[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.
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