Convention Concerning Migratory Fish Stock in the Pacific OceanSenate Consideration of Treaty Document 109-1
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[Senate Treaty Document 109-1] [From the U.S. Government Printing Office] 109th Congress 1st Session SENATE Treaty Doc. 109-1 _______________________________________________________________________ CONVENTION CONCERNING MIGRATORY FISH STOCK IN THE PACIFIC OCEAN __________ MESSAGE from THE PRESIDENT OF THE UNITED STATES TRANSMITTING CONVENTION ON THE CONSERVATION AND MANAGEMENT OF THE HIGHLY MIGRATORY FISH STOCKS IN THE WESTERN AND CENTRAL PACIFIC OCEAN, WITH ANNEXES (THE ``WCPF CONVENTION''), WHICH WAS ADOPTED AT HONOLULU ON SEPTEMBER 5, 2000, BY THE MULTILATERAL HIGH LEVEL CONFERENCE ON THE HIGHLY MIGRATORY FISH STOCKS IN THE WESTERN AND CENTRAL PACIFIC OCEAN May 16, 2005.--Convention 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 LETTER OF TRANSMITTAL ---------- The White House, May 16, 2005. 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 Convention on the Conservation and Management of the Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, with Annexes (the ``WCPF Convention''), which was adopted at Honolulu on September 5, 2000, by the Multilateral High Level Conference on the Highly Migratory Fish Stocks in the Western and Central Pacific Ocean. The United States signed the Convention on that date. I also transmit, for the information of the Senate, the report of the Secretary of State with respect to the WCPF Convention. The WCPF Convention sets forth legal obligations and establishes cooperative mechanisms that are needed in order to ensure the long-term conservation and sustainable use of highly migratory fish stocks (such as tuna, swordfish, and marlin) that range across extensive areas of the high seas as well as through waters under the fisheries jurisdiction of numerous coastal States. These constitute resources of worldwide importance, with the fisheries for tuna in the Western and Central Pacific being the largest and most valuable in the world. Implementation of the WCPF Convention will offer the opportunity to conserve and manage these resources responsibly before they become subject to the pressures of overfishing and over-capacity that are so evident elsewhere in the world's oceans. The WCPF Convention builds upon the 1982 United Nations Convention on the Law of the Sea and the 1995 United Nations Agreement on the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. The WCPF Convention gives effect to the provisions of these two instruments, which recognize cooperation to conserve highly migratory fish stocks as essential, and require those with direct interests in them-- coastal States with authority to manage fishing in waters under their jurisdiction and nations whose vessels fish for these stocks--to engage in such cooperation through regional fishery management organizations. The WCPF Convention balances in an equitable fashion the interests of coastal States, notably the island States that comprise the Forum Fisheries Agency (FFA), in protecting important fishery resources off their shores, and the interests of distant water fishing States, notably Asian fishing nations and entities (Japan, Republic of Korea, China, and Taiwan), whose fishing vessels range far from their own shores. The United States, which played an instrumental role in achieving this balance, has direct and important interests in the WCPF Convention and its early and effective implementation. The United States is both a major distant water fishing nation (with the fourth-largest catch in the region) and an important coastal State with significant Exclusive Economic Zone waters in the region (including the waters around Hawaii, American Samoa, Guam, and the Northern Mariana Islands). United States fishing concerns, including the U.S. tuna industry, U.S. conservation organizations, and U.S. consumers, as well as those residents of Hawaii and the U.S. Flag Pacific island areas of Guam, American Samoa, and the Northern Mariana Islands, all have a crucial stake in the health of the oceans and their resources as promoted by the WCPF Convention. I recommend that the Senate give early and favorable consideration to the WCPF Convention and give its advice and consent to its ratification. George W. Bush. LETTER OF SUBMITTAL ---------- Department of State, January 10, 2005. The President, The White House. The President: I have the honor to submit to you the Convention for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, with Annexes (``the WCPF Convention''). The Convention was adopted at Honolulu on September 5, 2000, and was signed on behalf of the United States on that date. I recommend that the WCPF Convention be transmitted to the Senate for its advice and consent to ratification. The WCPF Convention has as its objective the long-term conservation and sustainable use of highly migratory fish stocks of the Western and Central Pacific Ocean. Highly migratory fish stocks are those that migrate across extensive areas of the high seas as well as through the territorial seas and exclusive economic zones (EEZs) of numerous coastal States. Examples include species of tuna, swordfish, marlin, and related highly migratory species. The fisheries for tuna in the Western and Central Pacific are the largest and most valuable in the world. The WCPF Convention builds upon provisions of the 1982 United Nations Convention on the Law of the Sea (the LOS Convention) and the 1995 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 (the UN Fish Stocks Agreement). The LOS Convention recognizes that effective conservation and management of highly migratory fish stocks requires cooperation among those with a direct interest in them: coastal States with the authority to manage fishing in their EEZs, as well as those nations whose vessels fish for these stocks within EEZs or on the high seas. It obligates such States in the regions where fishing for highly migratory species takes place to cooperate directly or through appropriate international organizations to ensure conservation and promote the sustainable utilization of such species throughout their ranges, both within and beyond the EEZ. It calls for cooperation to establish international organizations in regions where no appropriate body exists. The UN Fish Stocks Agreement elaborates and strengthens the provisions of the LOS Convention regarding highly migratory species. Among other things, it contains a requirement that the coastal States and States whose vessels fish for highly migratory species in a region where no regional fishery management organization or arrangement exists, establish such an organization or arrangement. The Western and Central Pacific Ocean is the last major marine area with extensive fishing for highly migratory species that lacks such a regional organization. The WCPF Convention is designed to fill this gap. A number of its provisions are drawn directly from the UN Fish Stocks Agreement. Discussions leading to the development of the WCPF Convention began in December 1994, at the Multilateral High Level Conference on the Conservation and Management of the Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (MHLC) in Honiara, Solomon Islands. The Conference was convened on the initiative of the Pacific Forum Fisheries Agency (FFA)--which consists of the island States of the Western and Central Pacific. In addition to FFA members, the principal distant water fishing States--those whose vessels fish for tuna on the high seas or within the EEZs of the island States--were invited to attend. FFA members, many of whom view the potential catch of tuna within their EEZs as an important contributor to their economies, saw the Conference as an opportunity to explore means of promoting sound management of the tuna fisheries in light of the entry into force of the LOS Convention (November 1994). However, they were initially reluctant to commit themselves to the negotiation of a binding regional agreement. This first session of the MHLC led to technical consultations on the requirements for effective management of the region's tuna resources. These, combined with the adoption of the UN Fish Stocks Agreement in 1995, led to growing recognition by both FFA members and distant water fishing nations alike of the need for a regional agreement as foreseen in the UN Fish Stocks Agreement. As a result, a second session of the MHLC was convened in June 1997 at Majuro, Marshall Islands. The participants adopted a declaration (the Majuro Declaration) that included a political commitment to negotiate a regional agreement for the highly migratory fish stocks in the Western and Central Pacific Ocean in accordance with the LOS Convention and the UN Fish Stocks Agreement, and to do so within three years. Detailed negotiations followed in five additional sessions of the MHLC: --Third Session--Tokyo, June 1998 --Fourth Session--Honolulu, February 1999 --Fifth Session--Honolulu, September 1999 --Sixth Session--Honolulu, April 2000 --Seventh session--Honolulu, August-September 2000 Participants in the negotiations included the FFA members-- Australia, the Cook Islands, the Federated States of Micronesia, Fiji, Kiribati, the Marshall Islands, Nauru, New Zealand, Niue, Palau, Papua New Guinea, Samoa, the Solomon Islands, Tonga, Tuvalu and Vanuatu--as well as Canada (beginning at the Fourth Session), China, France, Indonesia (beginning at the Third Session), Japan, Philippines, Republic of Korea, Chinese Taipei, the United States and the United Kingdom on behalf of Pitcairn, Henderson, the Ducie and Oeno Islands (beginning at the Sixth Session). The French territories of French Polynesia, New Caledonia and Wallis and Futuna also participated, but without decision-making competence. The participants faced a number of difficult and complex issues in translating the general international legal obligations to conserve and cooperate in the conservation of highly migratory fish stocks into a practical and effective management regime. These ranged from the nature and decisionmaking procedures of the regime's institutions to effective mechanisms to ensure compliance with the provisions of the WCPF Convention and measures adopted pursuant to it. They also faced potentially intractable political issues relating to how Taiwan--with the second largest fishing fleet in the region--and non-self governing territories, such as