U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1

29–118

" ! SENATE

104TH CONGRESS

2d Session

TREATY DOC.

1996

104–24

AGREEMENT FOR THE IMPLEMENTATION OF THE

UNITED NATIONS CONVENTION OF THE LAW OF THE

SEA OF 10 DECEMBER 1982 RELATING TO FISH

STOCKS

MESSAGE

FROM

THE PRESIDENT OF THE UNITED STATES

TRANSMITTING

THE AGREEMENT FOR THE IMPLEMENTATION OF THE PROVISIONS OF THE UNITED NATIONS CONVENTION ON THE LAW OF

THE SEA OF 10 DECEMBER 1982 RELATING TO THE CONSERVATION AND MANAGEMENT OF STRADDLING FISH STOCKS AND

HIGHLY MIGRATORY FISH STOCKS, WITH ANNEXES (‘‘THE

AGREEMENT’’), WHICH WAS ADOPTED AT UNITED NATIONS

HEADQUARTERS IN NEW YORK BY CONSENSUS OF THE UNITED

NATIONS CONFERENCE ON STRADDLING FISH STOCKS AND

HIGHLY MIGRATORY FISH STOCKS ON AUGUST 4, 1995, AND

SIGNED BY THE UNITED STATES ON DECEMBER 4, 1995

FEBRUARY 20, 1996.—Agreement was read the first time and, together

with the accompanying papers, referred to the Committee on Foreign

Relations and ordered to be printed for the use of the Senate.

(III)

LETTER OF TRANSMITTAL

THE WHITE HOUSE, February 20, 1996.

To the Senate of the United States:

With a view to receiving the advice and consent of the Senate to

ratification, I transmit herewith the Agreement for the Implementation of the Provisions of the United Nations Convention on the

Law of the Sea of 10 December 1982 Relating to the Conservation

and Management of Straddling Fish Stocks and highly Migratory

Fish Stocks, with Annexes (‘‘the Agreement’’), which was adopted

at United Nations Headquarters in New York by consensus of the

United Nations Conference on Straddling Fish Stocks and Highly

Migratory Fish Stocks on August 4, 1995, and signed by the United

States on December 4, 1995. I also transmit, for the information of

the Senate, the report of the Secretary of State with respect to the

Agreement.

The Agreement represents a considerable achievement for the

United States in promoting better stewardship of living marine resources. It strikes a sound balance between the interests of coastal

States in protecting offshore fishery resources and those of States

whose fishing vessels operate on the high seas. If widely ratified

and properly implemented, the Agreement should significantly improve the prospects for sustainable fisheries worldwide.

The Agreement builds directly upon, and strengthens, the fishery

provisions contained in the 1982 United Nations Convention on the

Law of the Sea (‘‘the Convention’’), which I transmitted to the Senate for advice and consent on October 6, 1994. As such, the Agreement further reflects the central role of the Convention in governing the maritime relations of the international community.

Perhaps more than any other nation, the United States stands

to benefit from widespread adherence to this Agreement. The

Agreement will help to ensure that the harvesting of fish by vessels

of other nations in waters beyond our exclusive economic zone does

not undermine our domestic management of fisheries within U.S.

jurisdiction. In addition, by promoting sound conservation practices

generally, the Agreement can restore and maintain productive

ocean fisheries for the benefit of American consumers and for U.S.

fishing vessels wherever they operate.

With regard to disputes concerning the interpretation or application of the Agreement, I intend to choose a special arbitral tribunal
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constituted in accordance with Annex VIII of the Convention, as

recommended in the accompanying report of the Department of

State.

I recommend that the Senate give early and favorable consideration to the Agreement and give its advice and consent to its ratification.

WILLIAM J. CLINTON.
(V)

LETTER OF SUBMITTAL

DEPARTMENT OF STATE

Washington, January 24, 1996.

The PRESIDENT, The White House.

