[Congressional Record Volume 141, Number 47 (Tuesday, March 14, 1995)]
[Senate]
[Pages S3862-S3867]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


RATIFICATION OF THE LAW OF THE SEA CONVENTION IS NEEDED TO PROTECT THE 
                 FISHERY INTERESTS OF THE UNITED STATES

  Mr. PELL. Mr. President, many of my colleagues know that I have had 
an abiding interest in oceans issues in general and the Law of the Sea 
Convention in particular. Consequently, I was delighted when on October 
7, 1994, the President transmitted to the Senate for its advice and 
consent the U.N. Convention on the Law of the Sea (Treaty Doc. 103-39). 
We are now in the unique position to become full participants in this 
Convention and finally reap the benefits of decades of constructive 
negotiations conducted by Democratic and Republican administrations.
  There is no doubt in my mind that this Convention will serve the 
interests of the United States best from a national security 
perspective, from an economic perspective, from an ocean resources 
perspective and from an environmental perspective. I have addressed 
many of these perspectives during earlier remarks in the Senate. Today, 
I speak to the importance of this Convention to our Nation's fishery 
resources.
  Some have argued that the United States should not ratify the 
Convention because of a perceived negative impact which it might have 
on international fisheries agreements negotiated by the United States 
with its international partners. I submit that quite the opposite is 
the case. Ratification of the Law of the Sea Convention will be an 
important step towards assuring the continued benefits of these other 
agreements and protecting the fishery interests of our country.
  I would like to bring to the attention of my colleagues an address 
delivered by Ambassador David Colson, Deputy Assistant Secretary of 
State for Oceans, which addresses precisely this issue. In it, he shows 
the paramount role that the Law of the Sea Convention will play in the 
implementation of the important international agreements to which the 
United States is already a party: The 1992 Convention for the 
Conservation of Anadromous Stocks in the North Pacific Ocean, approved 
by the Senate on August 11, 1992, Treaty Doc. 102-30, Ex.Rpt 102-51; 
the U.N. General Assembly Resolution on Large-Scale High Seas Driftnet 
Fishing (approved by the Senate on November 26, 1991, Treaty Doc. 102-
7, Ex.Rpt 102-20), the recently concluded Convention on the 
Conservation and Management of Pollock Resources in the Central Bering 
Sea, ``the Donut Hole Agreement'' (approved by the Senate on October 6, 
1994, Treaty Doc. 103-27, Ex.Rpt 103-36) and the FAO Agreement to 
Promote Compliance with International Conservation and Management 
Measures by Fishing Vessels on the High Seas (approved by the Senate on 
October 6, 1994, Treaty Doc. 103-24, Ex.Rpt 103-32).
  The United States has long taken a pro-active approach to fisheries, 
both within its own exclusive economic zone and on the high seas. 
Through these recent successful negotiations, we have ensured that our 
international partners will be submitted to no less stringent rules. 
The United States will put an end to overfishing and further depletion 
of threatened stocks only if we can ensure that sound management 
practices are applied by the other major fishing nations. This is why 
the
 administration has negotiated in earnest to achieve what are widely 
perceived as breakthrough advances in strong and responsible 
arrangements.

