[Senate Executive Report 113-4]
[From the U.S. Government Publishing Office]
113th Congress Exec. Rept.
SENATE
2d Session 113-4
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AMENDMENT TO THE CONVENTION ON FUTURE MULTILATERAL COOPERATION IN THE
NORTHWEST ATLANTIC FISHERIES (TREATY DOC. 113-3)
_______
March 13, 2014.--Ordered to be printed
_______
Mr. Menendez, from the Committee on Foreign Relations,
submitted the following
REPORT
[To accompany Treaty Doc. 113-3]
The Committee on Foreign Relations, to which was referred
the Amendment to the Convention on Future Multilateral
Cooperation in the Northwest Atlantic Fisheries (Treaty Doc.
113-3) (the ``Convention''), which was adopted in Lisbon,
Portugal on September 28, 2007, by the Twenty-Ninth Annual
Meeting of the North Atlantic Fisheries Organization (NAFO) and
signed by the United States on that date, having considered the
same, reports favorably thereon with one declaration, as
indicated in the resolution of advice and consent, and
recommends that the Senate give its advice and consent to
ratification thereof.
CONTENTS
Page
I. Purpose..........................................................1
II. Background.......................................................2
III. Summary of Key Provisions of the Convention......................2
IV. Implementing Legislation.........................................4
V. Committee Action.................................................5
VI. Committee Recommendation and Comments............................5
VII. Text of Resolution of Advice and Consent to Ratification.........6
I. Purpose
The Amendment brings the Convention in line with current
international fisheries governance with articles outlining
definitions and general principles, specifying the basic duties
of Contracting Parties, flag State Parties, addressing
cooperation and relations with non-Contracting Parties,
imposing discipline on the objection process, and establishing
a dispute settlement procedure. The Amendment also creates a
more equitable budget contribution scheme which is expected to
reduce payments by the United States to the Organization by at
least one-third.
II. Background
The Convention on Future Multilateral Cooperation in the
Northwest Atlantic Fisheries came into force on 1 January 1979,
and replaced the 1949 International Convention for the
Northwest Atlantic Fisheries. The 1979 Convention established
NAFO, which in 2005 launched a modernization effort to bring
itself in line with present-day fisheries management concepts.
The United States supported this modernization drive because of
concerns over the budget formula, Convention Area catch
allocations, and the decision-making process. On 28 September
2007, after a 2-year process, NAFO adopted the Amendment, with
the United States signing on that date.
III. Summary of Key Provisions of the Convention
A detailed article-by-article discussion of the Convention
may be found in the Letter of Submittal from the Secretary of
State to the President, which is reprinted in full in Treaty
Document 113-3. A summary of the key provisions of the amended
Convention is set forth below.
Article I is a new article which defines a number of terms,
including ``fisheries resources,'' which include fish, mollusks
and crustaceans, but not sedentary species under the
jurisdiction of coastal states, or highly migratory species.
``Fishing activities'' is defined as the catching or taking of
fisheries resources, engaging in any activity that could lead
to taking or catching, and any operation at seas in support of,
or in preparation for these activities.
Article II is a new article which states that the
Convention's objective is to ensure the long-term conservation
and sustainable use of the fishery resources in the Convention
Area and to safeguard the marine ecosystems in which these
resources are found.
Article III requires Parties to work individually or
collectively to promote the general principles of the
Convention, which include ensuring the long-term sustainability
of fisheries resources, making decisions based on the best
scientific and technical information, taking due account and
minimizing the impacts of fishing activities on other species
and marine ecosystems, protecting marine biodiversity,
preventing overfishing, sharing data on fishing activities
between Parties, ensuring compliance with conservation and
management measures, and reducing pollution and waste from
fishing vessels.