THE PRESIDENT: I have the honor to submit to you the Agree- ment for the Implementation of the Provisions of the United Nations Convention on the law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks

and Highly Migratory Fish Stocks, with Annexes, (‘‘the Agreement’’). The Agreement was adopted on August 4, 1995, at United

Nations Headquarters in New York by consensus of the United Nations Conference on Straddling Fish Stocks and Highly Migratory

Fish Stocks and signed on behalf of the United States on December

4, 1995. I recommend that the Agreement be transmitted to the

Senate for its advice and consent to ratification.

The Agreement has its origins in Agenda 21, the detailed plan of action adopted by the 1992 United Nations Conference on Environment and Development. Responding to the precipitous decline in

a number of valuable fish stocks in the world’s oceans, Agenda 21

called for an intergovernmental conference to strengthen the conservation and management of straddling fish stocks and highly migratory fish stocks.

Straddling fish stocks are stocks which occur both within the exclusive economic zones (EEZs) of one or more coastal States and in

adjacent high seas areas. Among these are valuable stocks of cod

in the Northwest Atlantic Ocean and pollock in the Bering Sea.

Highly migratory fish stocks are those which migrate extensively

across the high seas and through the EEZs of many coastal States.

Examples include tuna and swordfish.

The conference began under United Nations auspices in 1993

and successfully concluded in August 1995 with the adoption of the

Agreement. On December 4, 1995, the first day on which the

Agreement was open for signature, Ambassador Madeleine

Albright, U.S. Permanent Representative to the United Nations,

signed the Agreement on behalf of the United States, subject to

ratification. Representatives of 24 other States signed the Agreement on the same day. Many other States have indicated their intention to sign the Agreement in the near future. Ratification or accession by thirty States is required to bring the Agreement into

force.

The Agreement, as its title indicates, builds upon certain provisions of the 1982 United Nations Convention on the law of the Sea

(‘‘the Convention’’) related to fisheries. In so doing, the Agreement

reaffirms the central role of the Convention as the accepted founda-
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tion and framework for this critical body of international law. Although the United States need not become party to the Convention

in order to become party to the Agreement, we would maximize our

benefits from these two treaties if the United States were a party

to both of them. The Convention was transmitted to the Senate for

its advice and consent October 6, 1994 (Treaty Doc. 103–39).

The linkage between the two treaties is very strong. As discussed

in more detail below, much of the text of the Agreement is drawn

from, and elaborates upon, provisions of the Convention. Article 4

of the Agreement stipulates that the Agreement ‘‘shall be interpreted and applied in the context of and in a manner consistent

with the Convention.’’ Part VIII of the Agreement also provides

that disputes arising between parties under the Agreement (as well

as under regional fishery agreements) are subject to resolution in

accordance with the dispute settlement provisions of the Convention.

As a practical matter, U.S. adherence to both treaties will best

ensure that they are implemented in a manner consistent with

U.S. fishery interests. A brief review of the fisheries provisions of

the Convention demonstrates how closely tied the two treaties are.

The Convention permits coastal States to establish EEZs extending

200 nautical miles from their coastal baselines. Under Articles 56,

61 and 62 of the Convention, coastal States enjoy sovereign rights

and exclusive jurisdiction to exploit, conserve and manage living

marine resources within their EEZs, subject to general obligations

to prevent overfishing and to allocate surplus resources, if any, to

other nations. Because approximately 90 percent of living marine

resources are harvested within 200 miles of shore, the Convention

effectively gives coastal States full control over the large majority

of marine fisheries.

Beyond the EEZs of any State, i.e., on the high seas, all States

have the right for their nationals to engage in fishing. Articles

116–119 of the Convention qualify this right by making it subject

to certain rights, duties and interests of coastal States, as well as

to a general duty to conserve high seas resources and to cooperate

with other States in conservation efforts. In fulfillment of these obligations, multilateral fishery agreements and organizations have

been established to conserve and manage high seas fisheries in

many regions of the world.