  Concerns have been expressed that ratification of the Law of the Sea 
Convention would jeopardize these agreements. Ambassador Colson shows 
that, far from hindering these processes, the entry into force of the 
Convention will actually benefit their implementation.
  In the case of salmon, a very important commercial, recreational, and 
subsistence resource, the Law of the Sea Convention has provided a 
foundation upon which to build understandings for the States of the 
North Pacific region. The Law of the Sea Convention, in essence, 
prohibits fisheries for salmon on the high seas. It also recognizes 
that states in whose waters salmon originates have the primary interest 
in these stocks. The Anadromous Stocks Convention, approved by the 
Senate in 1992, achieved the major goal of ending all high seas 
fishing, thanks in great part to the clear mandate and requirements of 
the Law of the Sea Convention. Further, the implementation of this 
agreement will be facilitated by the entry into force of the Law of the 
Sea, as the prohibition on high seas salmon fishing will apply to all 
member states, not just the signatories to the Anadromous Stocks 
Convention.
  The use of large-scale high seas drift nets in another issue that the 
United States has attempted to solve in international fora. A 
resolution was passed unanimously by the U.N. General Assembly that 
created a moratorium on the use of those drift nets on the world's 
oceans and seas at the end of 1992. The drift net moratorium builds 
upon basic principles of the Law of the Sea Convention, which provides 
for a limited and qualified right to fish on the high seas, making it 
subject to the obligation to cooperate in the conservation and 
management of high seas living resources. Enforcement will be 
facilitated in view of the fact that the Convention's standards would 
be violated by any high seas large-scale drift net fishing that occurs 
contrary to the moratorium.
  With regards to the Bering Sea issue, problems arose for the United 
States when a straddling stocks fishery began outside our exclusive 
zone and Russia's. Concerns about stocks conditions led to measures to 
restrain fisheries in the U.S. zone and increasingly urgent calls by 
American fishermen for the Government to take steps to control the 
foreign fishery on the high seas. The Donut Hole Agreement approved by 
the Senate on October 6, 1994 was the result of lengthy negotiations 
between the United States and the other states involved in fishing in 
the area. 
[[Page S3863]] It is a state-of-the-art fishing convention that 
resolves various issues to the satisfaction of the United States and 
other states concerned. Again, this agreement could not have been 
negotiated without the framework and foundation provided by the Law of 
the Sea Convention. The dispute settlement provisions of the Law of the 
Sea Convention will facilitate the implementation of the Donut Hole 
Agreement by providing an additional enforcement mechanism to ensure 
that no vessel undertakes conduct in the Bering Sea contrary to its 
provisions. It will thus serve as both a deterrent and as a means to 
bring about final resolution should problems arise in the Donut Hole in 
the future.
  Finally, the very important FAO Agreement to Promote Compliance with 
International Conservation and Management Measures by Fishing Vessels 
on the High Seas approved by the Senate on October 6, 1994 could not 
have been successfully negotiated had the Law of the Sea Convention not 
come before it. The High Seas Agreement is part of the FAO's Code of 
Conduct for Responsible Fishing and rests upon basic principles 
regarding high seas fishing and flag state responsibility found in the 
Law of the Sea Convention. The Law of the Sea Convention does not set 
up the high seas as a sanctuary for irresponsible fishermen but spells 
out that states fishing on the high seas have a duty to cooperate with 
other states to ensure responsible conservation and management actions.
  This is also true of the current negotiations at the U.N. Conference 
on Straddling Fish Stocks and Highly Migratory Fish Stocks. It is hoped 
that the final outcome of this conference will be a legally-binding 
agreement for the implementation of the provisions of the Convention on 
the Law of the Sea relating to the conservation and management of 
straddling fish stocks and highly migratory fish stocks. The general 
principles embodied in this agreement will here again ensure more 
responsible fishing on the high seas and will build upon the framework 
provided by the Law of the Sea Convention.
  Only last week, a Canadian vessel fired warning shots and seized a 
Spanish fishing vessel that was operating on the Grand Banks off the 
coast of Newfoundland. Had Canada and Spain both been party to the Law 
of the Sea Convention, this dispute could have been settled without the 
firing of shots. Regrettably, such incidents are the result of the 
growing uncertainty that prevails with regard to high seas fisheries 
and will only be avoided if the Convention on the Law of the Sea 
becomes a widely recognized instrument on which the Straddling Stocks 
Conference can build to establish a lasting regime for those fisheries.
  Another instance where the ratification of the Law of the Sea 
Convention would be beneficial to the United States is in the 
settlement of disputes with other states. Recently, the Canadian 
Government levied a fee of $1,100 for United States vessels that 
transit from Puget Sound and the States of Oregon and Washington to 
Alaska. The State Department concluded that this transit fee was 
inconsistent with international law, and particularly with the transit 
rights guaranteed to vessels under customary international law and the 
Law of the Sea Convention. Had the United States and Canada both 
ratified the Law of the Sea Convention, the Canadian actions would have 
been in clear contravention of the convention. As such, the Canadians 
might have been more hesitant to take the steps they did. In any event 
the full force of the convention and the international community could 
have been brought to bear for a prompt resolution of the dispute.
  Mr. President, it is clear in my mind that the long-term benefits of 
these very important fishery agreements will only be realized and 
mutual enforcement ensured if the underlying principles of the Law of 
the Sea Convention--the constitution of the seas--are ratified by the 
United States. The convention entered into force on November 16, 1994. 
To date 73 countries have ratified, including Australia, Germany, 
Iceland, and Italy. Other major industrialized nations, such as Canada, 
the European Community, France, the United Kingdom, the Netherlands, 
and Japan, have signed the convention and indicated their intention to 
ratify it in the near future.
  Mr. President, I commend the address of Ambassador Colson, which so 
ably sets forth the importance of the ratification of the Law of the 
Sea Convention to the fishing interests of the United States.
  I ask unanimous consent that the address be printed in the Record 
together with the current list of countries who have to date ratified 
the Law of the Sea Convention.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

  Conserving World Fish Stocks and Protecting the Marine Environment 
                  Under the Law of the Sea Convention

                    (By Ambassador David A. Colson)

