAN, WITH ANNEXES (THE
      ``WCPF CONVENTION''), WHICH WAS ADOPTED AT HONOLULU ON SEPTEMBER 5,
    2000, BY THE MULTILATERAL HIGH LEVEL CONFERENCE ON THE HIGHLY MIGRATORY
              FISH STOCKS IN THE WESTERN AND CENTRAL PACIFIC OCEAN

     May 16, 2005.--Convention 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, May 16, 2005.
    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 Convention on
    the Conservation and Management of the Highly Migratory Fish
    Stocks in the Western and Central Pacific Ocean, with Annexes
    (the ``WCPF Convention''), which was adopted at Honolulu on
    September 5, 2000, by the Multilateral High Level Conference on
    the Highly Migratory Fish Stocks in the Western and Central
    Pacific Ocean. The United States signed the Convention on that
    date. I also transmit, for the information of the Senate, the
    report of the Secretary of State with respect to the WCPF
    Convention.
        The WCPF Convention sets forth legal obligations and
    establishes cooperative mechanisms that are needed in order to
    ensure the long-term conservation and sustainable use of highly
    migratory fish stocks (such as tuna, swordfish, and marlin)
    that range across extensive areas of the high seas as well as
    through waters under the fisheries jurisdiction of numerous
    coastal States. These constitute resources of worldwide
    importance, with the fisheries for tuna in the Western and
    Central Pacific being the largest and most valuable in the
    world. Implementation of the WCPF Convention will offer the
    opportunity to conserve and manage these resources responsibly
    before they become subject to the pressures of overfishing and
    over-capacity that are so evident elsewhere in the world's
    oceans.
        The WCPF Convention builds upon the 1982 United Nations
    Convention on the Law of the Sea and the 1995 United Nations
    Agreement on the Conservation and Management of Straddling Fish
    Stocks and Highly Migratory Fish Stocks. The WCPF Convention
    gives effect to the provisions of these two instruments, which
    recognize cooperation to conserve highly migratory fish stocks
    as essential, and require those with direct interests in them--
    coastal States with authority to manage fishing in waters under
    their jurisdiction and nations whose vessels fish for these
    stocks--to engage in such cooperation through regional fishery
    management organizations.
        The WCPF Convention balances in an equitable fashion the
    interests of coastal States, notably the island States that
    comprise the Forum Fisheries Agency (FFA), in protecting
    important fishery resources off their shores, and the interests
    of distant water fishing States, notably Asian fishing nations
    and entities (Japan, Republic of Korea, China, and Taiwan),
    whose fishing vessels range far from their own shores.
        The United States, which played an instrumental role in
    achieving this balance, has direct and important interests in
    the WCPF Convention and its early and effective implementation.
    The United States is both a major distant water fishing nation
    (with the fourth-largest catch in the region) and an important
    coastal State with significant Exclusive Economic Zone waters
    in the region (including the waters around Hawaii, American
    Samoa, Guam, and the Northern Mariana Islands).
        United States fishing concerns, including the U.S. tuna
    industry, U.S. conservation organizations, and U.S. consumers,
    as well as those residents of Hawaii and the U.S. Flag Pacific
    island areas of Guam, American Samoa, and the Northern Mariana
    Islands, all have a crucial stake in the health of the oceans
    and their resources as promoted by the WCPF Convention.
        I recommend that the Senate give early and favorable
    consideration to the WCPF Convention and give its advice and
    consent to its ratification.

                                                        George W. Bush.
                              LETTER OF SUBMITTAL

                                  ----------

                                           Department of State,
                                                      January 10, 2005.
    The President,
    The White House.
        The President: I have the honor to submit to you the
    Convention for the Conservation and Management of Highly
    Migratory Fish Stocks in the Western and Central Pacific Ocean,
    with Annexes (``the WCPF Convention''). The Convention was
    adopted at Honolulu on September 5, 2000, and was signed on
    behalf of the United States on that date. I recommend that the
    WCPF Convention be transmitted to the Senate for its advice and
    consent to ratification.
        The WCPF Convention has as its objective the long-term
    conservation and sustainable use of highly migratory fish
    stocks of the Western and Central Pacific Ocean. Highly
    migratory fish stocks are those that migrate across extensive
    areas of the high seas as well as through the territorial seas
    and exclusive economic zones (EEZs) of numerous coastal States.
    Examples include species of tuna, swordfish, marlin, and
    related highly migratory species. The fisheries for tuna in the
    Western and Central Pacific are the largest and most valuable
    in the world.
        The WCPF Convention builds upon provisions of the 1982
    United Nations Convention on the Law of the Sea (the LOS
    Convention) and the 1995 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 (the UN Fish Stocks Agreement).
        The LOS Convention recognizes that effective conservation
    and management of highly migratory fish stocks requires
    cooperation among those with a direct interest in them: coastal
    States with the authority to manage fishing in their EEZs, as
    well as those nations whose vessels fish for these stocks
    within EEZs or on the high seas. It obligates such States in
    the regions where fishing for highly migratory species takes
    place to cooperate directly or through appropriate
    international organizations to ensure conservation and promote
    the sustainable utilization of such species throughout their
    ranges, both within and beyond the EEZ. It calls for
    cooperation to establish international organizations in regions
    where no appropriate body exists.
        The UN Fish Stocks Agreement elaborates and strengthens the
    provisions of the LOS Convention regarding highly migratory
    species. Among other things, it contains a requirement that the
    coastal States and States whose vessels fish for highly
    migratory species in a region where no regional fishery
    management organization or arrangement exists, establish such
    an organization or arrangement. The Western and Central Pacific
    Ocean is the last major marine area with extensive fishing for
    highly migratory species that lacks such a regional
    organization. The WCPF Convention is designed to fill this gap.
    A number of its provisions are drawn directly from the UN Fish
    Stocks Agreement.
        Discussions leading to the development of the WCPF
    Convention began in December 1994, at the Multilateral High
    Level Conference on the Conservation and Management of the
    Highly Migratory Fish Stocks in the Western and Central Pacific
    Ocean (MHLC) in Honiara, Solomon Islands. The Conference was
    convened on the initiative of the Pacific Forum Fisheries
    Agency (FFA)--which consists of the island States of the
    Western and Central Pacific. In addition to FFA members, the
    principal distant water fishing States--those whose vessels
    fish for tuna on the high seas or within the EEZs of the island
    States--were invited to attend. FFA members, many of whom view
    the potential catch of tuna within their EEZs as an important
    contributor to their economies, saw the Conference as an
    opportunity to explore means of promoting sound management of
    the tuna fisheries in light of the entry into force of the LOS
    Convention (November 1994). However, they were initially
    reluctant to commit themselves to the negotiation of a binding
    regional agreement.
        This first session of the MHLC led to technical
    consultations on the requirements for effective management of
    the region's tuna resources. These, combined with the adoption
    of the UN Fish Stocks Agreement in 1995, led to growing
    recognition by both FFA members and distant water fishing
    nations alike of the need for a regional agreement as foreseen
    in the UN Fish Stocks Agreement. As a result, a second session
    of the MHLC was convened in June 1997 at Majuro, Marshall
    Islands. The participants adopted a declaration (the Majuro
    Declaration) that included a political commitment to negotiate
    a regional agreement for the highly migratory fish stocks in
    the Western and Central Pacific Ocean in accordance with the
    LOS Convention and the UN Fish Stocks Agreement, and to do so
    within three years.
        Detailed negotiations followed in five additional sessions
    of the MHLC:
              --Third Session--Tokyo, June 1998
              --Fourth Session--Honolulu, February 1999
              --Fifth Session--Honolulu, September 1999
              --Sixth Session--Honolulu, April 2000
              --Seventh session--Honolulu, August-September 2000
        Participants in the negotiations included the FFA members--
    Australia, the Cook Islands, the Federated States of
    Micronesia, Fiji, Kiribati, the Marshall Islands, Nauru, New
    Zealand, Niue, Palau, Papua New Guinea, Samoa, the Solomon
    Islands, Tonga, Tuvalu and Vanuatu--as well as Canada
    (beginning at the Fourth Session), China, France, Indonesia
    (beginning at the Third Session), Japan, Philippines, Republic
    of Korea, Chinese Taipei, the United States and the United
    Kingdom on behalf of Pitcairn, Henderson, the Ducie and Oeno
    Islands (beginning at the Sixth Session). The French
    territories of French Polynesia, New Caledonia and Wallis and
    Futuna also participated, but without decision-making
    competence.
        The participants faced a number of difficult and complex
    issues in translating the general international legal
    obligations to conserve and cooperate in the conservation of
    highly migratory fish stocks into a practical and effective
    management regime. These ranged from the nature and
    decisionmaking procedures of the regime's institutions to
    effective mechanisms to ensure compliance with the provisions
    of the WCPF Convention and measures adopted pursuant to it.
    They also faced potentially intractable political issues
    relating to how Taiwan--with the second largest fishing fleet
    in the region--and non-self governing territories, such as
    French Polynesia and New Caledonia, would participate in the
    Convention.
        Solutions to these issues required finding an equitable
    balance between coastal States, most particularly FFA members
    wary of any limitation of their sovereign rights in their EEZs,
    on the one hand, and the distant water fishing States, most
    particularly Asian fishing nations and entities (Japan, the
    Republic of Korea, China and Taiwan), on the other, which
    sought to avoid what they perceived as onerous burdens on their
    industries and concerns about being out-voted by the more
    numerous coastal States.
        The United States occupied the middle ground in the
    negotiation as both a major distant water fishing nation (with
    the fourth largest catch in the region) and a coastal State
    with the largest EEZ in the Convention Area (including waters
    around Hawaii, American Samoa, Guam and the Northern Mariana
    Islands). Moreover, the United States enjoys a close
    relationship on fisheries matters with the FFA members
    collectively. This relationship is reflected in the 1987 Treaty
    on Fisheries Between the Governments of Certain Pacific Island
    States and the Government of the United States of America, as
    amended, which establishes regional licensing and access
    arrangements for U.S. tuna vessels in the Western and Central
    Pacific. It includes a number of innovative conservation and
    compliance features that influenced the content of the WCPF
    Convention.
        The position occupied by the United States in the
    negotiations afforded the U.S. delegation opportunities and
    incentives to play an active role in securing an appropriate
    balance between coastal and distant water interests in the WCPF
    Convention. Additional key objectives for the United States
    included the creation of a level playing field--ensuring that
    all significant fishing fleets in the region are bound by
    uniform and effective conservation obligations--and ensuring as
    far as possible that the highly migratory stocks of the region
    are managed throughout their range.
        The final session of the MHLC on September 5, 2000, adopted
    the WCPF Convention, incorporating what most participants
    viewed as fair and workable provisions on the key issues, along
    with a resolution (Resolution 1) convening a Preparatory
    Conference to prepare for the establishment of the Commission
    provided for in the WCPF Convention. Due to objections by
    Japan, supported by the Republic of Korea, the WCPF Convention
    could not be adopted by consensus and was put to a vote. It was
    adopted by a vote of 19 in favor and two opposed (Japan and the
    Republic of Korea), with three abstentions (China, France and
    Tonga).
        The Preparatory Conference provided for in Resolution 1 has
    held seven sessions undertaking important work in preparing for
    the entry into force of the WCPF Convention. Equally important,
    it has provided a forum for addressing the concerns expressed
    by those who were unable to support adoption of the WCPF
    Convention in September 2000, in particular Japan and the
    Republic of Korea. The Republic of Korea attended the
    Preparatory Conference from the outset and Japan, after
    initially declining to attend, joined the process at its third
    session in November 2002. At the fifth session in 2003, Japan
    announced its intention to initiate the process of seeking
    parliamentary approval for accession to the WCPF Convention.
    Most recently, at the seventh and final session in December
    2004, China, Taiwan (Chinese Taipei), and the Republic of Korea
    participated as Parties to the WCPF Convention, and Japan
    announced that it expects to become a Party in 2005.
        As a result of the work of the Preparatory Conference, the
    consensus that eluded the participants on adoption of the
    Convention now appears to have been achieved, with almost all
    of those who took part in the MHLC negotiations now Party to
    the WCPF Convention and committed to its success.
        The Convention entered into force on June 19, 2004, six
    months after New Zealand deposited the thirteenth instrument of
    ratification. To date, sixteen States have ratified or acceded
    to the Convention. In addition, in November 2004 Taiwan
    (Chinese Taipei) completed its domestic requirements to become
    Party to the Convention as a ``fishing entity'' and, in
    accordance with Article 9 of the WCPF Convention, became a
    member of the Commission. This brings the number of States and
    fishing entities Party to the WCPF Convention to seventeen. The
    inaugural meeting of the Commission took place in December
    2004, and the first annual meeting is scheduled for December
    2005. As a result, I believe that it is important for the
    United States to take the steps necessary to join the new
    Commission at the earliest possible time.
        The WCPF Convention consists of 43 articles and four
    Annexes. The following describes the salient features of the
    Convention.

