[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.