       Virtually every day we see another report about the decline 
     of the world's fish resources or about ocean pollution.
       We know that the world's population continues to grow 
     dramatically. It is only logical to conclude that there is a 
     direct correlation between more people and more impact on our 
     fisheries and the marine environment.
       We know that most of the world's population lives near the 
     coast and intuitively we know that the result of an increased 
     population is likely to be greater stress from human activity 
     upon coastal environments be they wetlands, coral reefs, 
     mangroves, beaches or coastal fisheries--all of which are in 
     decline.
       We know that the ocean is a large ecosystem made up of many 
     smaller ones. We know that there are often relationships 
     between areas, ocean systems, and species. We know that some 
     fishery resources migrate over very long distances.
       And we conclude that the oceans are a bridge between us; a 
     tie that unites us. They are our sustenance; our life 
     support.
       They are integral to many global systems that we take for 
     granted, but still do not understand. They are the future--
     their riches and their energy are yet to be fully tapped.
       We know their health is important, but how little we really 
     know about them. Yet in spite of our experience, we continue 
     to pollute, to over-exploit--to assume that the ocean's vast 
     regenerative capacity is unlimited.
       We should know better.
       And now, after so many years, the 1982 Law of the Sea 
     Convention is in force. Will it help us do better?
       I believe the Convention has, and it will. Already, for 
     more than ten years, most States have acted consistently with 
     its basic norms--and in those ten years advances in 
     protecting the oceans have been made. And now that it is in 
     force its specific implementation will bring more benefits 
     and advance us further. I must be careful because I do not 
     want to say that the Convention will solve all the ocean's 
     problems. It will not. But can it help? The answer is yes.
       In 1983, President Reagan said that the United States would 
     act in accord with the balance of interests set forth in the 
     Law of the Sea Convention, as long as other States would do 
     likewise. I can report that in the intervening years 
     basically all States have either expressly or by implication 
     followed the basic rules set forth in the Convention. Thus, 
     the positive achievements that have occurred in marine 
     environmental protection and fisheries in the last ten years 
     have taken place in the widely accepted Law of the Sea 
     framework.
       And there have been some very important advances. Today I 
     want to review four of these which have occurred in the 
     fisheries field. Before I do, I wish to emphasize the 
     following point: the Law of the Sea Convention enabled the 
     international community to reach these agreements. Even 
     before its entry into force, the Convention was the 
     foundation, the premise, upon which all governments operated 
     in negotiating these understandings. Had we not had this 
     basic foundation, had we not been in agreement about it, our 
     task would have been much more difficult, indeed, perhaps 
     impossible in some cases.
       The four breakthrough advances are: (1) the 1992 Convention 
     for the Conversation of Anadromous Stocks in the North 
     Pacific Ocean (NPAFC); (2) the 1992 United Nations General 
     Assembly Resolution on Large-Scale High Seas Driftnet Fishing 
     (UNGA Resolution 46/215); (3) the recently concluded 
     Convention on the Conservation and Management of Pollock 
     Resources in the Central Bering Sea; and (4) the 1993 FAO 
     Agreement to Promote Compliance with International 
     Conservation and Management Measures by Fishing Vessels on 
     the High Seas.