    Part I--General Provisions (Articles 1-4)

        Article 1 of the WCPF Convention defines a number of key
    terms, including ``highly migratory fish stocks'', ``fishing'',
    ``fishing vessel'', ``transshipment'' and ``regional economic
    integration organization.''
        ``Highly migratory fish stocks'' means all fish stocks of
    the species listed in Annex I of the LOS Convention occurring
    in the WCPF Convention Area and such other fish species as the
    Commission may determine. Annex I of the LOS Convention
    includes certain species that are not fish, such as cetaceans.
    Because the definition of ``highly migratory fish stocks''
    clearly includes only fish stocks among those species, the WCPF
    Convention would not apply directly to the conservation of
    whales and other non-fish species.
        ``Fishing'' means:
              (i) searching for, catching, taking or harvesting
            fish;
              (ii) attempting to search for, catch, take or harvest
            fish;
              (iii) engaging in any other activity which can
            reasonably be expected to result in locating, catching,
            taking or harvesting of fish for any purpose;
              (iv) placing, searching for or recovering fish
            aggregating devices or associated electronic equipment
            such as radio beacons;
              (v) any operations at sea directly in support of, or
            in preparation for, any activity described in
            subparagraphs (i) to (iv), including transshipment;
              (vi) use of any other vessel, vehicle, aircraft or
            hovercraft for any activity described in subparagraphs
            (i) to (iv) except for emergencies involving the health
            and safety of the crew or the safety of a vessel.
        ``Fishing Vessel'' means any vessel used or intended to be
    used for the purpose of fishing, including support ships,
    carrier vessels and any other vessel directly involved in such
    fishing operations. ``Transshipment'' means the unloading of
    all or any of the fish on board a fishing vessel to another
    fishing vessel either at sea or in port. ``Regional economic
    integration organization'' refers to a regional economic
    organization to which its member States have transferred
    competence over matters covered by the WCPF Convention,
    including authority to make decisions binding on its member
    States in respect of those matters. At present, the term refers
    only to the European Union.
        Article 2 sets forth the objective of the WCPF Convention
    to ensure, through effective management, the long-term
    conservation and sustainable use of highly migratory fish
    stocks in the Western and Central Pacific Ocean in accordance
    with the LOS Convention and the UN Fish Stocks Agreement.
        Article 3 deals with the area of application of the WCPF
    Convention. The area of competence of the WCPF Commission
    includes all waters of the Pacific Ocean north and west of
    lines delineating the southern and eastern limits (Paragraph
    1). Paragraph 2 provides that nothing in the WCPF Convention
    constitutes recognition of the claims or positions of any
    members of the Commission concerning the legal status and
    extent of waters and zones claimed by such members. Paragraph 3
    provides that the WCPF Convention applies to all stocks of
    highly migratory fish stocks in this area except for sauries.
        The Convention area is based on the objective of the WCPF
    Convention, including, as a basic corollary of the objective,
    ensuring, insofar as possible, coverage of the full migratory
    range of the species concerned.
        In delineating the Convention Area, account had to be taken
    of the existence of other agreements dealing with highly
    migratory species in the Pacific, as well as the complex
    geographic and legal situation regarding waters off the coasts
    of Southeast Asia. In the east, the Convention Area abuts
    waters subject to regulation by the Inter-American Tropical
    Tuna Commission (IATTC). The southern limits follow the
    northern limits of the Convention on the Conservation of
    Antarctic Marine Living Resources (CCAMLR), while the northern
    limit of the Convention area is self-defining.
        With respect to the Convention area's western limit, there
    is no generally agreed upon definition of the extent of Pacific
    waters in the East and Southeast Asian area, among other
    reasons, because of intractable disputes over maritime
    boundaries in the South China Sea and elsewhere. Article 3,
    therefore, does not set forth a specific western limit of the
    WCPF Convention area. Rather, it provides (Paragraph 3) that
    conservation and management measures shall be applied
    throughout the range of the stocks, or to specific areas within
    the WCPF Convention area, as determined by the WCPF Commission.
    In other words, it is recognized that the most practical
    approach is to provide for the WCPF Commission to address
    specific western limits in relation to those specific
    conservation and management measures whose scope or content
    requires it.
        The area of the WCPF Convention was a contentious issue in
    the negotiations. There was initially strong sentiment in favor
    of limiting the area to those waters south of latitude 20+
    north. This view reflected concern on the part of FFA members
    to retain a South Pacific focus in the WCPF Convention, as well
    as concern by Asian fishing States over inclusion of waters off
    their coasts and stocks found primarily in this northern area
    (e.g., northern albacore and Pacific bluefin tuna). The United
    States, among others, strongly advocated inclusion of waters
    north of latitude 20+ north, since the range of important
    stocks (e.g., skipjack, yellowfin and bigeye tuna stocks)
    extends into these waters. Excluding this area would have left
    such stocks unmanaged through a significant portion of their
    range and would not have covered the exclusively northern
    stocks at all. The resulting Convention area does include the
    waters under U.S. jurisdiction around the State of Hawaii and
    the U.S. Pacific territories. However, measures adopted under
    the Convention will not affect U.S. law with respect to foreign
    fishing activities within the EEZ of the United States.
        Agreement on the text of Article 3 providing for inclusion
    in the WCPF Convention area of all waters of the western and
    central Pacific (including the northern area) was linked to the
    establishment of a semi-autonomous committee (known as the
    Northern Committee) with specific responsibilities for the area
    north of latitude 20+ north, to consist of Commission members
    located or fishing there (see Article 11 below). This
    compromise reflects the specific circumstances of the northern
    area without arbitrarily dividing the Convention Area, which
    would have undercut efforts aimed at the conservation and
    management of major tuna populations throughout their range and
    would have unnecessarily fragmented the management of highly
    migratory species in the Pacific.
        Article 4 reaffirms the consistency of the WCPF Convention
    with the provisions of the LOS Convention and the UN Fish
    Stocks Agreement. It specifies that nothing in the WCPF
    Convention shall prejudice rights, jurisdiction and duties
    under the LOS Convention and the UN Fish Stocks Agreement and
    that the WCPF Convention is to be interpreted and applied
    consistently with the LOS Convention and UN Fish Stocks
    Agreement.