French Polynesia and New Caledonia, would participate in the Convention. Solutions to these issues required finding an equitable balance between coastal States, most particularly FFA members wary of any limitation of their sovereign rights in their EEZs, on the one hand, and the distant water fishing States, most particularly Asian fishing nations and entities (Japan, the Republic of Korea, China and Taiwan), on the other, which sought to avoid what they perceived as onerous burdens on their industries and concerns about being out-voted by the more numerous coastal States. The United States occupied the middle ground in the negotiation as both a major distant water fishing nation (with the fourth largest catch in the region) and a coastal State with the largest EEZ in the Convention Area (including waters around Hawaii, American Samoa, Guam and the Northern Mariana Islands). Moreover, the United States enjoys a close relationship on fisheries matters with the FFA members collectively. This relationship is reflected in the 1987 Treaty on Fisheries Between the Governments of Certain Pacific Island States and the Government of the United States of America, as amended, which establishes regional licensing and access arrangements for U.S. tuna vessels in the Western and Central Pacific. It includes a number of innovative conservation and compliance features that influenced the content of the WCPF Convention. The position occupied by the United States in the negotiations afforded the U.S. delegation opportunities and incentives to play an active role in securing an appropriate balance between coastal and distant water interests in the WCPF Convention. Additional key objectives for the United States included the creation of a level playing field--ensuring that all significant fishing fleets in the region are bound by uniform and effective conservation obligations--and ensuring as far as possible that the highly migratory stocks of the region are managed throughout their range. The final session of the MHLC on September 5, 2000, adopted the WCPF Convention, incorporating what most participants viewed as fair and workable provisions on the key issues, along with a resolution (Resolution 1) convening a Preparatory Conference to prepare for the establishment of the Commission provided for in the WCPF Convention. Due to objections by Japan, supported by the Republic of Korea, the WCPF Convention could not be adopted by consensus and was put to a vote. It was adopted by a vote of 19 in favor and two opposed (Japan and the Republic of Korea), with three abstentions (China, France and Tonga). The Preparatory Conference provided for in Resolution 1 has held seven sessions undertaking important work in preparing for the entry into force of the WCPF Convention. Equally important, it has provided a forum for addressing the concerns expressed by those who were unable to support adoption of the WCPF Convention in September 2000, in particular Japan and the Republic of Korea. The Republic of Korea attended the Preparatory Conference from the outset and Japan, after initially declining to attend, joined the process at its third session in November 2002. At the fifth session in 2003, Japan announced its intention to initiate the process of seeking parliamentary approval for accession to the WCPF Convention. Most recently, at the seventh and final session in December 2004, China, Taiwan (Chinese Taipei), and the Republic of Korea participated as Parties to the WCPF Convention, and Japan announced that it expects to become a Party in 2005. As a result of the work of the Preparatory Conference, the consensus that eluded the participants on adoption of the Convention now appears to have been achieved, with almost all of those who took part in the MHLC negotiations now Party to the WCPF Convention and committed to its success. The Convention entered into force on June 19, 2004, six months after New Zealand deposited the thirteenth instrument of ratification. To date, sixteen States have ratified or acceded to the Convention. In addition, in November 2004 Taiwan (Chinese Taipei) completed its domestic requirements to become Party to the Convention as a ``fishing entity'' and, in accordance with Article 9 of the WCPF Convention, became a member of the Commission. This brings the number of States and fishing entities Party to the WCPF Convention to seventeen. The inaugural meeting of the Commission took place in December 2004, and the first annual meeting is scheduled for December 2005. As a result, I believe that it is important for the United States to take the steps necessary to join the new Commission at the earliest possible time. The WCPF Convention consists of 43 articles and four Annexes. The following describes the salient features of the Convention. Part I--General Provisions (Articles 1-4) Article 1 of the WCPF Convention defines a number of key terms, including ``highly migratory fish stocks'', ``fishing'', ``fishing vessel'', ``transshipment'' and ``regional economic integration organization.'' ``Highly migratory fish stocks'' means all fish stocks of the species listed in Annex I of the LOS Convention occurring in the WCPF Convention Area and such other fish species as the Commission may determine. Annex I of the LOS Convention includes certain species that are not fish, such as cetaceans. Because the definition of ``highly migratory fish stocks'' clearly includes only fish stocks among those species, the WCPF Convention would not apply directly to the conservation of whales and other non-fish species. ``Fishing'' means: (i) searching for, catching, taking or harvesting fish; (ii) attempting to search for, catch, take or harvest fish; (iii) engaging in any other activity which can reasonably be expected to result in locating, catching, taking or harvesting of fish for any purpose; (iv) placing, searching for or recovering fish aggregating devices or associated electronic equipment such as radio beacons; (v) any operations at sea directly in support of, or in preparation for, any activity described in subparagraphs (i) to (iv), including transshipment; (vi) use of any other vessel, vehicle, aircraft or hovercraft for any activity described in subparagraphs (i) to (iv) except for emergencies involving the health and safety of the crew or the safety of a vessel. ``Fishing Vessel'' means any vessel used or intended to be used for the purpose of fishing, including support ships, carrier vessels and any other vessel directly involved in such fishing operations. ``Transshipment'' means the unloading of all or any of the fish on board a fishing vessel to another fishing vessel either at sea or in port. ``Regional economic integration organization'' refers to a regional economic organization to which its member States have transferred competence over matters covered by the WCPF Convention, including authority to make decisions binding on its member States in respect of those matters. At present, the term refers only to the European Union. Article 2 sets forth the objective of the WCPF Convention to ensure, through effective management, the long-term conservation and sustainable use of highly migratory fish stocks in the Western and Central Pacific Ocean in accordance with the LOS Convention and the UN Fish Stocks Agreement. Article 3 deals with the area of application of the WCPF Convention. The area of competence of the WCPF Commission includes all waters of the Pacific Ocean north and west of lines delineating the southern and eastern limits (Paragraph 1). Paragraph 2 provides that nothing in the WCPF Convention constitutes recognition of the claims or positions of any members of the Commission concerning the legal status and extent of waters and zones claimed by such members. Paragraph 3 provides that the WCPF Convention applies to all stocks of highly migratory fish stocks in this area except for sauries. The Convention area is based on the objective of the WCPF Convention, including, as a basic corollary of the objective, ensuring, insofar as possible, coverage of the full migratory range of the species concerned. In delineating the Convention Area, account had to be taken of the existence of other agreements dealing with highly migratory species in the Pacific, as well as the complex geographic and legal situation regarding waters off the coasts of Southeast Asia. In the east, the Convention Area abuts waters subject to regulation by the Inter-American Tropical Tuna Commission (IATTC). The southern limits follow the northern limits of the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR), while the northern limit of the Convention area is self-defining. With respect to the Convention area's western limit, there is no generally agreed upon definition of the extent of Pacific waters in the East and Southeast Asian area, among other reasons, because of intractable disputes over maritime boundaries in the South China Sea and elsewhere. Article 3, therefore, does not set forth a specific western limit of the WCPF Convention area. Rather, it provides (Paragraph 3) that conservation and management measures shall be applied throughout the range of the stocks, or to specific areas within the WCPF Convention area, as determined by the WCPF Commission. In other words, it is recognized that the most practical approach is to provide for the WCPF Commission to address specific western limits in relation to those specific conservation and management measures whose scope or content requires it. The area of the WCPF Convention was a contentious issue in the negotiations. There was initially strong sentiment in favor of limiting the area to those waters south of latitude 20+ north. This view reflected concern on the part of FFA members to retain a South Pacific focus in the WCPF Convention, as well as concern by Asian fishing States over inclusion of waters off their coasts and stocks found primarily in this northern area (e.g., northern albacore and Pacific bluefin tuna). The United States, among others, strongly advocated inclusion of waters north of latitude 20+ north, since the range of important stocks (e.g., skipjack, yellowfin and bigeye tuna stocks) extends into these waters. Excluding this area would have left such stocks unmanaged through a significant portion of their range and would not have covered the exclusively northern stocks at all. The resulting Convention area does include the waters under U.S. jurisdiction