[Senate Executive Report 113-2]
[From the U.S. Government Publishing Office]


113th Congress                                              Exec. Rept.
                                 SENATE
 2d Session                                                       113-2

======================================================================



 
  CONVENTION ON THE CONSERVATION AND MANAGEMENT OF HIGH SEAS FISHERY 
        RESOURCES IN THE SOUTH PACIFIC OCEAN (TREATY DOC. 113-1)

                                _______
                                

                 March 13, 2014.--Ordered to be printed

                                _______
                                

         Mr. Menendez, from the Committee on Foreign Relations,
                        submitted the following

                                 REPORT

                    [To accompany Treaty Doc. 113-1]

    The Committee on Foreign Relations, to which was referred 
the Convention on the Conservation and Management of High Seas 
Fishery Resources in the South Pacific Ocean (Treaty Doc. 113-
1) (the ``Convention''), which was adopted at Auckland, New 
Zealand on November 14, 2009 and signed by the United States on 
January 31, 2011, having considered the same, reports favorably 
thereon with one declaration, as indicated in the resolution of 
advice and consent, and recommends that the Senate give its 
advice and consent to ratification thereof.

                                CONTENTS

                                                                   Page

  I. Purpose..........................................................1
 II. Background.......................................................2
III. Summary of Key Provisions of the Convention......................2
 IV. Implementing Legislation.........................................6
  V. Committee Action.................................................6
 VI. Committee Recommendation and Comments............................6
VII. Text of Resolution of Advice and Consent to Ratification.........7

                               I. Purpose

    The Convention establishes the South Pacific Regional 
Fisheries Management Organization (SPRFMO), which allows member 
Parties to cooperate in applying conservation and management 
principles to the high seas fishery resources in the South 
Pacific Ocean. A number of committees have been established to 
assist the main SPRFMO committee, which adopts conservation and 
management measures to ensure long-term sustainability of 
fishery resources and protect habitats and marine ecosystems, 
develops rules for storing and disseminating data, and develops 
effective monitoring, compliance and enforcement procedures to 
prevent IUU fishing and ensure that the committee's 
conservation and management measures are carried out.

                             II. Background

    In 2005, the Governments of Australia, New Zealand and 
Chile initiated a process for States to address what was 
previously a gap in the international conservation and 
management of fisheries, habitats and ecosystems of the South 
Pacific Ocean. The Convention, which was adopted on November 
14, 2009, builds on the practices of other regional fisheries 
management organizations and relevant agreements. Though the 
United States did not initiate the negotiations process, it 
later took a leading role in the negotiations. The Convention 
opened for signature on February 1, 2010, and entered into 
force on August 24, 2012.

