[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.
____________________