around the State of Hawaii and the U.S. Pacific territories. However, measures adopted under the Convention will not affect U.S. law with respect to foreign fishing activities within the EEZ of the United States. Agreement on the text of Article 3 providing for inclusion in the WCPF Convention area of all waters of the western and central Pacific (including the northern area) was linked to the establishment of a semi-autonomous committee (known as the Northern Committee) with specific responsibilities for the area north of latitude 20+ north, to consist of Commission members located or fishing there (see Article 11 below). This compromise reflects the specific circumstances of the northern area without arbitrarily dividing the Convention Area, which would have undercut efforts aimed at the conservation and management of major tuna populations throughout their range and would have unnecessarily fragmented the management of highly migratory species in the Pacific. Article 4 reaffirms the consistency of the WCPF Convention with the provisions of the LOS Convention and the UN Fish Stocks Agreement. It specifies that nothing in the WCPF Convention shall prejudice rights, jurisdiction and duties under the LOS Convention and the UN Fish Stocks Agreement and that the WCPF Convention is to be interpreted and applied consistently with the LOS Convention and UN Fish Stocks Agreement. Part II--Conservation and Management of Highly Migratory Fish Stocks (Articles 5-8) Article 5 sets forth general principles and measures for the conservation and management of highly migratory fish stocks in the WCPF Convention area, including obligations upon members of the Commission to: --adopt measures to ensure the long-term sustainability of the stocks and promote their optimum utilization; --base such measures on the best scientific evidence available; --apply the precautionary approach; --assess the impacts of fishing and other relevant impacts on target stocks and non-target species and the ecosystems of which they are part; --adopt measures to minimize waste, discards, catch by lost or abandoned gear, pollution originating from fishing vessels, catch of non-target species, and impacts on associated or dependent species, in particular endangered species, and also to promote selective and environmentally sound fishing gear and practices; --take measures to prevent or eliminate over-fishing and excess fishing capacity; --collect and share complete, accurate and timely data concerning fishing activities; and --ensure compliance with conservation and management measures through effective monitoring, control and surveillance. Article 6 elaborates the obligation to apply the precautionary approach to fisheries management (set forth in Article 5). It provides that members of the WCPF Commission shall be more cautious when information is uncertain, unreliable or inadequate and that the absence of adequate scientific information shall not be used as a reason for postponing or failing to take conservation and management measures. It also incorporates as an integral part of the WCPF Convention the Guidelines for the Application of Precautionary Reference Points in Conservation and Management of Highly Migratory Fish Stocks set forth in Annex II of the UN Fish Stocks Agreement, and requires action to implement them. Articles 7 and 8 obligate members of the Commission to exercise, and to cooperate in the exercise of, their rights as coastal States in areas under their national jurisdiction and as flag States on the high seas so as to ensure effective conservation and management of highly migratory fish stocks throughout their range within the WCPF Convention area. Article 7 makes clear that the principles and measures for conservation and management set forth in Article 5 are to be applied by coastal States in areas under national jurisdiction in the WCPF Convention area. It specifies that Commission Members shall give due consideration to the respective capacities of developing states and their need for assistance in implementing the WCPF Convention. Article 8 requires that conservation and management measures established for the high seas and those adopted for the areas under national jurisdiction be compatible to ensure conservation and management of highly migratory fish stocks throughout their range. Members of the WCPF Commission have a duty to cooperate to achieve compatible measures. The Commission, in establishing compatibility, is to take into account a number of factors in adopting conservation and management measures, including the biological unity and characteristics of the stocks, their geographical distribution and fishing patterns. The WCPF Commission is further called upon to take into account conservation and management measures adopted by coastal States for such stocks in areas under national jurisdiction, consistent with the LOS Convention, and to ensure that the effectiveness of those measures is not undermined by measures it adopts for the WCPF Convention Area as a whole. Conversely, coastal States are to ensure that measures they adopt and apply to highly migratory fish stocks in areas under their national jurisdiction do not undermine the effectiveness of measures adopted by the WCPF Commission in respect of the same stocks. Part III--Commission for the Conservation and Management of the Highly Migratory Fish Stocks in the Western and Central Pacific Ocean Section 1--General Provisions (Articles 9-11) Article 9 provides for establishment of the WCPF Commission and deals with a number of organizational issues, including meetings, election of officers, the Commission's legal capacity, privileges and immunities of the Commission and its officers and adoption of rules of procedure. Article 9, paragraph 2, in combination with Annex I of the WCPF Convention--Fishing Entities--addresses participation in the WCPF Convention by a ``fishing entity.'' The term, drawn from the UN Fish Stocks Agreement, refers to Taiwan (Chinese Taipei). These provisions incorporate compromise formulations to ensure that fishing vessels of Taiwan are legally bound by the conservation and management regime of the WCPF Convention, including measures adopted pursuant to it. The compromise had to balance two opposing realities: first, the necessity for Taiwan to take part in the work of the Commission, including decision-making, in order for resulting measures to be binding upon its vessels; and second, the fact that a number of the participants in the negotiations (not least China) do not have diplomatic relations with Taiwan and do not recognize it as having the capacity to become a Contracting Party to international agreements, such as the WCPF Convention. Article 9 and Annex I of the WCPF Convention specifically provide that, after entry into force of the WCPF Convention, a fishing entity whose vessels fish for highly migratory fish stocks in the Convention area may by written instrument agree to be bound by the regime established by the Convention. Such a fishing entity shall participate in the work of the WCPF Commission, including decisionmaking, and shall assume obligations under the WCPF Convention. References in the text of the Convention to the work of the Commission and the obligations of Commission members therefore include the work and obligations of such a fishing entity as well as the Contracting Parties. In other words, Taiwan is treated as a Member of the Commission, but not as a Contracting Party. Further, the basic rights and obligations in the WCPF Convention are carefully formulated so as to apply to members of the Commission. Three political decisions are reserved to Contracting Parties only--accession of new States to the Convention; location of the headquarters of the WCPF Commission; and appointment of the Executive Secretary. In addition, the WCPF Convention provides that the Commission shall elect a chairman and a vice-chairman from amongst the Contracting Parties only. Taiwan will participate in the WCPF Convention as Chinese Taipei. Under this name, upon adoption of the WCPF Convention on September 5, 2000, it signed (with the MHLC Chairman) a separate Arrangement for the Participation of Fishing Entities that includes a declaration of intent on the part of Chinese Taipei. As described above, as of November 2004 Taiwan as Chinese Taipei is bound by the WCPF Convention and may participate in the work of the Commission in accordance with the Convention's provisions. Article 9, paragraph 3, specifies that the Commission shall hold an annual meeting and such other meetings as may be necessary to carry out its functions. Article 10 sets forth the functions of the WCPF Commission. The Commission is authorized to adopt such measures and recommendations as are necessary to give effect to the objective of the WCPF Convention. Article 10 includes an extensive, but not exhaustive, list of specific Commission functions. These include determination of total allowable catch of or total level of fishing effort for highly migratory fish stocks in the WCPF Convention area and adoption of measures relating, inter alia, to the permitted catch of any species or stock, the level of fishing effort, limitations on fishing capacity, fishing areas and seasons, size limits, permitted fishing gear and technology, and fishing regions or subregions. They also include: --adoption of conservation and management measures to maintain or restore non-target species to healthy levels; --adoption of standards for collection, verification, timely exchange and reporting of fisheries data in accordance with Annex I of the UN Fish Stocks Agreement (that sets forth such standards in detail) that is deemed to form an integral part of the WCPF Convention; --compilation and dissemination of accurate and complete statistical data, while maintaining appropriate confidentiality; --establishment of cooperative mechanisms for effective monitoring, control and enforcement; --adoption of the budget and other administrative responsibilities; and --adoption of any measures or recommendations necessary for achieving the WCPF Convention's objective. The WCPF Commission is further authorized to adopt decisions relating to the allocation of total allowable catch or total level of fishing effort of highly migratory fish stocks in the WCPF Convention area. In this regard, the WCPF Commission is called upon to develop, where necessary, allocation criteria. Article 10, paragraph 