Report of the 6th MULTILATERAL HIGH-LEVEL CONFERENCE ON THE CONSERVATION AND MANAGEMENT OF HIGHLY MIGRATORY FISH STOCKS IN THE WESTERN AND CENTRAL PACIFIC

April 2000

CONTENTS

Page

REPORT 2

Annex 1 List of participants 4

Annex 2 Opening remarks by the Chairman 8

Annex 3 Statements by delegations and observers 10

Annex 4 Information note on matters before the sixth session 35

Annex 5 Convention on the Conservation and Management of Highly 40 Migratory Fish Stocks in the Western and Central Pacific Ocean, Proposal by the Chairman

Annex 6 Draft resolution establishing a Preparatory Conference 66 (MHLC/WP.3/Rev.2)

Annex 7 Closing statement by the Chairman 68

1 MULTILATERAL HIGH-LEVEL CONFERENCE ON THE CONSERVATION AND MANAGEMENT OF HIGHLY MIGRATORY FISH STOCKS IN THE WESTERN AND CENTRAL PACIFIC

SIXTH SESSION

Honolulu, Hawai’i 11 – 19 April 2000

REPORT 1. The sixth session of the Multilateral High-Level Conference on the conservation and management of highly migratory fish stocks in the western and central Pacific was held at Honolulu, Hawai’i from 11 to 19 April 2000. The Conference was attended by representatives from , Canada, China, , Federated States of Micronesia, , , French , , , , , , , , , , New Guinea, Philippines, Republic of Korea, , , Chinese Taipei, , , of America, and and Futuna. Observers from Mexico, the European Commission (EC), the Food and Agriculture Organization of the United Nations (FAO), the Forum Secretariat, the South Pacific Forum Fisheries Agency (FFA), the Inter American Tropical Tuna Commission (IATTC), the Pacific Islands Development Programme, the Pacific Community (PC), the South Pacific Regional Environment Programme, the Global Environment Facility/United Nations Development Programme and the University of the South Pacific (USP) attended the Conference. The list of participants is attached as Annex 1.

2. The Conference was opened by prayers and a traditional Hawai’ian chant. The leader of the United States delegation, Mr. Tucker Scully, welcomed participants to the State of Hawai’i.

3. In his opening remarks, attached as Annex 2, the Chairman of the Conference, Ambassador Satya N. Nandan (Fiji), reminded participants that the mandate of the Conference, as reflected in the Majuro Declaration of 1997, was to negotiate a mechanism for the conservation and management of highly migratory fish stocks of the region by June 2000. The Chairman recalled that that mandate had been endorsed by the South Pacific Forum at the level of Heads of Government in 1997 and had been reaffirmed at successive meetings of the Forum, most recently in 1999. The Chairman further noted that, since the fifth session, he had circulated, under symbol MHLC/WP.3, a draft proposal relating to an interim regime covering the period between adoption of the Convention and its entry into force and this would be taken up by the Conference during the present session.

4. Statements were made by the representatives of Canada, China, Federated States of Micronesia, Fiji, , Japan, Kiribati, Korea, Marshall Islands, Nauru, New Caledonia, New Zealand, Niue, Palau, , Philippines, Solomon Islands, Chinese Taipei, Tuvalu, United States of America and Vanuatu. Statements were made by the observers from the European Community, Mexico and IATTC. Statements made by delegations and observers are attached as Annex 3.

5. The Conference considered a request for observer status by Ecuador. Following consultations between delegations, the Conference agreed that requests for observer status by States may be considered provided it is understood that such observer status shall not be treated as an entitlement to become a party to the Convention nor shall it be used as a basis to justify future participation in the Commission or as a basis to seek a future allocation. Subject to the approval of the Conference, observers may be permitted to make statements of a general nature on matters of interest to them and to circulate written submissions.

6. With respect to the request by Ecuador, the Conference agreed that the request by Ecuador for observer status in the Conference would be allowed on the basis that Ecuador is a State with a Pacific coastline with fishing interests in respect of the same stocks in an area adjacent to the proposed Convention Area.

7. The Conference considered the draft Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific prepared by the Chairman at the end

2 of the fifth session (MHLC/WP.1/Rev.4 dated 16 September 1999). The draft Convention was discussed in the light of the issues contained in an information note prepared by the Chairman and circulated to all participants in February 2000, and in the light of other issues identified by the participants. The information note is attached as Annex 4. To facilitate its work, the Conference established an informal group under the chairmanship of Mr. Grant Bryden (New Zealand) to consider issues relating to financial and budgetary matters. The group carried out its work on the basis of an information paper prepared by the representative of FAO (MHLC/INF.2/Rev.2). In addition, the Conference established another informal group, chaired by Mr. Feleti Teo (Tuvalu) to consider issues relating to the proposed regional observer programme.

8. Following the discussions, and the outcome of the deliberations in the informal groups, the Chairman introduced a draft proposal for consideration of the Conference under the heading “Draft proposal by the Chairman” dated 17 April 2000. The Conference considered the Chairman’s draft proposal on 17 and 18 April 2000. Following the discussions, the Chairman further refined his proposal and issued a revised document on 19 April 2000 under the heading “Proposal by the Chairman”. The proposal by the Chairman of 19 April 2000 is attached as Annex 5.

9. The Conference also considered the draft proposal by the Chairman relating to the establishment of a Preparatory Commission, with a mandate to make recommendations on the implementation of specific aspects of the Convention and to address the institutional and administrative issues necessary to ensure a smooth transition to the Convention regime upon entry into force of the Convention (MHLC/WP.3). Following discussion of the interim regime in plenary, the chairman issued a revision of document MHLC/WP.3, which was considered further in informal meetings. As a result of the discussions, the Chairman further refined his proposal and, on 19 April 2000, issued a revised document under symbol MHLC/WP.3/Rev.2. The revised proposal is attached as Annex 6.

10. The Chairman delivered a closing statement outlining the progress that had been made during the session and noting the issues which remained to be addressed prior to the final session of the Conference. The Chairman’s closing statement is attached as Annex 7.

11. With respect to the future programme of work, the Chairman noted that the final session of the Conference will take place in Nadi, Fiji Islands from 30 August to 5 September 2000. It will take the form of a three-day meeting of officials to finalize the Convention text and the resolution establishing the Preparatory Conference, as well as the Final Act of the Conference and related institutional and administrative issues for the continuation of the process. This will be followed by a two-day ministerial level meeting during which the Convention will be opened for signature.

12. The Conference was adjourned on 19 April 2000.

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3 Annex 1

LIST OF PARTICIPANTS

Australia Fiji Michael Bliss Ken Cokanasiga Peter Cassells Lisa Stone Mark Gray Robert Stone Neil Hughes Tania Tagicakibau Hans Jusseit Saimone Tuilaucala Mary Lack Geoff Miller France Joe Thwaites Philippe Courrouyan Peter Ward Xavier Dupont Anna Willock Daniel Silvestre Serge Segura Canada Sandy Argue French Polynesia Nadia Bouffard Alexandre Ata Walter Cadwallader Guy Besnard Ivan Ellingsen Charles Daxboeck Lynne Ellingsen Alain Moyrand Joe Graceffo Bud Graham Indonesia Debbie Kay Hasjim Djalal Ron Kay Benny Mandalika Dave Keeling Dr. Purwanto Thomas Okuma Erling Olsen Japan Allison Saunders Kikuo Chiyo Bob Smith Yoshio Ishizuka Howard Strauss Yoshiaki Ito Larry Teague Kenji Kagawa Linda Teague Kimio Kawasaki Diana Trager Shigeru Kuramochi Kaoru Kurosawa China Shojiro Maki Mr. Li Jianhua Daishiro Nagahata Mr. Zheng Kang Masaaki Nakamura Mr. Chen Ligang Shuya Nakatsuka Mr. Zhao Liling Teiji Ohno Mr. Peng Rongtao Junichiro Okamoto Mr. Liu Xiaobing Eiko Ozaki Ms. Wang Xiaodu Tatsuo Saito Mr. Zhang Xiaoli Michio Shimizu Ryuichi Tanabe Cook Islands Ian Bertram Kiribati Carl Hunter Johnny Kirata Siai Maiava Kaburoro Ruaia Joshua Mitchell Emile Schutz Robert Worthington Tetoaiti Tabokai Rimeta Tinga Federated States of Micronesia Robert Gillett Elizabeth McCormick Lorin Robert Bernard Thoulag

4 Annex 1

Republic of Korea Papua New Guinea Chang-Myeng Byen Lucy B. Bogari Ho Chung Maurice Brownjohn Gab-Yong Jeong Leonard Louma Hyung-Nam Kim Joel Opnai Chang-Kyun Kim Aquila Sampson Jung-Soo Kim Matthew Yuangu Jong-Koo Lee Chang-Wee Lee Philippines Ji-Doo Lee Cesar M. Drilon, Jnr Chi-Nam Oh Eduardo G. Esteban Gabriel Oh Minerva Falcon Moo-Sung Park Gina Lu SungKwon Soh Joaquin Lu Hyun-Soo Yun Augusto Natividad Rodrigo Rivera, Snr Marshall Islands Rodrigo Rivera, Jnr Maynard Alfred Malcom I. Sarmiento, Jnr Doreen DeBrum Jurelang Stanley Swerdloff Rhea Moss Marfenio Y. Tan Atbi Riklon Berlando Templado John Silk Domingo Teng Danny Wase Andrea Uy Rosalinda Veloria Nauru Bernabe Veloria, Jnr Ellington Dowabobo Jesaulenko Dowiyogo Samoa Anton Jimwereiy Ueta Fa’asili Russeell Kun Brenda Heather-Latu Vitolio F. Lui New Caledonia Jean-Pierre Diahaioue Solomon Islands Regis Etaix-Bonnin Primo Afeau Richard Farman Lucian Kii Laurent Ferriot Albert Wata Maurice Ponga Adrian Wickham

New Zealand Chinese Taipei Rodger Ball Paul Chang Grant Bryden Homer Chang Kirifi Kirifi Chu-Lung Chen Talbot Murray Phon Yie Chou Aliki Faipule Kuresa Nasau Peter Shing-Chor Ho Chris O’Brien Nien-Tsu Alfred Hu Penelope Ridings Daniel Kuo Vaughan Wilkinson Chung-Hai Kwoh Charles C.P. Lee Niue David Liang Brendon Pasisi Ding-Rong Lin Peleni Talagi Wen-Cheng (Kevin) Lin Hui-Yin Lin Palau Kuo-Ching Pu Cinderalla Adachi James Sha Sabino Anastacio Chi-Lu Sun Herman Francisco James T.P. Tsai James Kelleher Lucio Ngiraiwet Tonga Silas Orrukem Akau’ola Thomas Patris Mafi Akau’ola Ramon Rechebei Manumatavai Tupou Roman Yano

5 Annex 1

Tuvalu Wallis & Futuna Talafou Manase Patalione Kanimoa Elisala Pita Pelena (Bernadette) Papilio Feleti P. Teo

United States of America Observers Louis Agard Violanda Botet European Community David Burney Erik Jaap Molenaar Carol Chikami Julio Moron Stuart Chikami Ernesto Penas Ray Clarke Christopher Conklin Mexico Jim Cook Ricardo Belmontes Acosta Penny Dalton Paul Dalzell Pacific Community (SPC) William Devick Tim Adams Peter Flournoy Lindsey Chapman Bill Gibbons-Fly Tony Lewis Mike Gonzalez Tom Grasso IATTC Louis Hao Brian Hallman Dorothy Harris Wayne Heikkila Pacific Islands Development Programme William Hogarth (PIDP) Walter Ikehara Kim Small Chuck Janisse Charles Karnella University of the South Pacific Holly Koehler Sandra Tarte Paul M. Krampe Jo-anne Kushima Forum Fisheries Agency Michael Laurs Transform Aqorau Dwight Mathers Ian Cartwright Tana McHale Gerry Geen Paul Ortiz Barbara Hanchard Linda M.B. Paul Andrew Richards Gary Sakagawa Len Rodwell Ray Sautter Victorio Uherbelau Tucker Scully Richard Seman Forum Secretariat Richard Shiroma Iosefa Maiava John Sibert Manuel Silva South Pacific Regional Environment Kitty Simonds Programme George Sousa Andrew Wright Lisa Speer Leona D. Stevenson United Nations Food and Agriculture Ed Stockwell Organisation Dean Swanson David Doulman Joaquin Tenorio Mike Testa Global Environment Facility/United Mike Tosatto Nations Development Programme Julius Zolezzi Tom Twining-ward

Vanuatu Moses Amos Paul Sami Bani Timbaci

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MHLC Chair and Assistants Satya N. Nandan Blaise Kuemlangan Michael W. Lodge

Conference Secretariat Ab Brum Earl Cachola Vera Keala Kevin Kelly Cindy Knapman Jarad Makaiau Mark Minton Mark Mitsuysu Jeff Nagel Dan Pang Ellen Reformina Sylvia Spalding Alice Worthy

7 Annex 2

OPENING REMARKS BY THE CHAIRMAN, AMBASSADOR SATYA N. NANDAN, TO THE SIXTH SESSION OF THE MULTILATERAL HIGH-LEVEL CONFERENCE

12 April 2000

Excellencies, distinguished delegates, colleagues and friends,

I welcome you to the sixth session of the Multilateral High-level Conference on the Conservation and Management of Highly Migratory Fish Stocks in the Central and Western Pacific.