            III. Summary of Key Provisions of the Convention

    A detailed article-by-article discussion of the Convention 
may be found in the Letter of Submittal from the Secretary of 
State to the President, which is reprinted in full in Treaty 
Document 113-1. A summary of the key provisions of the 
Convention is set forth below.
    Article 1 of the Convention defines a number of terms. The 
Article defines ``fisheries resources'' as including fish, 
mollusks and crustaceans, but not marine mammals, marine 
reptiles, sea birds, sedentary species under the jurisdiction 
of coastal states, or highly migratory species. The Article 
also defines ``Contracting Party'' as any State or regional 
economic integration organization which has consented to be 
bound by the Convention, which allows for the participation of 
the European Union. The Article also contains a provision that 
would allow entities such as Taiwan to gain direct 
participation in the SPRFMO.
    Article 2 lists the Convention's objective, which is to 
ensure the long-term conservation and sustainable use of 
fishery resources, as well as to safeguard the marine ecosystem 
in the applicable area.
    Article 3 requires Parties, the Commission, and the 
Commission's subsidiary bodies to apply conservation and 
management principles such as sustainable use of resources, the 
prevention of overfishing, collection of accurate data on 
fishing, making decisions based on the best scientific and 
technical information, cooperation and coordination between 
Parties, and effective compliance with conservation and 
management measures.
    Article 4 requires that Parties harmonize conservation and 
management measures established for the high seas and those 
adopted for areas under national jurisdiction in order to 
ensure conservation and management of fishery resources that 
extend across both areas. Initial conservation measures taken 
by the Commission shall take due account of, and not undermine 
existing conservation and management measures established by 
relevant Parties.
    Article 5 establishes the area of application of the 
Convention across the Pacific Ocean, but notes that nothing in 
the Convention constitutes recognition of the legal status of 
the waters and zones claimed by Contracting Parties.
    Article 6 establishes the South Pacific Regional Fisheries 
Management Organization, which consists of a Commission, a 
Scientific Committee, a Compliance and Technical Committee, 
Western and Eastern Sub-regional Management Committees, a 
Finance and Administration Committee, and a Secretariat, with 
the possibility of future subsidiary bodies.
    Article 7 states that each Party shall be a member of the 
Commission. The Commission itself will elect a Chairperson and 
Vice-Chairperson from among the Parties, and will serve for a 
term of 2 years.
    Article 8 sets out the functions to be exercised by the 
Commission, including the adoption of conservation and 
management measures, the development of rules for collecting, 
storing and disseminating data, improving knowledge of fishery 
resources, the development of effective monitoring, compliance 
and enforcement procedures, measures to assess State 
performance and prevent IUU fishing, supervise the subsidiary 
bodies of the Organization, adopt the budget and any 
regulations necessary to exercise its functions.
    Article 10 establishes the functions of the Scientific 
Committee, which is primarily to conduct scientific assessments 
of the status of fishery resources, and to use those 
assessments to provide recommendations to the Commission on 
conserving and managing fish stocks. The Scientific Committee 
will also advise the Commission on the impacts of fishing on 
the entire marine ecosystem, including non-target species, and 
will give advice and recommendations on the identification and 
distribution of vulnerable marine ecosystems.
    Article 11 establishes the functions of the Compliance and 
Technical Committee, which is meant to monitor and review the 
implementation of and compliance with the Convention's 
conservation and management measures, as well as the 
committee's monitoring, control and surveillance measures.
    Article 12 outlines the responsibilities of the Eastern and 
Western Sub-regional Management Committees, and allows the 
Commission to assign to one of the committees primary 
responsibility for developing and making recommendations on 
conservation and management measures for specific fishery 
resources. Failing consensus, the committees may make 
recommendations approved by a two-thirds majority of the 
members.
    Article 15 directs the Commission to adopt at its first 
meeting a budget to fund the Commission, as well as financial 
regulations. The Commission must also adopt a formula for 
calculating members' contributions to the annual budget, which 
is a combination of a basic fee and a variable fee based on the 
total catches of fisheries resources. All decisions on the 
budget must be made by consensus. Unless otherwise specified, 
however, a member of the Commission in payment arrears may not 
participate in the Commission's decisions until it has paid all 
monies owed.
    Article 16 provides that, for decisions that do not require 
consensus, decisions on procedural matters shall be taken by a 
majority of the members casting votes, and decisions on matters 
of substance require a three-fourths majority. If there is a 
dispute over whether a matter is substantial, it shall be 
treated as such.
    Article 17 holds that substantial committee decisions 
generally become binding 90 days after the Executive Secretary 
notifies all members of the Commission. Within 60 days of the 
Commission's decision on a question of substance, a member of 
the Commission may present the Executive Secretary with an 
objection that specifies the grounds for objection and adopts 
alternative measures. A Review Panel will be established to 
examine the objection and the alternative measures, and within 
45 days is required to transmit its findings and 
recommendations on whether the grounds specified for the 
objection are justified.
    Article 19 requires the Commission to give full recognition 
to the special requirements of developing regional State 
Parties, and to take into account the special requirements of 
the least developed States, including their vulnerability to 
exploitation of living marine resources, the necessity of 
avoiding adverse impacts on those engaged in subsistence and 
small-scale fishing, and the need to ensure that Commission 