3, outlines a number of factors to be taken into account in order to reflect and balance the interests and needs of Commission members, including those of coastal States and distant water fishing nations. Article 11 concerns subsidiary bodies of the Commission. It specifically establishes as subsidiary bodies of the WCPF Commission a Scientific Committee and a Technical and Compliance Committee, with each member of the Commission entitled to membership. Each Committee is to make recommendations on matters within its competence to the WCPF Commission. Each is also required to provide a report to each annual meeting of the Commission. Such reports are to be adopted by consensus if possible but to include all views if consensus is not possible. Article 11, paragraph 7, provides that the WCPF Commission shall establish a committee (the Northern Committee) to deal with issues relating to that part of the WCPF Convention area north of latitude 20+ north. The Northern Committee is to consist of those members of the WCPF Commission situated or fishing in that area. Its functions are to make recommendations on the formulation of conservation and management measures for stocks that occur mostly in the northern area and on the implementation of conservation and management measures adopted by the WCPF Commission for that area. Such recommendations are to be consistent with the general policies and measures adopted by the WCPF Commission in respect to the stocks or species in question and with the principles and measures for conservation and management set forth in the WCPF Convention. Recommendations of the Northern Committee are adopted by consensus of its members. The WCPF Commission, in turn, is required to base its decisions concerning measures relating to particular stocks and species in the northern area on the recommendations of the Committee. If a recommendation fails to be adopted by the WCPF Commission, it is to be returned to the Committee for further consideration. As noted in the analysis of Article 3 above (page 13), the provisions on the Northern Committee are an important part of the compromise solution on the WCPF Convention area. However, how these provisions would function in practice required clarification and elaboration in further rules of procedure. Such rules were drafted by the Preparatory Conference and adopted at the inaugural WCPF Commission meeting as part of the rules of procedure for the Commission. The rules make it clear that the Northern Committee will have substantial autonomy in its area of competence. The Northern Committee is accorded the initiative with respect to conservation and management of fish stocks occurring mostly in the northern area and the WCPF Commission is not to adopt conservation an management measures specific to those species--northern albacore, Pacific blue fin tuna and northern swordfish without a recommendation of the Northern Committee. Clarification of the latter point was particularly important to Japan. Article 11 also provides that the WCPF Commission may establish such other subsidiary bodies as it deems necessary. Section 2--Scientific Information and Advice (Articles 12- 13) Articles 12 and 13 envisage a system designed to provide the WCPF Commission with the best available scientific information for making conservation and management decisions. The Scientific Committee is established as a forum in which representatives of the members of the WCPF Commission provide scientific advice to the Commission. Article 12 sets forth in detail the functions of the Scientific Committee, including the promotion of necessary scientific research. Article 13 provides that the WCPF Commission may also engage the services of scientific experts to provide information and advice on the fishery resources covered by the WCPF Convention. The WCPF Commission may enter into administrative and financial arrangements for such scientific services, utilizing to the greatest extent possible the services of existing regional organizations. Article 13 also sets forth in detail the functions that may be performed by scientific experts engaged by the WCPF Convention, including the conduct of scientific research. While scientific experts engaged by the Commission pursuant to Article 13 are to provide the results of their work directly to the WCPF Commission, such results are also to be provided to the Scientific Committee. In turn, the Committee is to review and comment on the work of the scientific experts prior to its consideration by the Commission, and may recommend specific issues arid items for consideration by the experts. This approach on who should provide scientific advice to the WCPF Commission represents a middle ground between those advocating the provision of scientific advice by scientists representing individual members of the Commission and those advocating the provision of such advice by independent scientific experts responsible to the WCPF Commission and not representing individual members. Both approaches reflect a desire to draw on the knowledge and experience of the Oceanic Fisheries Program of the Pacific Community (formerly the South Pacific Commission), which has been the primary regional scientific body dealing with highly migratory fish stocks in the Western and Central Pacific. In particular, FFA members who have long looked to the Oceanic Fisheries Program, and specifically to its Standing Committee on Tuna and Billfish for advice, supported reliance upon the expertise of the Program. Section 3--The Technical and Compliance Committee (Article 14) Article 14 enumerates the functions of the Technical and Compliance Committee. These include providing the WCPF Commission with information and technical advice on the implementation of, and compliance with, conservation and management measures; monitoring and reviewing compliance with such measures; and reviewing the implementation of monitoring, control, surveillance and enforcement measures adopted by the WCPF Commission, as well as making recommendations on these matters. The Technical and Compliance Committee, in consultation with the Scientific Committee, is also called upon to recommend to the WCPF Commission priorities and objectives for the regional observer program, to assess its results, and to make recommendations on fishing gear and technology that may be used. Section 4--The Secretariat (Articles 15-16) Article 15 empowers the WCPF Commission to establish a permanent Secretariat consisting of an Executive Director and such other staff as the Commission may require. The Executive Director is to be appointed for a four-year term with possible re-appointment for an additional four-year term. The Executive Director is to serve as the chief administrative officer of the WCPF Commission and to act in that capacity at meetings of the Commission and its subsidiary bodies, as well as to perform such other administrative functions as may be assigned by the Commission. Secretariat functions include handling the official communications of, preparing administrative and other reports for, and publishing the decisions of the WCPF Commission and its subsidiary bodies. It is also called upon to facilitate the compilation and dissemination of data necessary to accomplish the objective of the WCPF Convention and administer agreed arrangements for monitoring, control and surveillance and the provision of scientific advice. The Secretariat is to be cost effective and, where appropriate, is to take into account the ability of existing regional institutions to perform certain technical secretariat functions. Article 16 provides that the Executive Director appoints the staff of the Secretariat. Section 5--Financial Arrangement of the Commission (Articles 17-19) Article 17 identifies the sources of the funds of the Commission as: --contributions assessed in accordance with Article 18; --voluntary contributions; --the fund to facilitate effective participation in the work of the WCPF Commission (see Article 30); and --any other funds which the WCPF Commission may receive. It also provides for the WCPF Commission to adopt financial regulations for the administration of the Commission and the exercise of its functions. Article 18, paragraph 1 provides that the WCPF Commission adopt, by consensus, its budget on the basis of a draft budget prepared by the Executive Secretary. The WCPF Commission is to adopt, by consensus, and amend as necessary, a scheme for determining the assessed contributions to the budget to be made by each member of the Commission. Paragraph 2 of Article 18 calls for due consideration to be given to each member being assessed each of the following: --a basic fee equal in amount for all members; --a fee based on national wealth, reflecting the state of development of the member concerned and its ability to pay; and --a variable fee. The variable fee is to be based, inter alia, on the total catch taken within EEZs and in areas beyond national jurisdiction in the WCPF Convention Area of such species as may be specified by the WCPF Commission, with a discount factor for catch taken in the EEZ of a member of the Commission which is a developing State or territory by vessels flying the flag of that member. The criteria for the budget Contribution formula reflects the growing trend in regional fishery management organizations to base significant portions of assessed budgetary contributions on catch--linking contributions by participants to the benefits they receive from conservation and management of the resource. The discount factor reflects the recognition of the key role that development of fisheries can play in the economic development of the developing Pacific island States. Article 18 also includes provisions by which members lose the right to participate in decisions of the Commission if they are two years or more in arrears in their assessed contributions to the budget. Article 19 requires an annual audit, by an independent auditor, of the records, books, and accounts of the WCPF Commission. Section 6--Decision-making (Article 20) The WCPF Convention's procedures on decision-making represent a careful balance between Members' interest in having their views reflected in decisions and their interest in not permitting any single Member to block moving forward on important conservation decisions. In the exceptional case where consensus may not be possible, the chambered voting system balances the