We meet in Honolulu for the third time to continue the work of the Conference, greeted once again by the generous and warm hospitality of our hosts and inspired by the traditional Hawaiian ceremonies of welcome. I would like, on your behalf, to thank our hosts, the United States and also the Western Pacific Regional Fisheries Management Council for providing the conference facilities. In particular we wish to express our gratitude to Kitty Simmonds and her colleagues for their efficiency.

Distinguished delegates,

We have a mandate to fulfil. A mandate to which we committed ourselves at the second session of the Conference and which is reflected in the Majuro Declaration of 1997. The mandate is to negotiate a mechanism for the conservation and management of highly migratory fish stocks of the region by June 2000. That mandate was endorsed by the South Pacific Forum at the level of Heads of Government in 1997 and has been reaffirmed at successive meetings of the Forum, most recently only last year.

Given the commitment of our leaders at the highest level, we have a responsibility to fulfil their directive. Indeed, in the six sessions that we have had so far, we have made considerable progress. The subject- matter that we are dealing with is not easy, but it is not impossible. We have come a long way since Majuro in laying down the foundations for a Convention. I believe we can fulfil our obligation if we continue to work pragmatically and in a spirit of cooperation.

It is not unusual that, as we make progress towards our goal, we are subjected to doubts, misgivings and anxieties. These doubts, however, have to be overcome, relying upon the wisdom of our leaders and their own recognition of the legal obligations that our countries have assumed under the 1982 Convention on the Law of the Sea and the 1995 UN Fish Stocks Agreement. As part of the overall package, the Convention confers both rights and responsibilities on coastal States and fishing States. It requires that these States cooperate to achieve a regional arrangement for conservation and management of highly migratory fish stocks. We cannot, therefore, allow ourselves to be distracted from this path.

Distinguished delegates,

You would all have received the information note and other documents circulated in preparation for this meeting. That note recalled the progress we had made in our negotiations so far and identified a number of outstanding issues which we need to address at this session. Of course, the list of outstanding issues is not exhaustive and we will, I am sure, revert to some other matters not on the list as we proceed. We have, however, a limited time available in which to cover all these matters. I would remind you all that we have only four days available this week, with a break on Sunday. Next week, I hope that we can continue our work until Thursday lunchtime. Needless to say, there might also be occasions when we need to work in small groups during the evenings, depending on the evolution in our work.

It is my intention to go through the list of outstanding issues which I had identified sequentially and then to take up any other matters which need to be considered. In addition to our work in the plenary, it is my intention to convene smaller groups on an ad hoc basis to help narrow the remaining differences and explore possible compromises. Please do not be surprised, therefore, if I identify a number of you to join me from time to time in a smaller room to work on some of these issues. Naturally, I count on your cooperation and understanding of this process. The results of the work done by any smaller group would of course be reported to the plenary of the Conference as a whole.

I had already indicated to you that it was my intention to appoint a small group to look at issues relating to the budget and other matters in the draft Convention which have financial implications. It is always difficult to select a small group but I hope you will give me the liberty to appoint such a group and get them to

8 Annex 2 work on these matters and report back to the plenary later in the session. I hope the following would agree to participate in the group: Australia, Cook Islands, Fiji, French Polynesia, Indonesia, Japan, New Zealand, Papua New Guinea, Tonga and United States of America. Of course, if there are any others who wish to join the group, they are welcome to do so. I would be very grateful if Mr Grant Bryden of New Zealand would coordinate the work of this group and report to me on the progress of its work.

I have in recent times received an increasing number of requests for participation in this Conference, especially as observers and I need some help and guidance from you in order to make recommendations on such requests to the Conference as a whole. For this purpose I would like to invite a small representative group of delegations to help me review such requests so that we can make a considered recommendation to the Conference as a whole. I would like, therefore, to invite representatives from the following delegations to meet with me for this purpose: Australia, Federated States of Micronesia, Japan, Papua New Guinea, Samoa, Solomon Islands and Tuvalu. I would very much appreciate it if this group could meet me during the lunch break today so that we could take a decision on the pending requests as soon as possible. If that is agreeable, we shall meet at 1.30 p.m. in the Chairman’s Conference Room.

I wish also to inform you that I have received a number of written submissions which I have asked to be circulated for your information. These are:

· A letter from the European Community. · A communication from Ecuador seeking observer status in the Conference. · A communication from IATTC concerning its resolution on fleet capacity. · A letter from four non-governmental organizations.

In addition, a number of you have drawn my attention to technical and drafting inconsistencies in the text. I shall review these suggestions with a view to improving the text in the next revision.

Distinguished delegates,

The programme of work for this session has been circulated to you. I hope it is agreeable to you and with that understanding we will proceed on the basis of that programme.

Before we move on to the specific issues, I should like to give opportunity to those who might wish to make general statements.

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9 Annex 3

STATEMENTS BY DELEGATIONS AND OBSERVERS

Canada

The Canadian delegation looks forward to working under your chairmanship, Ambassador Nandan, to advance and, if possible, conclude negotiation of a Convention to manage highly migratory fish stocks.

We would also like to take this opportunity to thank the United Nations authorities for again allowing us to meet in Honolulu. This city and the Conference facilities provide an ideal setting for this initiative.

The Canadian delegation will continue to be guided by the principles set out in the 1995United NationsAgreement on Straddling and Highly Migratory Fish Stocks. Twenty-six States have ratified that treaty, including many of the States participating in this Conference. The Agreement will come into force in the coming months as only four more States need ratify in order to bring it into force.

The 1995 Agreement provides the framework for the Convention that we are negotiating here and we should not reopen issues that took three years to resolve in New York. The 1995 Agreement was adopted without objection and the provisions that it contains should be acceptable to all. For those States that have signed the Agreement, including Canada, we are obliged to refrain from acts that would defeat the object and purpose of the Agreement. Once the Agreement comes into force, States that are party to it, including Canada, are bound to perform it in good faith.

I mention the 1995 Agreement in relation to two issues in particular. We must agree on decision-making procedures which facilitate the adoption of conservation and management measures in a timely and effective manner. For us, that means that State interests must be protected, but that an opt-out procedure should be avoided. And, we must not derogate from articles 21 and 22 of the Agreement in regard to boarding and inspection.

Finally, I would mention one other area that is important to Canada: the boundaries of the Convention Area. As currently drafted, there is a donut hole off the Canadian 200 mile zone where stocks of particular interest to Canada are vulnerable. That problem can be cured easily and that should be done.

Mr. Chairman, my delegation commends the work done to date and looks forward to working with you to finalize the text before us.

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China

On behalf of the Chinese delegation I would like to take this opportunity to thank the Government of the United States of America and the State of for hosting this important Conference for the third time.

Mr. Chairman, we have received your proposal for the programme of work before this session. According to your proposal, the next meeting, as the signing ceremony, will be held in Fiji at the beginning of September this year. The Chinese delegation is in favour of your suggestion on the future work arrangement. Mr. Chairman, the current working plan reflects that the negotiation for establishing the future management mechanism in the Western and Central Pacific entered its final stage. The Chinese delegation will take this opportunity to express the position of the Chinese Government on some significant issues.

The Chinese delegation would like to reiterate that we are now implementing the provisions of the United Nations Convention on the Law of the Sea (UNCLOS) and the United Nations Implementing Agreement (UNIA) in the light of the characteristics of the region. Therefore, the work and outcome of the Conference must be within the framework of UNCLOS and UNIA. We can not accept any activity which goes beyond the provisions of these two treaties.

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Management area of the multilateral mechanism

Mr. Chairman, the Chinese delegation has no different view on eastern and southern limits of the future management area. However, the draft text does not solve our problems. It is difficult for us to agree with the description of the management area in the current draft. We have noted that it was expressed in the last session that the future management area would not include the South China Sea, but the summary is not reflected in the draft text. Moreover, the Chinese Government does not accept the current northern limit of the Convention area.

This delegation would like to insist that the northern limit of the area shall be at 20°N latitude and the upper part of western limit shall be 119° or 120 ° east longitude.

Boarding and inspection on high seas

In the previous sessions, the Chinese delegation suggested that the high seas boarding and inspection in the Convention area shall be conducted in accordance with the procedure adopted by the Commission. We believe that the procedure in theUnited Nations Implementing Agreementis too general to guide in practice the boarding and inspection on the sea. Detailed boarding procedure in this area should be formulated so that the Government of flag States is able to request its vessels to provide cooperation for boarding and inspection. Therefore, we still believe that it is necessary to amend the boarding and inspection provision in your text.

Decision-making mechanism

The Chinese delegation believes that the consensus is of vital importance. We support the proposal adding objection procedure in the decision-making mechanism.

Entry into force of the Convention

The majority of fishing fleets in this area come from Asia. We would like to suggest that the Convention shall enter into force after ratified by at least one Asian country situated north of 20°N latitude so that balance and interest of the minority should be kept.

Interim regime

It has been mentioned in the information note the need to set up an interim regime during the period between the signature and entry into force of the Convention. We, in principle, are not against the establishment of such a regime. However, it is our view that this regime can only make some preparatory work for the entry into force of the Convention and only signatory States can participate in its work. It is not in its power to adopt mandatory management measures and shall not create financial burden to the participants.

Status of fishing entities in the future management mechanism

Mr. Chairman, the Conference is conducting its work under the framework of UNCLOS and UNIA, and all the regional tuna fisheries organizations at present are intergovernmental organizations composed of sovereign States. Fisheries management involves law enforcement, penalty, issuing of permits, mandatory data collection and the providing of ports for fishery products transshipment and other governmental activities. The fisheries management mechanism in the Western and Central Pacific we are now negotiating might be the last international tuna fisheries management body in the world. It shall be like other regional organizations, involving the governmental activities of sovereign States. Only by doing so can the power and effectiveness of the future regime be guaranteed.

Mr. Chairman, this morning, my colleague from Chinese Taipei mentioned the election in the island. We hold that the local election in Taiwan and the element of democracy and other irrelevant matters have nothing to do with fish stock conservation and management; and can not be served as a reason for Chinese Taipei to participate in the future Commission, the composition of which should be based on UNCLOS and UNIA. As a matter of fact, our colleague from Chinese Taipei has politicized the fishing issues in his opening statement on purpose. We are surprised and feel uncomfortable about it. We hold that our colleague from Chinese Taipei should honour the rule of the game that has been agreed upon by all participants, including Chinese Taipei, from the first session of the MHLC. Such attitude is by no means constructive to us. In order to spare more time to discuss other significant pending issues, we hope the Conference shall not allow this phenomenon to reoccur.

