[Senate Executive Report 113-3]
[From the U.S. Government Publishing Office]


113th Congress                                              Exec. Rept.
                                 SENATE
 2d Session                                                       113-3

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



 
 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.

                                  
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