               north pacific anadromous stocks convention

       Salmon, anadromous stocks, are very important commercial, 
     recreational and subsistence resources for the States of the 
     North Pacific region. From time to time international 
     disputes in the region relating to salmon have reached the 
     highest level of government. The Law of the Sea Convention 
     framework, however, provides a foundation that has 
     substantially narrowed debate; its basic rules have been a 
     foundation upon which to build additional understandings.
       Article 66 of the Law of the Sea Convention recognizes that 
     States in whose waters 
     [[Page S3864]] salmon stocks originate have the primary 
     interest in those stocks. The Law of the Sea Convention 
     prohibits fisheries for salmon on the high seas, with one 
     narrowly drawn and now anachronistic exception--where that 
     prohibition would result in economic dislocation for a State 
     other than the State of origin. The Convention also requires 
     that States cooperate with regard to the conservation and 
     management of stocks when salmon which originate in the 
     waters of one State migrate through the waters of another.
       The Convention's prohibition on high seas salmon fisheries 
     makes sense from both economic and conservation perspectives. 
     Economically, salmon grow substantially in the last months of 
     their lives and thereby tend to be a higher value and quality 
     resource if taken in coastal zones and rivers and not the 
     high seas. Moreover, maintenance and preservation of salmon 
     producing areas in coastal rivers cannot be expected if other 
     States fish for salmon on the high seas. And only the State 
     of origin can effectively manage salmon resources in coastal 
     waters and rivers, not the high seas where salmon stocks are 
     mixed.
       The rule of the Convention bans salmon fishing on the high 
     seas for all States, including a State of origin. The only 
     country that was fishing for salmon on the high seas, at the 
     time these Convention provisions were negotiated, and thus 
     the only one which might claim economic dislocation, was 
     Japan. And, it was and is clear, as well, that Japan could 
     claim a right to fish salmon on the high seas only so long as 
     it could make a credible argument of economic dislocation, 
     and so long as it did not assert coastal State rights.
       As the 1980s passed, Japan's salmon interests shifted: its 
     Coastal State interests in the production of salmon from its 
     waters began to predominate and its reliance upon an economic 
     dislocation argument to continue a high seas salmon fishery 
     was not persuasive. In 1992, negotiations on a new salmon 
     convention were completed by the United States, Japan, Russia 
     and Canada, designed to replace the U.S.-Canada-Japan treaty 
     that had created the International North Pacific Fisheries 
     Commission. Provisions were included whereby these primary 
     States of origin could invite other States of origin, such as 
     China and Korea, to accede to the Convention. Japan agreed in 
     this context to end its high seas salmon fishery. The 
     fundamental rule of Article 66 of the LOS Convention was 
     achieved by the Anadromous Stocks Convention: to end all high 
     seas salmon fishing. This achievement came about among the 
     States most concerned for many reasons--not the least of 
     which is the clear mandate and requirement of Article 66 of 
     the Law of the Sea Convention. Moreover, the respect in which 
     the prohibition on high seas salmon fishing is held by all 
     other States is a direct result of the Convention rule.
       This positive result of the Anadromous Stocks Convention 
     was achieved without the fundamental rule of Article 66 of 
     the Law of the Sea Convention being binding on any State as a 
     matter of treaty law. I have heard some people in the United 
     States say that this result would never have been achieved if 
     the U.S. had been party to the Law of the Sea Convention. I 
     simply do not agree with that point of view; it is abundantly 
     clear to me, as the United States negotiator for the 
     Anadromous Stocks Convention, that the Law of the Sea 
     Convention--although not in force--played a large role in 
     bringing about this result--it certainly did not hinder it.
       Let us examine a different question: will the Law of the 
     Sea Convention help the parties to the Anadromous Stocks 
     Convention in the future--if they become a party to the Law 
     of the Sea Convention? The answer is clearly yes.
       The Law of the Sea Convention does not require any change 
     in the Anadromous Stocks Convention. The two treaties are 
     completely consistent. What the Law of the Sea Convention 
     does do is require all States Parties to it to abide by the 
     prohibition on high seas salmon fishing--the basic rule of 
     the Anadromous Stocks Convention. This is a major long-term 
     benefit to salmon producing States. While salmon producing 
     States assert our rights, the Law of the Sea Convention not 
     only recognizes them, but prohibits all States from eroding 
     those rights by engaging in high seas salmon fisheries.
       There are additional benefits in the Law of the Sea for 
     salmon producing States. Parties to the Law of the Sea 
     Convention are also required to submit to compulsory binding 
     dispute settlement in many circumstances. In some cases there 
     are exceptions to this rule, but in this case there is not. 
     If vessels of a State begin to fish for salmon on the high 
     seas, one means of enforcing the prohibition on high seas 
     salmon fishing would be to take that State to compulsory and 
     binding dispute settlement under the Law of the Sea 
     Convention.
       For a moment, let me go into some additional detail on the 
     dispute settlement provisions of the Law of the Sea 
     Convention, as it is important that this subject, which is 
     well understood by international lawyers, be understood by 
     fishermen and political leaders as well.
       International law requires States to settle their disputes 
     by peaceful means. Where negotiated solutions are beyond 
     reach, States more and more settle differences by going 
     through a legal court-like process. There are several dispute 
     settlement procedures and, as well, several more that can be 
     used. The Law of the Sea Convention obliges States to use 
     dispute settlement in certain circumstances when other means 
     to resolve disputes have
      failed. Some such circumstances, as noted previously, 
     include fisheries disputes.
       To elaborate further, one must make a distinction between 
     binding compulsory dispute settlement and nonbinding 
     compulsory conciliation. The reason this distinction is 
     important is that the Law of the Sea Convention uses it in 
     relation to fisheries disputes.
       With regard to certain fisheries disputes that may pertain 
     to a coastal State's management in its exclusive economic 
     zone, the Convention provides for non-binding compulsory 
     conciliation. In regard to fisheries disputes that relate to 
     high seas activities, the Convention provides for binding 
     compulsory dispute settlement.
       Nonbinding compulsory conciliation means, in essence, that 
     if State A alleges that State B is mismanaging its 200-mile 
     zone in a serious way, State A may require the establishment 
     of a conciliation panel to look into the matter. While State 
     B should participate in the proceedings, there is no penalty 
     if it does not; and, any report the conciliation panel may 
     issue has no binding or obligatory effect on State B.
       Binding compulsory dispute settlement, which is required 
     for high seas fishery disputes, is substantially different. 
     If State A alleges that State B is violating Convention 
     fishery rules and principles on the high seas, and if 
     negotiations have failed, State A may institute a process 
     that results in bringing the dispute before an international 
     court or tribunal of some make-up. There are a number of 
     variables concerning these courts or tribunals that we have 
     not time to go into now. The point or bottom line is that 
     pursuant to the Law of the Sea Convention, in such cases, 
     State A can bring State B before such a court or tribunal on 
     a matter pertaining to a high seas fishery dispute, and that 
     court or tribunal can render a judgement which is binding on 
     both State A and State B concerning that high sea fisheries 
     dispute.
       Returning now to salmon in the high seas of the North 
     Pacific Ocean, the availability of such dispute settlement 
     provides not only an effective tool to enforce the high seas 
     salmon fishing prohibition; its very existence provides an 
     effective deterrent against such fishing. So--for salmon--the 
     Law of the Sea Convention has brought us much already; it 
     consolidates and confirms present practice; it gives us clear 
     rules which prohibit high seas salmon fishing by all States; 
     and it provides a new and useful enforcement tool should 
     someone break the rule in the future.