Article VI establishes that each Contracting Party shall be
a member of the Commission. The Commission's leadership will
consist of a Chairperson and a vice-Chairperson from among the
Contracting Party representatives. The representatives elected
to these positions cannot be from the same Party, and serve for
a period of 2 years. Though they are eligible for reelection,
they cannot serve in their position for more than 4 years in
succession. The representatives elected to these positions
cannot be from the same Party. A new provision charges the
Commission to collaborate with the Scientific Counsel in
assessing the impacts of fishing on the Convention Area's
marine ecosystem. Another new provision permits the Commission
to adopt measures regarding areas under the national
jurisdiction of a Contracting Party, so long as the Party has
requested and agrees to the measure. The Commission is also
permitted to adopt procedures that enable actions against any
State or fishing entity whose flag vessels undermine the
effectiveness of measures adopted by the Commission.
Article VII combines previous articles concerning the
scientific functions of NAFO, and provides that each
Contracting Party shall be a member of the Scientific Council,
which elects a Chairperson and a Vice-Chairperson for terms of
2 years. The Council must provide a forum for consultation and
cooperation between Parties, compile and maintain statistics
and records, publish and disseminate reports on fishing
activities and ecosystems within the Convention Areas, and
provide scientific advice to the Commission.
Article IX states that the Commission shall establish the
amount due from each Contracting Party for the annual budget
based on a calculation that includes 30% of the budget being
divided equally among Contracting Parties, 10% divided among
the coastal States in proportion to their nominal catches in
the Convention Area, and 60% divided among all contracting
parties in proportion to their nominal catches in the
Convention Area. A Contracting Party that fails to fully pay
its contributions for 2 consecutive years will not be able to
cast votes or raise objections until it has paid in full,
unless the Commission resolves differently.
Article X is a new article setting forth Contracting Party
duties, which include implementing and ensuring the
effectiveness of the Convention and any management measures or
other obligations binding on it, co-operating with other
Parties in furthering the Convention's objectives, collecting
and exchanging scientific data and knowledge pertaining to
living resources and their ecosystems, cooperating with other
Contracting Parties to ensure that its nationals and fishing
vessels owned by its nationals comply with the provisions of
the Convention, as well conservation and management measures
adopted by the Commission, and immediately investigating and
taking action in response to any serious infringement of the
Convention, or any conservation and management measures adopted
by the Commission.
Article XI is a new article requiring Contracting Parties
to make certain that fishing vessels entitled to fly its flag
comply with the provisions of the Convention and with the
conservation and management measures adopted by the Commission,
and not engage in unauthorized fishing activities, or
activities that undermine the effectiveness of conservation and
management measures. Each Party must not authorize fishing
vessels to fly its flag unless it can effectively exercise its
oversight of such vessels pursuant to the Convention. Parties
must also maintain a record of such fishing vessels, exchange
such information with other Parties, and immediately
investigate and promptly report on any action it has taken in
response to alleged infringement by a vessel entitled to fly
its flag.
Article XII is a new article stating that each port State
Contracting Party must implement the measures concerning
inspections in port that are adopted by the Commission.
Article XIII alters the general rule for Commission
decision-making from a majority to a consensus. If consensus
cannot be achieved, decisions must be made by a two-thirds
quorum with a vote of two-thirds of the Contracting Parties
present and casting votes.
Article XIV amends the procedure by which Commission
decisions are implemented. A Commission decision now becomes
binding 60 days after the date of transmittal in the Executive
Secretary's notification of adoption. Members of the Commission
may object within this time frame, but must include an
explanation and alternative measures. If the Party does not
submit the matter to ad hoc panel proceedings, the Commission
determines by a majority vote whether to submit the matter to
an ad hoc panel. If the vote fails, any Contracting Party may
request a Commission meeting to review the measure. If the
matter goes to an ad hoc panel, the Commission must consider
the panel's recommendations no later than thirty days following
the termination of panel proceedings.
Article XV is a new article requiring parties to cooperate
and avoid disputes (the new procedures are described in Annex
II to the Convention). Should such cooperation fail, Parties
may resolve their disputes through negotiation, inquiry,
mediation, conciliation, arbitration, judicial settlement, ad
hoc panel proceedings, or through other peaceful means. If the
dispute implicates the interpretation or application of
Commission measures and enforcement related to conservation and
management of fishery resources, the Contracting Parties may
submit the dispute to non-binding ad hoc panel proceedings.