Certain species and categories of fish do not remain solely within

EEZs or solely in the high seas, but rather migrate across the line

that separates the EEZs from the high seas. For anadromous

stocks (such as a salmon) and catadromous species (such as eels),

Articles 66 and 67 of the Convention, respectively, essentially forbid high seas harvesting. For straddling stocks and highly migratory species, the Convention contains the following general injunctions:

Article 63(2): Where the same stock or stocks of associated species occur both within the exclusive economic zone

and in an area beyond and adjacent to the zone, the coastal State and the States fishing for such stocks in the adjacent area shall seek, either directly or through appropriate

subregional or regional organizations, to agree upon the
VII

measures necessary for the conservation of these stocks in

the adjacent area.

Article 64(1): The coastal State and other States whose

nationals fish in the region for highly migratory species

listed in Annex I shall co-operate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum

utilization of such species throughout the region, both

within and beyond the exclusive economic zone. In regions

for which no appropriate international organization exists,

the coastal State and other States whose nationals harvest

these species in the region shall co-operate to establish

such an organization and participate in its work.

Article 64(2): The provisions of paragraph 1 apply in addition to the other provisions of this Part [i.e., Part V of

the Convention, which sets forth, inter alia, the rights and

duties of coastal States with respect to living marine resources in their EEZs].

These general provisions, while establishing an agreed framework for cooperation and conservation, have not proven sufficiently

specific to curb overharvesting that has plagued several of the

world’s key fish resources. Indeed, since 1989, total marine catches

have begun to decline. The United Nations Food and Agriculture

Organization reports that about 70 percent of marine fish stocks

are fully to heavily exploited, overexploited, depleted or slowly recovering. Of particular concern to the United States, the Aleutian

Basin pollock stock collapsed in the late 1980’s, while the stock of

Western Atlantic bluefin tuna has become severely depleted.

The agreement gives the international community the chance to

reverse these trends and to create mechanisms needed to ensure

sustainable marine fisheries. Its 50 articles and two annexes

strengthen and make more specific the provisions of the Convention, and back those provisions up with effective enforcement techniques and compulsory dispute settlement. The following analysis

provides a review of the salient aspects of the Agreement.

Part I (Articles 1–4)

Article 1 of the Agreement defines several key terms, including

‘‘Convention’’, ‘‘conservation and management measures’’, ‘‘fish’’,

‘‘arrangement’’ and ‘‘States Parties’’. The Agreement does not define either ‘‘straddling fish stock’’ or ‘‘highly migratory fish stock’’.

However, the negotiators understood the former term to mean

those fish stocks referred to in Article 63(2) of the Convention.

Similarly, the latter term is understood to mean those fish stocks

referred to in Article 64 of the Convention and listed in Annex I

to the Convention. In fact, the list in Annex I to the Convention

includes certain species which are not fish, such as cetaceans. The

Agreement, however, only covers fish stocks and so would not apply

directly to the conservation and management of whales or other

non-fish species.

Article 2 sets forth the objective of the Agreement to promote

long-term conservation and sustainable use of these fish stocks

through effective implementation of the Convention.
VIII

Article 3 generally limits application of the Agreement to the high seas, i.e., to waters beyond the fisheries jurisdiction of any na- tion. However, Articles 3(1) and 3(2) require coastal States to apply

the conservation and management provisions of Articles 5 through

7 within their respective EEZs in their regulation of fisheries. While the Agreement elaborates considerably upon general provi- sions of the Convention, none of its requirements, including those

relating to enforcement, are inconsistent with the Convention. To

confirm this, Article 4 of the Agreement provides that

Nothing in this Agreement shall prejudice the rights, jurisdiction and duties of States under the Convention. This

Agreement shall be interpreted and applied in the context

of and in a manner consistent with the Convention.