                            driftnet fishing

       The use of large-scale high seas driftnets attracted 
     significant international attention and concern in the 1980s. 
     Ultimately, the General Assembly of the United Nations took 
     up the matter and passed a consensus resolution in 1991. The 
     1991 Resolution, UNGA Resolution 46/215, created a moratorium 
     on the use of large-scale high seas driftnets on the world's 
     oceans and seas at the end of 1992.
       This concerted action by the General Assembly was a vitally 
     important step to protect fish stocks and other living 
     species on the high seas from this very indiscriminate 
     fishing method being used by more and more vessels, about 
     1,000 in the Pacific Ocean alone at the height of the 
     fishery. Large-scale high seas driftnet fishing was a cause 
     of concern in all regions of the world.
       The driftnet moratorium of the United Nations builds upon 
     basic principles of the Law of the Sea Convention. It applies 
     only to the high seas--not exclusive economic zones or 
     territorial seas. In the first instance it requires flag 
     States to ensure the full implementation of the moratorium, 
     but it also authorizes all members of the international 
     community to take measures individually and collectively to 
     prevent large-scale pelagic driftnet fishing operations. The 
     moratorium is in implementation of the provisions of Part 
     VII, Section 2 of the Law of the Sea Convention relating to 
     the Conservation and Management of the Living Resources of 
     the High Seas. It gives content to the principles of ``due 
     regard'' for the rights and interests of other States and to 
     the duty to cooperate in the conservation of living marine 
     resources on the high seas.
       Some have argued that the moratorium would never have been 
     achieved through diplomacy if the Law of the Sea Convention 
     had been in force. They argue that, had the Convention been 
     in force, the driftnetting States would have refused to 
     discuss the matter in the United Nations and might even have 
     tried to use the dispute settlement provisions of the 
     Convention to enforce their freedom to fish on the high seas 
     against those States that sought to end driftnetting. I do 
     not agree with this analysis at all.
       First, this argument assumes that the freedom to fish on 
     the high seas is an unfettered right. But that is not so. The 
     Convention significantly limits and qualifies that right by 
     making it subject to a number of important conditions, 
     including the obligation to cooperate in the conservation and 
     management of high seas living resources.
       Second, the States that sought the moratorium were able to 
     demonstrate that large-scale high seas driftnets, 
     particularly in
      the North Pacific Ocean, intercepted salmon on the high seas 
     in violation of Article 66 of the Convention and 
     indiscriminately killed large numbers of other species, 
     including marine mammals and birds, in contravention of 
     the 
     [[Page S3865]] obligations in Part VII to conserve and manage 
     living marine resources on the high seas and those of Article 
     192 to protect and preserve the marine environment.
       In light of this, there is no reason to believe that 
     driftnetting States could have successfully challenged the 
     moratorium through dispute settlement under the Convention. 
     In my view, the moratorium would have been achieved whether 
     or not the Convention was in force. A different question is 
     whether the Law of the Sea Convention helps to ensure 
     effective implementation of the moratorium.
       The moratorium on the use of large-scale high seas drift 
     nets is an important international understanding pertaining 
     to the conservation of living marine resources on the high 
     seas and the protection of the marine environment. It is 
     consistent with and meets the general obligation of States 
     found within Article 192 of the Convention to protect and 
     preserve the marine environment. It is properly within the 
     scope of constraints on fishing on the high seas that are 
     noted in Article 116.
       And, as in the Anadromous Stocks Convention situation, the 
     Law of the Sea Convention's provisions make fishing beyond 
     the EEZ--including driftnet fishing--subject to compulsory, 
     binding dispute settlement. It is clear to me that the 
     Convention's standards would be violated by any high seas 
     large-scale diftnet fishing that occurs contrary to the 
     moratorium. Thus, the dispute settlement provisions of the 
     Law of the Sea Convention would provide a new additional 
     means through which to ensure respect for the moratorium on 
     high seas driftnet fishing by enforcing Articles 66, 116 and 
     192 of the convention in light of the General Assembly 
     Resolutions on this subject.