interests of distant water fishing states and coastal states. The system created by the provisions of the Convention ensures, with all reasonable certainty, that distant water fishing states will not be bound by significant measures to which they do not agree. At the same time, it ensures that failure to reach consensus will not prevent the adoption of important measures that may be necessary for the conservation and management of the resources in question. The provisions of the Convention serve the interests of the United States, as both a distant water fishing nation and a coastal state in the Convention Area, by offering protections for decisions on issues of significant importance to the United States, while not creating a system where necessary conservation and management measures for fisheries stocks of economic value to the U.S. fishing industry could not be adopted. Specifically, the balance is achieved through two interlinked elements. The first is to provide for differing majorities for different types of decisions. Decisions by consensus are required on a number of key issues--allocation of total allowable catch or the total level of fishing effort, exclusion of vessel types, adoption and amendment of the rules of procedure of the Commission and those for subsidiary bodies, adoption of budgets and the formula for budgetary contributions, and amendments of and invitations to accede to the Convention. Decisions on other matters of substance-- provided that efforts to achieve consensus have been exhausted--are to be taken by a three-fourths majority. The second element is, as noted above, the addition of chambered voting requirements for decisions on those matters of substance where consensus is not required. Affirmative decisions on these matters require not only an overall three- fourths majority of members of the WCPF Commission. They also require support by three-fourths of members of the WCPF Commission who are also members of the FFA and three-fourths of members of the Commission who are not members of the FFA, provided that no such decision shall be defeated by two or fewer votes of either group (i.e., in either ``chamber''). The WCPF Convention's decision-making system creates strong incentives for the Commission to carry out all its work by consensus, while limiting the possibility of an impasse inherent in a system formally requiring consensus on all decisions. At the same time, it avoids the uncertainties and inequities that can result from a system permitting members of the WCPF Commission to opt out of decisions once taken. The chambered voting requirements provide important safeguards, in particular for members of the WCPF Commission who define their interests primarily from a distant water fishing perspective and ensures, with reasonable certainty, that members of the Commission will not be bound by measures with which they are in basic disagreement. To provide an additional safeguard, Article 20 also makes provision for a member of the Commission that votes against a decision of the Commission or that is absent when the decision is taken to seek a review of the decision. Such a request is to be made within 30 days of the decision. (Decisions of the WCPF Commission normally become binding 60 days after adoption.) Article 20 sets forth two grounds for seeking a review: inconsistency with the provisions of the WCPF Convention, the UN Fish Stocks Agreement or the LOS Convention; or unjustifiable discrimination in form or in fact against the member of the Commission in question. The review is to be undertaken by a review panel constituted in accordance with the procedures set forth in Annex II of the WCPF Convention. Annex II provides for constitution of a three-person arbitral panel modeled on Annex VIII of the LOS Convention on Special Arbitration, with the members chosen from among the arbitrators expert in the field of fisheries referred to in Article 2 of Annex VIII. If the panel finds that the decision need not be changed or revoked, the decision becomes binding 30 days after the panel's report. If the panel recommends change or revocation, the WCPF Commission is called upon to conform the decision to the findings of the panel at its next meeting. Section 7--Transparency and Cooperation with Other Organizations (Articles 21-22) Article 21 calls upon the WCPF Commission to promote transparency in its decision-making processes and other activities. To this end, representatives from intergovernmental organizations and non-governmental organizations concerned with matters relevant to the implementation of the WCPF Convention are to be afforded the opportunity to participate in meetings of the WCPF Commission and its subsidiary bodies as observers. The rules of procedure are not to be too restrictive in this respect and are to provide that such organizations be given timely access to pertinent information. Article 22 deals with cooperation with other organizations. The WCPF Commission necessarily will have significant interactions with other relevant management organizations. The most extensive of these interactions will take place with the Inter-American Tropical Tuna Commission (IATTC). The IATTC is responsible for the conservation and management of highly migratory species in the Eastern Tropical Pacific. The geographic range of certain important stocks brings those stocks within the competence of both organizations. In addition, the Commission for the Conservation of Southern Bluefin Tuna (CCSBT) is responsible for the conservation and management of that species, throughout its high seas range. This range falls largely within the area covered by the WCPF Convention. The Indian Ocean Tuna Commission (IOTC), as its name indicates, covers the Indian Ocean, but there is a small area of overlap between the IOTC area and the WCPF Convention area south of Australia. Finally, the southern boundary of the WCPF Convention area abuts the area managed by the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR). The overlapping and adjacent competencies of these organizations offer the opportunity to more fully achieve their respective objectives, particularly in ensuring the effective conservation and management of highly migratory species throughout their range. With this in mind, the WCPF Convention obligates the WCPF Commission to consult, cooperate and collaborate with other relevant management organizations, particularly those which can contribute to the objective of the WCPF Convention, specifically IATTC, CCSBT, IOTC and CCAMLR. In situations where the WCPF Convention area overlaps with an area under regulation by another fisheries management organization, the WCPF Commission is further enjoined to cooperate with the other fisheries organization to avoid duplication of measures in respect of stocks in that area that are regulated by both organizations. With respect to IOTC, the possibility of such duplication seems remote at this point, but this provision provides a safeguard. With respect to CCSBT, there was a general understanding during the MHLC negotiation that southern bluefin tuna would continue to be the province of CCSBT and would not be managed by the WCPF Commission. The provision on duplication confirms that understanding. With respect to IATTC, while there exists the possibility of duplication of otherwise independently adequate measures, the more likely situation is one in which the migratory pattern of a particular stock, by bringing it within the competence of both organizations, will lead to inconsistent or partial conservation and management measures. For this reason, the WCPF Convention also includes a specific provision calling for the WCPF Commission to initiate consultations with the IATTC to agree upon consistent conservation and management measures, including measures relating to monitoring, control and surveillance, for stocks that occur in the convention areas of both organizations. As noted above, Article 3 of the WCPF Convention (dealing with the area of application) includes a provision that conservation and management measures shall be applied throughout the range of the stocks or to specific areas within the Convention area, as determined by the WCPF Commission. This provision, in part, anticipates future interaction with other fisheries management organizations. Finally, the WCPF Commission is called upon to cooperate with the United Nations Food and Agriculture Organization (FAO) and other relevant specialized agencies and bodies of the United Nations on matters of mutual interest. Part IV--Obligations of Members of the Commission (Article 23) Part IV, and the following three parts of the WCPF Convention in particular, reflect an emphasis on the importance of unambiguous obligations and detailed procedures for ensuring implementation of the Convention, as well as for ensuring compliance with its provisions and with the conservation and management measures adopted pursuant to it. These parts draw, in significant degree, not only on the LOS Convention and the UN Fish Stocks Agreement, but also on the 1993 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (the Compliance Agreement) and innovative regional fishery management agreements, such as CCAMLR. Article 23 requires each member of the WCPF Commission to promptly implement all measures adopted under the WCPF Convention, as well as to cooperate in furthering the objective of the Convention. Each member of the Commission is to provide to the Commission statistical, biological and other data and information in accordance with Annex I of the UN Fish Stocks Agreement (which specifies in detail the categories of such data and information), information concerning its fishing activities, including fishing areas and fishing vessels, and other data and information as required by the Commission, in order to facilitate compilation of reliable catch and effort statistics. Members of the WCPF Commission are likewise obligated to report to the Commission on steps they have taken to implement conservation and management measures adopted by the Commission, as well as relevant measures they have adopted individually for areas under their national jurisdiction and for vessels flying their flag that fish in the Convention area as a whole. Article 23 also includes a provision calling upon members of the WCPF Commission to take steps to deal with involvement by their nationals in unauthorized fishing for highly