Part II (Articles 5–7)

Part II of the Agreement lays out the conservation and manage- ment measures that Parties are to apply. Although most of these

measures relate specifically to straddling fish stocks and highly migratory fish stocks, several provisions in this Part recognize the

need to address marine ecosystems as a whole if fishery conservation and management is to succeed. Article 5 sets forth general principles for fishery conservation and management that build upon the provisions of Articles 61 and

117 of the Convention, including obligations to: ensure the long-term sustainability of these stocks;

take measures that are based on the best scientific evidence

available;

assess relevant environmental impacts;

adopt conservation and management measures for other stocks belonging to the same ecosystem; minimize catch of non-target species; and

take measures to prevent or eliminate overfishing and excess fishing capacity. Article 6, in conjunction with the two Annexes to the Agreement (particularly Annex II), obligates Parties to apply a precautionary

approach to fishery conservation and management. This approach

requires, inter alia, States to be more cautious in their manage- ment efforts when information is uncertain, unreliable or inadequate.

Article 7 preserves a critical distinction set forth in the Convention between the treatment of straddling fish stocks and that of

highly migratory fish stocks. Specifically, Article 7(1) makes clear

that conservation and management measures adopted on a multilateral basis for straddling fish stocks apply only on the high seas,

while such measures for highly migratory fish stocks apply both on

the high seas and within relevant EEZs.

Article 7 also requires that, for both categories of stocks, conservation and management measures applicable within the EEZ

and those applicable for the high seas must be compatible. Both

coastal States and States whose vessels fish on the high seas are

required to cooperate to achieve the compatibility of such measures, taking into account a series of factors set forth in Article 7.

Should Parties be unable to achieve the compatibility of such measures within a reasonable time, any Party could bring the matter to
IX

compulsory, binding dispute settlement in accordance with Part

VIII of the Agreement.

Part III (Articles 8–16)

The negotiators of the Agreement recognized that most of the actual conservation and management work for these fish stocks must

be carried out through regional fishery organizations or arrangements that have been, or may be, established in accordance with

the Convention. They also realized, however, that the operations of

such organizations must be strengthened to address the growing,

and in some cases severe, conservation problems that have arisen.

Part III of the Agreement contains rules for improving the functioning of such regional fishery organizations. Articles 8 requires

both coastal States and States whose vessels fish on the high seas

to cooperate in these endeavors. Of particular importance is Article

8(3), which requires any State whose fishermen wish to harvest a

stock that is governed by such an organization either to join the

organization or agree to apply the conservation and management

measures established by such organization. This rule, if properly

implemented, would greatly reduce the problems of ‘‘non-party’’

fishing that have undermined the effectiveness of regional fishery

organizations.

Article 9 describes the issues that must be addressed in the context of regional fishery organizations and agreements while Article

10 lists a variety of functions that such organizations must perform

to be effective.

Article 11 deals with the difficult question of new members or

participants, i.e., States whose fishing vessels seek access to regulated fisheries for the first time. This Article reflects the view that

the determination of participatory rights for such vessels must proceed on a case-by-case basis, taking into account a variety of factors.

Article 12 requires transparency in the operations of regional

fishery organizations and arrangements. Representatives from

other intergovernmental organizations and from non-governmental

organizations (including environmental and industry groups) must

be afforded an opportunity to participate in the work of these organizations without undue restrictions.

Article 13 calls upon States to strengthen existing fisheries organizations, while Article 14 (in conjunction with Annex I) provides

for the collection and dissemination of data and the conduct of scientific research related to fisheries conservation and management.

Articles 15 and 16 address those high seas areas that are either

enclosed or semi-enclosed seas (as those terms are defined in Article 122 of the Convention) or that are completely surrounded by

waters under the fisheries jurisdiction of a single coastal State,

such as the central part of the Sea of Okhotsk.