            The Central Bering Sea Pollock Fishery Agreement

       The problem of straddling fish stocks has vexed the 
     international community since even before the Law of the Sea 
     negotiations concluded in 1982.
       For the United States, this problem arose in the Central 
     Bering Sea. In the mid-1980s, a fishery began outside the 
     U.S. and Russian 200-mile zones on a stock of pollock--the 
     Aleutian Basin stock--largely associated with the U.S. zone 
     and its fisheries. The international fishery on the high seas 
     grew quickly to harvesting 1.5 million metric tons or more 
     annually. Concerns about stock conditions led to measures to 
     restrain fisheries in the U.S. zone and increasingly urgent 
     calls by American fishermen for the U.S. government to take 
     steps to control the foreign fishery on the high seas.
       In 1991, negotiations began among Russia, Japan, Korea, 
     China, Poland and the United States in an effort to structure 
     a new fisheries relationship for the high seas area of the 
     Bering Sea. The negotiations began with largely a legal 
     debate about a fishery for a straddling stock on the high 
     seas and the respective rights of coastal States and fishing 
     nations in that regard. Fishing States were strongly of the 
     view that they were entitled to fish there on an equal 
     footing with other States, including coastal States. The 
     United States and Russia were of the opinion that the coastal 
     States--while not having jurisdiction over the fish in the 
     high seas area--nonetheless had a special interest in these 
     stocks. Our six country regional negotiation was more than 
     mindful that the straddling stock issue was also being played 
     out in other regions and was central to the U.N. Conference 
     on Straddling Fish Stocks and Highly Migratory Fish Stocks, 
     called for by UNCED.
       Ultimately, the six countries reached agreement, but only 
     after ten intense and difficult negotiating rounds over three 
     years.
       The agreement is contained in a convention that is called 
     the Donut Hole Convention in the United States. It is a 
     state-of-the-art fishing convention that resolves various 
     issues to the satisfaction of the States concerned. It does 
     not refer specifically to the special interests of coastal 
     States, but it does reflect such an interest in the outcome 
     of the negotiation on various issues while providing for fair 
     fishing opportunities on the high seas for all countries if 
     and when the stock recovers.
       Again, the Donut Hole Convention could not have been 
     negotiated without the framework and foundation provided by 
     the Law of the Sea Convention. Nor did the Law of the Sea 
     Convention hinder the attainment of the Donut Hole Convention 
     in any way.
       I do not have time to review its provisions here in any 
     detail. However, I would like to mention a few because I 
     believe that provisions such as these must and will be 
     incorporated into fishing agreements around the world in the 
     near future.
       The Donut Hole Convention provides that fishing vessels 
     will use real-time satellite position-fixing transmitters 
     while in the Bering Sea and that information collected 
     thereby will be exchanged on a real-time basis through 
     bilateral channels. This is the first multilateral fisheries 
     management agreement to contain such a requirement and it 
     will enable States such as Japan and the United States to 
     ensure that, for instance, Japanese fishing vessels 
     authorized to fish in the Donut Hole are doing so as 
     authorized as that their presence in the coastal
      State zones in the region is only for the legitimate purpose 
     of navigating to and from the fishing ground.
       The Donut Hole Convention also requires notification of 
     entry into the Convention Area; notification of the location 
     of transshipments 24 hours prior to such activity; the 
     presence of trained observers on all vessels; and the 
     collection and sharing of catch data on a timely basis. It 
     also provides for boarding and inspection of fishing vessels 
     by any party; and, in cases of serious violation, the 
     continuation of such boarding until the flag State is in a 
     position to take full responsibility for the fishing vessel.
       The Donut Hole Convention also contains provisions that 
     ensure that consensus decision-making does not lead to 
     stalemate or the inability to make effective conservation and 
     management decisions. This has been a major problem in 
     traditional fishing agreements. However, in this convention, 
     in the absence of consensus among the Parties, means and 
     procedures are established to ensure that no fishing occurs 
     in the Donut Hole except in accordance with sound 
     conservation and management rules.
       Provisions such as these break new ground in regional 
     fishery management agreements. I believe we should look for 
     more of this in the future. After all, we are close to the 
     21st century. We live in a world of space age communication 
     and data management. Fisheries data collection and its 
     availability to fisheries managers remains an archaic 
     process, to say the least. There is no reason today--other 
     than the reluctance of fishermen and their governments to 
     compel them--that every fishing vessel on the high seas does 
     not have on board a satellite transmitter capable of two way 
     communication, a fax machine, and a computer capable of 
     collecting, storing and transmitting data immediately in 
     agreed formats This is the future to which we look forward. 
     This is the direction true international fisheries 
     cooperation will take us.
       Let me return to the Donut Hole Convention. The United 
     States is confident that the Donut Hole Convention will be 
     fully and fairly implemented by its Parties and that in doing 
     so it will contribute to the protection of the marine 
     environment and the conservation of the Aleutian Basin 
     pollock resource and associated species for many years to 
     come. We look forward, as well, not just to seeing this 
     state-of-the-art convention well implemented, but to seeing 
     it evolve and continue to set a high standard for regional 
     fisheries agreements.
       Could the Law of the Sea Convention help the Parties to the 
     Donut Hole Convention?
       Certainly. First, the Law of the Sea Convention will 
     require no change in the Donut Hole Convention. The Donut 
     Hole Convention will operate as it was negotiated among its 
     Parties. Second, the Law of the Sea Convention can help the 
     Donut Hole Convention, as in the case of the Anadromous 
     Stocks Convention and the Driftnet Moratorium, by providing 
     an alternative enforcement mechanism to ensure that no vessel 
     undertakes conduct in the Central Bering Sea contrary to the 
     provisions of the Donut Hole Convention. The dispute 
     settlement provisions of the Law of the Sea Convention enable 
     its Parties to ensure enforcement of multilateral fishery 
     conservation arrangements on the high seas. Dispute 
     settlement does not replace other means that States have at 
     their disposal to enforce multilateral conservation 
     arrangements. It adds to the options available. The Law of 
     the Sea dispute settlement option can act both as a deterrent 
     and as a means to bring about final resolution should 
     problems arise in the Donut Hole in the future.