migratory fish stocks in the WCPF Convention area. Paragraph 5 calls upon Members to take measures, to the greatest extent possible, to ensure that fishing vessels owned or controlled by its nationals and fishing in the Convention area comply with the provisions of the WCPF Convention. Part V--Duties of the Flag State (Article 24) Article 24 requires each member of the WCPF Commission to take measures to ensure that fishing vessels flying its flag comply with the provisions of the WCPF Convention and with conservation and management measures adopted pursuant to it and that such vessels do not engage in any activity that undermines the effectiveness of such measures. Each member is likewise to ensure that vessels flying its flag do not conduct unauthorized fishing in areas under the national jurisdiction of any member in the WCPF Convention area. Article 24 provides that no member of the WCPF Commission shall allow vessels entitled to fly its flag to be used for fishing for highly migratory fish stocks in the WCPF Convention area in areas beyond its national jurisdiction unless it has been authorized to do so by the appropriate authority of that member. A member of the WCPF Commission is obligated to authorize a vessel entitled to fly its flag to engage in such fishing only if it is able to exercise effective control over the vessel pursuant to its responsibilities under the LOS Convention and the UN Fish Stocks Agreement, as well as the WCPF Convention. It is to be a condition of every authorization to fish issued by a member of the Commission that each fishing vessel in respect of which the authorization is issued: --conducts fishing within areas under the national jurisdiction of other States only where the fishing vessel holds any license, permit or authorization required by such other State; and --is operated on the high seas in the WCPF Convention area in accordance with the requirements of Annex III to the WCPF Convention. Annex III--Terms and Conditions for Fishing--is designed to reinforce the obligations of the members of the Commission to ensure that fishing vessels flying their flag comply with conservation and management obligations by setting forth terms and conditions for fishing that directly bind the operator of the vessel. ``Operator'' refers to any person who is in charge of, directs or controls a fishing vessel, including the owner, master or charterer. The terms and conditions include obligations upon the operator of the vessel: --to comply with applicable national laws of each coastal State Party to the WCPF Convention when the vessel enters waters under the jurisdiction of such State; --to facilitate and assist observers designated under the WCPF Convention's regional observer program (see Article 28) in carrying out their duties; --to comply with measures adopted by the WCPF Commission with respect to transshipment (Article 29); and --to record and report the fisheries data and information in accordance with Annex I of the UN Fish Stocks Agreement. Annex III also includes requirements to promote effective enforcement of conservation and management obligations, including requirements for authorized fishing vessels to carry on board their authorization or authorizations to fish; cooperate with authorized inspectors; be marked or identified in accordance with standard international specifications; monitor an international distress and calling radio frequency or the international safety and calling frequency; and stow fishing gear at all times when navigating through waters in the WCPF Convention area in which it is not authorized to fish. Article 24 also requires each member of the WCPF Commission to maintain an up-to-date record of all fishing vessels entitled to fly its flag that it authorizes to be used for fishing in the WCPF Convention area beyond its area of national jurisdiction and to provide annually to the Commission the information set out in Annex IV of the Convention with respect to each such vessel. Annex IV--Information Requirements-- includes a detailed list of this information, which ranges from the name of the ship, its port of registry and registration number, its ownership and the master of the vessel, to its description, tonnage and types of fishing methods employed. Each member of the WCPF commission is to inform the Commission promptly of any additions to its vessel record as well as any deletions from it, along with the circumstances or reasons for such deletion. The WCPF Commission is required to maintain its own vessel register, which is to incorporate the information on authorized fishing vessels reported by individual members of the Commission, and is to make it available to all members of the Commission. Finally, Article 24 calls for the establishment of a WCPF Convention Vessel Monitoring System (VMS), in recognition of the contribution to effective compliance that can be made by placement of near real-time satellite position-fixing transmitters on board fishing vessels. To this end, each member of the WCPF Commission is to require its vessels fishing for highly migratory species on the high seas in the WCPF Convention area to use such transmitters. The WCPF Commission is called upon to operate the VMS for all such vessels. The Commission is to develop standards, specifications and procedures for the use of the transmitters, as well as procedures for receiving information through the VMS. The WCPF Convention requires that such procedures include measures to protect the confidentiality of information received by the WCPF Commission, and provides that information transmitted through the VMS be received directly by the Commission and simultaneously by the flag State of the vessel where the flag State so requires. This latter point was the subject of considerable debate during the negotiations, with several participants calling for VMS information from fishing vessels to be transmitted to the flag State and then to the WCPF Commission. The text of the WCPF Convention on this point--with the possibility of simultaneous receipt of information by the WCPF Commission and the flag State--is designed to ensure that all vessels fishing on the high seas are treated equally and to avoid any appearance that fishing vessel position data could be altered prior to receipt by the Commission. Development of an operational VMS by the WCPF Commission will involve significant work on technical aspects as well as on procedures. Part VI--Compliance and Enforcement (Articles 25-27) Article 25 requires members of the WCPF Commission to enforce the provisions of the WCPF Convention and conservation and management measures adopted pursuant to it. Each member of the Commission is to fully and promptly investigate alleged violations by vessels flying its flag, and to take expeditious action to punish offenders. Sanctions are to be adequate in severity to discourage further violations and to deprive the offenders of the benefits of their illegal activities. When a member of the WCPF Commission has established, in accordance with its laws, that a fishing vessel flying its flag has committed a serious violation, that member shall ensure that the vessel in question ceases all fishing activities until any resulting sanctions imposed by the flag State have been complied with. A ``Serious violation'' is defined by reference to Article 21 of the UN Fish Stocks Agreement and includes fishing without a valid flag State authorization, license, or permit; failure to record catch and catch-related data or misreporting of such data; fishing in a closed area, during a closed season, for a prohibited stock, or for a permitted stock after attainment of a quota on that stock; using prohibited fishing gear; falsifying or concealing the identity of a fishing vessel; and concealing, tampering with, or destroying evidence relating to an investigation. Article 25 calls for members of the WCPF Commission to cooperate in compliance and enforcement efforts, directly and through the Commission, by exchanging information about alleged violations and through joint activities to deter fishing violations--by fishing vessels of WCPF Commission members and by fishing vessels of non-Parties alike. Paragraph 6 requires a flag State to cooperate with a coastal State where there are reasonable grounds for believing that a fishing vessel of the flag State has previously engaged in unauthorized fishing in an area under the national jurisdiction of the coastal State. In such cases, cooperation may include authorization for authorized officers of the coastal State to board and inspect the vessel on the high seas. Article 25 also calls for members of the WCPF Commission to take action, directly or through the Commission, to prevent fishing vessels of members and of non-Parties which have engaged in fishing activities that undermine the effectiveness of conservation and management measures adopted by the Commission from fishing in the WCPF Convention area until such time as appropriate action is taken by their flag State. In this regard, the WCPF Commission is directed to develop procedures, consistent with the international obligations of members of the Commission, whereby non-discriminatory trade measures may be taken against any State or fishing entity whose fishing vessels fish in a manner that undermines the effectiveness of conservation and management measures adopted by the Commission. Article 26 provides that the WCPF Commission establish procedures for the boarding and inspection of fishing vessels on the high seas of the WCPF Convention area. Article 26 further provides that, if the WCPF Commission is unable to agree on such procedures within two years of entry into force of the WCPF Convention, the boarding and inspection procedures of the UN Fish Stocks Agreement (Articles 21 and 22) shall be applied as if they were part of the WCPF Convention. In that event, boarding and inspection of fishing vessels in the WCPF Convention area are to take place in accordance with those procedures and such additional practical procedures as the WCPF Commission may decide are necessary. The boarding and inspection procedures of the UN Fish Stocks Agreement provide that a State Party to the Agreement that is also a member of a regional fishery management organization, may board and inspect vessels flying the flag of another State Party on the high seas in the area covered by the regional fishery management organization even