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The Chinese Government is of the opinion that fishing entities should be made to comply with the conservation regulations in the Convention area. But this should not impair the sovereignty of the State concerned, or it may lead to numerous political troubles in the future implementation of the Convention. We hold that the status of fishing entities has no inevitable and direct link with the conservation and management measures. We wish the Convention be worked out in the guidance of the principles of UNCLOS and UNIA, and the spirit of consensus as well to ensure a smooth adoption.

Mr. Chairman, the Chinese delegation is ready to cooperate with you and other delegations and to work hard for reaching the anticipated target of the Conference.

Finally, I wish the Conference a great success.

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Federated States of Micronesia

On behalf of the delegation of the Federated States of Micronesia, may I express our sincere thanks once again to our good friends and partners for their financial support and to the State of Hawaii and, in particular, the management and staff of the Western Pacific Fisheries Management Council, for the warm welcome and excellent arrangements made for this meeting. As was the case when we met here in February and September last year, we are overwhelmed by the generous hospitality and beautiful facilities, both of which can only assist us, as we work toward the establishment of an effective regional conservation and management arrangement.

I would also like to thank you, Mr. Chairman, for your leadership throughout the MHLC process. We especially appreciate your efforts to move the process forward by providing us once again, with a draft text reflecting the key outcomes of our discussions here in September. This draft is an indication of how much we have achieved in our negotiations and provides us with an excellent starting point for our discussions beginning today.

Mr. Chairman, the Federated States of Micronesia is encouraged by the directions taken in our discussions during our September meeting. The language of the current draft reflects a greater recognition of the rights and interests of coastal States, particularly with regard to decision-making and the special circumstances of small island developing States. We are pleased with the balance that has been achieved, although we recognize that there is some distance to go before the Convention will insure a conservation and management regime that is both fair and effective.

Mr. Chairman, we note with satisfaction the expanded preambular language regarding small island developing States. This new provision recognizes not only the economic dependence of these States but also their ecological and geographic vulnerability and their social dependence on highly migratory stocks.

We also note the retention of a reference to the interests of coastal States adjacent to high seas enclaves or pockets. While we prefer an explicit recognition of the special interest of coastal States in the productivity of highly migratory stocks in these areas, we also recognize that this amendment represents a compromise and we appreciate the requirement of special attention to coastal States’ interest that remains in the draft. As we have previously stated, Mr. Chairman, such a provision is, we believe, entirely consistent with the rights and obligations defined in articles 116 and 119 of UNCLOS, relating to the conservation and management of the living resources on the high seas.

Mr. Chairman, we note with concern once again that, although both articles 10(3) and 10(6) presume that the Commission will indeed have an allocation function, no allocation function is specifically defined in the Convention. This ambiguity in the Convention almost certainly guarantees obstacles to the implementation of conservation and management measures such as an overall catch limit or level of fishing effort that are critical to the successful management of the resource. Moreover, the absence of a clearly defined allocation function limited to the high seas of the Convention Area, leaves open the possibility that the function of the Commission to set a Convention area TAC, may be interpreted as implying a function to allocate that TAC for the entire Convention area, and depriving coastal States of the right to set national TACs. We therefore would seek to have the allocation function of the Commission explicitly defined in the text.

12 Annex 3

We are also troubled, Mr. Chairman, by the inclusion of an allocation criterion based on the extent of catch being used for human food consumption. We believe that this is an invalid allocation criterion with a questionable legal basis. While the importance of food security and the coastal States’ obligation to allocate resource surplus are undeniable, the dependence of populations on a resource for a variety of reason should be the focus, rather than simply for fancy taste or the level of utilization for domestic food consumption. A focus on consumption rather than fishing practices and patterns is simply not a valid management practice and it ignores more legitimate measures of the dependence of a population on a resource – such as availability of alternative food sources and overall standard of living of the population in question.

Mr. Chairman, we are pleased with the progress made at our last session regarding decision-making and dispute resolution. We believe that the latest draft represents a fair balance of the interests expressed by the parties and moves us closer to the elusive goal of agreement on this very important issue. We look forward to further discussion and clarification of the decision-making, review, and dispute resolution mechanisms.

Mr. Chairman, we are committed to insuring that the management regime established under the Convention provides for effective monitoring and enforcement practices. For this reason, we are troubled by the recent amendments that weaken provisions relating to boarding and inspection procedures and the operation of the Convention Area VMS. The absence of any boarding and inspection procedures for up to two years after the adoption of the Convention and the lack of clear, detailed guidelines for implementation and operation of the Convention Area VMS, create an unjustifiable risk of non-compliance with management measures established under the Convention. The Federated States of Micronesia would therefore support reinstatement of the pre- amendment text in both of these areas.

Mr. Chairman, as we approach the deadline for our negotiations, we are cognizant of the fact that the details of the financial arrangements of the Commission are as yet unresolved. While we appreciate the progress made at our last meeting, especially with regard to budget adoption procedures, the financial provisions in the current draft are still too uncertain to allow the parties to anticipate the financial implications of participation in the Commission. Unless the formula for member contribution is specifically set forth among the terms of the Convention, it appears unlikely that the Federated States of Micronesia could move forward toward ratification of the Convention.

Mr. Chairman, we appreciate your efforts to develop provisions for the Convention’s entry into force which both recognize the practical difficulties for many participants with early ratification and the need to bring the Convention into effect at the earliest possible date. These provisions, together with the proposed resolutions for an interim regime, go a long way toward insuring the prompt implementation of the Convention -- toward which we have all worked so hard -- and the timely entry into effective operation of the Commission.

Mr. Chairman, we would reiterate a concern we have raised in previous meetings about the deadline that has been set for finalization of the Convention. We believe that there remain a number of outstanding issues on which agreement needs to be reached. While it appears that some issues may not need to be resolved here but can be left for action by the Commission, other issues, in particular the interim regime and financial arrangements, are so critical that they need to be thoroughly addressed before ratification consideration of a final Convention by the Federated States of Micronesia would be possible.

Finally, Mr. Chairman, I would assure you of the commitment of the Federated States of Micronesia to the success of this process and ultimately to the establishment of an effective conservation and management regime for the western and central Pacific. As is the case with many of our Pacific island neighbors, this fishery represents our nation’s most important, if not its sole source for significant economic development. As guardians of these valuable resources, we have a real interest in both the economic exploitation and sustainable management of these stocks throughout their range. Consequently, we look forward to continued productive cooperation with our partners around this table in order first to achieve a final agreement, and then to implement that agreement in a timely and effective manner.

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13 Annex 3

Fiji

Like other distinguished delegates who have spoken before me, I would like to extend our appreciation to our hosts, the United States of America and the Hawaii Authorities, for the warm welcome and excellent facilities made available to us.

I would like to congratulate you Mr. Chairman, first for your reappointment as Head of the International Seabed Authority for another term and for your MHLC contributions to date. We wish you continued success in these important tasks.

Mr. Chairman through goodwill and cooperation we are about to conclude our work. As we look into the future, we seek confidence for the establishment of the regime. Fiji would like to play a role in this process.

Mr. Chairman in this regard Fiji would like to reconfirm its commitment to host the Permanent Commission. This session will consider the benchmark to employ in the determination of this important and vital issue. We request that whether this will be political or economic consideration that it will be a balanced approach and the matter be amicably resolved through the usual spirit of cooperation and consensus.

Mr. Chairman the position of FFA members on outstanding issues of discussions for this meeting have been highlighted by the distinguished delegate from Samoa. In view of the consensus raised, we would like to add the following issues on the importance of the conservation and management issues pertaining to highly migratory fish stocks.

Mr. Chairman, the tuna industry is a very important component of our fish exports contributing to local employment, income and foreign exchange. For this to be protected and enhanced, we need enabling national legislation and in this regard, Mr. Chairman, we are currently in the process of examining and reviewing our Fisheries Legislation, particularly the Fisheries and Marine Spaces Act. This process would take into account some of the relevant and specific issues of concern, particularly the VMS (Vessel Monitoring System), fishing in the high seas, transshipment and other relevant and related issues. The process would also include the final phase in the mapping of our EEZ. I am sure, Mr. Chairman, the outcome of this legislative review and other initiatives would complement, enhance, and strengthen our positions relating to the Draft Convention and UNCLOS.

Mr. Chairman in terms of the participation of Chinese Taipei our delegation recognizes the fact that they are a very important entity. They fish in the region through various bilateral and other arrangements, and they catch considerable portion of our fish stocks and in this regard, Mr. Chairman, our delegation would like an amicable and binding solution found regarding this matter.

I will end here, Mr. Chairman, but Fiji would like to reserve the right to intervene on specific issues during the progress of this meeting.

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French Polynesia

Ia orana ! And Aloha to most hospitable Hawai'i !

As we enter into the final round of MHLC consultations, my delegation wishes to outline what at this point of time seems of paramount importance, as far as Tahiti Nui is concerned.

Firstly, the usual regional approach, in the sensitive matter of membership and subsequent decision making process. History of inception of regional organizations, and perhaps the 1994 agreement reached prior to the establishment of SPREP, known as the Tuvalu formula, might be helpful.

Secondly, the very size of French Polynesia’s EEZ, over which our country already holds under its governing law full competence for exploring, exploiting and managing its living resources, appear to require some special treatment; especially in the light of the current devolution process.

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Thirdly, the financial implications, which formula is a departure from common practices in the region. My delegation might have some proposals to the sub committee we are proud to be part of.

Fourth, the predicaments derived from the Convention enforcement.

Fifth and lastly, the view that the Convention should be aimed at clearly initiate and enhance a mechanism for global and fruitful cooperation to benefit the people of the region.

My delegation is determined to participate in and contribute to, and in the most open and dynamic manner, the collective success of this meeting.

Finally, Mr. Chairman, allow me to confirm that my Government financial contribution to the meeting is being processed, albeit belatedly, for which I wish to sincerely apologize.

Thank you, Mr. Chairman, to preside over our meeting with rightly acclaimed experience, wisdom and wit.

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Indonesia

I would like to, first of all, thank the United States Government and the Government of Hawaii for hosting this meeting again in Honolulu. I would also like to thank the MHLC Secretariat as well as you personally, Mr. Chairman, and other organizations that have made this meeting and our participation possible.

I would like to note that the meeting has made a number substantial progress within the last few years. It is expected that we would and should be able to make further progress within this session so that we would be able to adopt the Convention before the end of this year as envisaged.

Nevertheless, we still have a lot of issues and problems before us. My delegation, although is happy with the general progress, is still having substantial problems with a number of issues.

We are particularly unhappy that the boundary on the western side of Convention area is not determined. We are concerned and worried with the possible misinterpretation of this loophole. It is our view that the Convention is drafted in order to comply with and implement article 64 of the Law of the Sea Convention 1982, dealing with “highly migratory species” that stipulates co-operation between the coastal State and other States whose nationals fish in the region, either directly or through appropriate international organizations with a view to ensuring conservation and promoting the objectives of optimum utilization of such species throughout the region both within and beyond the exclusive economic zone. It is therefore our understanding and our view that the Convention only visualizes the need for co-operation in the conservation between exclusive economic zone and the high seas beyond. The Convention does not and can not be implied to require or oblige co-operation between coastal State and other States in the conservation and management that will include resources within archipelagic waters that fall within the sovereignty of the archipelagic States in accordance with article 49 of the 1982 Convention. It is therefore our view that the most western boundary of the Convention area does not and cannot include Indonesian archipelagic waters. We will submit a proposal to this effect shortly.

We are also concerned with the notion that, as indicated in article 3 paragraph 3 of the draft Convention, the conservation and management measures under the Convention shall be applied “ throughout the range of the stock”. article 64 of the 1982 Convention, which is the basis of our effort in drafting this Convention, does not contain this notion. We therefore like to interpret, as far as we are concerned, and in conformity with article 64 that the notion of “throughout the range of the stocks” cannot be interpreted to include these stocks within archipelagic waters. At most, we could only accept the notion that it would be applicable for their range throughout the economic zone and the high seas beyond. We would also be submitting a proposal to this effect shortly.