                       the fao flagging agreement

       The FAO Agreement to Promote Compliance with International 
     Conservation and Management Measures By Fishing Vessels on 
     the High Seas is often called the ``Flagging Agreement,'' 
     although it deals with much more than the flagging of fishing 
     vessels. From my perspective, this very important Agreement 
     could not have been successfully negotiated had the Law of 
     the Sea Convention not come before it. Moreover, as with the 
     other fishery agreements I've mentioned, States should be 
     able to use the dispute settlement procedures of the Law of 
     the Sea Convention to ensure observance of the FAO Agreement.
       The FAO Agreement is part of the FAO's Code of Conduct on 
     Responsible Fishing, an initiative begun at Mexico's Cancun 
     Conference in 1992. It rests upon basic principles regarding 
     high seas fishing and Flag State responsibility found in the 
     Law of the Sea Convention. With respect to high seas fishing, 
     as I have mentioned before, the LOS Convention does not 
     permit a ``free-for-all,'' an unfettered right to fish, as 
     some suggest. While the Convention acknowledges the general 
     right of all States for their nationals to fish on the high 
     seas, it makes this right subject to a number of important 
     conditions, including:
       (a) other treaty obligations of the State concerned;
       (b) the rights and duties as well as the interests of 
     coastal States; and
       (c) obligations to cooperate in the conservation and 
     management of high seas living resources.
       With respect to Flag State responsibility, Article 91 of 
     the Law of the Sea Convention gives States the right to grant 
     nationality to their ships. Flag States must ensure that 
     there is a genuine link between themselves and the vessels 
     that fly their flag. In addition to cooperating in the 
     conservation and management of highs seas resources, Flag 
     [[Page S3866]] States (like all States)
      must protect and preserve the marine environment, which 
     includes living marine resources.
       The FAO Agreement builds upon these principles to meet two 
     basic objectives. First, the Agreement sets forth a range of 
     specific obligations for Flag States to ensure that their 
     vessels act consistently with conservation and management 
     needs developed by regional fishing arrangements. Second, the 
     Agreement greatly promotes the transparency of high seas 
     fishing operations through the collection and dissemination 
     of information. By being Party to the FAO Agreement, a State 
     fulfills basic responsibilities imposed by the LOS Convention 
     to cooperate in the conservation and management of high seas 
     living resources.
       Flag State responsibility has a long tradition in the Law 
     of the Sea, mostly--but not completely--for the good. It was 
     originally justified on the notion that a ship should be 
     regarded as an extension of the territory of the Flag State. 
     Generally speaking, when a ship is on the high seas, no other 
     State may exercise jurisdiction over it.
       This exclusivity of jurisdiction has long been recognized 
     to imply a duty--Flag States must control their vessels to 
     ensure that they act consistently with international law. The 
     Law of the Sea Convention makes this explicit--in exchange 
     for exclusive jurisdiction over its vessels on the high seas, 
     Flag States must ensure that such vessels act responsibly.
       Today, high seas fishing vessels have harvesting capacities 
     never imagined in the days when the notion of Flag State 
     responsibility first arose. Modern fishing vessels and fleets 
     can literally wipe out fish stocks. Flag States have a duty 
     under the Law of the Sea Convention to exercise great 
     vigilance over their fishing vessels which operate on the 
     high seas. The FAO Agreement identifies vital elements of 
     that duty. If they do not meet their duty, the fishery 
     resources on which we all depend will collapse, and the Flag 
     States will have failed to exercise their responsibility 
     under the Law of the Sea Convention.
       Some Flag States have begun to exercise this greater 
     vigilance over their high seas fishing vessels. Others, 
     unfortunately, continue to allow their flags to be flown by 
     vessels over which they exercise virtually no control. This 
     is improper under the Law of the Sea Convention. When such 
     vessels fish in ways that break the rules and do harm to the 
     marine environment, these States sometimes try to hide behind 
     the tradition of Flag State responsibility, asserting that no 
     other State may take action to compel proper fishing behavior 
     on the high seas. When such vessels are suspected of fishing 
     illegally in zones of national jurisdiction, and are later 
     found on the high seas, there States sometimes refuse to 
     cooperate with coastal States in investigating the alleged 
     violations.
       These patterns of conduct are inconsistent with Law of the 
     Sea Convention requirements and jeopardize respect for the 
     tradition of Flag State responsibility for fishing vessels on 
     the high seas. The FAO Agreement represents one attempt to 
     address part of the problem. It sets forth a reasonable set 
     of specific duties for Flag States to ensure that their 
     vessels do not undermine conservation rules on the high seas. 
     As such, it elaborates upon basic duties in the Law of the 
     Sea Convention.
       All states should move quickly to become party to the FAO 
     Agreement or otherwise observe its requirements. For those 
     Flag States that do not, the international community can be 
     expected to find another approach to fulfill the intent of 
     the Law of the Sea Convention that the marine environment be 
     preserved and protected against the actions of irresponsible 
     high seas fishing vessels.
       The message is that the Flag States of vessels fishing on 
     the high seas must do more to cooperate among themselves and 
     with coastal States. Some States argue that it is a 
     derogation of sovereignty to cooperate with other States on 
     the high seas in matters pertaining to boarding, inspection 
     and other questions of compliance for responsible fishing 
     behavior. We disagree. We see cooperation as an exercise of 
     sovereignty.
       Provision of high seas catch data to other States is not an 
     infringement upon sovereignty or a derogation from the 
     traditions of Flag State responsibility. It is a exercise of 
     sovereignty and responsibility in fulfillment of the duty to 
     cooperate to conserve the world's fishery resources and to 
     protect the marine environment. Cooperating with coastal 
     States on high seas enforcement problems, including boarding 
     and inspection, either through formal or informal 
     arrangements, is not an infringement on sovereignty or the 
     traditions of Flag State responsibility. It is a practical 
     decision by a sovereign State and an exercise of its Flag 
     State duties to ensure that its flag vessels comply with 
     international law and the rules and norms of responsible 
     fishing behavior.
       The Law of the Sea Convention does not set up the high seas 
     as a sanctuary for irresponsible fishermen. States with 
     fishing vessels on the high seas have a duty under the Law of 
     the Sea Convention to cooperate with other States. That 
     cooperation may take many forms--but it must be directed 
     toward responsible conservation and management actions; and 
     that means, at a minimum, monitoring and inspection of 
     fishing vessels and reporting about their activities.
       Within the context of regional fishery agreements, Flag 
     States should consent to boarding and inspection of their 
     fishing vessels on the high seas by other States to ensure 
     compliance
      with those agreements. If a high seas fishing vessel is 
     violating agreed fishing measures, the Flag State should 
     either exercise responsibility for the vessel or authorize 
     another State to exercise such responsibility on its 
     behalf. If a vessel is suspected of violating coastal 
     State rules, the Flag State should cooperate with the 
     coastal State and provide the most efficient means of 
     investigation including agreeing to coastal State boarding 
     and inspection on the high seas when the Flag State is not 
     in position to do so.
       Numerous international extradition agreements include the 
     ``prosecute or extradite'' rule. We believe international 
     fishery agreements and relationships should include a similar 
     approach. A State must either ensure that its flag vessels 
     engage in responsible fishing on the high seas, or be 
     prepared to allow other States to take the necessary steps. 
     This approach fully respects the basic traditions of Flag 
     State responsibility enshrined in the Law of the Sea 
     Convention, while also meeting other responsibilities found 
     in the Convention of equally compelling character to 
     cooperate for the conservation and management of high seas 
     living resources.
       This approach, which the United States is advocating in the 
     United Nations Conference on Straddling Fish Stocks and 
     Highly Migratory Fish Stocks, is completely consistent with 
     the Law of the Sea Convention. If Flag States do not 
     cooperate in this fashion, I believe that other members of 
     the international community, particularly coastal States, 
     will become more aggressive in asserting their rights and 
     interests with respect to living marine resources. Indeed, we 
     have begun to witness such actions in recent years.
       We do not have time to go into this critical subject at 
     greater length. We should recognize, however, the 
     contributions that the FAO Agreement has made to giving 
     content to the Flag State duties of the Law of the Sea 
     Convention. We look forward to the FAO Agreement's entry into 
     force and full implementation.