The United States is a member of several regional fishery organizations concerned with straddling fish stocks and highly migratory

fish stocks, including the International Commission for the Conservation of Atlantic Tunas, the Inter-American Tropical Tuna

Commission, the Commission for the Conservation of Antarctic Marine Living Resources and, most recently, the Northwest Atlantic

Fisheries Organization. Moreover, on December 8, 1995, the Con-
X

vention for the Conservation and Management of Pollock Resources

in the Central Bering Sea entered into force. While this treaty does

not create a formal organization, it constitutes an ‘‘arrangement’’

for purposes of, and thus would be strengthened by, the Agreement.

Part IV (Article 17)

Part IV of the Agreement contains provisions covering the obligations of Parties that are not members of regional fishery organizations, as well as the rights of members of those organizations with

respect to vessels of non-members that engage in fishing for regionally regulated stocks. Article 17(1) and (2) reinforce the rule of Article 8(3), by barring vessels from regulated fisheries if the flag

State is not a member of the relevant regional fishery organization

or otherwise does not agree to apply the fishing rules established

by such organization. Article 17(3), along with Article 1(3), also provides a mechanism

through which Taiwan, and the many fishing vessels flying the Taiwanese flag, may be brought within the ambit of such organizations. Article 17(4) provides for States to deter fishing operations

of non-member vessels which undermine the effectiveness of regional conservation and management measures.

Part V (Article 18)

Part V of the Agreement articulates a broad range of obligations

for flag States whose fishing vessels operate on the high seas.

These obligations, which build on the general flag State responsibilities set forth in the Convention, are drawn largely from, and

are consistent with, the provisions of the 1993 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, to which the

Senate gave its advice and consent in 1994. Like the 1993 Agreement, Part V requires all States to ensure that their vessels fish

in accordance with regional fishery rules and should thus deter individuals from reflagging their vessels as a means of avoiding the

application of those rules. Such reflagging schemes undermine the

effectiveness of regional fishery organizations and should be regarded as antithetical to the purpose of the Agreement.

Article 18 requires flag States that are Party to the Agreement

to ensure that their vessels comply with regional fishery measures

and do not engage in any activity that undermines the effectiveness of such measures. Flag States may only authorize their vessels to fish on the high seas if they can exercise effective control

over those vessels. These provisions would strictly curtail the use

of flags of convenience by fishing vessels wishing to avoid fishery

restrictions.

Part VI (Articles 19–23)

Part VI of the Agreement requires States Parties to ensure compliance with, and enforcement of, fishery conservation and management measures. These provisions represent a considerable advance

over the enforcement rules of most international fishery regimes.

While Part VI of the Agreement reaffirms the primary responsibility of flag States to ensure that their vessels fish in accordance
XI

with applicable rules, it also gives other States certain rights to

take enforcement action with respect to vessels of other States Parties to the Agreement fishing on the high seas, primarily through

boarding and inspection to ensure compliance with regional fishery

rules.

Article 19 requires flag States to ensure compliance by their vessels with regional conservation and management measures. Flag

States must fully investigate alleged violations and promptly penalize offenders. Sanctions must be adequate in severity to discourage

further violations and to deprive offenders of the benefits of their

illegal activities.

Article 20 promotes international cooperation in compliance and

enforcement efforts, including through the exchange of information

about alleged violations and through joint activities to deter fishing

violations. Article 20(6) also requires a flag State to cooperate with

a coastal State where there are reasonable grounds for believing

that a vessel of the former that is presently on the high seas has

previously engaged in unauthorized fishing within the EEZ of the

latter. In such cases, the forms of cooperation include authorizing

the coastal State to board and inspect the vessel on the high seas.

The Agreement reflects the recognition that exclusive reliance on

flag-State enforcement has not served the international community

well in the conservation and management of high seas fishery resources. Although many flag States act responsibly with respect to

its fishing vessels on the high seas, others are either unable or unwilling to exercise such responsibility. Thus, Articles 21 and 22 of

the Agreement set forth a carefully crafted regime under which

States other than flag States may take action to investigate and to

respond to fishing violations on the high seas that may be committed by vessels of other Parties to the Agreement.