It is our view that the new Convention that we are now drafting should not be used to undermine the sovereign right of a coastal State over its exclusive economic zone in accordance with article 56 of United Nations Convention on the Law of the Sea and the sovereignty of an archipelagic State over its archipelagic waters and all the resources contained therein as stipulated in article 49 of the 1982 Convention.

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Other problems that are still before us include the participation of fishing entity in the Convention. We understand that this is one of the most difficult issues. We are confident, however, that under your wise leadership, we would be able to overcome this problem in due course to the satisfaction of all.

We also noted that there are still a few formulations that need to be tightened, and we will indicate them when we come to specific discussion of the Articles. In general, we would like the Convention to give special attention and consideration to developing coastal States, particularly small island developing States, in order to enable them to implement the Convention satisfactorily in accordance with their condition and ability. In this connection, special consideration should be given to them with regard to the budget of the Commission as well as their ability to attend meetings of the Commission and its subsidiary bodies.

It is our view that in calculating the budget of the Commission, national catch by national vessels flying their flag taken in the waters under their sovereignty and jurisdiction shall not be included in calculating the budget of the Commission. We therefore support your suggestion made in article 18 paragraph 2 of the draft Convention. In addition, differentiation in value and price of the catch should also be taken into account in view of the fact that different species have different economic and trade values, for instance the value of a ton of skipjack is definitely not the same with the value of a ton of bluefin tuna.

Finally, Mr. Chairman, we hope and we are sure that this meeting will be successful and we pledge our co- operation to you and to the Conference.

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Japan

My delegation has no proper words to express our sincere thanks to the Government of the United States and its Hawaiian branch, represented by Ms. Kitty Simons and Captain Cook, for hosting three times in cue this large meeting. We are coming close to the scheduled goal of June 2000 which we agreed on in Majuro in June 1997. Therefore, the tasks before us is enormous in order to achieve our common goal, in time, of establishing the conservation and management regime for the highly migratory stocks in the area called Central and Western Pacific for the present and future generations of all the countries concerned. We on the part of Japanese delegation would like to contribute as far as possible for the achievement of the goal, although our past contribution might be looked at as marginal in terms of what has been reflected in the present text.

If I may address myself upon some of the issues classified by Mr. Chairman as outstanding issues, first comes the decision-making. On this matter of crucial importance for the future Commission, the most important factor is that any decision by the Commission should be fair and equitable. It should not be the way that all the time sheer force of majority dominate over the minority which are in most case the distant water fishing nations, counting only or 5 out of over 28 participating members. The fishing nations are the ones who have the real, not theoretical, experience of fishery and also the ones who would have the greatest responsibility for implementing any measures to be adopted by the possible Commission. Their problems should be heard by all the participants to the decisions by the Commission. In this context we are proposing the draft article 20 for your consideration, the detail of which I would like to have opportunity to explain when we come to the time to discuss this matter.

About the conditions of entry into force, we feel that total number of 7 is too small compared with the importance of the present Convention and also we feel that changing the condition in two years time is rather abnormal. In order for the Convention to be really workable and effective, at least 14 to 15 ratifications would be necessary with the understanding that at least 4 of which should be by countries situated north of 20 °N parallels instead of two as in the present text.

With respect to the interim arrangement as proposed by Chairman Mr. Nandan, while we appreciate Mr. Nandan’s eagerness to bring the Convention into operation as early as possible in the face of imminent concern that the surplus fishing effort elsewhere would well be rushing to this particular area of our utmost importance, the Japanese delegation has its own legal restriction that to accept the draft resolution must receive, under our constitution, the ratification of the Parliament as is the case with the main body of the Convention, which doesn’t seem possible in my country.

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Among the issues we have discussed in the past Conferences, and some degree of achievement was recognized by the Chairman, there remains many difficult issues for us. They are, for example, the precautionary approach in articles 5 and 6, relation between the Scientific Committee and Scientific Services in article 12 and 13 and a series of MCS issues including observers in articles 24 through 28. Particularly the last two matters MCS and Observers seem to us that they represent direct extension of in zone practice of certain group of countries over high seas in spite of clear difference of legal nature of two categories of the sea areas.

Also, with respect to some direct quotations from the United Nations Implementing Agreement which deals with both straddling fish stocks and highly migratory fish stocks, I must point out the difference of the species and fisheries therefore, that is between the demersal species and the highly migratory species. There are certainly common features between the two, but data requirement and method to be applied could be far from identical. On these matters, from the viewpoint of really workable arrangement, my delegation feels that proper adjustment on these matters is really essential.

I am always reflecting that I tend to be too straight forward in expressing my view, partly or mostly because of my poor language ability. Please understand that I am making any remarks from my simple and sincere desire to establish a really workable conservation and management framework for the benefit of all. In this connection, I appreciate that starting the Conference last September, a certain atmosphere has been created in which my delegation from the distant water fishing countries can talk face to face or kneel to kneel in Japanese way of expression with some representatives from the Forum Fisheries Agency member countries on some of the issues of vital concern to each side of us. This is really a good step forward, to encourage and promote our further effort towards our common goal.

Before concluding, let me express that we still keep our hope high and would not spare any effort to advance towards our goal.

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Kiribati

Mr. Chairman, may I congratulate you first on your reappointment to your current position with the International Seabed Authority. I would also like to thank you and your Secretariat for your valuable contribution and continued support to this MHLC process, a process that we consider the most important one in the sustainable management of the tuna stocks that occur in our waters.

Let me also thank the United States and the State of Hawaii for again hosting the 6th Session of the Multilateral High Level Conference. Certainly, this wonderful venue and Convention Center will, in years to come, bring us good memories of the many hours of discussions and debates that were held during the earlier series of MHLC sessions.

Mr. Chairman, Kiribati appreciates the pace and progress achieved so far of the MHLC process and we thank each one for the invaluable contributions made towards achieving this. However, we should be mindful of the need to be cautious in how we treat certain provisions of the draft Convention so that we do not find ourselves stumbling along the way as a result of some important issues becoming overlooked or not given enough thought. We must try, as much as possible, to consider the various concerns that have already been put on the floor during the last sessions. But we must also remind ourselves not to lose sight of our common objective of ensuring the long-term conservation and sustainable use of highly migratory fish stocks in the Western and Central Pacificfor present and future generations. Only then could we be able to move the process forward.

Amongst the many issues remaining outstanding from the last session, we believe there is a need to further strengthen and improve certain provisions of article 10 under the present draft text relating to the allocation of TAC and level of fishing effort.

First, we still believe that the provisions in article 10 of the draft Convention should also take into account our peculiar geographic circumstance whereby our islands are physically located into three groups of islands that are frequently separated by the high seas. From the point of view of managing effectively the resources in question, the physical disbursement and dislocation of our three groups of islands unfortunately provide us with a very

17 Annex 3 difficult situation to deal with. For us, this is a fundamental issue that will have great impact on our ability to subscribe to the draft Convention when it is ready for adoption.

Second, the special interests of those coastal States whose EEZs are adjacent to a considerable area of high seas, including the pockets of high seas, should be considered, at least for allocation purposes. We still believe that this must be reflected in article 10 of the draft Convention to reflect the physical reality of our location.

And third, but not least, the draft Convention should at least give recognition of the productivity of the waters, noting that the historical information on fishing activity and catches in our area have been developed over the past years and are readily available.

I am sure we will have the opportunity to discuss these issues, among others, in greater detail during this session.

Mr. Chairman, we very much hope that the outcome of MHLC6 will bring us, not only closer to achieving consensus on the many outstanding issues, but also clear some confusions and misunderstandings that have prolonged the MHLC process, and open up room for further consultations on matters of common interest or those issues that we have not covered to date.

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Republic of Korea

Special thanks go to the United States and the State of Hawaii for the continuous hosting of this Conference. On behalf of our delegation, I would like to extend our sincere appreciation for the excellent arrangements and warm hospitality shown to all of us, as well as their financial supports to this meeting. Special thanks also go to Ambassador Nandan and his staff members for the considerable work done to date. Stepwise improvement has been occurred so far in adopting individual State’s proposal into the draft Convention. Such understanding of the specific situations of individual members in this Conference can lead us to expect the essence of fairness among stakeholders in an international negotiation. We expect this extended negotiation through arguments finally turn out to be cooperation through communications.

Mr. Chairman, as many other distinguished delegates already have mentioned, we still have piles of outstanding issues to be fully discussed in order that each delegation of this Conference may submit with confidence the final results to its Congress or Assembly for ratification. No delegate in this room would accept any single provision that his or her people could not understand. The delegations here represent their whole people as well as their holy sovereignty. Mr. Chairman, this is why you deserve respect since what you are doing in the position is taking the balanced principles out from the varied requirements of the heavy-burdened delegations.

Among many matters that will be discussed in this session, I would like to highlight two fundamental issues in this paper. First, and foremost, about decision-making. Why do we need a decision-making process and that as a hot and foremost issue in this Convention for the conservation and management of migratory fish stocks. I think three cases are involved in fisheries decision-making: how to manage such stocks, how to cooperate with each other, and how to share the yields, and these will be the total package that this Convention aims at.

First, how to manage such fish stocks. The fate of life, once gone, never returns, is part of the reality of fisheries resources. No management failure is allowed in dealing with marine living resources as we have experienced collapses of many fisheries during the last several decades. The levels of fisheries science and ways of approach, which may be the foundation of fisheries management, are different among members. Lack of understanding might happen by some members among in the different ways of taking care of the fish stocks. In this case, objection to the decision taken by a majority is the only way that one or more delegations can take for their peoples to have further recognition and full understanding, and who knows the process of which might result in a better decision than the previous one.

Second, how to cooperate each other. Implementation of conservation and management measures, financial supports, and scientific contributions are typical factors that all members of the organization should share for cooperation. The entity of the cooperation, however, is a spectrum of composite colours. Some members may have industry-based fishery structures, whereas others may have subsistence fisheries. Colourful cooperation,

18 Annex 3 therefore, might be inevitable along with the specific situations of the individual members. Either bottom-line- based uniform application of those factors to all members or taking the right of opting-out seems the best approach toward synthetic cooperation. Equity seems more than just equality.

Third, how to share the yields. One thing to keep in mind by all members regarding the allocation of surplus yields produced by our sweat is that we are neighbors. What if you were born in another country. We need to consider the specific situation of our neighbors first and then see what happens. This attitude would produce a promising outcome of MHLC at the end of this session. Delegations with a certain decision here are expected to understand the objections of some members whose circumstances are not well recognized by the affirmative majority.

As a result, an objection in a decision-making is the minimum requirement that a member concerned can hold against decisions taken by majority voting. Today, no responsible State can exploit the right of objection. There are various ways, as you are well aware of, to put pressure upon unduly behaved one, the case of which, I am sure, cannot be applicable to any member here.

Mr. Chairman, next thing on which I should put great emphasis is about compatibility. From the fourth to fifth draft of this Convention, the only thing I had been confused throughout the whole draft was “compatibility” in the application of this Convention and conservation and management measures on the high seas and in areas under national jurisdiction. The prime purpose of developing this Convention throughout the last six years efforts is to seek a better way to conserve and manage fishery resources that we all have been exploiting.

The first thing to which we all need to pay our special attention during this meeting is to recognize and distinguish two separate domains, entity of fishing powers versus fisheries resources. The framework that this MHLC is dealing with has only two boxes: the first box that includes all colors of the stakeholders’ political, social, and economic interests and the second box that includes all the dynamics of fisheries resources within their environments. Provisions of this Convention draft seem to lose this fundamental distinction of the two domains. No political, economic, and social interests of individual members can embed the relationship between the two domains, which is the preamble-level of this Convention. Only fishing intensity of human beings as a whole can control the domain of fisheries resources. Any hesitation in applying conservation and management measures to all fish species concerned and to the whole migratory range shall mitigate the supreme goal of this Convention and make us remain meaningless to be here.