    Part II--Conservation and Management of Highly Migratory Fish Stocks
            (Articles 5-8)

        Article 5 sets forth general principles and measures for
    the conservation and management of highly migratory fish stocks
    in the WCPF Convention area, including obligations upon members
    of the Commission to:
              --adopt measures to ensure the long-term
            sustainability of the stocks and promote their optimum
            utilization;
              --base such measures on the best scientific evidence
            available;
              --apply the precautionary approach;
              --assess the impacts of fishing and other relevant
            impacts on target stocks and non-target species and the
            ecosystems of which they are part;
              --adopt measures to minimize waste, discards, catch
            by lost or abandoned gear, pollution originating from
            fishing vessels, catch of non-target species, and
            impacts on associated or dependent species, in
            particular endangered species, and also to promote
            selective and environmentally sound fishing gear and
            practices;
              --take measures to prevent or eliminate over-fishing
            and excess fishing capacity;
              --collect and share complete, accurate and timely
            data concerning fishing activities; and
              --ensure compliance with conservation and management
            measures through effective monitoring, control and
            surveillance.
        Article 6 elaborates the obligation to apply the
    precautionary approach to fisheries management (set forth in
    Article 5). It provides that members of the WCPF Commission
    shall be more cautious when information is uncertain,
    unreliable or inadequate and that the absence of adequate
    scientific information shall not be used as a reason for
    postponing or failing to take conservation and management
    measures. It also incorporates as an integral part of the WCPF
    Convention the Guidelines for the Application of Precautionary
    Reference Points in Conservation and Management of Highly
    Migratory Fish Stocks set forth in Annex II of the UN Fish
    Stocks Agreement, and requires action to implement them.
        Articles 7 and 8 obligate members of the Commission to
    exercise, and to cooperate in the exercise of, their rights as
    coastal States in areas under their national jurisdiction and
    as flag States on the high seas so as to ensure effective
    conservation and management of highly migratory fish stocks
    throughout their range within the WCPF Convention area.
        Article 7 makes clear that the principles and measures for
    conservation and management set forth in Article 5 are to be
    applied by coastal States in areas under national jurisdiction
    in the WCPF Convention area. It specifies that Commission
    Members shall give due consideration to the respective
    capacities of developing states and their need for assistance
    in implementing the WCPF Convention.
        Article 8 requires that conservation and management
    measures established for the high seas and those adopted for
    the areas under national jurisdiction be compatible to ensure
    conservation and management of highly migratory fish stocks
    throughout their range. Members of the WCPF Commission have a
    duty to cooperate to achieve compatible measures.
        The Commission, in establishing compatibility, is to take
    into account a number of factors in adopting conservation and
    management measures, including the biological unity and
    characteristics of the stocks, their geographical distribution
    and fishing patterns. The WCPF Commission is further called
    upon to take into account conservation and management measures
    adopted by coastal States for such stocks in areas under
    national jurisdiction, consistent with the LOS Convention, and
    to ensure that the effectiveness of those measures is not
    undermined by measures it adopts for the WCPF Convention Area
    as a whole. Conversely, coastal States are to ensure that
    measures they adopt and apply to highly migratory fish stocks
    in areas under their national jurisdiction do not undermine the
    effectiveness of measures adopted by the WCPF Commission in
    respect of the same stocks.

    Part III--Commission for the Conservation and Management of the Highly
            Migratory Fish Stocks in the Western and Central Pacific Ocean