Article 21 authorizes any Party to the Agreement that is a member of a regional fishery organization to board and inspect vessels

of another Party fishing on the high seas of that region for the purpose of monitoring compliance with fishery rules applicable in that

region. The regional organizations are to develop procedures to govern such boarding and inspection. If a regional organization has

failed to develop such rules within two years of the adoption of the

Agreement (i.e., by August 1997), the basic procedures for boarding

and inspection contained in Article 22 shall apply in that region.

Article 21(4) requires States who wish to conduct boardings and

inspections pursuant to this regime to inform other States whose

vessels fish in the relevant region of the form of identification issued to duly authorized inspectors. The vessels used for boarding

and inspection shall be clearly marked and must be identifiable as

being on government service. As such, the Agreement permits all

U.S. Government vessels to conduct such boardings and inspections, both those that are presently authorized, as well as any others that may be so authorized in the future.

Under Article 21(5), where an inspecting State uncovers evidence

that a vessel has violated an applicable conservation and management measure, that State shall secure the evidence and immediately notify the flag State. Article 21(6) requires the flag State to

respond to such notification (generally within three working days)

and either to investigate and take any appropriate enforcement ac-
XII

tion against the vessel or to authorize the inspecting State to conduct such investigation on its behalf. If the flag State chooses the

latter option, and the evidence produced by the investigation so

warrants, Article 21(7) obligates the flag State to take enforcement

action against the vessel or to authorize the investigating State to

do so.

Article 21(8) provides that, if the flag State fails to respond to

the initial notification, or fails to take the required action described

above, and if the violation in question is serious (as broadly defined

in Article 21(11)), the inspectors may stay on board and direct the

vessel to port for further investigation. If the violation is not serious, the inspectors must disembark the vessel (but the inspecting

State may pursue dispute settlement against the flag State).

These provisions are designed primarily to compel a flag State

that is a Party to the Agreement to act responsibly where there are

reasonable grounds to believe that one of its fishing vessels on the

high seas has violated applicable fishery rules. If the flag State

does not act responsibly, other States in the region may take action

promptly to prevent any serious violation from continuing.

The Agreement includes a number of safeguards to ensure that

States other than the flag State do not abuse these rights to board,

inspect and take further action. First, as mentioned above, whenever a non-flag State boards a vessel, it must immediately notify

the flag State. The flag State must also be notified promptly of any

further action taken. Second, under Article 21(10), inspectors must

observe international rules and generally accepted practices and

procedures relating to the safety of the vessel and the crew, minimize interference with fishing operations and, to the extent practicable, avoid action which would adversely affect the quality of the

catch on board. Boarding and inspection may not be conducted in

a manner that would constitute harassment of any fishing vessel.

Third, if boarding or inspection occurs unlawfully or in a manner

that exceeds what is reasonably required, Article 21(18) renders

the inspecting State liable for damage or loss.

Finally, Article 22(1) contains a series of specific safeguards and

procedures that must be followed in any boarding and inspection

conducted pursuant to Article 21. Article 22(1)(f) requires inspectors to avoid the use force, except for their own protection and

where they are obstructed in the execution of their duties. During

negotiations on this issue, the United States successfully opposed

proposals that would have limited the use of force in such situations to self-defense. Article 22(1)(f) clearly authorizes the use of

force not only for self-defense but also to ensure the successful completion of the inspection.

As noted above, these safeguards and procedures apply in their

entirety in any region where a regional organization has not, by

August 1997, developed procedures of its own. Even where a regional organization tailors its own procedures, those procedures

must be consistent with those of Article 22.

The regime set forth in Articles 21 and 22, while representing an

advance in terms of fisheries enforcement, remains faithful to the

general principle of international law that States other than the

flag State may only take fisheries enforcement action against a vessel on the high seas with the consent of the flag State. By becoming
XIII

a Party to the Agreement, a State gives its consent for its vessels

to be subject to the regime of regional fisheries enforcement set

forth in Articles 21 and 22.