The fishing powers defined above then introduce the way and rationale of how to set the Convention Area, why various measures, including boarding and inspection, vessel monitoring system, observer programme, etc., should be applied to the whole Convention Area. This is not just an idea in the textbook, but a reality that we have experienced so far and that’s why we came here.

Regarding the interim regime, it seems premature to discuss the matter in detail prior to the satisfied resolution of the crucial pending issues. Establishing concrete plans for the better commencement of the Commission through working group meeting during the interim period seems better to my delegation. Mr. Chairman and distinguished delegations, I wish this meeting to be fruitful and remain as a model in the history of fisheries organization.

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Marshall Islands

I would like to join others in thanking the Government of the United States, the State of Hawaii and the Western Pacific Regional Fisheries Management Council for hosting us once again here in Honolulu. Your continued generosity has helped to ensure the progression of these important negotiations, and for that we are grateful. My delegation would also like to express its appreciation to the Forum Fisheries Agency and the MHLC Secretariat for their efforts in preparing delegations and for the excellent logistical arrangements of this Conference. Furthermore, I would also like to register my delegation’s special appreciation to the Government of Japan and the Overseas Fishery Cooperation Foundation for their generous contribution.

While we are confident that this meeting will provide greater understanding on various sensitive issues, we also recognize the difficulty in achieving mutually acceptable agreements on these issues at this stage. We want to

19 Annex 3 avoid a situation whereby we are being rushed into completing an arrangement that will only present difficulties later in its implementation. My delegation feels that issues of substance should be resolved in this negotiating process to the extent practicable. It is our hope that we can have full discussions on the various sensitive matters at hand, without allowing ourselves to be pressured by time constraints.

That said, the Marshall Islands does not wish to delay or prolong this process unnecessarily. Rather, we want to ensure our ability to give full effect to the Convention’s provisions upon adoption. In connection with this, the Marshall Islands is pleased to see the draft resolutions on a Preparatory Commission. We view this as an important link between adoption of the Convention and its entry into force and we will reserve our comments on these resolutions until the appropriate time in our discussions throughout the next several days.

The Northern boundary line continues to present some difficulties to my delegation. Our preference for this line is between 30°N and 35°N, as we wish to concentrate the principles of this Convention on the primary stocks of concern. However, in the interests of progress on this matter, my delegation is willing to consider an alternative Northern boundary line, so long as it covers the range of the stocks. The big eye stocks are of great economic importance to the Marshall Islands and the basis of our consideration rests on the assurance of a proper mechanism being put in place to avoid a vacuum of proper conservation and management of these stocks in the Northern Convention area.

We would hope that the flexibility on our part does not lead to a situation whereby the political complications of this Northern area are allowed to dilute the primary importance of conservation and sustainable management of these stocks. Mr. Chairman, my delegation sincerely hopes that the countries concerned will not depart from the main objectives of the Convention in this regard.

My delegation believes that in order to allow the Commission to undertake its function for the effective and proper management of the highly migratory fish stocks in the Western and Central Pacific Ocean, all major stakeholders must have full participation in the Commission.

I would also like to take this opportunity to express my Government’s wish to host the Secretariat of the MHLC Convention in the Marshall Islands. We believe it is important that the Secretariat be located in the region and we are confident in our capability to host such an organization. My delegation would be happy to provide further information on our offer for delegations to consider, when the appropriate time arises. I realize that there are far more important issues that need to be discussed here, hence I will not dwell on this issue. I would, however, ask delegations to keep in mind the Marshall Islands’ offer in this regard.

We will address other issues as they arise throughout the next few days. For now I would like to assure you of my delegation’s full support and cooperation with you and other delegations in our deliberations over the complex and often times sensitive issues before us.

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Nauru

On behalf of the Nauru delegation, may I extend our appreciation to the Government of the State of Hawaii and the Government of the United States of America for all the arrangements put in place for this the 6th session of the MHLC process.

May I also congratulate you, Mr. Chairman, for your able chairmanship of the MHLC process and to say that we hope to make useful contributions to the discussions on the various issues to be considered in this Conference.

There are several outstanding issues which this Conference will need to come to agreement on, and some of these issues I would wish to summarize Nauru’s position on :-

Vessel Monitoring System

Nauru will support any proposal to amend article 24, paragraph 8, of the draft Convention such that the article will make provision for information to be transmitted from a flag State vessel through a VMS, to be transmitted simultaneously to the Commission and the flag State concerned.

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Boarding and inspection

Nauru will support any proposal for articles 21 and 22 of theUnited Nations Implementing Agreement to be applied during the two year period that the Commission is tasked to develop its own boarding and inspection procedures, to ensure that there is no vacuum or inaction during this period.

High seas pockets

Nauru’s EEZ is bounded by an adjacent high sea and there is a need for effective monitoring and surveillance of the activities of the flag State vessels in these waters to ensure the reporting of positions and catches on board are accurate and correctly differentiated for the high sea and Nauru’s EEZ.

Membership contribution

The level of membership contribution for each category of membership should be determined as early as possible so that there is some indication as to what level of financial obligation would need to be met annually, before Nauru would be able to decide to ratify the Convention.

Membership

Nauru recognizes Chinese Taipei as a major fishing entity in the region and will support any proposal for Chinese Taipei to be included as a Contracting Party under the Convention with full rights and obligations. The effective implementation of the conservation and management measures would only be enhanced with the full participation of Chinese Taipei.

In closing, Mr. Chairman, may I express the view and belief that the MHLC process has enhanced the level of understanding and cooperation between ourselves and that we all should make that extra effort as partners in this MHLC process to successfully establish an effective conservation and management arrangement for the tuna resources in the Western and Central Pacific region, for the sake of the future generations of our people.

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New Caledonia

On behalf of the New Caledonia’s delegation, let me first say that it is a great pleasure for me to be here for the first time and participate to this important Conference.

I would like, once again, to extend my thanks to our hosts, the United States Government and the Hawaii authorities for their warm welcome.

Mr. Chairman, please let me restate that New Caledonia has been involved in the MHLC process since early on, with a first delegation attending the Majuro Conference in 1997.

Our participation to this process is first justified by the geographical situation of New Caledonia which is within the distribution of the highly migratory fish stocks in the Western and Central Pacific, and therefore shares this important resource with its neighbors.

These resources also represent a major asset for the continuing economic development of New Caledonia which further warrants our involvement in their management.

Aware of the issues at stake, New Caledonia already participates in the work programmeme of the Secretariat of the Pacific Community aiming to lay the sound scientific basis for sustainable development.

Our approach is thus already fully consistent with this MHLC process aiming to create a new commission.

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The dynamic constitutional situation of New Caledonia laid out in the so-called “Accords de Noumea”, confirms this approach since as of now, the management of marine resources, including those of the Exclusive Economic Zone are fully within the jurisdiction of New Caledonia.

Fisheries are now part of the priority objectives for development. New Caledonia is therefore paying close attention to the outcome of this Conference and to the structure of the important tool it aims to create.

This is why, Mr. Chairman, I wish to thank you for your fine and able leadership throughout this process and I have no doubt that you will know how to bring our canoe safely to shore for the benefit of us all.

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New Zealand

New Zealand takes this opportunity once again to thank the Government of the United States and the State of Hawaii for their hospitality, for their warm welcome, and for making this splendid Conference facility available to the Conference.

We are, Mr. Chairman, coming close to the conclusion of the Convention. We appreciate the comprehensive nature of the current draft text, the progress that has been made in addressing key issues, and the balance the text seeks to achieve between the various interests of the participants represented here. It is an appropriate time to reflect on the text and to see whether it achieves the objective of giving practical effect to the United Nations Fish Stocks Agreement in the Pacific region and for the tuna stocks founds in the Central and Western Pacific. New Zealand wishes to ensure that our benchmark – the 1995 Agreement – is not compromised by the outcome of the MHLC process. In this regard New Zealand considers there are some areas, such as boarding and inspection, in which the draft Convention could be strengthened to bring it more into line with our benchmark.

In reflecting on the text we find ourselves returning again to our fundamental objective – the establishment of an effective, workable Commission with efficient and cost-effective administrative systems, which draw on the expertise and experience in the region. It is essential for New Zealand to have an effective decision-making procedure, which enables measures required for conservation purposes to be taken, even in the absence of unanimity. This is essential to protect the tuna stocks in the region. We can appreciate the need for a mechanism, which would enable Parties to review the Commission’s decision on limited grounds, but are firm in our opposition to any opt-out proviso. We – like other participants - also wish to be clear on the nature of the future financial burden, which we would incur as a member of the Commission. We hope that substantial progress can be made on this issue this session.

Mr. Chairman, at the last session in Honolulu, New Zealand spoke in support of the participation by in the work of the Commission. My delegation has the honour this session to have representatives of Tokelau here with us. I would like to seek your indulgence, Mr. Chairman, and ask the Tokelau Director of Fisheries to speak on behalf of Tokelau.

It is a great pleasure for Tokelau to have this opportunity to participate, for the first time, in this MHLC process. I wish therefore to take this opportunity to extend our appreciation to both the New Zealand Government and the Forum Fisheries Agency for making it possible for Tokelau to attend this meeting.

Mr. Chairman, I believe the progress achieved so far has been tremendous. I, on behalf of Tokelau, would like to congratulate and acknowledge the Meeting and especially yourself for the efforts and commitment that have made these achievement possible to this stage. I trust that we all come here for the good of us all.

I understand that the participation by Territories in the Convention is an outstanding issue and will be under discussion during this session. May I at this stage point out Tokelau’s wish to fully participate in the operation of this Convention. Perhaps we could discuss further these issues as we proceed with the meeting

Having said that Mr. Chairman, may I wish the meeting success in its deliberations.

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Niue

Mr. Chairman, I would like to join other delegations in expressing our sincere appreciation to the Government of the United States, the State of Hawaii and the Western Pacific Regional Fisheries Management Council for hosting another session of the MHLC.

Mr. Chairman, Niue continues to attend the MHLC process in the spirit of goodwill and cooperation in order to develop a conservation and management regime that will ensure the long-term sustainability of the fish stocks that occur in our waters.

As has been expressed many times, for many of us these stocks offer the only major avenue for greater economic benefit, development and livelihood.

Mr. Chairman we participate here as a small island developing State already heavily committed financially through membership of an ever increasing number of regional and international organizations and agreements and are therefore limited in our capacity to finance large membership costs and other financial realities associated in fulfilling the obligations of Conventions such as this one.

We note the revised funding paper that explores the possible costs of the Commission and budget formula but note that this does not include all potential cost factors.

It is very important to my delegation that we have a clear and more definitive indication of the full costs of becoming a member of the Commission before we can consider ratifying this Convention. We note that you intend to establish an informal working group to look at this in more detail and we look forward to considering the findings of this working group in due course.

We note with satisfaction that the current text includes provisions that recognize the needs of small island developing States for assistance in many areas and hope these provisions become effective and do not become mere gestures of goodwill.

Mr. Chairman, similarly we hope that the provisions for the development of criteria for allocation of total allowable catch or level of fishing effort in the Convention area are recognized as extremely important provisions that must be given full consideration and effect to ensure that all small island developing States, irrespective of their past history and current stages of development in the relevant fisheries are not disadvantaged through an unfair allocation process in the future.

On this issue we also wish to affirm our right as a coastal State to determine the allowable catch of the living resources in our exclusive economic zone, as provided for under article 61 of the United Nations Convention on the Law of the Sea but note that the Commission may need to play a coordinating role in respect of allocation of a Convention-wide total allowable catch or level of fishing effort.

With these general opening remarks Mr. Chairman, my delegation looks forward to continuing the discussions of the important issues you have identified as needing further consideration and we reserve our right to speak on these and other issues throughout the course of this meeting.

