[Senate Executive Report 117-3]
[From the U.S. Government Publishing Office]


117th Congress}                                           { EXEC. REPT.
                                 SENATE
  2d Session  }                                           { 117-3

======================================================================
 
 AMENDMENTS TO THE 1987 TREATY ON FISHERIES BETWEEN THE GOVERNMENTS OF 
 CERTAIN PACIFIC ISLAND STATES AND THE GOVERNMENT OF THE UNITED STATES

                                _______
                                

                  June 8, 2022.--Ordered to be printed

                                _______
                                

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

                                 REPORT

                    [To accompany Treaty Doc. 115-3]

    The Committee on Foreign Relations, to which was referred 
the Amendments to the Treaty on Fisheries between the 
Governments of Certain Pacific Island States and the Government 
of the United States of America done at Port Moresby April 2, 
1987, as amended, done at Nadi, Fiji, December 3, 2016 (``the 
Amendments'') (Treaty Doc. 115-3), 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, as 
set forth in this report and the accompanying resolution of 
advice and consent.

                                CONTENTS

                                                                   Page

  I. Purpose..........................................................1
 II. Background.......................................................2
III. Implementing Legislation.........................................2
 IV. Committee Action.................................................2
  V. Committee Recommendation and Comments............................2
 VI. Text of Resolution of Advice and Consent to Ratification.........3
VII. Annex I.--Overview and Article by Article Analysis of the 
     Amendments.......................................................4

                               I. Purpose

    The purpose of the Amendments is to update the Treaty on 
Fisheries between the Governments of Certain Pacific Island 
States and the Government of the United States of America (the 
``South Pacific Tuna Treaty'') to provide U.S. purse seine 
vessels with fishing access to waters under the jurisdiction of 
16 Pacific Island parties, and to provide a platform for 
broader cooperation among the parties.

                             II. Background

    The United States ratified the South Pacific Tuna Treaty on 
December 21, 1987, and it entered into force on June 15, 1988. 
It was later amended on May 14, 1992. Further amendments were 
submitted to the President on December 28, 2002, and 
transmitted to the Senate on February 11, 2003, but those 
amendments never entered into force.
    The South Pacific Tuna Treaty has been a cornerstone of our 
relations with the Pacific Island region for approximately 
three decades. It provides fishing access for U.S. purse seine 
vessels to the exclusive economic zones (EEZs) of 16 Pacific 
Island parties (PIPs), and it promotes broader cooperation 
between the parties and relevant stakeholders.
    The United States and the PIPs had been renegotiating the 
South Pacific Tuna Treaty and its Annexes since 2009 to update 
the text and extend the terms of fishing access for U.S. 
vessels. In June 2016, after the U.S. notified that it planned 
to withdraw from the Treaty, the parties agreed in principle on 
a revised ``business model'' under the South Pacific Tuna 
Treaty. The Amendments include the terms and conditions for a 
more viable framework for U.S. industry fishing access. They 
also establish more flexible procedures for commercial 
cooperation between U.S. industry and the PIPs.
    The South Pacific Tuna Treaty supports significant economic 
activity; according to previous estimates, the value of tuna 
caught by vessels operating under the Treaty could approach 
$500 million annually. It is especially important to the 
economy of American Samoa, which is heavily dependent on the 
operation of fishing vessels and an associated tuna cannery.
    A detailed article-by-article analysis of the Amendments 
may be found in the Overview of the Amendments published by the 
Department of State, which is included in Annex 1 of this 
report.

                     III. Implementing Legislation

    The Amendments are not self-executing. The United States 
implements the South Pacific Tuna Treaty through the South 
Pacific Tuna Act. The Executive Branch indicated in the 
Transmittal Package that it will separately recommend changes 
to the South Pacific Tuna Act to reflect the Amendments.

                          IV. Committee Action

    The Committee on Foreign Relations held a hearing to 
consider the Amendments on April 7, 2022. On May 7, 2022, the 
committee considered the Amendments and ordered them favorably 
reported by voice vote, with a quorum present.

