[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.


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