                               conclusion

       We generally ask too much of our international 
     institutions. The Law of the Sea Convention is not a panacea 
     that will make the oceans pristine and bountiful. Human 
     behavior has a much greater role to play.
       In the last ten years we have seen progress made on a 
     number of fronts relating to the marine environment and high 
     seas fisheries. And I should note that I have recounted just 
     a few. These examples demonstrate, however, that it is 
     possible to give real substantive, positive, beneficial, 
     responsible content to that overused word ``cooperation.'' 
     There are, as well, recent major achievements in protection 
     of the marine environment from pollution, including, Marpol 
     and the London Convention prohibitions on the ocean dumping 
     of industrial waste and radioactive waste.
       But, much remains to be done. The International Coral Reef 
     Initiative in which Japan and the United States are playing a 
     leading role is a step in the right direction. The Global 
     Conference on Land Based Sources of Marine Pollution to be 
     held in Washington at the end of 1995 offers the possibility 
     of beginning to come to grips with the most insidious of 
     ocean pollution problems. And, of course, there is the UN 
     Conference on Straddling Fish Stocks and Highly Migratory 
     Fish Stocks in which we hope to make continuing progress in 
     the field of international fisheries cooperation.
       The progress made in these areas to date is no doubt due in 
     part to the fact that we have begun to realize in a more 
     forceful way that we have to take care of the oceans--that we 
     have to agree to restrain our behavior--that we just can not 
     do what we want, that ships under our flags must abide by 
     rules of behavior to protect the marine environment and to 
     conserve fisheries. It is also due in part to the fact that 
     for eight years, from 1974-1982, the Third U.N. Conference on 
     the Law of the Sea brought the entire world together to 
     identify and negotiate the basic rules for traditional uses 
     of the oceans and to set them out in the Law of the Sea 
     Convention.
       Thus, for the last ten years we have had a common 
     foundation upon which to build. The progress made on ocean 
     issues in the last ten years is directly attributable to the 
     fact that everyone agreed on the basic rules.
       The entry into force of the Law of the Sea Convention 
     creates new opportunities to protect the marine environment 
     and to conserve its fisheries. Not the least of these 
     opportunities is found in the Convention's dispute settlement 
     provisions, which no amount of rhetoric can make customary 
     law.
       No responsible actor, be it government, or individual, has 
     anything to fear from compulsory dispute settlement. The Law 
     of the Sea Convention's dispute settlement provisions, even 
     if never used, can deter improper behavior and compel 
     performance with basic rules and undertakings established by 
     the international community to protect the marine environment 
     and to conserve fisheries.
       Let us ensure that we continue to make progress in these 
     all important areas now that the Convention is in force.

[[Page S3867]]

The 73 Countries That Have Ratified the Law of the Sea Convention as of 
                             March 1, 1995

       Angola, Antigua and Barbuda, Australia, The Bahamas, 
     Bahrain, Barbados, Belize, Bosnia-Herzegovina, Botswana, 
     Brazil.
       Cameroon, Cape Verde, Comoros, Cook Islands, Costa Rica, 
     Cote d'Ivoire, Cuba, Cyprus, Djibouti, Dominica, Egypt, 
     Federal Republic of Yugoslavia.
       Fiji, the Gambia, Germany, Ghana, Grenada, Guinea, Guinea-
     Bissau, Guyana, Honduras, Iceland, Indonesia, Iraq.
       Italy, Jamaica, Kenya, Kuwait, Lebanon, Former Yugoslav 
     Republic of Macedonia, Mali, Malta, Marshall Islands, 
     Mauritius.
       Mexico, Federated States of Micronesia, Namibia, Nigeria, 
     Oman, Paraguay, Philippines, St. Kitts and Nevis, St. Lucia, 
     St. Vincent and the Grenadines.
       Sao Tome and Principe, Senegal, Seychelles, Sierra Leone, 
     Singapore, Somalia, Sri Lanka, Sudan, Tanzania, Togo.
       Trinidad and Tobago, Tunisia, Uganda, Uruguay, Vietnam, 
     Yemen, Zaire, Zambia, Zimbabwe.
     

                          ____________________