                Section 1--General Provisions (Articles 9-11)
        Article 9 provides for establishment of the WCPF Commission
    and deals with a number of organizational issues, including
    meetings, election of officers, the Commission's legal
    capacity, privileges and immunities of the Commission and its
    officers and adoption of rules of procedure.
        Article 9, paragraph 2, in combination with Annex I of the
    WCPF Convention--Fishing Entities--addresses participation in
    the WCPF Convention by a ``fishing entity.'' The term, drawn
    from the UN Fish Stocks Agreement, refers to Taiwan (Chinese
    Taipei). These provisions incorporate compromise formulations
    to ensure that fishing vessels of Taiwan are legally bound by
    the conservation and management regime of the WCPF Convention,
    including measures adopted pursuant to it. The compromise had
    to balance two opposing realities: first, the necessity for
    Taiwan to take part in the work of the Commission, including
    decision-making, in order for resulting measures to be binding
    upon its vessels; and second, the fact that a number of the
    participants in the negotiations (not least China) do not have
    diplomatic relations with Taiwan and do not recognize it as
    having the capacity to become a Contracting Party to
    international agreements, such as the WCPF Convention.
        Article 9 and Annex I of the WCPF Convention specifically
    provide that, after entry into force of the WCPF Convention, a
    fishing entity whose vessels fish for highly migratory fish
    stocks in the Convention area may by written instrument agree
    to be bound by the regime established by the Convention. Such a
    fishing entity shall participate in the work of the WCPF
    Commission, including decisionmaking, and shall assume
    obligations under the WCPF Convention. References in the text
    of the Convention to the work of the Commission and the
    obligations of Commission members therefore include the work
    and obligations of such a fishing entity as well as the
    Contracting Parties. In other words, Taiwan is treated as a
    Member of the Commission, but not as a Contracting Party.
    Further, the basic rights and obligations in the WCPF
    Convention are carefully formulated so as to apply to members
    of the Commission. Three political decisions are reserved to
    Contracting Parties only--accession of new States to the
    Convention; location of the headquarters of the WCPF
    Commission; and appointment of the Executive Secretary. In
    addition, the WCPF Convention provides that the Commission
    shall elect a chairman and a vice-chairman from amongst the
    Contracting Parties only. Taiwan will participate in the WCPF
    Convention as Chinese Taipei. Under this name, upon adoption of
    the WCPF Convention on September 5, 2000, it signed (with the
    MHLC Chairman) a separate Arrangement for the Participation of
    Fishing Entities that includes a declaration of intent on the
    part of Chinese Taipei. As described above, as of November 2004
    Taiwan as Chinese Taipei is bound by the WCPF Convention and
    may participate in the work of the Commission in accordance
    with the Convention's provisions.
        Article 9, paragraph 3, specifies that the Commission shall
    hold an annual meeting and such other meetings as may be
    necessary to carry out its functions.
        Article 10 sets forth the functions of the WCPF Commission.
    The Commission is authorized to adopt such measures and
    recommendations as are necessary to give effect to the
    objective of the WCPF Convention. Article 10 includes an
    extensive, but not exhaustive, list of specific Commission
    functions. These include determination of total allowable catch
    of or total level of fishing effort for highly migratory fish
    stocks in the WCPF Convention area and adoption of measures
    relating, inter alia, to the permitted catch of any species or
    stock, the level of fishing effort, limitations on fishing
    capacity, fishing areas and seasons, size limits, permitted
    fishing gear and technology, and fishing regions or subregions.
    They also include:
              --adoption of conservation and management measures to
            maintain or restore non-target species to healthy
            levels;
              --adoption of standards for collection, verification,
            timely exchange and reporting of fisheries data in
            accordance with Annex I of the UN Fish Stocks Agreement
            (that sets forth such standards in detail) that is
            deemed to form an integral part of the WCPF Convention;
              --compilation and dissemination of accurate and
            complete statistical data, while maintaining
            appropriate confidentiality;
              --establishment of cooperative mechanisms for
            effective monitoring, control and enforcement;
              --adoption of the budget and other administrative
            responsibilities; and
              --adoption of any measures or recommendations
            necessary for achieving the WCPF Convention's
            objective.
        The WCPF Commission is further authorized to adopt
    decisions relating to the allocation of total allowable catch
    or total level of fishing effort of highly migratory fish
    stocks in the WCPF Convention area. In this regard, the WCPF
    Commission is called upon to develop, where necessary,
    allocation criteria. Article 10, paragraph 3, outlines a number
    of factors to be taken into account in order to reflect and
    balance the interests and needs of Commission members,
    including those of coastal States and distant water fishing
    nations.
        Article 11 concerns subsidiary bodies of the Commission. It
    specifically establishes as subsidiary bodies of the WCPF
    Commission a Scientific Committee and a Technical and
    Compliance Committee, with each member of the Commission
    entitled to membership. Each Committee is to make
    recommendations on matters within its competence to the WCPF
    Commission. Each is also required to provide a report to each
    annual meeting of the Commission. Such reports are to be
    adopted by consensus if possible but to include all views if
    consensus is not possible.
        Article 11, paragraph 7, provides that the WCPF Commission
    shall establish a committee (the Northern Committee) to deal
    with issues relating to that part of the WCPF Convention area
    north of latitude 20+ north. The Northern Committee is to
    consist of those members of the WCPF Commission situated or
    fishing in that area. Its functions are to make recommendations
    on the formulation of conservation and management measures for
    stocks that occur mostly in the northern area and on the
    implementation of conservation and management measures adopted
    by the WCPF Commission for that area. Such recommendations are
    to be consistent with the general policies and measures adopted
    by the WCPF Commission in respect to the stocks or species in
    question and with the principles and measures for conservation
    and management set forth in the WCPF Convention.
        Recommendations of the Northern Committee are adopted by
    consensus of its members. The WCPF Commission, in turn, is
    required to base its decisions concerning measures relating to
    particular stocks and species in the northern area on the
    recommendations of the Committee. If a recommendation fails to
    be adopted by the WCPF Commission, it is to be returned to the
    Committee for further consideration.
        As noted in the analysis of Article 3 above (page 13), the
    provisions on the Northern Committee are an important part of
    the compromise solution on the WCPF Convention area. However,
    how these provisions would function in practice required
    clarification and elaboration in further rules of procedure.
    Such rules were drafted by the Preparatory Conference and
    adopted at the inaugural WCPF Commission meeting as part of the
    rules of procedure for the Commission. The rules make it clear
    that the Northern Committee will have substantial autonomy in
    its area of competence. The Northern Committee is accorded the
    initiative with respect to conservation and management of fish
    stocks occurring mostly in the northern area and the WCPF
    Commission is not to adopt conservation an management measures
    specific to those species--northern albacore, Pacific blue fin
    tuna and northern swordfish without a recommendation of the
    Northern Committee. Clarification of the latter point was
    particularly important to Japan.
        Article 11 also provides that the WCPF Commission may
    establish such other subsidiary bodies as it deems necessary.
                Section 2--Scientific Information and Advice (Articles 12-
                        13)
        Articles 12 and 13 envisage a system designed to provide
    the WCPF Commission with the best available scientific
    information for making conservation and management decisions.
    The Scientific Committee is established as a forum in which
    representatives of the members of the WCPF Commission provide
    scientific advice to the Commission. Article 12 sets forth in
    detail the functions of the Scientific Committee, including the
    promotion of necessary scientific research. Article 13 provides
    that the WCPF Commission may also engage the services of
    scientific experts to provide information and advice on the
    fishery resources covered by the WCPF Convention. The WCPF
    Commission may enter into administrative and financial
    arrangements for such scientific services, utilizing to the
    greatest extent possible the services of existing regional
    organizations. Article 13 also sets forth in detail the
    functions that may be performed by scientific experts engaged
    by the WCPF Convention, including the conduct of scientific
    research.
        While scientific experts engaged by the Commission pursuant
    to Article 13 are to provide the results of their work directly
    to the WCPF Commission, such results are also to be provided to
    the Scientific Committee. In turn, the Committee is to review
    and comment on the work of the scientific experts prior to its
    consideration by the Commission, and may recommend specific
    issues arid items for consideration by the experts.
        This approach on who should provide scientific advice to
    the WCPF Commission represents a middle ground between those
    advocating the provision of scientific advice by scientists
    representing individual members of the Commission and those
    advocating the provision of such advice by independent
    scientific experts responsible to the WCPF Commission and not
    representing individual members. Both approaches reflect a
    desire to draw on the knowledge and experience of the Oceanic
    Fisheries Program of the Pacific Community (formerly the South
    Pacific Commission), which has been the primary regional
    scientific body dealing with highly migratory fish stocks in
    the Western and Central Pacific. In particular, FFA members who
    have long looked to the Oceanic Fisheries Program, and
    specifically to its Standing Committee on Tuna and Billfish for
    advice, supported reliance upon the expertise of the Program.
                Section 3--The Technical and Compliance Committee (Article
                        14)
        Article 14 enumerates the functions of the Technical and
    Compliance Committee. These include providing the WCPF
    Commission with information and technical advice on the
    implementation of, and compliance with, conservation and
    management measures; monitoring and reviewing compliance with
    such measures; and reviewing the implementation of monitoring,
    control, surveillance and enforcement measures adopted by the
    WCPF Commission, as well as making recommendations on these
    matters. The Technical and Compliance Committee, in
    consultation with the Scientific Committee, is also called upon
    to recommend to the WCPF Commission priorities and objectives
    for the regional observer program, to assess its results, and
    to make recommendations on fishing gear and technology that may
    be used.
                Section 4--The Secretariat (Articles 15-16)
        Article 15 empowers the WCPF Commission to establish a
    permanent Secretariat consisting of an Executive Director and
    such other staff as the Commission may require. The Executive
    Director is to be appointed for a four-year term with possible
    re-appointment for an additional four-year term. The Executive
    Director is to serve as the chief administrative officer of the
    WCPF Commission and to act in that capacity at meetings of the
    Commission and its subsidiary bodies, as well as to perform
    such other administrative functions as may be assigned by the
    Commission.
        Secretariat functions include handling the official
    communications of, preparing administrative and other reports
    for, and publishing the decisions of the WCPF Commission and
    its subsidiary bodies. It is also called upon to facilitate the
    compilation and dissemination of data necessary to accomplish
    the objective of the WCPF Convention and administer agreed
    arrangements for monitoring, control and surveillance and the
    provision of scientific advice. The Secretariat is to be cost
    effective and, where appropriate, is to take into account the
    ability of existing regional institutions to perform certain
    technical secretariat functions.
        Article 16 provides that the Executive Director appoints
    the staff of the Secretariat.
                Section 5--Financial Arrangement of the Commission
                        (Articles 17-19)
        Article 17 identifies the sources of the funds of the
    Commission as:
              --contributions assessed in accordance with Article
            18;
              --voluntary contributions;
              --the fund to facilitate effective participation in
            the work of the WCPF Commission (see Article 30); and
              --any other funds which the WCPF Commission may
            receive.
        It also provides for the WCPF Commission to adopt financial
    regulations for the administration of the Commission and the
    exercise of its functions.
        Article 18, paragraph 1 provides that the WCPF Commission
    adopt, by consensus, its budget on the basis of a draft budget
    prepared by the Executive Secretary.
        The WCPF Commission is to adopt, by consensus, and amend as
    necessary, a scheme for determining the assessed contributions
    to the budget to be made by each member of the Commission.
    Paragraph 2 of Article 18 calls for due consideration to be
    given to each member being assessed each of the following:
              --a basic fee equal in amount for all members;
              --a fee based on national wealth, reflecting the
            state of development of the member concerned and its
            ability to pay; and
              --a variable fee.
        The variable fee is to be based, inter alia, on the total
    catch taken within EEZs and in areas beyond national
    jurisdiction in the WCPF Convention Area of such species as may
    be specified by the WCPF Commission, with a discount factor for
    catch taken in the EEZ of a member of the Commission which is a
    developing State or territory by vessels flying the flag of
    that member. The criteria for the budget Contribution formula
    reflects the growing trend in regional fishery management
    organizations to base significant portions of assessed
    budgetary contributions on catch--linking contributions by
    participants to the benefits they receive from conservation and
    management of the resource. The discount factor reflects the
    recognition of the key role that development of fisheries can
    play in the economic development of the developing Pacific
    island States.
        Article 18 also includes provisions by which members lose
    the right to participate in decisions of the Commission if they
    are two years or more in arrears in their assessed
    contributions to the budget.
        Article 19 requires an annual audit, by an independent
    auditor, of the records, books, and accounts of the WCPF
    Commission.
                Section 6--Decision-making (Article 20)
        The WCPF Convention's procedures on decision-making
    represent a careful balance between Members' interest in having
    their views reflected in decisions and their interest in not
    permitting any single Member to block moving forward on
    important conservation decisions. In the exceptional case where
    consensus may not be possible, the chambered voting system
    balances the interests of distant water fishing states and
    coastal states. The system created by the provisions of the
    Convention ensures, with all reasonable certainty, that distant
    water fishing states will not be bound by significant measures
    to which they do not agree. At the same time, it ensures that
    failure to reach consensus will not prevent the adoption of
    important measures that may be necessary for the conservation
    and management of the resources in question. The provisions of
    the Convention serve the interests of the United States, as
    both a distant water fishing nation and a coastal state in the
    Convention Area, by offering protections for decisions on
    issues of significant importance to the United States, while
    not creating a system where necessary conservation and
    management measures for fisheries stocks of economic value to
    the U.S. fishing industry could not be adopted.
        Specifically, the balance is achieved through two
    interlinked elements. The first is to provide for differing
    majorities for different types of decisions. Decisions by
    consensus are required on a number of key issues--allocation of
    total allowable catch or the total level of fishing effort,
    exclusion of vessel types, adoption and amendment of the rules
    of procedure of the Commission and those for subsidiary bodies,
    adoption of budgets and the formula for budgetary
    contributions, and amendments of and invitations to accede to
    the Convention. Decisions on other matters of substance--
    provided that efforts to achieve consensus have been
    exhausted--are to be taken by a three-fourths majority.
        The second element is, as noted above, the addition of
    chambered voting requirements for decisions on those matters of
    substance where consensus is not required. Affirmative
    decisions on these matters require not only an overall three-
    fourths majority of members of the WCPF Commission. They also
    require support by three-fourths of members of the WCPF
    Commission who are also members of the FFA and three-fourths of
    members of the Commission who are not members of the FFA,
    provided that no such decision shall be defeated by two or
    fewer votes of either group (i.e., in either ``chamber'').
        The WCPF Convention's decision-making system creates strong
    incentives for the Commission to carry out all its work by
    consensus, while limiting the possibility of an impasse
    inherent in a system formally requiring consensus on all
    decisions. At the same time, it avoids the uncertainties and
    inequities that can result from a system permitting members of
    the WCPF Commission to opt out of decisions once taken. The
    chambered voting requirements provide important safeguards, in
    particular for members of the WCPF Commission who define their
    interests primarily from a distant water fishing perspective
    and ensures, with reasonable certainty, that members of the
    Commission will not be bound by measures with which they are in
    basic disagreement.
        To provide an additional safeguard, Article 20 also makes
    provision for a member of the Commission that votes against a
    decision of the Commission or that is absent when the decision
    is taken to seek a review of the decision. Such a request is to
    be made within 30 days of the decision. (Decisions of the WCPF
    Commission normally become binding 60 days after adoption.)
    Article 20 sets forth two grounds for seeking a review:
    inconsistency with the provisions of the WCPF Convention, the
    UN Fish Stocks Agreement or the LOS Convention; or
    unjustifiable discrimination in form or in fact against the
    member of the Commission in question. The review is to be
    undertaken by a review panel constituted in accordance with the
    procedures set forth in Annex II of the WCPF Convention.
        Annex II provides for constitution of a three-person
    arbitral panel modeled on Annex VIII of the LOS Convention on
    Special Arbitration, with the members chosen from among the
    arbitrators expert in the field of fisheries referred to in
    Article 2 of Annex VIII. If the panel finds that the decision
    need not be changed or revoked, the decision becomes binding 30
    days after the panel's report. If the panel recommends change
    or revocation, the WCPF Commission is called upon to conform
    the decision to the findings of the panel at its next meeting.
                Section 7--Transparency and Cooperation with Other
                        Organizations (Articles 21-22)
        Article 21 calls upon the WCPF Commission to promote
    transparency in its decision-making processes and other
    activities. To this end, representatives from intergovernmental
    organizations and non-governmental organizations concerned with
    matters relevant to the implementation of the WCPF Convention
    are to be afforded the opportunity to participate in meetings
    of the WCPF Commission and its subsidiary bodies as observers.
    The rules of procedure are not to be too restrictive in this
    respect and are to provide that such organizations be given
    timely access to pertinent information.
        Article 22 deals with cooperation with other organizations.
    The WCPF Commission necessarily will have significant
    interactions with other relevant management organizations. The
    most extensive of these interactions will take place with the
    Inter-American Tropical Tuna Commission (IATTC). The IATTC is
    responsible for the conservation and management of highly
    migratory species in the Eastern Tropical Pacific. The
    geographic range of certain important stocks brings those
    stocks within the competence of both organizations.
        In addition, the Commission for the Conservation of
    Southern Bluefin Tuna (CCSBT) is responsible for the
    conservation and management of that species, throughout its
    high seas range. This range falls largely within the area
    covered by the WCPF Convention. The Indian Ocean Tuna
    Commission (IOTC), as its name indicates, covers the Indian
    Ocean, but there is a small area of overlap between the IOTC
    area and the WCPF Convention area south of Australia. Finally,
    the southern boundary of the WCPF Convention area abuts the
    area managed by the Commission for the Conservation of
    Antarctic Marine Living Resources (CCAMLR).
        The overlapping and adjacent competencies of these
    organizations offer the opportunity to more fully achieve their
    respective objectives, particularly in ensuring the effective
    conservation and management of highly migratory species
    throughout their range. With this in mind, the WCPF Convention
    obligates the WCPF Commission to consult, cooperate and
    collaborate with other relevant management organizations,
    particularly those which can contribute to the objective of the
    WCPF Convention, specifically IATTC, CCSBT, IOTC and CCAMLR.
        In situations where the WCPF Convention area overlaps with
    an area under regulation by another fisheries management
    organization, the WCPF Commission is further enjoined to
    cooperate with the other fisheries organization to avoid
    duplication of measures in respect of stocks in that area that
    are regulated by both organizations. With respect to IOTC, the
    possibility of such duplication seems remote at this point, but
    this provision provides a safeguard. With respect to CCSBT,
    there was a general understanding during the MHLC negotiation
    that southern bluefin tuna would continue to be the province of
    CCSBT and would not be managed by the WCPF Commission. The
    provision on duplication confirms that understanding.
        With respect to IATTC, while there exists the possibility
    of duplication of otherwise independently adequate measures,
    the more likely situation is one in which the migratory pattern
    of a particular stock, by bringing it within the competence of
    both organizations, will lead to inconsistent or partial
    conservation and management measures. For this reason, the WCPF
    Convention also includes a specific provision calling for the
    WCPF Commission to initiate consultations with the IATTC to
    agree upon consistent conservation and management measures,
    including measures relating to monitoring, control and
    surveillance, for stocks that occur in the convention areas of
    both organizations.
        As noted above, Article 3 of the WCPF Convention (dealing
    with the area of application) includes a provision that
    conservation and management measures shall be applied
    throughout the range of the stocks or to specific areas within
    the Convention area, as determined by the WCPF Commission. This
    provision, in part, anticipates future interaction with other
    fisheries management organizations.
        Finally, the WCPF Commission is called upon to cooperate
    with the United Nations Food and Agriculture Organization (FAO)
    and other relevant specialized agencies and bodies of the
    United Nations on matters of mutual interest.