The negotiators of the Agreement recognized that one or more regional organizations may develop alternative mechanisms to ensure

compliance and enforcement that would render the application of

the regime for boarding and inspection prescribed in Articles 21

and 22 unnecessary in that region. Accordingly, Article 21(15) permits States within such a region to limit application of the regime

as between themselves.

Article 23 reflects the rule of international law that port States

may also take actions with respect to foreign flag vessels voluntarily in their ports to promote effective fishery conservation and

management. Article 23(3) also specifies that States may prohibit

landings and transshipments of fish that have been taken in a

manner that undermines the effectiveness of measures adopted by

the international community on a subregional, regional or global

basis.

Part VII (Articles 24–26)

This Part of the Agreement deals with the concerns of developing

States and suggests the forms of cooperation and assistance that

may be provided to them, either directly or through existing international mechanisms. The provision of such assistance should improve the effectiveness of fishery management by developing

States, to the benefit of all States who wish to exploit living marine

resources, particularly highly migratory fish stocks whose ranges

extend across many EEZs and the high seas. The Administration

envisions that private joint ventures, referenced in Article 25(2),

would be a principal vehicle for the provision of such assistance.

Part VIII (Articles 27–32)

Part VIII of the Agreement generally provides that disputes arising under the Agreement, as well as those arising under regional

fishery agreements, are to be resolved in accordance with the provisions for compulsory, binding dispute settlement set forth in the

Convention.

Articles 27, 28 and 29, respectively, require States to settle disputes peacefully, to prevent disputes by instituting expeditious decision-making procedures within regional organizations and, where

appropriate, to utilize expert panels in resolving disputes of a technical nature.

Article 30(1) makes the dispute settlement provisions set forth in

Part XV of the Convention applicable to any dispute between

States Parties to the Agreement concerning the interpretation or

application of the Agreement, whether or not those States Parties

are also party to the Convention. Article 30(2) makes those same

provisions applicable to disputes between States Parties to the

Agreement concerning the interpretation or application of regional

fishery agreements relating to straddling fish stocks and highly migratory fish stocks, whether or not those States Parties are also

party to the Convention.

Article 30(3) stipulates that, for any State Party to the Agreement that is also a State Party to the Convention, the procedure
XIV

for the settlement of disputes that has been accepted by that State

in accordance with Article 287 of the Convention shall also apply

to dispute settlement under the Agreement, unless that Party declares otherwise. For any State Party to the Agreement that is not

a State Party to the Convention, Article 30(4) permits such a State

to choose, by means of a written declaration, one or more of the

procedures set out in Article 287 of the Convention for the settlement of disputes under the Agreement.

In conjunction with the transmittal of the Convention to the Senate in October 1994, I recommended that, for fishery disputes arising under the Convention, the United States choose a special arbitral tribunal constituted in accordance with Annex VIII of the Convention as the appropriate dispute settlement procedure. See Sen.

Treaty Doc. 103–39, pp. ix–x. To be consistent, I recommend that

the United States choose the same procedure for disputes arising

under the Agreement. Article 30(5) specifies the law that a court or tribunal shall apply

in resolving such disputes. Applicable law shall include the Convention, the Agreement, any relevant regional agreement, as well

as generally accepted standards for the conservation and management of living marine resources and other rules of international

law not incompatible with the Convention. This inclusive listing directs a court or tribunal to consider a broad range of conservation

norms, which would cover, for example, the moratorium on the use

of large-scale pelagic driftnets on the high seas as called for in

United Nations General Assembly Resolution 46/215.

Article 31 allows States Parties to seek, and authorizes a court

or tribunal to prescribe, provisional measures pending final settlement of a dispute. Article 32 makes clear that Article 297 of the

Convention, which exempts any dispute concerning fishery conservation and management measures adopted by a coastal State

within its EEZ from binding dispute settlement, also applies to dispute settlement under the Agreement.