Article XVI is a new article stating that when a vessel
entitled to fly the flag of a non-Contracting Party engages in
fishing activities in the Convention Area, the Commission is
required to request that the flag state either become a
Contracting Party to the Convention, or agree to apply the
conservation and management measures adopted by the Commission.
Contracting Parties must also exchange information on the
fishing activities of non-Contracting Parties in the Convention
Area, and to deter activities that undermine the effectiveness
of the Commission's conservation and management measures.
Article XVII is a new article that requires the
Organization to cooperate and develop working relationships on
matters of mutual interest with the Food and Agriculture
Organization of the United Nations, as well as with other
specialized agencies of the United Nations and other relevant
intergovernmental organizations.
Article XX requires that Contracting Parties fulfill the
obligations assumed under the Convention in good faith, and not
exercise their rights in a manner that would constitute abuse
of their rights.
Article XXII combines previous articles concerning the
adoption of possible amendments to the Convention. The article
states that amendments to the Convention must be adopted by a
three-fourths majority vote of the all Contracting Parties. The
Amendments take effect 120 days after the Depository receives
notification of approval from three-fourths of all contracting
parties, unless a Party lodges an objection within 90 days.
IV. Implementing Legislation
Legislation will be needed to implement this Convention.
The executive branch has indicated that it will soon provide
proposed legislation to the appropriate congressional
committees.
V. Committee Action
The Committee on Foreign Relations held a public hearing on
the Agreement on February 12, 2014, at which it heard testimony
from David Balton, the Deputy Assistant Secretary for Oceans
and Fisheries at the Department of State, as well as from
Russell Smith, the Deputy Assistant Secretary for International
Fisheries at the Department of Commerce, and Rear Admiral
Frederick J. Kenney, Judge Advocate General and Counsel for the
United States Coast Guard. The committee also heard testimony
from a panel of private sector witnesses: Mark Gleason,
Executive Director of the Alaska Bering Sea Crabbers; Mark P.
Lagon, Global Politics and Security Chair of Georgetown
University and Adjunct Senior Fellow for Human Rights at the
Council on Foreign Relations; and Raymond Kane, Outreach
Coordinator for the Cape Cod Commercial Fishermen's Alliance.
On March 11, 2014, the committee considered the Agreement and
ordered it favorably reported by voice vote, with the
recommendation that the Senate give its advice and consent to
its ratification.
VI. Committee Recommendation and Comments
The Committee on Foreign Relations joins the U.S.
Department of State, the U.S. Department of Congress, and the
U.S. Coast Guard in believing that the proposed amended
Convention is in the interest of the United States, and urges
the Senate to act promptly to give advice and consent to its
ratification. The committee believes that implementation of the
modernized Convention is of direct and important interest to
United States fishing concerns, as well as U.S. conservation
organizations and U.S. consumers, all of whom have a critical
stake in the health of the oceans and the fisheries resources
protected by the Convention.
The Committee on Foreign Relations has included one
declaration in the recommended resolution of advice and
consent. The declaration states that the Convention is not
self-executing. This statement means that the Convention will
have domestic effect through implementing legislation and
regulations thereunder. Prior to the 110th Congress, the
committee generally included such statements in the committee's
report, but in light of the Supreme Court decision in Medellin
v. Texas, 128 S. Ct. 1346 (2008), the committee determined that
a clear statement in the Resolution is warranted. A further
discussion of the committee's views on this matter can be found
in Section VIII of Executive Report 110-12.
VII. Text of Resolution of Advice and Consent to Ratification
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION
The Senate advises and consents to the ratification of the
Amendment to the Convention on Future Multilateral Cooperation
in the Northwest Atlantic Fisheries, Adopted at the Twenty-
Ninth Annual Meeting of the North Atlantic Fisheries
Organization (NAFO), in Lisbon, Portugal on September 28, 2007,
(the ``Amendment'') (Treaty Doc. 113-3), subject to the
declaration of section 2.
SECTION 2. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
The Amendment is not self-executing.