[Senate Executive Report 113-2]
[From the U.S. Government Publishing Office]
113th Congress Exec. Rept.
SENATE
2d Session 113-2
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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.