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Palau

I bring you warm greetings from the People and President of the Republic of Palau. On behalf of my delegation, I would like to thank the United States, the Hawaiian authorities and the Western Pacific Regional Fishery Management Council for hosting this Conference and for the beautiful facilities provided to us. I would also like to express my appreciation to the Japanese Overseas Fisheries Cooperative Foundation for its assistance without which the attendance of some of our delegation would not have been possible.

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In preparation for this Conference, the Chairman has identified some of the key outstanding issues which we will need to resolve in order to successfully conclude this Conference. Our delegation hopes that the discussion of each of these issues will be guided by a practical focus and by a search for the resolution of each issue that will lead to the most effective Convention. Although the Republic of Palau will be addressing several of these issues over the course of this Conference, in the interest of brevity I will address only two issues at this time.

The first issue I would like to address is the participation of Chinese Taipei. In addressing this topic, we must bear in mind that we are not developing a predominantely political or diplomatic agreement, but rather we are drafting a technical conservation and management Convention. In our attempt to forge a practical and effective Convention we must recognize the importance of Taiwanese fishing operations. Taiwan’s tuna fisheries operations in the Western and Central Pacific Ocean are one of the very largest in the region. The importance of Taiwanese fishing operations is also true in the EEZ of the Republic of Palau where a large percentage of the fishing vessels originate from Taiwan. Palau is confident that the operation of the Commission would be greatly benefited by Taiwan’s participation and expertise. Indeed, the participation of Chinese Taipei is essential to an effective Convention. For all these reasons, the Republic of Palau strongly supports the full and equal participation of Chinese Taipei as a Contracting Party to the Convention.

Mr. Chairman, the issue of the financial arrangements of the Commission is directly related to the ability of small island developing States to participate fully and equally in the activities of the Commission. While we are confident that the formula for the assessment of contributions to the budget by members of the Commission will take the needs of small island developing States into account, the Republic of Palau remains anxious to ensure that the activities of the Commission are performed in a cost-effective manner. Accordingly, the Convention should seek to take advantage of existing resources and expertise to the extent that it is already available and to avoid the duplication of systems where such avoidance is possible. Similarly, the choice of location of the Commission and the Interim Regime should take into consideration the cost of operation and the resulting travel costs to Members of the Commission.

Mr. Chairman, let me close by saying that my delegation is prepared to work with all other delegations to ensure that we reach an outcome which will ensure the long term future of the fishery resources we have all come here to protect and preserve. We look forward to a successful and fruitful meeting.

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Papua New Guinea

Mahalo ! Mr. Chairman, like previous speakers, the Papua New Guinea delegation wishes to thank the State of Hawaii, the Government of the United States of America and the Western Pacific Fisheries Council for the hospitality and courtesies extended to it since arriving in beautiful Hawaii. My delegation also wishes to thank those partners who have made valuable financial contribution towards the convening of this Conference.

Mr. Chairman, much progress has been achieved in the development of a management and conservation regime for the tuna resources of the Central and Western Pacific. Much of this is owed to your own leadership and guidance over the series of important negotiations within the MHLC process. Progress also reflects the genuine desire and indeed commitment of everyone around this table to ensure a resource so critical to the livelihood of many of the Pacific Island Countries is sustainably managed. Papua New Guinea acknowledges that the current text of the Convention is the product of difficult concessions made by participants. As such, many of the formulations contained in the text would be found by some to be wanting.

Mr Chairman, Papua New Guinea is committed to the MHLC process. Our commitment to see an early and satisfactory conclusion of negotiations towards the original management and conservation objectives espoused by the Forum Leaders remains unwaivered. However, it is our strong belief that as we approach the final phases we would be well advised to pause and take stock of where we are and reconcile if the outcomes achieved to date are consistent with our interests.

For Papua New Guinea, a number of issues of particular interest to us still remain unresolved or unsatisfactorily addressed. For instance, the issues of high seas pockets and archipelagic waters which have been consistently

24 Annex 3 raised by my delegation in previous MHLC meetings have not been given due treatment in any of the documents issued to date, including your current draft text.

Other issues of interest to Papua New Guinea have been raised by the Chairman of Forum Fisheries Committee in his statement earlier this morning and indeed by other Pacific Island delegations that have spoken before me. But let me highlight briefly our positions on some of these issues which include: Moratorium on new participants, decision-making, financial obligations, Convention area, total allowable catch, boarding and inspection, participation of “Fishing Entities”, and entry into force provisions.

In terms of a Moratorium on new participants, Papua New Guinea strongly feels that at this late stage we do not believe it is helpful to admit new participants in the MHLC process. Cognizant of this and in our efforts to stem the erosion of FFC countries interests, we sought and obtained a decision to impose a moratorium to new participants in September last year.

With respect to decision-making, we recognize the innovative formulations contained in the text, but feel that other possible options used in other International Organizations, though seemingly complicated, should be seriously considered to protect Pacific Island countries’ interests.

On the issue of financial obligations, Papua New Guinea would wish to see these further elaborated and agreed to now so that countries have an idea of what their obligations might be before associating themselves with the Convention. We look forward to contributing towards finding a fair balance in the formulas for assessing contributions by parties. We would find it difficult to sign onto this Convention if this matter is not resolved before a final text is concluded.

In relation to the Convention area, we would want to see a clearly defined Northern Boundary that would cover the major fishery stocks of concern to the Convention. An undefined or loosely defined northern boundary risks inviting new players to the table with no real interests in the resource.

Mr Chairman, as a country in whose waters and adjacent waters the four major stocks in question are very productive, we would hope that others would understand our wish to carefully develop a criteria that recognizes this fact. Again we look forward to contributing towards this objective.

The Boarding and Inspection provisions contained in the current text whilst acceptable needs to be further developed. Papua New Guinea wishes to see these provisions strengthened in ways that is consistent with obligations contained in theUnited Nations Implementing Agreement1995.

The issue of Participation by “fishing entities” portends to derail the early conclusion of the Convention. Papua New Guinea can only urge that the two principals involved show flexibility and resolve this matter a way that would not compel Pacific Island countries to choose between the two. We recognize the importance of having both China and Taiwan bound by the provisions of the Convention.

On the issue of Entry into force, the current provision in the text makes it difficult for Papua New Guinea to sign onto the Convention. Papua New Guinea cannot be bound by any Treaty and therefore assumes no obligations and responsibilities arising from that Treaty unless it ratifies the Treaty.

It is Papua New Guinea’s view that too many substantive issues with fundamental implications on our sovereignty and sovereign rights have been deferred for deliberation by the Commission.

Issues related to our future development ambitions, our existing national resource management measures, existing regional and sub-regional management regimes such as PNA, Regional Register, MTCs under the Palau Arrangement and the overall relationship between the Commission and role of regional bodies such as FFA and the Pacific Community need to be addressed now and some understandings reached on them. Mr Chairman, Papua New Guinea is of the view that whilst we continue to work on the draft text of the Convention, this process should not unduly work towards a rigid time frame merely for the sake of meeting a deadline. Any conclusion of this negotiation must be achieved after reaching an outcome, which is satisfactory to all stakeholders particularly those with significant special interest to the resources in question.

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25 Annex 3

Philippines

On behalf of the members of the Philippine Delegation and on my own behalf, I would like to thank the Government of the State of Hawaii and the Western Pacific Regional Fisheries Management Council for hosting once again this very important Conference on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific.

We have come a long way since the 1st Multilateral High Level Conference held in Honiara in 1994, and when we unanimously approved the “Majuro Declaration” in June 1997 where it was decided that a regional mechanism or arrangement would be negotiated within three years from that date.

This will be the sixth meeting of the MHLC process in order to come up with a Convention for the management and conservation of highly migratory fish stocks in the Western and Central Pacific Ocean. Hopefully all the outstanding issues that still have to be discussed will be resolved to enable us to meet the commitment to complete the negotiations within three years from the adoption of the “Majuro Declaration.”

In the last Conference, we certainly have made considerable and significant progress in the discussion of the issues, particularly in the area of application, Northern subcommittee, precautionary approach, scientific advice, transparency, boarding and inspection, vessel monitoring system, transshipment, and the needs of small island developing States.

Mr. Chairman, in MHLC5 we stated that the Philippines is particularly satisfied with the western boundary of the Convention area where the line should be drawn between 120-128 going down to the boundary of Indonesia following the contour of eastern Philippines. We would like again to reassure you that scientific data such as catches outside the Convention area but within the Contracting Parties EEZ will be furnished to the Commission when it will be set up, and we assure you that conservation measure within our jurisdiction will be compatible with that of the Convention area.

We are happy with the result of our intervention on the issue of transshipment of catch in the high seas. While the draft Convention previously provided that this is prohibited, we have succeeded in having it changed so that the language will be positive, and therefore would be allowed, provided there is an effective and efficient implementation of MCS and VMS which we believe are sufficient control mechanisms for the management of the resources and to ensure that an effective Observer Programme is set in place.

We are particularly interested in article 30 of the draft Convention providing for the recognition of the special requirements of developing State Parties and for territories and possessions in relation to the conservation and management of highly migratory fish stocks in the Convention Area and development of fisheries of such stocks.

Likewise, the Contracting Parties shall ensure that subsistence, small-scale and artisanal fisheries and fish- workers of any developing State Parties have access to fisheries and adverse impact on them of such requirements shall be avoided.

We would like to reiterate our standard from the last session that the traditional fishing craft of the Philippines and other countries should be given special dispensation from the rigorous regulations developed in this Convention for modern commercial fishing vessels. We would remind you that in the case of the Southern Philippines, there are 2,500 traditional outriggers and 30,000 fishermen that fall in this category. We will propose specific language in the Convention text that will refer this issue to the Commission.

Mr. Chairman, on the issue of an interim regime, the Philippines supports the need for an interim mechanism for the Commission and the establishment of a Preparatory Commission to ensure the smooth transition pending entry into force of the Convention.

The Philippines will support any funding arrangement and scheme that the Commission may adopt when it begins to function, provided that the Convention will thoroughly examine the precise formula for contribution and lay down its implications to the Contracting Parties particularly the small island developing States.

Mr. Chairman, my delegation will participate actively in the discussion of outstanding key issues that have been identified for deliberation in the 6th session of the Conference when presented for discussion.

26 Annex 3

Solomon Islands

The Solomon Islands delegations joins those who have spoken before us in expressing our appreciation to the Government of the United States of America and the State of Hawaii for hosting us again for the third time for the sixth session of the Conference. We thank you for the excellent arrangements.

Mr. Chairman, we set ourselves a target in Majuro, Marshall Islands, in 1997 to complete our work this year. Since then, we have made a lot of progress, based on the draft text which you produced for MHLC3 in Tokyo in 1998. We look forward to further progress on the issues which you have identified to a point where we can finalize the process later this year.

Mr. Chairman, as issues which you have identified will be covered during plenary, the Solomon Islands delegation reserves its position to speak on these at appropriate times. However, like Tuvalu, USA and Palau, Solomon Islands delegation wishes to raise the issue of the form of participation by our friends from Chinese Taipei. It is important that we must focus on the future of the tuna resources which have brought us together in the MHLC process. Chinese Taipei has been involved at the outset in the MHLC process. It has a large fleet of fishing vessels operating within the proposed Convention area.

Mr. Chairman, Chinese Taipei has made concessions to be regarded as a fishing entity. The definition of Contracting Party should be changed to include fishing entities with the proviso that this does not determine the legal or political status of the fishing entity. Therefore, Solomon Islands supports Taiwan as being eligible to sign the final Convention as a Contracting Party.

Mr. Chairman, a matter of immediate concern to Solomon Islands delegation is the status of the big eye tuna stock following the drastic increase in catches. This is notable for purse seiners that have deployed and fished around free floating fish aggregating devices. Taking into account the management action which we believe IATTC has taken, we should adopt similar measures for the Western Central Pacific now before it is too late.