    Part IV--Obligations of Members of the Commission (Article 23)

        Part IV, and the following three parts of the WCPF
    Convention in particular, reflect an emphasis on the importance
    of unambiguous obligations and detailed procedures for ensuring
    implementation of the Convention, as well as for ensuring
    compliance with its provisions and with the conservation and
    management measures adopted pursuant to it. These parts draw,
    in significant degree, not only on the LOS Convention and the
    UN Fish Stocks Agreement, but also on the 1993 Agreement to
    Promote Compliance with International Conservation and
    Management Measures by Fishing Vessels on the High Seas (the
    Compliance Agreement) and innovative regional fishery
    management agreements, such as CCAMLR.
        Article 23 requires each member of the WCPF Commission to
    promptly implement all measures adopted under the WCPF
    Convention, as well as to cooperate in furthering the objective
    of the Convention. Each member of the Commission is to provide
    to the Commission statistical, biological and other data and
    information in accordance with Annex I of the UN Fish Stocks
    Agreement (which specifies in detail the categories of such
    data and information), information concerning its fishing
    activities, including fishing areas and fishing vessels, and
    other data and information as required by the Commission, in
    order to facilitate compilation of reliable catch and effort
    statistics.
        Members of the WCPF Commission are likewise obligated to
    report to the Commission on steps they have taken to implement
    conservation and management measures adopted by the Commission,
    as well as relevant measures they have adopted individually for
    areas under their national jurisdiction and for vessels flying
    their flag that fish in the Convention area as a whole.
        Article 23 also includes a provision calling upon members
    of the WCPF Commission to take steps to deal with involvement
    by their nationals in unauthorized fishing for highly migratory
    fish stocks in the WCPF Convention area. Paragraph 5 calls upon
    Members to take measures, to the greatest extent possible, to
    ensure that fishing vessels owned or controlled by its
    nationals and fishing in the Convention area comply with the
    provisions of the WCPF Convention.