Parts IX, X, XI and XII (Articles 33–36)

These Parts of the Agreement address a variety of subsidiary

matters. Part IX (Article 33) calls upon Parties to encourage other

States to become party to the Agreement and to deter activities of

non-parties that undermine the effective implementation of the

Agreement. Part X (Article 34), which is based on Article 300 of the

Convention, requires Parties to fulfill their obligations under the

Agreement in good faith and to exercise their rights in a manner

that would not constitute an abuse. Part XI (Article 35) restates

the general principle that States are liable in accordance with

international law for damage or loss attributable to them in regard

to the Agreement. Part XII (Article 36) provides for a review conference to convene four years after the Agreement enters into force

to assess the adequacy of its provisions.

Part XIII (Articles 37–50)

Part XIII of the Agreement contains the ‘‘final clauses,’’ covering

such matters as signature of the Agreement, its entry into force,

reservations, amendments, denunciation, the depositary and authentic texts. All States and certain eligible non-State entities
XV

(such as the European Union) may become party to the Agreement.

In accordance with Article 40, the Agreement will enter into force

30 days after the date of deposit of the thirtieth instrument of ratification or accession.

Article 41 permits States and eligible entities to apply the Agreement provisionally. The Department of State does not recommend

the exercise of this option by the United States at this time. We

are instead hopeful that the Agreement will enter into force quickly

and that the United States will be among the initial parties to it.

In the meantime, the Department of State and other concerned departments and agencies have already begun to consider how the

provisions of the Agreement may be utilized to strengthen the regional fishery organizations of which the United States is a member.

Articles 42 and 43 track analogous provisions in the Convention.

While no reservations or exceptions are permitted to the Agreement, a State may make certain declarations or statements when

signing, ratifying or acceding to the Agreement. The Department of

State does not recommend any such declarations or statements.

Article 44 addresses the legal relationship of the Agreement to

other treaties. Pursuant to Article 45, no amendment may enter

into force for a Party except upon the deposit of an instrument of

ratification or accession of such amendment by that Party. Article

46 permits a Party to denounce the Agreement at any time, effective one year after notification of denunciation. Articles 47 through

50 deal with ancillary matters such as participation in the Agreement by international organizations, the status of the Annexes to

the Agreement, the depositary for the Agreement and the authentic

texts.

The Magnuson Fishery Conservation and Management Act, as amended (16 U.S.C. § 1801 et seq.), provides legislative authority

on which to carry out the obligations of the Agreement relating to

conservation and management of fishery resources within the U.S.

EEZ. Title I of the Fisheries Act of 1995 implements those obligations of the Agreement concerning the operations of U.S. fishing

vessels on the high seas. Finally, various statutes authorizing U.S.

participation in regional fishery organizations; e.g., the Tuna Conventions Act of 1950 (16 U.S.C. § 951 et seq.), the Atlantic Tunas

Convention Act of 1975 (16 U.S.C. § 971 et seq.), the South Pacific

Tuna Act of 1988 (16 U.S.C. § 973 et seq.), the Antarctic Marine

Living Resources Act of 1984 (16 U.S.C. § 2431 et seq.) and the

Northwest Atlantic Fisheries Convention Act of 1995, provide any

additional authority to carry out the obligations of Part III of the

Agreement concerning the operations of such organizations. Therefore, no new legislation is necessary for the United States to implement the Agreement.

This Agreement represents a major step forward in the conservation and management of living marine resources on a sustainable

basis. Properly implemented, it will improve the health of the
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world’s marine ecosystems and protect the interests of fishermen,

consumers and all others who depend on the oceans.

Accordingly, I recommend that this Agreement be transmitted to

the Senate as soon as possible for its early and favorable advice

and consent to ratification.

Respectfully submitted.

WARREN CHRISTOPHER.
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