if the fishing vessel's flag State is not a member of the regional organization. In addition, the procedures of the UN Fish Stock Agreement give the inspecting State certain rights to take enforcement action against vessels they inspect on the high seas if there is evidence of a serious violation of conservation and management measures in force and the flag State does not step in to exercise its responsibilities with respect to the vessel. In fact, a principal objective of these procedures is to compel flag States of fishing vessels to fulfill their responsibility of ensuring that their vessels adhere to conservation and management measures in force. The UN Fish Stocks Agreement also includes safeguards. to protect flag States and their fishing vessels from abuse of high seas boarding and inspection rights, as well as steps to be taken, both by authorized inspectors and by masters of inspected vessels, to ensure that boarding and inspection procedures are carried out in a balanced and effective fashion. Article 26 of the WCPF Convention sets forth several general obligations to be included in future WCPF procedures for boarding and inspection. Specifically, all vessels used for high seas boarding and inspection in the Convention area shall be clearly marked and identifiable as being on government service and authorized to undertake high seas boarding and inspection in accordance with the Convention. Also, each member of the WCPF Commission shall ensure that fishing vessels flying its flag accept boarding by duly authorized inspectors. Inspectors, in turn, are required to comply with the applicable high seas boarding and inspection procedures. Article 27 sets forth the right and duty of port States to take measures, in accordance with international law, to promote the effectiveness of conservation and management measures. It reiterates the rule of international law with respect to port States in providing that whenever the fishing vessel of a member of the WCPF Commission enters the port or offshore terminal of another member, the port State may, inter alia, inspect documents, fishing gear, and catch on board the vessel. Article 27 also provides that members of the WCPF Commission may adopt regulations to prohibit landings and transshipments of fish catch in their ports in cases where it is established that the catch has been taken in a manner that undermines the effectiveness of conservation and management measures adopted by the Commission. Part VII--Regional Observer Programme and Regulation of Transshipment (Articles 28-29) Article 28 calls for the WCPF Commission to develop a regional observer program to collect verified catch data, other scientific data and information on fishing activities in the WCPF Convention area and to monitor the implementation of conservation and management measures adopted by the Commission. The program is to be coordinated by the Secretariat and is to consist of independent and impartial observers authorized by the Secretariat. Each member of the Commission is to ensure that any vessel flying its flag in the WCPF Convention Area, except for those vessels that fish exclusively in waters under the national jurisdiction of that member, is prepared to accept an observer from the program. Article 28 reiterates the obligations of vessel operators to facilitate and assist the work of observers set forth in Article 3 of Annex III to the WCPF Convention. It also enumerates guidelines for the operation of the program, including requirements for a sufficient level of coverage to ensure that the WCPF Commission receives appropriate data and information on catch and related matters in the WCPF Convention area, as well as requirements for training and certification of observers, for reporting their findings to the Commission and that observers not unduly interfere with the operations of the vessels on which they are placed. In addition to implementing these guidelines, the WCPF Commission is also called upon to develop further components of the program, including procedures for ensuring confidentiality of non-aggregated catch data and other information collected by observers, for disseminating data and information collected by observers to members of the Commission, and for defining the respective rights and duties of observers and of the master and crew of fishing vessels when an observer is on board. Article 29 calls for members of the WCPF Commission to encourage their fishing vessels to conduct transshipment of fish catch in port to promote accurate reporting of catches and provides that such members may designate one or more of their ports as transshipment ports. The WCPF Commission, in turn, is to circulate up- to-date lists of designated ports periodically. The Commission is to develop procedures to obtain and verify data on the quantity and species transshipped both in port and at sea in the WCPF Convention area. Transshipment at sea in the WCPF Convention area beyond areas of national jurisdiction is to take place only in accordance with the provisions of Annex III of the WCPF Convention and any procedures established by the WCPF Commission. Article 4 of Annex III requires operators of fishing vessels to comply with measures adopted by the WCPF Commission with respect to transshipment and to facilitate and assist the work of any person authorized either by the Commission or by the member of the Commission in whose designated port the transshipment takes place. Finally, Article 29 prohibits transshipment at sea by purse seine vessels (the category of vessel with greatest on-board catch storage capacity), subject to specific exemptions that the WCPF Commission adopts to reflect certain existing operations (in particular, where requiring transshipment in port would render the operation uneconomic). Part VIII--Requirements of Developing States (Article 30) Article 30 calls upon the WCPF Commission to give full recognition to the special requirements of developing States Parties to the WCPF Convention, in particular small island developing States, and the territories and possessions of other States Parties. In giving effect to the duty to cooperate in the establishment of conservation and management measures, the WCPF Commission is to take into account, inter alia, the dependence of developing States Parties, in particular small island developing States, upon marine living resources and the interests of their subsistence fishers and fish workers. The Commission is directed to establish a fund to facilitate the effective participation of developing States Parties, in particular small-island developing States and, where appropriate, the territories and possessions of other States Parties, in the work of the Commission. Cooperation with developing States, as well as with the territories and possessions of other States, for the purposes of Article 30 is also understood to include the possibility of provision of financial assistance to aid them in achieving the objective of the WCPF Convention, but Article 30 does not legally require such assistance. Part IX--Peaceful Settlement of Disputes (Article 31) An important component of the WCPF Convention's regime for the conservation and management of highly migratory species is an effective system of dispute settlement. Article 31 makes provision for such a system by applying the dispute settlement provisions of the UN Fish Stocks Agreement to any dispute between members of the WCPF Commission. The United States became the third Party to the UN Fish Stocks Agreement on August 21, 1996, and has since been a strong supporter of the Agreement. Part X--Non-Parties to the Convention (Article 32) Article 32 calls upon members of the WCPF Commission to take measures, consistent with the WCPF Convention, the UN Fish Stocks Agreement and the LOS Convention, to deter the activities of vessels flying the flags of non-Parties to the WCPF Convention which undermine the effectiveness of conservation and management measures adopted by the Commission. These measures include the exchange of relevant information among members of the WCPF Commission, drawing the attention of the non-Party to the activities of its vessels, requesting the non-Party to cooperate in the implementation of the conservation and management measures adopted by the Commission, and the possibility that the non-Party attend meetings of the Commission as an observer. Part XI--Good Faith and Abuse of Rights (Article 33) Article 33 sets forth a provision common to international agreements to the effect that the obligations of the WCPF Convention are to be fulfilled in good faith and that rights recognized under the Convention are not be exercised in a way that would constitute an abuse of right. Part XII--Final Provisions (Articles 34-44) Articles 34 and 35 deal with signature, ratification, acceptance and approval of, as well as accession to, the WCPF Convention. Article 34 provides that the WCPF Convention be open for signature for twelve months by States that participated in the MHLC. Signatory States may become Contracting Parties to the Convention by ratification, acceptance or approval of the WCPF Convention. States that participated in the MHLC, but do not sign the Convention during the twelve-month period may become Contracting Parties by accession. Each Contracting Party is a member of the Commission. After entry into force of the WCPF Convention, the Contracting Parties may, by consensus, invite other States and regional economic integration organizations whose nationals and vessels fish for stocks covered by the WCPF Convention to accede to it. The European Union was invited to accede at the inaugural WCPF Commission meeting in December 2004. Article 36 provides two alternative conditions that trigger entry into force of the WCPF Convention. The first provides for entry into force 30 days after three States situated north of latitude 20+ north and seven States situated south of latitude 20+ north have deposited the necessary instrument. The second provides that, if within three years of the adoption of the WCPF Convention, three of the States situated north of latitude 20+ north have not become Contracting Parties, the Convention shall enter into force six months after thirteen States have deposited their instruments. As noted above, the Convention entered into force on June 19, 2004. Article 37 and 38, taken together, ensure that States Parties can count on full compliance