    Part V--Duties of the Flag State (Article 24)

        Article 24 requires each member of the WCPF Commission to
    take measures to ensure that fishing vessels flying its flag
    comply with the provisions of the WCPF Convention and with
    conservation and management measures adopted pursuant to it and
    that such vessels do not engage in any activity that undermines
    the effectiveness of such measures. Each member is likewise to
    ensure that vessels flying its flag do not conduct unauthorized
    fishing in areas under the national jurisdiction of any member
    in the WCPF Convention area.
        Article 24 provides that no member of the WCPF Commission
    shall allow vessels entitled to fly its flag to be used for
    fishing for highly migratory fish stocks in the WCPF Convention
    area in areas beyond its national jurisdiction unless it has
    been authorized to do so by the appropriate authority of that
    member. A member of the WCPF Commission is obligated to
    authorize a vessel entitled to fly its flag to engage in such
    fishing only if it is able to exercise effective control over
    the vessel pursuant to its responsibilities under the LOS
    Convention and the UN Fish Stocks Agreement, as well as the
    WCPF Convention.
        It is to be a condition of every authorization to fish
    issued by a member of the Commission that each fishing vessel
    in respect of which the authorization is issued:
              --conducts fishing within areas under the national
            jurisdiction of other States only where the fishing
            vessel holds any license, permit or authorization
            required by such other State; and
              --is operated on the high seas in the WCPF Convention
            area in accordance with the requirements of Annex III
            to the WCPF Convention.
        Annex III--Terms and Conditions for Fishing--is designed to
    reinforce the obligations of the members of the Commission to
    ensure that fishing vessels flying their flag comply with
    conservation and management obligations by setting forth terms
    and conditions for fishing that directly bind the operator of
    the vessel. ``Operator'' refers to any person who is in charge
    of, directs or controls a fishing vessel, including the owner,
    master or charterer.
        The terms and conditions include obligations upon the
    operator of the vessel:
              --to comply with applicable national laws of each
            coastal State Party to the WCPF Convention when the
            vessel enters waters under the jurisdiction of such
            State;
              --to facilitate and assist observers designated under
            the WCPF Convention's regional observer program (see
            Article 28) in carrying out their duties;
              --to comply with measures adopted by the WCPF
            Commission with respect to transshipment (Article 29);
            and
              --to record and report the fisheries data and
            information in accordance with Annex I of the UN Fish
            Stocks Agreement.
        Annex III also includes requirements to promote effective
    enforcement of conservation and management obligations,
    including requirements for authorized fishing vessels to carry
    on board their authorization or authorizations to fish;
    cooperate with authorized inspectors; be marked or identified
    in accordance with standard international specifications;
    monitor an international distress and calling radio frequency
    or the international safety and calling frequency; and stow
    fishing gear at all times when navigating through waters in the
    WCPF Convention area in which it is not authorized to fish.
        Article 24 also requires each member of the WCPF Commission
    to maintain an up-to-date record of all fishing vessels
    entitled to fly its flag that it authorizes to be used for
    fishing in the WCPF Convention area beyond its area of national
    jurisdiction and to provide annually to the Commission the
    information set out in Annex IV of the Convention with respect
    to each such vessel. Annex IV--Information Requirements--
    includes a detailed list of this information, which ranges from
    the name of the ship, its port of registry and registration
    number, its ownership and the master of the vessel, to its
    description, tonnage and types of fishing methods employed.
    Each member of the WCPF commission is to inform the Commission
    promptly of any additions to its vessel record as well as any
    deletions from it, along with the circumstances or reasons for
    such deletion. The WCPF Commission is required to maintain its
    own vessel register, which is to incorporate the information on
    authorized fishing vessels reported by individual members of
    the Commission, and is to make it available to all members of
    the Commission.
        Finally, Article 24 calls for the establishment of a WCPF
    Convention Vessel Monitoring System (VMS), in recognition of
    the contribution to effective compliance that can be made by
    placement of near real-time satellite position-fixing
    transmitters on board fishing vessels. To this end, each member
    of the WCPF Commission is to require its vessels fishing for
    highly migratory species on the high seas in the WCPF
    Convention area to use such transmitters. The WCPF Commission
    is called upon to operate the VMS for all such vessels. The
    Commission is to develop standards, specifications and
    procedures for the use of the transmitters, as well as
    procedures for receiving information through the VMS. The WCPF
    Convention requires that such procedures include measures to
    protect the confidentiality of information received by the WCPF
    Commission, and provides that information transmitted through
    the VMS be received directly by the Commission and
    simultaneously by the flag State of the vessel where the flag
    State so requires.
        This latter point was the subject of considerable debate
    during the negotiations, with several participants calling for
    VMS information from fishing vessels to be transmitted to the
    flag State and then to the WCPF Commission. The text of the
    WCPF Convention on this point--with the possibility of
    simultaneous receipt of information by the WCPF Commission and
    the flag State--is designed to ensure that all vessels fishing
    on the high seas are treated equally and to avoid any
    appearance that fishing vessel position data could be altered
    prior to receipt by the Commission. Development of an
    operational VMS by the WCPF Commission will involve significant
    work on technical aspects as well as on procedures.

    Part VI--Compliance and Enforcement (Articles 25-27)

        Article 25 requires members of the WCPF Commission to
    enforce the provisions of the WCPF Convention and conservation
    and management measures adopted pursuant to it. Each member of
    the Commission is to fully and promptly investigate alleged
    violations by vessels flying its flag, and to take expeditious
    action to punish offenders. Sanctions are to be adequate in
    severity to discourage further violations and to deprive the
    offenders of the benefits of their illegal activities. When a
    member of the WCPF Commission has established, in accordance
    with its laws, that a fishing vessel flying its flag has
    committed a serious violation, that member shall ensure that
    the vessel in question ceases all fishing activities until any
    resulting sanctions imposed by the flag State have been
    complied with. A ``Serious violation'' is defined by reference
    to Article 21 of the UN Fish Stocks Agreement and includes
    fishing without a valid flag State authorization, license, or
    permit; failure to record catch and catch-related data or
    misreporting of such data; fishing in a closed area, during a
    closed season, for a prohibited stock, or for a permitted stock
    after attainment of a quota on that stock; using prohibited
    fishing gear; falsifying or concealing the identity of a
    fishing vessel; and concealing, tampering with, or destroying
    evidence relating to an investigation.
        Article 25 calls for members of the WCPF Commission to
    cooperate in compliance and enforcement efforts, directly and
    through the Commission, by exchanging information about alleged
    violations and through joint activities to deter fishing
    violations--by fishing vessels of WCPF Commission members and
    by fishing vessels of non-Parties alike. Paragraph 6 requires a
    flag State to cooperate with a coastal State where there are
    reasonable grounds for believing that a fishing vessel of the
    flag State has previously engaged in unauthorized fishing in an
    area under the national jurisdiction of the coastal State. In
    such cases, cooperation may include authorization for
    authorized officers of the coastal State to board and inspect
    the vessel on the high seas.
        Article 25 also calls for members of the WCPF Commission to
    take action, directly or through the Commission, to prevent
    fishing vessels of members and of non-Parties which have
    engaged in fishing activities that undermine the effectiveness
    of conservation and management measures adopted by the
    Commission from fishing in the WCPF Convention area until such
    time as appropriate action is taken by their flag State. In
    this regard, the WCPF Commission is directed to develop
    procedures, consistent with the international obligations of
    members of the Commission, whereby non-discriminatory trade
    measures may be taken against any State or fishing entity whose
    fishing vessels fish in a manner that undermines the
    effectiveness of conservation and management measures adopted
    by the Commission.
        Article 26 provides that the WCPF Commission establish
    procedures for the boarding and inspection of fishing vessels
    on the high seas of the WCPF Convention area. Article 26
    further provides that, if the WCPF Commission is unable to
    agree on such procedures within two years of entry into force
    of the WCPF Convention, the boarding and inspection procedures
    of the UN Fish Stocks Agreement (Articles 21 and 22) shall be
    applied as if they were part of the WCPF Convention. In that
    event, boarding and inspection of fishing vessels in the WCPF
    Convention area are to take place in accordance with those
    procedures and such additional practical procedures as the WCPF
    Commission may decide are necessary.
        The boarding and inspection procedures of the UN Fish
    Stocks Agreement provide that a State Party to the Agreement
    that is also a member of a regional fishery management
    organization, may board and inspect vessels flying the flag of
    another State Party on the high seas in the area covered by the
    regional fishery management organization even if the fishing
    vessel's flag State is not a member of the regional
    organization.
        In addition, the procedures of the UN Fish Stock Agreement
    give the inspecting State certain rights to take enforcement
    action against vessels they inspect on the high seas if there
    is evidence of a serious violation of conservation and
    management measures in force and the flag State does not step
    in to exercise its responsibilities with respect to the vessel.
    In fact, a principal objective of these procedures is to compel
    flag States of fishing vessels to fulfill their responsibility
    of ensuring that their vessels adhere to conservation and
    management measures in force.
        The UN Fish Stocks Agreement also includes safeguards. to
    protect flag States and their fishing vessels from abuse of
    high seas boarding and inspection rights, as well as steps to
    be taken, both by authorized inspectors and by masters of
    inspected vessels, to ensure that boarding and inspection
    procedures are carried out in a balanced and effective fashion.
        Article 26 of the WCPF Convention sets forth several
    general obligations to be included in future WCPF procedures
    for boarding and inspection. Specifically, all vessels used for
    high seas boarding and inspection in the Convention area shall
    be clearly marked and identifiable as being on government
    service and authorized to undertake high seas boarding and
    inspection in accordance with the Convention. Also, each member
    of the WCPF Commission shall ensure that fishing vessels flying
    its flag accept boarding by duly authorized inspectors.
    Inspectors, in turn, are required to comply with the applicable
    high seas boarding and inspection procedures.
         Article 27 sets forth the right and duty of port States to
    take measures, in accordance with international law, to promote
    the effectiveness of conservation and management measures. It
    reiterates the rule of international law with respect to port
    States in providing that whenever the fishing vessel of a
    member of the WCPF Commission enters the port or offshore
    terminal of another member, the port State may, inter alia,
    inspect documents, fishing gear, and catch on board the vessel.
    Article 27 also provides that members of the WCPF Commission
    may adopt regulations to prohibit landings and transshipments
    of fish catch in their ports in cases where it is established
    that the catch has been taken in a manner that undermines the
    effectiveness of conservation and management measures adopted
    by the Commission.