Mr. Chairman, between the signing of the final Convention and its entry into force there is a need an interim regime and arrangements in preparation for the new commission. At the last session, Solomon Islands suggested to the Conference the use of FFA to locate the interim secretariat. The facilities and expertise dealing with the management issues before us are excellent and the commission will benefit greatly from this arrangement. I recommend to you this proposal again.

My Government on its part has allocated a prime land adjacent to the FFA complex in its bid to eventually host the Commission for the conservation and management of highly migratory fish stocks in the Western Central Pacific. Solomon Islands Government is quite prepared to commit itself to the establishment of the Commission in Honiara.

In conclusion, Mr. Chairman, Solomon Islands delegations commends you and your staff for the tireless efforts which you have continually put into the MHLC process and looks forward to working with you and other delegations during the course of this Conference.

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Chinese Taipei

First of all, I would like to join the other delegations to express our appreciation to the United States Government and the State Government of Hawaii for hosting this multilateral meeting at such a wonderful venue. On behalf of my delegation, I also like to praise the efforts committed by our Chair, Ambassador Nandan, as well as all the delegates to bring MHLC close to its final stage.

As we indicated in our Opening Statement during MHLC5, we have long actively and constructively participated in the activities of various regional and/or subregional fisheries organizations since we, as a major global fishing power, recognize the importance of conservation of fisheries resources of the high seas to all the fishing nations, and take into account the cooperative needs required by the international community as a whole. We believe that our equal participation and substantive cooperation could have at a very large extent contributed to the effectiveness of conservation and management of fisheries resources concerned. In this new millennium

27 Annex 3 and at the turn of the century, we would like to highlight the value of conservation and management of this particular “common property,” the fisheries resources in the seas and oceans, and to contribute more to the realization of this value.

Mr. Chairman, you have indicated in your information note distributed prior to this meeting several outstanding issues required further consideration. We believe that other than these five issues you have marked down, the issue of interim regime also deserves our close examination and deliberation. According to a comparative study that we have done at home, we have found that there are substantive difficulties to transplant the experience of interim regime on seabed mining under the 1982 United Nations Convention on the Law of the Sea framework over to the fisheries arena in this region. While we are supporting the idea of “ensuring a smooth transition to the Convention regime and structure” between the adoption and entry into force of the Convention, we like to listen to the views of other delegations with respect to the objectives, structure and functions of this interim “body. ”

Mr. Chairman and my colleagues, I understand that you all are watching with great interest the recent development in Taiwan, especially after the presidential election. The result of the election once again proves to the world that a genuine democratic institution is functioning in Taiwan. At the same time, we anticipate that both sides of the Taiwan Straits will enter the World Trade Organization as two full members in this year. Against the backdrop of this new development, we believe that a Contracting Party status to the Convention for us is needed in order to secure congressional approval in our democratic institution.

In considering the issue of our participation status, we have to recognize the fact that we are the one fully capable of exercising control over our own fishing vessels and are competent of exercising jurisdiction over fisheries matters provided for in this draft Convention. Thus, under the framework of this Convention, we are competent to bear the obligations and are entitled to enjoy the rights as other parties to this Convention. Mr. Chairman and dear colleagues, these are the crucial matters in considering our position vis-à-vis this regional regime or organization. The needs for a comprehensive and inclusive fisheries conservation and management mechanism has been over and over again underscored by our Chairman Ambassador Nandan during the development of the 1995 United Nations Implementing Agreement. Indeed, to constitute a comprehensive and inclusive instrument with regard to and with intention for an effective conservation and management of highly migratory fish stocks in this region, it would be a major defect were Taiwan not to be rendered a Contracting Party status, should this Conference so agree. It would certainly undermine the purpose and the effectiveness of this regional scheme that we are endeavoring to formulate.

Mr. Chairman and dear colleagues, we were all immersed in religious atmosphere and Hawaiian chant during the opening ceremony. At this moment, we are collectively building a new international regime. I pray that our wisdom can overcome political barriers and good faith can transcend traditional State-centric minds in this new millennium. Let us work together to achieve an effective, comprehensive and non-discriminatory fisheries conservation and management regime in this region for the common good of this generation and the generations to come.

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Tuvalu

My delegation, like other delegations that spoke before me, is also pleased to be here once again in these beautiful surroundings of Honolulu to participate in the sixth session of the Multilateral High Level Conference on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific. Once again, our thanks and gratitude to our host, the Government of the United States of America and the State of Hawaii for hosting us for the last three consecutive sessions and for the Conference facilities that were made available to the Conference which have been magnificent and no doubt contributed significantly to the progress that has been achieved by the MHLC process so far.

Mr. Chairman, allow me also to thank you and your secretariat for the Information Note you circulated in February, earlier this year. The Information Note, as in the past sessions has been a very useful guide to keep the Conference focus on the progress achieved by the Conference so far and the outstanding issues that the Conference must concentrate and focus on in order to make steady progress. I think, Mr Chairman, we have made such steady progress and as we approach ever closer to the time limit that we set ourselves in Majuro, way

28 Annex 3 back in June 1997 to complete this MHLC process, such clear guidance and direction from the Chair becomes ever crucial, should we realistically hope to achieve that target. My delegation once again pledge its full support and cooperation to you, Mr. Chairman, and the Conference in this sixth session of the MHLC process.

Mr. Chairman, as the draft Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific slowly takes shape, we must constantly take stock of it and assess whether it still captures and adequately reflects the primary objectives that we initially set out to achieve under such a regional conservation and management regime. It is not just another conservation and management regime that we set ourselves to establish. What we set out to establish is a conservation and management regime that will effectively manage in a sustainable manner the highly migratory fish stocks of our region, not only for the livelihood and economic benefits of present generation but for those to come.

Mr. Chairman, as we negotiated the text of the draft Convention over the last four substantive sessions, we have at times in pursuit of our efforts to jealously guard our own individual national interests we may have purposely or inadvertently undermine the effectiveness of the proposed management regime. So it is a timely reminder, that as we approach the end of this process, that we do not lose sight of the kind of management regime that we envisioned at the inception of this process, a management regime that will ensure the long term conservation and sustainable use of highly migratory fish stocks in our region.

On the part of my delegation, Mr. Chairman, it has always been our view that an effective management regime should be one that will facilitate the effective participation of all stakeholders in these fish stocks. These are the coastal States and all those who fish for those stocks in the region. If we leave some of them out, in particular those that fish for such fish stocks or give them lesser roles and responsibilities in such a management regime, then we may have significantly compromised the effective management of those fisheries. Mr. Chairman, our primary concern here is the protection of these precious fish stocks and all those that fish for those stocks must be fully subjected to such a management regime. In raising this issue, my delegation is cognizant of the sensitivity of the discussions so far on the involvement of some of those that fish for those targeted fish stocks, however, it is the protection of those fish stocks that must be the paramount consideration. It is for those reasons, Mr Chairman, that my delegation would support the suggestion for the conferment of full contracting party status on Chinese Taipei.

The issue of decision-making is another critical issue that will significantly impact on the effectiveness of the proposed management regime. Given the range of diverging views on this issue and the sensitivity of the issue itself, my delegation would like to commend your efforts in producing a revised text (article 20) which purport to accommodate all those wide ranging views and interests. Although, the proposed text might not reflect all our respective individual positions, my delegation is confident that the draft text is a good basis to progress further this sensitive issue with the view to reach agreement on this important issue in this session. My delegation will reserve its detailed comments on this issue until it is specifically discussed, however, it may suffice to say at this juncture, that whatever formulation will be eventually adopted, it should not unnecessarily undermine the ability of the Commission to effectively impose and enforce conservation and management measures over the Convention area.

Mr. Chairman, as this session is intended to be the penultimate session of the MHLC, it is also of critical importance that we must firm up in this session the extent of the financial arrangements under the proposed Convention. As a small island developing State, the issue of our financial obligations under a Convention is usually one of the major (if not the major) considerations that will influence the decision whether or not we should join such Convention. So, Mr. Chairman, my delegation would support your suggestion for the establishment of a small informal working group to consider in detail the budgetary and interim financial arrangements under the negotiated Convention. If this is indeed the penultimate session of the MHLC process, my delegation would like very much to take to our headquarters at the end of this session some firm figures or indicative figures on our likely financial obligations under the proposed management.

In the same regard, my delegation is pleased to note the progress that was made in respect of the provision that give due recognition to the special requirements of developing States, in particular small island developing States. However, Mr. Chairman, it is all well and good expressing such sentiments, but as a small island developing State ourselves those expressions of good will do not take us far. We need some firm commitments and offers from developed States and better endowed and bigger developing States in this session to give any real meaning to the facility that is envisioned under the proposed management regime to cater for the special needs and requirements of small island developing States. Without those firm commitments of assistance prior

29 Annex 3 to the adoption of the proposed Convention, small island developing States like Tuvalu will not be in a position to assess fully the extent of its obligations under the Convention and the range of assistance available to it.

Mr. Chairman, my delegation recognize and support the need to consider in detail the provisions of the interim regime that will be brought into effect pending the entry into force of the Convention. We further support the notion that whatever the arrangements for the interim regime it must not undermine the provisions of the Convention that we spent so long to negotiate. My delegation will also reserve its observations and comments on the interim regime, however, my delegation would like to see provisions in the interim regime that will facilitate the effective participation of small island developing States in the interim regime. This should be consistent with the spirit and sentiment couched in the provisions of article 30 of the draft Convention.

Mr. Chairman, as the deadline we set ourselves is only a few months away, we definitely have a lot of work ahead of us in this session and the next which is hopefully the last. However, despite that time frame we must not unnecessarily rush consideration of the remaining important issues for the sake of that time and compromise the achievement of an effective conservation and management regime which we need not remind ourselves was and still is our primary objective.

On the other issues, Mr. Chairman, my delegation will reserve its observations and comments until those issues are specifically addressed by the Conference.

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United States

It is my pleasure, on behalf of the entire United States delegation to once again welcome all of the participants to Honolulu. The United States is pleased to serve once again as your host, to this important Sixth Session of the Conference, and we hope that both your stay and our sessions over the next few days are positive and constructive. We would like to join with you in expressing deep appreciation for the welcome we have received here in Honolulu, including the wonderful traditional Hawaiian opening ceremony.

Mr. Chairman, as at the previous session of the Conference in Hawaii in September, the composition of our delegation to this meeting reflects the importance that the United States attaches to the many issues being addressed within these discussions, as well as the diversity of interests that we have in these negotiations. Our delegation includes representatives of the Departments of State and Commerce, the Coast Guard, the State of Hawaii and the Pacific territories of , and the , the Western Pacific and the Pacific Regional Fishery Management Councils, the commercial and recreational fishing industry, and non-governmental environmental organizations.

The United States has been encouraged by our progress in these negotiations and hopes that this session will be even more productive. However, as you know, we are now at a critical phase in these negotiations. Through your hard work and diligence Mr. Chairman, as well as that of all the delegations represented here, this process has gained momentum. We must not lose that momentum at this stage. It is critical that we focus on the fundamental questions that remain and endeavor to resolve those outstanding issues at this session of the Conference. To that end, the United States is confident that this Conference will be able to find creative and mutually agreeable solutions that meet both the diverse needs of the parties and the basic goal, shared by all of us, of ensuring, for future generations, long-term sustainable fisheries in the Western and Central Pacific Ocean.

Under your leadership Mr. Chairman, we made progress on many issues at the last session. The discussions we had in September will serve to guide our deliberations here as we move forward to address the substantive issues that remain. We have developed a paper that will be made available to all delegations, which reflects the views of the United States on outstanding issues. While I will not address here all the points made in that paper, I would like to take a few moments to highlight what we see as some of the key outstanding issues to be addressed in the coming days.