                V. Committee Recommendation and Comments

    The Committee on Foreign Relations believes that 
ratification of the Amendments will advance the interests of 
the U.S. fishing industry by facilitating fishing access, 
including on the high seas and without coordinating in every 
instance with the Executive Branch. It will also bolster the 
relationship between the United States and partner countries in 
the South Pacific.
    The committee has included in its resolution of advice and 
consent one proposed declaration, which states that the 
Amendments are not self-executing. This declaration is 
consistent with the views of the executive branch. 
Historically, the Senate has not routinely included statements 
regarding the self-executing nature of treaties in resolutions 
of advice and consent, but in light of the Supreme Court 
decision, Medellin v. Texas, 552 U.S. 491 (2008), the committee 
has determined that a clear statement in the resolution 
continues to be warranted. A further discussion of the 
committee's views on this matter can be found in Section VIII 
of Executive Report 110-12.

      VI. 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 
Amendments to the Treaty on Fisheries between the Governments 
of Certain Pacific Island States and the Government of the 
United States of America done at Port Moresby April 2, 1987, as 
amended, done at Nadi, Fiji, December 3, 2016 (``the 
Amendments'') (Treaty Doc. 115-3), 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 Amendments are not self-executing.

        VII. Annex I.--Overview and Article by Article Analysis 
                           of the Amendments


 Amendments to the 1987 Treaty on Fisheries between the Governments of 
 Certain Pacific Island States and the Government of the United States