    Part VII--Regional Observer Programme and Regulation of Transshipment
            (Articles 28-29)

        Article 28 calls for the WCPF Commission to develop a
    regional observer program to collect verified catch data, other
    scientific data and information on fishing activities in the
    WCPF Convention area and to monitor the implementation of
    conservation and management measures adopted by the Commission.
    The program is to be coordinated by the Secretariat and is to
    consist of independent and impartial observers authorized by
    the Secretariat. Each member of the Commission is to ensure
    that any vessel flying its flag in the WCPF Convention Area,
    except for those vessels that fish exclusively in waters under
    the national jurisdiction of that member, is prepared to accept
    an observer from the program. Article 28 reiterates the
    obligations of vessel operators to facilitate and assist the
    work of observers set forth in Article 3 of Annex III to the
    WCPF Convention. It also enumerates guidelines for the
    operation of the program, including requirements for a
    sufficient level of coverage to ensure that the WCPF Commission
    receives appropriate data and information on catch and related
    matters in the WCPF Convention area, as well as requirements
    for training and certification of observers, for reporting
    their findings to the Commission and that observers not unduly
    interfere with the operations of the vessels on which they are
    placed.
        In addition to implementing these guidelines, the WCPF
    Commission is also called upon to develop further components of
    the program, including procedures for ensuring confidentiality
    of non-aggregated catch data and other information collected by
    observers, for disseminating data and information collected by
    observers to members of the Commission, and for defining the
    respective rights and duties of observers and of the master and
    crew of fishing vessels when an observer is on board.
        Article 29 calls for members of the WCPF Commission to
    encourage their fishing vessels to conduct transshipment of
    fish catch in port to promote accurate reporting of catches and
    provides that such members may designate one or more of their
    ports as transshipment ports. The WCPF Commission, in turn, is
    to circulate up- to-date lists of designated ports
    periodically. The Commission is to develop procedures to obtain
    and verify data on the quantity and species transshipped both
    in port and at sea in the WCPF Convention area.
        Transshipment at sea in the WCPF Convention area beyond
    areas of national jurisdiction is to take place only in
    accordance with the provisions of Annex III of the WCPF
    Convention and any procedures established by the WCPF
    Commission. Article 4 of Annex III requires operators of
    fishing vessels to comply with measures adopted by the WCPF
    Commission with respect to transshipment and to facilitate and
    assist the work of any person authorized either by the
    Commission or by the member of the Commission in whose
    designated port the transshipment takes place.
        Finally, Article 29 prohibits transshipment at sea by purse
    seine vessels (the category of vessel with greatest on-board
    catch storage capacity), subject to specific exemptions that
    the WCPF Commission adopts to reflect certain existing
    operations (in particular, where requiring transshipment in
    port would render the operation uneconomic).

    Part VIII--Requirements of Developing States (Article 30)

        Article 30 calls upon the WCPF Commission to give full
    recognition to the special requirements of developing States
    Parties to the WCPF Convention, in particular small island
    developing States, and the territories and possessions of other
    States Parties. In giving effect to the duty to cooperate in
    the establishment of conservation and management measures, the
    WCPF Commission is to take into account, inter alia, the
    dependence of developing States Parties, in particular small
    island developing States, upon marine living resources and the
    interests of their subsistence fishers and fish workers.
        The Commission is directed to establish a fund to
    facilitate the effective participation of developing States
    Parties, in particular small-island developing States and,
    where appropriate, the territories and possessions of other
    States Parties, in the work of the Commission.
        Cooperation with developing States, as well as with the
    territories and possessions of other States, for the purposes
    of Article 30 is also understood to include the possibility of
    provision of financial assistance to aid them in achieving the
    objective of the WCPF Convention, but Article 30 does not
    legally require such assistance.

    Part IX--Peaceful Settlement of Disputes (Article 31)

        An important component of the WCPF Convention's regime for
    the conservation and management of highly migratory species is
    an effective system of dispute settlement.
        Article 31 makes provision for such a system by applying
    the dispute settlement provisions of the UN Fish Stocks
    Agreement to any dispute between members of the WCPF
    Commission. The United States became the third Party to the UN
    Fish Stocks Agreement on August 21, 1996, and has since been a
    strong supporter of the Agreement.

    Part X--Non-Parties to the Convention (Article 32)

        Article 32 calls upon members of the WCPF Commission to
    take measures, consistent with the WCPF Convention, the UN Fish
    Stocks Agreement and the LOS Convention, to deter the
    activities of vessels flying the flags of non-Parties to the
    WCPF Convention which undermine the effectiveness of
    conservation and management measures adopted by the Commission.
    These measures include the exchange of relevant information
    among members of the WCPF Commission, drawing the attention of
    the non-Party to the activities of its vessels, requesting the
    non-Party to cooperate in the implementation of the
    conservation and management measures adopted by the Commission,
    and the possibility that the non-Party attend meetings of the
    Commission as an observer.

    Part XI--Good Faith and Abuse of Rights (Article 33)

        Article 33 sets forth a provision common to international
    agreements to the effect that the obligations of the WCPF
    Convention are to be fulfilled in good faith and that rights
    recognized under the Convention are not be exercised in a way
    that would constitute an abuse of right.