with the terms of the WCPF Convention, while affording Parties the opportunity to explain exigencies of domestic law with respect to obligations under the Convention. Article 38 clarifies that the prohibition in Article 37 against reservations to the WCPF Convention does not preclude those joining the Convention from making declarations or statements with a view, inter alia, to harmonizing its domestic law with the Convention, provided that such declarations or statements do not purport to exclude or to modify the legal effect of the Convention (and thus constitute a reservation or exception). Article 39 stipulates that the WCPF Convention shall not affect rights and obligations of Contracting Parties and Fishing Entities arising from other agreements compatible with the Convention. This would include the 1987 Treaty on Fisheries Between the Governments of Certain Pacific Island States and the Government of the United States of America. Article 40 deals with amendments to the WCPF Convention. Any member of the WCPF Commission may propose an amendment. Amendments are to be adopted by the Commission by consensus and are to enter into force for Contracting Parties ratifying or acceding to them 30 days after the necessary instruments have been received from a majority of Contracting Parties. An amendment enters into force for each Contracting Party subsequently ratifying or acceding 30 days after the deposit of the necessary instrument by that Party. Article 41 designates the Annexes to the WCPF Convention as integral parts of the Convention and specifies that a reference to the Convention includes reference to the Annexes. The four Annexes, which deal with certain technical and administrative aspects of the Convention and are discussed above in relation to the article or articles of the WCPF Convention to which they relate, are as follows: --Annex I--Fishing Entities --Annex II--Review Panel --Annex III--Terms and Conditions for Fishing --Annex IV--Information Requirements Revisions to the Annexes are adopted by consensus at a meeting of the WCPF Commission. Annex revisions take effect from the date of adoption or from such other date as may be specified. Given their substance, it is not anticipated that such revisions will be submitted to the Senate. In the event that a proposed Annex revision would, because of its nature, require the advice and consent of the Senate in order for the United States constitutionally to be bound by it, the Executive Branch would take the necessary steps to ensure that such a revision does not automatically enter into force for the United States absent such advice and consent (e.g., by preventing the adoption of such an amendment or by fashioning it as an amendment to the body of the text). Article 42 provides that a Contracting Party may withdraw from the WCPF Convention upon written notice, effective one year from the date of receipt of the notification, unless the notice specifies a later date. Annex I includes an analogous provision for fishing entities. Article 43 deals with the complex issue of the participation by territories in the work of the WCPF Commission. This issue was a difficult one in the negotiations since several territories--specifically French Polynesia and New Caledonia--have attained competence for certain matters covered by the WCPF Convention and their political status continues to evolve. French Polynesia and New Caledonia, supported by France, strongly argued that all three should have decision-making authority within the WCPF Commission. The United States took the view that, while there was some divided competence between France and its territories, the territories did not have sufficient authority to give effect to the obligations set forth in the WCPF Convention, including the authority to enter into legally binding international agreements in respect of those obligations, and thus did not meet the test for decision-making status in the WCPF Commission. For both the United States and New Zealand, the matter also raised issues of potential de facto discrimination against their territories--American Samoa, Guam and the Northern Mariana Islands for the United States and Tokelau for New Zealand. The solution to the issue was based, in part, on the tradition of other Pacific institutions that have offered full participation short of voting rights to territories and, in part, on deferring aspects of the issue by agreeing to continue consideration of the matter in light of the evolution of the competence of territories in relation to rights and obligations under the WCPF Convention. Article 43 reflects this solution. The WCPF Commission and its subsidiary bodies are to be open to participation by each of the following, subject to the appropriate authorization of the Contracting Party having responsibility for their respective international affairs: --American Samoa --French Polynesia --Guam --New Caledonia --Northern Mariana Islands --Tokelau --Wallis and Futuna Consistent with this provision, the United States intends to authorize the participation of American Samoa, Guam and the Northern Mariana Islands. The Convention provides for the nature and extent of such participation to be set out in separate rules of procedure, taking into account international law, the distribution of competences on matters covered by the WCPF Convention and the evolving capacity of the territory to exercise rights and responsibilities under the Convention. Article 43 sets forth two additional principles and thus directs their incorporation in these separate rules of procedure: first, that all participating territories shall be entitled to participate fully in the work of the WCPF Commission, including the right to be present and speak at meetings of the Commission and its subsidiary bodies; and second, that the WCPF Commission, in the performance of its functions and taking decisions, shall take into account the interests of all participants. The separate rules of procedure described in Article 43 were drafted during the Preparatory Conference and were formally adopted by the WCPF Commission at its inaugural meeting in December 2004. These rules stipulate that a territory listed in Article 43 would become a ``Participating Territory'' entitled to participate in its own right in the work of the WCPF Commission once the Contracting Party responsible for its international affairs has filed the necessary authorization with the depositary. The authorization is to take the form of a declaration describing the competences of the territory and the extent of its responsibilities. Participating Territories are to have the right to be present and to speak at meetings of the WCPF Commission and its subsidiary bodies, and are to receive all communications in respect of such meetings. They are not to have rights inconsistent with their territorial status (such as being elected chair or counting toward a quorum). A Participating Territory may make proposals and offer amendments or revisions in relation to matters over which it has competence. In relation to matters over which it does not have such competence, it may only make proposals and offer amendments with the specific authorization of the Contracting Party responsible for its international affairs. Participating Territories may participate in the WCPF Commission's deliberations aimed at achieving consensus on matters before it. The views of Participating Territories are to be properly considered and taken into account in reaching any decision. Where consensus could be reached on certain key issues but for the views of a Participating Territory with competence over the issue, such Participating Territory may request an additional period of time (up to twelve hours) for additional consultations. However, a Participating Territory may not block consensus on a proposed decision. Contracting Parties may determine additional rights and restrictions in rules of procedure, as necessary, consistent with Article 43. Finally, the rules of procedure recognize that a Participating Territory would need to meet a predetermined standard in order to exercise or acquire the right to vote in the WCPF Commission and that such standards, as well as the process for judging whether they have been met, will require further discussion and elaboration by the Contracting Parties. For its part, the United States has begun to undertake consultations with representatives of American Samoa, Guam and the Northern Mariana Islands with respect to their participation in the work of the WCPF Commission as Participating Territories should the United States become a Contracting Party to the WCPF Convention. Article 44 designates the Government of New Zealand as the depositary of the WCPF Convention. The WCPF Convention is consistent with and, in fact, promotes the objectives of U.S. domestic fisheries legislation, including the Magnuson-Stevens Fishery Conservation and Management Act, as amended, (16 U.S.C. 1801 et seq.). At the same time, in order for the United States to implement the WCPF Convention fully, legislation will be required, inter alia, to provide for the organization of U.S. participation in the WCPF Commission and to make conservation and management measures adopted by the WCPF Commission legally binding upon nationals and vessels subject to U.S. jurisdiction. As is evident in this Report, the Convention on the Conservation and Management of the Highly Migratory Fish Stocks in the Western and Central Pacific Ocean creates legal obligations and cooperative mechanisms necessary for the long- term conservation and sustainable use of fishery resources of worldwide importance. It offers the opportunity to meet these objectives before the resources become subject to the pressures of overfishing that are so evident elsewhere in the world's oceans--though the signs of such pressures are already on the Western and Central Pacific horizon. The United States has direct and important interests in this Convention and its early and effective implementation. The U.S. tuna industry, long a major and responsible player in the region, and U.S. citizens, particularly our Pacific island residents, have basic stakes in the health of the oceans and their resources as promoted by this Convention. Accordingly, I recommend that this Convention be transmitted to the Senate as soon as possible for its early and favorable consideration. Respectfully submitted, Colin L. Powell.