                                overview
    The Treaty on Fisheries between the Governments of Certain Pacific 
Island States and the Government of the United States of America, done 
at Port Moresby April 2, 1987, as amended (the ``Treaty''), provides 
fishing access for U.S. purse seine vessels to the exclusive economic 
zones (EEZs) of 16 Pacific Island parties (PIPs), and promotes broader 
cooperation between the parties and relevant stakeholders. The United 
States and the PIPs began renegotiating the Treaty and its Annexes in 
2009, and formally adopted the agreed amendments to the Treaty and its 
Annexes December 3, 2016, in Nadi, Fiji. The amendments update the 
Treaty's terms and conditions to promote more effective cooperation 
between parties, modernize its provisions, and better reflect how tuna 
fisheries are managed in the region. The Amendments to the Treaty's 
Annexes include a revised and extended framework for U.S. fishing 
access through 2022. They also establish more flexible procedures for 
commercial cooperation between U.S. industry and the PIPs.
    The following is an article-by-article description of the Treaty 
and the amendments adopted on December 3, 2016. The Senate provided 
advice and consent in 2003 to certain amendments that never entered 
into force, and which are also included in this record of amendments 
for completeness. Changes to the Annexes of the Treaty do not require 
advice and consent, and were accepted by the United States pursuant to 
authority granted in 22 U.S.C. Sec. 973q, but are included in this 
document for the information of the Senate.
    The Preamble includes shared principles underlying the Treaty. The 
parties inserted text in the Preamble to note the conclusion of the 
Convention for the Conservation and Management of Highly Migratory Fish 
Stocks in the Western and Central Pacific Ocean. The amendments to the 
preamble were originally agreed in 2002 and the Senate provided advice 
and consent to them in 2003, but they never entered into force.
    Article 1, Definitions and Interpretation, explains key terms used 
in the Treaty. The amendments add definitions for ``Closed Areas,'' the 
``Convention'' (the parties originally agreed to include the definition 
of the Convention in 2002, and the Senate provided advice and consent 
to that change in 2003) and the ``FFA.'' The amendments add a new 
subarticle to clarify that nothing in this Treaty provides recognition 
concerning the legal status and extent of waters and zones claimed by 
parties, and that the freedoms of navigation and overflight and other 
uses of the sea related to such freedoms are to be exercised in 
accordance with international law. Another important amendment to this 
article is the deletion of the definition of the ``Treaty Area,'' and 
redefinition of ``Licensing Area'' to mean all waters under the 
jurisdiction of the Pacific Island parties except for internal waters, 
territorial seas, archipelagic waters, and any closed area. The 
deletion of the Treaty Area definition and changes to the Licensing 
Area mean the Treaty no longer applies to any portion of the high seas, 
which will eliminate one previous source of tension under the Treaty. 
The amendments also renumber the subarticles of Article 1 to reflect 
the addition or removal of text.
    The amendments add a new Article 2 to establish the objective of 
the Treaty, which is to provide fishing access for U.S. purse seine 
vessels to the waters under the jurisdiction of the Pacific Island 
parties, and to provide a platform for fisheries cooperation between 
the parties. The parties renumbered subsequent articles to reflect the 
insertion of a new Article 2.
    The old Article 2, now renumbered as Article 3, on Broader 
Cooperation was amended to make changes to the preexisting subarticles, 
including to the objectives of the cooperation the parties will 
undertake, as appropriate. The second subarticle (amended as old 
Article 2.2, now Article 3.2) was expanded to clarify that one way the 
United States shall promote maximization of the benefits generated from 
operations of U.S. fishing vessels is to land and transship catch by 
vessels operating under the Treaty in the jurisdiction of the Pacific 
Island parties. Two new subarticles (Articles 3.3 and 3.4) stipulate 
the Government of the United States shall provide technical assistance, 
training, and capacity building opportunities, with the objective of 
assisting the Pacific Island parties to assess and manage their 
fisheries resources. In addition, the government shall facilitate the 
implementation of private sector activities or partnerships, which are 
designed to support commercially viable investment opportunities for 
the development of fisheries related businesses in the Pacific Island 
parties. The final new subarticle (Article 3.5) recognizes the 
importance of increasing the mutual benefits from deeper economic 
relations between the United States and Pacific Island parties.
    The parties made a conforming edit to the title of the old Article 
3, now renumbered as Article 4. It previously read ``Access to the 
Treaty Area'' and now reads ``Access under the Treaty.'' The amendments 
include substantial changes to the old Article 3 (now Article 4). The 
first subarticle was simplified to say vessels shall be permitted to 
engage in fishing in the Licensing Area in accordance with the terms of 
this Treaty; references were removed to Annex I and Annex II in 
accordance with the change in the content of those Annexes (the 
amendments to the old Article 3.1 are reflected in the now Article 
4.1). The old Article 3.2 (now Article 4.2) was similarly streamlined 
to stipulate that no fishing vessel of the United States shall be used 
for fishing in any Closed Area, or in the Licensing Area except in 
accordance with a license issued by the Administrator. The text of the 
old Article 3.3 was deleted. The new Articles 4.3, 4.4, 4.5, and 4.6 
relate to vessel compliance with the applicable national laws of each 
Pacific Island party, as conditions of fishing access to their waters, 
the procedures for notifying and publishing such national laws, and the 
steps to address any disputes arising from the application of national 