measures do not transfer a disproportionate burden of 
conservation action onto developing States. The Article also 
requires the Commission to enhance the ability of developing 
States to conserve and manage fishery resources, enable them to 
participate in fishing for marine resources, and facilitate 
increased participation. Cooperation may include financial 
assistance, technology transfers, advisory and consultative 
services, as well as human resources development and technical 
assistance. The Commission is also directed to establish a fund 
to facilitate the participation of developing State Parties.
    Article 20 requires that the Commission adopt conservation 
and management measures to ensure the long-term sustainability 
of fishery resources, prevent over-fishing, maintain or restore 
populations of non-target or dependent species, and protect 
habitats and marine ecosystems. The Commission's conservation 
and management measures must determine reference points, the 
nature and extent of fishing for any fishery resource, the 
locations where fishing may occur, the periods in which fishing 
may occur, the types of equipment which may be used while 
fishing, and catch size limits. In determining a total 
allowable catch, the Commission is required to take into 
account factors such as fishing patterns, the catch of the same 
fishery resource within other relevant areas, an allowance for 
discards, effects on the marine ecosystems, relevant 
environmental factors, and appropriate conservation and 
management measures adopted by other intergovernmental 
organizations. For fishery resources straddling the Convention 
Area and areas under the national jurisdiction of coastal state 
Parties, the Commission will establish, with the express 
consent of the Parties concerned, a total allowable catch. 
Where fishing presents a serious threat to the sustainability 
of fishery resources or the nearby marine ecosystem, the 
Commission shall adopt measures to be applied on an emergency 
basis, which are temporary and must be reconsidered at the next 
meeting of the Commission.
    Article 21 requires that when making decisions regarding 
participation in fishing for any fishery resource, the 
Commission take into account the status of the fishery resource 
and the existing levels of fishing effort for that resource, as 
well as a number of factors that include historic patterns of 
fishing, State compliance levels with measures adopted by the 
Commission, as well as with data reporting requirements, the 
effectiveness of flag State control over fishing vessels, and 
the interests of developing States. Once the Commission 
establishes a total allowable catch for a fishery resource, it 
may take decisions regarding participation in fishing for that 
resource, so long as it has the express consent of the Parties 
concerned. When consent is not provided, the Commission shall 
cooperate with the parties pursuant to Article 4.
    Article 24 requires each member of the Commission to 
implement the Convention and any conservation and management 
measures adopted by the Commission, cooperate in furthering the 
objectives of the Convention, take all necessary measures to 
support ending IUU fishing, and report relevant scientific, 
technical and statistical data pertaining to fishery resources. 
Each member must report to the Commission on an annual basis on 
how it has implemented conservation and compliance measures, as 
well as enforcement procedures, and must take measures to 
ensure compliance by its nationals. Each member must, within 
the boundaries of their laws, establish arrangements for making 
evidence of Convention violations available to prosecuting 
authorities of other members of the Commission.
    Article 25 requires members to make certain that fishing 
vessels flying their flag comply with the Convention and 
Commission measures, and do not conduct unauthorized fishing or 
other activities which would undermine the Convention. States 
must authorize a vessel to fly their flag only when it is 
capable of responsibly exercising its responsibilities over the 
vessel.
    Articles 26 and 27 deal with monitoring and enforcement 
issues. Article 26 affirms the rights and duties of a port 
State to promote the effectiveness of conservation and 
management measures in relation to entry and use of ports. If a 
Party considers that a vessel making use of its ports has 
violated a provision of the Convention or a measure of the 
Commission, it must notify the vessel's flag State, the 
Commission and other relevant Parties, and provide appropriate 
documentation to the flag State and the Commission. Article 27 
authorizes the Commission to adopt a number of monitoring, 
control and surveillance procedures and programs to ensure 
compliance with the Convention and the Commission's measures. 
Should a Party or entity's vessels engage in fishing activities 
that fail to comply with the Commission's conservation and 
management measures, the Commission may develop procedures for 
applying responsive measures, including trade-related measures, 
so long as it remains consistent with World Trade Organization 
obligations.
    Article 32 directs members to work independently and 
collectively to monitor fishing activities of non-members to 
the Convention and to take measures consistent with the 
Convention and international law to deter activities that may 
undermine the effectiveness of the conservation and management 
measures adopted by the Commission. Members can apply measures 
collectively or individually to address problems arising from 
fishing by nonmembers.
    Article 34, (``Settlement of Disputes''), provides that 
Contracting Parties shall use best endeavors to settle disputes 
by amicable means but if the relevant Contracting Parties are 
unable to do so, then they may use the dispute resolution 
procedures as established under the Article.
    Article 35 specifies that amendments to the Convention must 
be adopted by a three-fourths majority vote of the present and 
voting Contracting Parties. The Amendments take effect 120 days 
after the Depository receives notification of approval from 
three-fourths of all contracting parties, unless a Party lodges 
an objection within 90 days.
    Articles 43 and 44 make clear that no reservations or 
exceptions to the Convention are permitted, but declarations 
and statements can be made when signing or acceding to the 
Convention so long as they do not attempt to exclude or modify 
the legal effects of the Convention's provisions.