    Part XII--Final Provisions (Articles 34-44)

        Articles 34 and 35 deal with signature, ratification,
    acceptance and approval of, as well as accession to, the WCPF
    Convention. Article 34 provides that the WCPF Convention be
    open for signature for twelve months by States that
    participated in the MHLC. Signatory States may become
    Contracting Parties to the Convention by ratification,
    acceptance or approval of the WCPF Convention. States that
    participated in the MHLC, but do not sign the Convention during
    the twelve-month period may become Contracting Parties by
    accession. Each Contracting Party is a member of the
    Commission.
        After entry into force of the WCPF Convention, the
    Contracting Parties may, by consensus, invite other States and
    regional economic integration organizations whose nationals and
    vessels fish for stocks covered by the WCPF Convention to
    accede to it. The European Union was invited to accede at the
    inaugural WCPF Commission meeting in December 2004.
        Article 36 provides two alternative conditions that trigger
    entry into force of the WCPF Convention. The first provides for
    entry into force 30 days after three States situated north of
    latitude 20+ north and seven States situated south of latitude
    20+ north have deposited the necessary instrument. The second
    provides that, if within three years of the adoption of the
    WCPF Convention, three of the States situated north of latitude
    20+ north have not become Contracting Parties, the Convention
    shall enter into force six months after thirteen States have
    deposited their instruments. As noted above, the Convention
    entered into force on June 19, 2004.
        Article 37 and 38, taken together, ensure that States
    Parties can count on full compliance with the terms of the WCPF
    Convention, while affording Parties the opportunity to explain
    exigencies of domestic law with respect to obligations under
    the Convention.
        Article 38 clarifies that the prohibition in Article 37
    against reservations to the WCPF Convention does not preclude
    those joining the Convention from making declarations or
    statements with a view, inter alia, to harmonizing its domestic
    law with the Convention, provided that such declarations or
    statements do not purport to exclude or to modify the legal
    effect of the Convention (and thus constitute a reservation or
    exception).
         Article 39 stipulates that the WCPF Convention shall not
    affect rights and obligations of Contracting Parties and
    Fishing Entities arising from other agreements compatible with
    the Convention. This would include the 1987 Treaty on Fisheries
    Between the Governments of Certain Pacific Island States and
    the Government of the United States of America.
        Article 40 deals with amendments to the WCPF Convention.
    Any member of the WCPF Commission may propose an amendment.
    Amendments are to be adopted by the Commission by consensus and
    are to enter into force for Contracting Parties ratifying or
    acceding to them 30 days after the necessary instruments have
    been received from a majority of Contracting Parties. An
    amendment enters into force for each Contracting Party
    subsequently ratifying or acceding 30 days after the deposit of
    the necessary instrument by that Party.
        Article 41 designates the Annexes to the WCPF Convention as
    integral parts of the Convention and specifies that a reference
    to the Convention includes reference to the Annexes. The four
    Annexes, which deal with certain technical and administrative
    aspects of the Convention and are discussed above in relation
    to the article or articles of the WCPF Convention to which they
    relate, are as follows:
              --Annex I--Fishing Entities
              --Annex II--Review Panel
              --Annex III--Terms and Conditions for Fishing
              --Annex IV--Information Requirements
        Revisions to the Annexes are adopted by consensus at a
    meeting of the WCPF Commission. Annex revisions take effect
    from the date of adoption or from such other date as may be
    specified. Given their substance, it is not anticipated that
    such revisions will be submitted to the Senate. In the event
    that a proposed Annex revision would, because of its nature,
    require the advice and consent of the Senate in order for the
    United States constitutionally to be bound by it, the Executive
    Branch would take the necessary steps to ensure that such a
    revision does not automatically enter into force for the United
    States absent such advice and consent (e.g., by preventing the
    adoption of such an amendment or by fashioning it as an
    amendment to the body of the text).
        Article 42 provides that a Contracting Party may withdraw
    from the WCPF Convention upon written notice, effective one
    year from the date of receipt of the notification, unless the
    notice specifies a later date. Annex I includes an analogous
    provision for fishing entities.
        Article 43 deals with the complex issue of the
    participation by territories in the work of the WCPF
    Commission. This issue was a difficult one in the negotiations
    since several territories--specifically French Polynesia and
    New Caledonia--have attained competence for certain matters
    covered by the WCPF Convention and their political status
    continues to evolve. French Polynesia and New Caledonia,
    supported by France, strongly argued that all three should have
    decision-making authority within the WCPF Commission. The
    United States took the view that, while there was some divided
    competence between France and its territories, the territories
    did not have sufficient authority to give effect to the
    obligations set forth in the WCPF Convention, including the
    authority to enter into legally binding international
    agreements in respect of those obligations, and thus did not
    meet the test for decision-making status in the WCPF
    Commission. For both the United States and New Zealand, the
    matter also raised issues of potential de facto discrimination
    against their territories--American Samoa, Guam and the
    Northern Mariana Islands for the United States and Tokelau for
    New Zealand.
        The solution to the issue was based, in part, on the
    tradition of other Pacific institutions that have offered full
    participation short of voting rights to territories and, in
    part, on deferring aspects of the issue by agreeing to continue
    consideration of the matter in light of the evolution of the
    competence of territories in relation to rights and obligations
    under the WCPF Convention.
        Article 43 reflects this solution. The WCPF Commission and
    its subsidiary bodies are to be open to participation by each
    of the following, subject to the appropriate authorization of
    the Contracting Party having responsibility for their
    respective international affairs:
              --American Samoa
              --French Polynesia
              --Guam
              --New Caledonia
              --Northern Mariana Islands
              --Tokelau
              --Wallis and Futuna
        Consistent with this provision, the United States intends
    to authorize the participation of American Samoa, Guam and the
    Northern Mariana Islands. The Convention provides for the
    nature and extent of such participation to be set out in
    separate rules of procedure, taking into account international
    law, the distribution of competences on matters covered by the
    WCPF Convention and the evolving capacity of the territory to
    exercise rights and responsibilities under the Convention.
    Article 43 sets forth two additional principles and thus
    directs their incorporation in these separate rules of
    procedure: first, that all participating territories shall be
    entitled to participate fully in the work of the WCPF
    Commission, including the right to be present and speak at
    meetings of the Commission and its subsidiary bodies; and
    second, that the WCPF Commission, in the performance of its
    functions and taking decisions, shall take into account the
    interests of all participants.
        The separate rules of procedure described in Article 43
    were drafted during the Preparatory Conference and were
    formally adopted by the WCPF Commission at its inaugural
    meeting in December 2004. These rules stipulate that a
    territory listed in Article 43 would become a ``Participating
    Territory'' entitled to participate in its own right in the
    work of the WCPF Commission once the Contracting Party
    responsible for its international affairs has filed the
    necessary authorization with the depositary. The authorization
    is to take the form of a declaration describing the competences
    of the territory and the extent of its responsibilities.
        Participating Territories are to have the right to be
    present and to speak at meetings of the WCPF Commission and its
    subsidiary bodies, and are to receive all communications in
    respect of such meetings. They are not to have rights
    inconsistent with their territorial status (such as being
    elected chair or counting toward a quorum). A Participating
    Territory may make proposals and offer amendments or revisions
    in relation to matters over which it has competence. In
    relation to matters over which it does not have such
    competence, it may only make proposals and offer amendments
    with the specific authorization of the Contracting Party
    responsible for its international affairs.
        Participating Territories may participate in the WCPF
    Commission's deliberations aimed at achieving consensus on
    matters before it. The views of Participating Territories are
    to be properly considered and taken into account in reaching
    any decision. Where consensus could be reached on certain key
    issues but for the views of a Participating Territory with
    competence over the issue, such Participating Territory may
    request an additional period of time (up to twelve hours) for
    additional consultations. However, a Participating Territory
    may not block consensus on a proposed decision.
        Contracting Parties may determine additional rights and
    restrictions in rules of procedure, as necessary, consistent
    with Article 43. Finally, the rules of procedure recognize that
    a Participating Territory would need to meet a predetermined
    standard in order to exercise or acquire the right to vote in
    the WCPF Commission and that such standards, as well as the
    process for judging whether they have been met, will require
    further discussion and elaboration by the Contracting Parties.
        For its part, the United States has begun to undertake
    consultations with representatives of American Samoa, Guam and
    the Northern Mariana Islands with respect to their
    participation in the work of the WCPF Commission as
    Participating Territories should the United States become a
    Contracting Party to the WCPF Convention.
        Article 44 designates the Government of New Zealand as the
    depositary of the WCPF Convention.
        The WCPF Convention is consistent with and, in fact,
    promotes the objectives of U.S. domestic fisheries legislation,
    including the Magnuson-Stevens Fishery Conservation and
    Management Act, as amended, (16 U.S.C. 1801 et seq.). At the
    same time, in order for the United States to implement the WCPF
    Convention fully, legislation will be required, inter alia, to
    provide for the organization of U.S. participation in the WCPF
    Commission and to make conservation and management measures
    adopted by the WCPF Commission legally binding upon nationals
    and vessels subject to U.S. jurisdiction.
        As is evident in this Report, the Convention on the
    Conservation and Management of the Highly Migratory Fish Stocks
    in the Western and Central Pacific Ocean creates legal
    obligations and cooperative mechanisms necessary for the long-
    term conservation and sustainable use of fishery resources of
    worldwide importance. It offers the opportunity to meet these
    objectives before the resources become subject to the pressures
    of overfishing that are so evident elsewhere in the world's
    oceans--though the signs of such pressures are already on the
    Western and Central Pacific horizon. The United States has
    direct and important interests in this Convention and its early
    and effective implementation. The U.S. tuna industry, long a
    major and responsible player in the region, and U.S. citizens,
    particularly our Pacific island residents, have basic stakes in
    the health of the oceans and their resources as promoted by
    this Convention.
        Accordingly, I recommend that this Convention be
    transmitted to the Senate as soon as possible for its early and
    favorable consideration.
                Respectfully submitted,
                                                       Colin L. Powell.