[Senate Executive Report 113-3]
[From the U.S. Government Publishing Office]
113th Congress Exec. Rept.
SENATE
2d Session 113-3
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CONVENTION ON THE CONSERVATION AND MANAGEMENT OF HIGH SEAS FISHERIES
RESOURCES IN THE NORTH PACIFIC OCEAN (TREATY DOC. 113-2)
_______
March 13, 2014.--Ordered to be printed
_______
Mr. Menendez, from the Committee on Foreign Relations,
submitted the following
REPORT
[To accompany Treaty Doc. 113-2]
The Committee on Foreign Relations, to which was referred
the Convention on the Conservation and Management of High Seas
Fisheries Resources in the North Pacific Ocean (Treaty Doc.
113-2) (the ``Convention''), done at Tokyo, Japan on February
24, 2012, and signed by the United States on May 2, 2012,
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.........................................5
V. Committee Action.................................................5
VI. Committee Recommendation and Comments............................5
VII. Text of Resolution of Advice and Consent to Ratification.........6
I. Purpose
The Convention will establish the North Pacific Fisheries
Commission, which will adopt and implement conservation and
management measures for unregulated fish stocks in the high
seas of the North Pacific Ocean, as well as a robust
monitoring, control and surveillance system. The Scientific
Committee, a subsidiary of the Commission, will also establish
standards to determine whether bottom fishing activities are
likely to produce significant adverse effects on vulnerable
marine ecosystems or species in the Convention Area.
II. Background
Beginning in 2004, the United Nations General Assembly and
other organizations called upon States to address gaps in
international fisheries management. In 2006, Japan commenced a
dialogue with interested nations concerning management of the
Northwest Pacific Ocean. At the suggestion of the United
States, participating nations agreed in October 2008 to pursue
the development of a regional fisheries management organization
which would cover both the Northwest and the Northeast Pacific
Ocean. Of the ten negotiation sessions on the subject, the
United States chaired the final three sessions. Negotiations on
the proposed Convention on the Conservation and Management of
High Seas Fisheries Resources in the North Pacific Ocean were
concluded in Tokyo on February 24, 2012, and the United States
signed the Convention on May 2, 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 113-2. 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 all fish, mollusks,
crustaceans and other marine species caught by fishing vessels,
and excludes certain species, as well as marine mammals,
reptiles, seabirds, and species already covered by pre-existing
international fisheries management instruments. The Article
also defines ``fishing activities'' as catching, taking or
harvesting fisheries resources, engaging in any activity that
could lead to taking or harvesting, and processing or
transshipping these resources.
Article 2 lays out 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 and the Commission to work
individually or collectively to promote the general principles
of the Convention, which include ensuring the long-term
sustainability of fisheries resources, making decisions based
on the best scientific and technical information, assessing the
impacts of fishing activities, protecting biodiversity in the
marine environment, preventing overfishing, sharing data on
fishing activities between Parties, ensuring compliance with
conservation and management measures, and reducing pollution
and waste from fishing vessels.
Article 4 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 5 establishes the North Pacific Fisheries
Commission, which will include as members each Contracting
Party. The Commission's leadership will consist of a
Chairperson and a vice-Chairperson from among the Contracting
Party representatives. The representatives elected to these
positions cannot be from the same Party, and serve for a period
of 2 years. Though they are eligible for reelection, they
cannot serve in their position for more than 4 years in
succession. The representatives elected to these positions
cannot be from the same Party.
Article 6 establishes a Scientific Committee and a
Technical and Compliance Committee as subsidiary bodies to the
Commission, and grants the Commission the ability to establish
by consensus other subsidiary bodies as appropriate.
Article 7 lays out the functions to be exercised by the
Commission, which include the adoption of conservation and
management measures for fisheries resources, making certain
that levels of total allowable catch are in accordance with the
advice and recommendations of the Scientific Committee, the
adoption of conservation and management measures for vulnerable
marine ecosystems, and establishing terms and conditions for
any new fisheries in the Convention Area. The Commission must
also adopt measures ensuring effective compliance and
enforcement of the Convention through monitoring, control and
surveillance. The Article also states that the Commission shall
perform such other functions and activities necessary to
promote the objectives of the Convention.
Article 8 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 9 states that a Commission decision becomes binding
90 days after the date of transmittal in the Chairperson's
notification of adoption. Members of the Commission can object
only on the grounds, which must be specified, that the decision
is inconsistent with the provisions of the Convention, the 1982
Convention or 1995 Agreement, or that the decision
unjustifiably discriminates against the objecting member. An
objecting member must propose an alternative measure and notify
the Commission at least 2 weeks in advance of the decision
becoming binding, in which case the decision will then not be
binding on that member. If the Commission determines the
objection lacks merit, the objecting member may avail itself of
the Convention's dispute resolution mechanisms.