                      IV. Implementing Legislation

    Legislation will be needed to implement this Convention. 
The executive branch has indicated that it will soon provide 
proposed legislation to the appropriate congressional 
committees.

                          V. Committee Action

    The Committee on Foreign Relations held a public hearing on 
the Convention on February 12, 2014, at which it heard 
testimony from David Balton, the Deputy Assistant Secretary for 
Oceans and Fisheries at the Department of State, as well as 
from Russell Smith, the Deputy Assistant Secretary for 
International Fisheries at the Department of Commerce, and Rear 
Admiral Frederick J. Kenney, Judge Advocate General and Counsel 
for the United States Coast Guard. The committee also heard 
testimony from a panel of private sector witnesses: Mark 
Gleason, Executive Director of the Alaska Bering Sea Crabbers; 
Mark P. Lagon, Global Politics and Security Chair of Georgetown 
University and Adjunct Senior Fellow for Human Rights at the 
Council on Foreign Relations; and Raymond Kane, Outreach 
Coordinator for the Cape Cod Commercial Fishermen's Alliance. 
On March 11, 2014, the committee considered the Convention and 
ordered it favorably reported by voice vote, with the 
recommendation that the Senate give its advice and consent to 
its ratification.

               VI. Committee Recommendation and Comments

    The Committee on Foreign Relations believes that the 
proposed Convention is in the interest of the United States and 
urges the Senate to act promptly to give advice and consent to 
its ratification. Though the United States does not currently 
have any vessels fishing in the Convention area covered by the 
Convention, the committee believes the Convention is of direct 
and important interest to United States conservation 
organizations and U.S. consumers, and has the potential to 
directly impact United States fishing concerns, and that all 
the above parties have an important stake in the health of the 
oceans and the fisheries resources protected by the Convention.
    The Committee on Foreign Relations has included one 
declaration in the recommended resolution of advice and 
consent. The declaration states that the Convention is not 
self-executing. This statement means that the Convention will 
have domestic effect through implementing legislation and 
regulations thereunder. Prior to the 110th Congress, the 
committee generally included such statements in the committee's 
report, but in light of the Supreme Court decision in Medellin 
v. Texas, 128 S. Ct. 1346 (2008), the committee determined that 
a clear statement in the Resolution is warranted. A further 
discussion of the committee's views on this matter can be found 
in Section VIII of Executive Report 110-12.

     VII. Text of Resolution of Advice and Consent to Ratification

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION

    The Senate advises and consents to the ratification of the 
Convention on the Conservation and Management of High Seas 
Fishery Resources in the South Pacific Ocean (Treaty Doc. 113-
1) (the ``Convention''), which was adopted at Auckland, New 
Zealand on November 14, 2009 and signed by the United States on 
January 31, 2011, subject to the declaration of section 2.

SECTION 2. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:
          The Convention is not self-executing.

                                  
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