laws. The new Articles 4.7, 4.8, 4.9, and 4.10 relate to the 
application of regional terms and conditions to fishing vessels of the 
United States operating in waters under the jurisdiction of the Pacific 
Island parties, the process for notifying such conditions, and the fact 
that regional terms and conditions do not prejudice the applicability 
of national laws by Pacific Island parties. The new Article 4.11 is an 
important addition, and will help establish a more sustainable long-
term foundation for the Treaty. It clarifies that U.S. fishing vessels 
can be licensed to fish in the waters of Pacific Island parties even if 
the specific access provisions of Annex II are no longer in force, 
subject to vessels and a Pacific Island parties party or parties 
reaching agreement on access and following procedures consistent with 
the Annexes. This provision will help ensure that U.S. fishing vessels 
will still have opportunities to obtain fishing access even if the U.S. 
government and Pacific Island parties are unable to conclude new 
multilateral access terms in future rounds of negotiation. The new 
Article 4.12 states that nothing in this Treaty shall prejudice the 
rights, jurisdiction, and duties of parties under international law.
    The old Article 4, on Flag State Responsibility, is now renumbered 
as Article 5. The parties made minor conforming edits to the old 
Articles 4.1 and 4.5 (now Articles 5.1 and 5.5) to reflect changes to 
definitions, the content of Annex I, and cross-referenced articles. 
Conforming edits were also made to the old Article 4.6 (now Article 
5.6), along with removal of the maximum penalty the United States can 
apply for infringement of the Treaty. The parties made a minor 
conforming edit to the old Article 4.9 (now Article 5.9).
    The amendments include select changes to the old Article 5, now 
renumbered as Article 6, on Compliance Powers. The parties made a 
conforming edit to the cross-reference in the old Article 5.1 (now 
Article 6.1 ). The old Article 5.2 (now Article 6.2) was amended to 
require the government of a Pacific Island party to promptly notify the 
U.S. government of any detention of a U.S. fishing vessel for more than 
48 hours. The amendments include slight changes to the old Article 5.3 
(now Article 6.3) on the penalties applied for a breach of the Treaty. 
The old Article 5.5 was deleted because the issue of national laws is 
now covered in Article 4. Conforming edits were made to the cross-
references in the old Article 5.6 (now Article 6.5) and old Article 5.7 
(now Article 6.6), and the old Article 5.8 was renumbered as the new 
Article 6.7.
    The old Article 6, now renumbered as Article 7, pertains to 
Consultations and Dispute Settlement. The parties made a minor 
conforming edit to the cross-reference in the old Article 6.2 (now 
Article 7.2). The amendments include a minor change to the language in 
the old Article 6.4 (now Article 7.4) around the place of arbitration 
chosen by parties to a dispute. The parties fixed a typo in the old 
Article 6.5 (now Article 7.5).
    The parties amended old Article 7, now renumbered as Article 8, on 
Review of the Treaty. Article 7.1 (now Article 8.1) as amended 
maintains the presumption that parties will meet once each year for the 
purpose of reviewing the operation of the Treaty, but now provides 
additional flexibility and allows the parties to agree to not meet if 
an annual consultation is unnecessary. The new Articles 8.2 and 8.3 
stipulate that the parties shall consider any adjustments necessary to 
maintain consistency with measures adopted under the Convention for the 
Conservation and Management of Highly Migratory Fish Stocks in the 
Western and Central Pacific Ocean, and encourages cooperation to 
address matters of common concern under the Convention. The amendments 
to what are now Articles 8.2 and 8.3 were originally agreed in 2002, 
and the Senate provided advice and consent to them in 2003, but they 
never entered into force.
    The old Article 8, Amendment of the Treaty, was renumbered as the 
new Article 9. The only other minor amendments to the Article are a 
typographical edit to old Article 8(b) (now Article 9(b)) and a revised 
cross-reference in old Article 8(d) (now Article 9(d)).
    The old Article 9, Amendment of Annexes, was renumbered as the new 
Article 10. The amendments to the old Article 9(a) (now Article lO(a)) 
clarifies the process and timing for proposing amendments of annexes. 
The amendments include a new Article 10(b) stipulating that an 
amendment to an annex shall be adopted by consensus, and that parties 
shall act expeditiously to accept amendments and notify the depositary 
accordingly, while applying the amendments provisionally to the extent 
possible. The old Article 9(b) was renumbered as the new Article 10(c). 
The amendments to the old Article 9 were originally agreed to in 2002 
and the Senate provided advice and consent to them in 2003, but they 
never entered into force.
    The parties amended the text of the old Article 10, now renumbered 
as Article 11, on Notification. The amendments to the old Articles 10.1 
and 10.2 (now Articles 11.1 and 11.2) include minor adjustments 
regarding how to notify the Administrator, as opposed to the 
Depositary, of the addresses and contacts for the receipt of Treaty 
matters. The parties also amended the text of both subarticles to 
reflect alternative modes of communication, given the change in 
technology since the Treaty was originally negotiated.
    The parties renumbered the old Article 11, Depositary, as Article 
12.
    The old Article 12, Final Clauses, was renumbered as Article 13. 
The parties deleted the previous Article 12.6, and amended the old 
Article 12.7 (now Article 13.6). The changes greatly simplify and 
clarify the process for a party to withdraw from the Treaty. Under the 
amended process, the Treaty shall cease to have effect for a party at 
the expiry of the sixth month following the receipt by the depositary 
of an instrument signifying withdrawal or denunciation by that party. 
The remaining subarticles of Article 13 were renumbered accordingly.

                                  [all]