Articles 10 and 11 establish the functions and
responsibilities of the two named subsidiary committees. The
Scientific Committee must provide the Commission with a
research plan, must assess the status of fish stocks and the
impact of fishing on fisheries resources, and must establish
standards to determine whether bottom fishing activities are
likely to produce significant adverse effects on vulnerable
marine ecosystems or species. The Technical and Compliance
Committee must monitor and review the implementation of the
Commission's conservation and management measures, as well as
the Commission's cooperative measures for monitoring, control,
surveillance, and enforcement.
Article 12 states that the Commission's budget shall be
divided among members of the Commission in accordance with a
formula that will be adopted by consensus. Members of the
Commission that fail to pay their contributions in full for 2
consecutive years are not entitled to participate in decision-
making or to present objections to Commission decisions.
Article 13 obligates Contracting Parties to ensure that
vessels in the Convention Area entitled to fly the Party's flag
comply with the provisions of the Convention, as well as the
measures adopted pursuant to the Convention, and to ensure that
such vessels are only authorized to conduct fishing activities
in the Convention Area when given approval by an appropriate
State authority that can effectively exercise its
responsibilities overseeing the vessels.
Article 14 outlines the duty of Contracting Parties to give
effect to the port State measures adopted by the Convention, to
provide assistance to flag States when they request that the
Contracting Party provide assistance in ensuring compliance
with the provisions of the Convention, and to provide flag
States with full documentation when a Contracting Party
considers that a fishing vessel in its port has violated a
provision of the Convention. However, the Article does not
affect the exercise of sovereignty over ports by Contracting
Parties.
Article 15 applies the relevant duties of port and flag
States to ``Fishing Entities'' that have expressed a commitment
to abide by the terms of this Convention. The term ``fishing
entities'' is commonly used in international fisheries
management agreements to refer to Taiwan as a non-State
participant. There are no other entities understood to be
``Fishing Entities'' under this Convention.
Article 16 requires the Commission to develop standards,
rules and procedures for data collection, verification, and
exchange thereof. The Article also requires the Commission to
ensure that data concerning the number of fishing vessels in
the Convention Area, the status and assessments of fisheries
resources managed under the Convention, research programs and
cooperative initiatives are made publically available.
Article 17 requires members of the Commission to enforce
the Convention's provisions and the Commission's decisions,
investigate fully any allegations of violations, and to take
appropriate actions in accordance with its laws and regulations
when sufficient information is available to suggest an alleged
violation by a fishing vessel flying the flag of the member
State. When it has been established that a fishing vessel
flying the flag of a member State has violated either the
provisions of the Convention or the conservation and management
measures adopted by the Commission, the member is required to
order the vessel to cease operations and ensure that the vessel
does not engage in fishing activities within the Convention
Area until all outstanding sanctions imposed on the vessel are
complied with. All investigations and judicial proceedings must
be carried out expeditiously.
Article 20 obligates members of the Commission to exchange
information on the activities of vessels in the Convention Area
flying the flags of non-Contracting Parties, to draw attention
to activities taken by these vessels that affects the
attainment of the Convention's objectives, to take measures to
deter the activities of these vessels when they undermine
conservation and management measures adopted by the Commission,
and to request that the non-Contracting Party cooperate fully
with the Commission.
Article 21 requires the Commission to cooperate with the
FAO or other specialized agencies of the United Nations such as
regional fisheries management organizations on matters of
mutual interest, to take into account the conservation and
management measures or recommendations adopted by these
organizations, and to make suitable arrangements for
consultation, cooperation and collaboration with these
organizations.
Article 22 requires the Commission to organize regular
reviews analyzing the effectiveness of its conservation and
management measures, and compliance therewith, and to take into
account any recommendations produced by the review.
Article 24 contemplates the accession of others to the
Convention who have received a consensus invitation from the
Contracting Parties and are (1) other States or regional
economic integration organizations (e.g., the European Union)
whose vessels wish to conduct fishing activities for fisheries
resources in the Convention Area, or (2) other coastal States
of the Convention Area.
Articles 26 and 27 state that no reservations or exceptions
may be made to the Convention, but that States or regional
economic integration organizations may still make declarations
and statements, so long as they do not purport to exclude or
modify the legal effect of the Convention's provisions.
Article 29 requires that any proposal to amend the
Convention be sent in writing to the Chairperson of the
Commission ninety days prior to the meeting at which it is to
be considered, that amendments must be adopted by consensus,
and that amendments take effect one hundred and twenty days
after the Depositary receives the notification of approval of
all Contracting Parties.
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. The committee believes the Convention would
provide effective management of and protect U.S. interests in a
valuable fisheries area, would bolster the U.S. fishing
industry and consumers by helping to provide a fair market, and
will benefit U.S. conservation organizations, who 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
Fisheries Resources in the North Pacific Ocean, Done at Tokyo
on February 24, 2012, and Signed by the United States on May 2,
2012 (the ``'Convention'') (Treaty Doc. 113-2), 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.