First, when discussions on establishing a conservation and management regime for the Western and Central Pacific first began, the issue of decision-making was identified by our delegation as one of the most critical issues. This still remains the case. Our position has been and remains that, whenever possible, decisions should be made by consensus. However, we have sought a way to introduce a degree of flexibility into this general

30 Annex 3 approach. At the last session we circulated a proposal which illustrates this flexibility. We were encouraged by the progress that was made on this issue at the September session, but work still remains to be done. We hope that in the coming days we can work creatively and jointly to resolve this important issue.

Second, with respect to entry into force, the United States believes that the agreement should seek a balanced approach which ensures that the agreement will enter into force with representation from both coastal States and distant water fishing nations. This is a key issue for the United States, as well as other delegations, and we hope we can resolve it in a mutually agreeable manner.

Third, the United States views the establishment of an interim regime or preparatory committee as a fundamental issue in this session. Establishing such a regime or committee will ensure that once the Convention enters into force the Commission will not be tied up with administrative details, but rather will be prepared to focus on conserving and managing the important resources of the region. We hope this issue is one we can work together to solve.

Fourth, regarding transparency and the precautionary approach, it has been a priority for the United States that these concepts become an integral part of this Convention. On both of these issues we were encouraged by the progress made at the last session of the Conference. However, on the issue of transparency, we feel that obstacles to effective NGO participation still remain. Further, we would hope that the discussion on the precautionary approach is now concluded and would be concerned about further efforts to alter the current text.

Fifth, the United States believes that we must ensure that there are effective enforcement and compliance provisions in the Convention. To this end, the provisions on VMS need to be strengthened, specifically to ensure that the Commission has direct, real-time access to VMS data from the vessels of all members. In addition, more consideration should be given to the issue of transshipment. We will have a more specific proposal on this issue during this session.

There are several other issues, Mr. Chairman, that are important to my delegation, such as membership, financial arrangements, high-seas pockets and others. With respect to membership, we continue to believe that a way must be found to ensure that Chinese Taipei can participate in the work of the Commission in a meaningful way, with the same obligations and privileges as other members. The best way to achieve this would be as a Contracting Party. We will discuss and present further comments on these and other issues at the appropriate time.

It is clear that there are still a number of complex issues that must be addressed in some detail. However, we believe that due to the significant progress we have made thus far, and with your direction Mr. Chairman, our current momentum will be maintained and together we will bring these negotiations into their final phase during this session. Thank you and I look forward to working closely and constructively with all delegations throughout this session.

Vanuatu

The Government of the Republic of Vanuatu would like to joint other delegations in expressing our deepest appreciation to the Government of the United States of America and the State of Hawaii, for hosting the sixth Multilateral High Level Conference.

Mr. Chairman, we would like to congratulate you on the highly productive MHLC5, which is reflected in your current draft text.

Mr. Chairman, we strongly believe that the negotiations have been productive thus far and we are encouraged by the progress made. Now that we are at the critical phase in the negotiations, we must focus carefully on the fundamental issues and seek to find solutions that meet the varied needs of all parties, while at the same time meeting the very objective of this Convention.

Mr. Chairman, a number of issues still remain outstanding, of which we will briefly touch on a few:

31 Annex 3

Participation of parties engaged in the harvesting of tuna resources in the Central and Western Pacific

On the issue of participation by all parties, we reaffirm our desire to have an effective management and conservation regime whereby all participants in the fishery, fully engaged in the business of management and conservation of highly migratory fish stocks in the Western and Central Pacific,

Boarding and Inspection

In parallel with the need for Preparatory Commission, there is a requirement for effective boarding and inspection provisions in accordance with articles 21 and 22 of theUnited Nations Implementing Agreement to apply immediately on entry into force of the Convention. The current text is unlikely to provide adequate compliance arrangements for the first two years of the Commission.

Transshipment

We have concerns that while we have made concession on the issue of transshipment, there is a danger that such activity could undermine the objective of the Convention unless carefully and strictly controlled.

Mr. Chairman, it is our hope that the Conference does not rush the agreement to closure with some key issues remaining outstanding. Although we will continue to support you in your time table we would like to see that all issues are given due consideration before the Conference is concluded.

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European Community

Let me first of all thank the Government of the United States and the State of Hawaii for the warm welcome to this meeting.

The European Community has been following with interest the important work of the Multilateral High Level Conference under your judicious chairmanship. We view this Conference as a very positive step towards the establishment of a multilateral regime for the management of tuna resources in this region.

In this context, the European Community has participated, as an observer, at the 4th and 5th sessions of the MHLC process, and has therefore been basically excluded from the negotiations on the text of the future Convention. However, the European Community wishes to make its contribution to this debate and particularly with the view that it has a real interest to participate fully in the future activities in this framework.

The European Community wishes to express its views on some of the issues still subject to discussion at the MHLC process. The letter we have submitted to the Chairman contains a number of comments that, for the sake of brevity, I will not repeat now. However, I wish to comment on two particularly important points at this juncture; accession and the interim regime.

We believe that the requirement of consensus for new accessions means that just one party can block a legitimate accession, and this means that the organization will not be open. This runs counter to the requirements of international law, which stresses the rights of all States to fish on the high seas together and includes their obligation to cooperate in conservation. We strongly believe that all parties that have a real interest in the fisheries on the high seas should have access to the relevant multilateral management organizations, as indeed is clearly laid down in article 8(3) of the 1995 United Nations Implementation Agreement.

With regards to the interim regime, the European Community would like to be a full participant at this phase of the MHLC process.

The European Community is a full Contracting Party of other multilateral organizations for the management of highly migratory fish stocks, such as the International Commission for the Conservation of Atlantic Tunas (ICCAT) and the Indian Ocean Tuna Commission (IOTC) and is in the process of acceding to the Inter-

32 Annex 3

American tropical Tuna Commission (IATTC). The European Community is fully committed to the framework of these organizations and to the principles of sustainable management of highly migratory fish stocks.

Vessels flying the flag of a member State of the European Community are already fishing in the area of the future Convention, both in international waters and within the Exclusive Economic Zone of a Coastal State of the region, under a private arrangement. The European Community has therefore demonstrated a real interest with which to fully participate at the interim regime, and has a right to do so. We believe that, in these circumstances, the European Community cannot be excluded from the future activities of the MHLC process.

The current provisions of the draft text (particularly article 34) would seem to exclude the European Community from full participation at the interim regime. We believe however that it should be possible for the Community to be able to sign the Convention before its entry into force, therefore allowing us to participate fully in the interim regime. We would therefore ask the Conference to include the appropriate provisions to that effect.

May I conclude by expressing our best wishes for a productive session of the Conference and a successful conclusion to its important work.

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Mexico

I want to share the comments made by other delegations expressing their gratitude for the welcome and the logistic arranged for this meeting by the Hawaiian authorities and the American Government.

We are now in one of the last sessions of this Conference and it is necessary that all the Delegations make the necessary efforts and express a spirit of collaboration in order to seek a Convention text which results satisfactory to all delegations.

As in the last session, Mexico attends this Conference with the interest to participate in efforts towards the practice of a fishing activity in accordance with the principles of responsible fisheries.

As you know, Mexican fleets have operated in the past in the Western and Central Pacific Ocean, so Mexico has a real interest in the Convention and in accordance with international law, has the right to participate in the negotiations and in the design and determination of the management and the conservation measures in this area.

I would like to present some brief comments on the content of the draft Convention which are of particular concern to the Mexican Government.

In relation to the Convention area, this issue must include the entire range of distribution of the stocks and the obligations of Parties should be the same in this respect. In the same way, as a result that the actual Convention area overlaps with the area of management of other Conventions, in particular the Interamerican Tropical Tuna Commission area, it is necessary an excellent coordination and cooperation among those organizations in order to ensure the success of this new Convention and to guarantee that all measures are compatible and no loopholes are created.

Regarding the monitoring, control and surveillance, it is important to mention that the sovereign rights of flag States and a plenty transparency should be adequately observed in this system. Mexico thinks, like other Delegations, that the best we can do, and may be the only we can do, is that the Commission should play a central role in establishing and operating standards and procedures for vessels monitoring in cooperation with flag and coastal States. The operation of observer programmes should be considered as an excellent way to have an efficient system to gather information and for monitoring the performance of the fleet. This system has permitted to reach excellent results in other parts of the world, like the Eastern Pacific Ocean.

Another concern for the Mexican Government, is the possibility that trade measures be accepted as a way to promote compliance of management measures. We think this issue has not been resolved in the World Trade Organization, so we should be very careful in using these procedures in the text of the Convention.

33 Annex 3

As a result the differences regarding the concept of the precautionary approach, Mexico thinks the concept included in the Code of Conduct for the Responsible Fisheries must be considered in the text of this Convention, taking into account that this instrument has been already adopted by the international fisheries community.

Mexico wants to express the importance of applying the United Nations Convention on the Law of the Sea principles during the formulation of the text of the Convention and is willing to participate actively during these negotiations. -----

Inter-American Tropical Tuna Commission (IATTC)

On behalf of the Inter-American Tropical Tuna Commission (IATTC), I would like to express our great pleasure in being in Honolulu for this important Conference.

The IATTC is pleased with the progress which has been made toward an arrangement for the conservation and management of highly migratory species in the western and central Pacific. It is, in the view of the IATTC, particularly important that this negotiation be successful, since the effective conservation and management of some Pacific highly migratory species, such as big eye, northern bluefin tuna, or northern albacore tuna, will require close cooperation between the IATTC and any arrangement arising from these talks. Also, the IATTC member governments are in the process of renegotiating the Convention establishing the Commission, and the work done here is of great interest in that process.

Developments that are taking place in the eastern Pacific should be of interest to the participants at this Conference. The IATTC has adopted conservation and management measures to limit catches of yellowfin tuna and big eye tuna east of 150 degrees west longitude and to control the use of fish aggregating devices. The Commission also has agreed on measures to limit the capacity of the purse seine fleets of individual States and is in the process of considering measures to reduce the bycatch of juvenile tunas and of non-tuna species taken in the eastern Pacific purse seine fisheries. In addition, the Agreement on the International Dolphin Conservation Programme provides for measures to conserve and protect dolphins in the eastern Pacific ocean, which is defined in the agreement as the area bounded by 150 degrees west longitude and 40 °N and S latitudes to the coast of the Americas.

The draft Convention on the Conservation and Management of Highly Migratory Fish Stocks in the central and western Pacific defines the eastern boundary of its area of application to include an area east of 150 degrees west longitude. This would create an area of overlap with the areas of application of IATTC conservation and management measures, the area of the Agreement on the International Dolphin Conservation Programme, and the area described in the draft negotiating text for a new IATTC Convention. Vessels based in the Americas regularly fish in that overlap area and in recent years have caught considerable amounts of tuna there. It is therefore important that any measures taken by the proposed new Commission for the central and western Pacific take into account the historical presence of these vessels and the international management regime they fish under, in order to try to avoid a situation where fishermen might be subjected to two different management regimes when fishing in one area. It would appear that this problem has been addressed by the language in the current negotiating text, but governments will need to ensure that it is considered in the future implementation of conservation and management measures.

I have noted that the IATTC countries are in the process of renegotiating the IATTC Convention, and I should point out that the current negotiating text for the eastern Pacific also addresses the overlap question, in a manner similar to the MHLC text. It is also important to note that the eastern Pacific draft text has an area of application which is the waters east of 150 degrees west longitude to the coast of the Americas at 50° N and S latitudes. The text also calls for the revised IATTC to include within its purview, in the Convention Area, all tuna and tuna-like species, as well as all other living marine resources which are part of the marine ecosystem.

We enjoy good scientific cooperation throughout the Pacific, and it is evident that the IATTC and the future Commission for the conservation and management of highly migratory fish stocks in the Western and Central Pacific ocean will have to cooperate closely to conserve and manage fisheries for those species. It is clear that it will be necessary to establish, in a systematic, meaningful manner, effective operational arrangements between the IATTC and the new Commission to harmonize conservation and management arrangements for stocks that require trans-Pacific measures.

I look forward to the discussion during the meeting and to a productive outcome.

34 Annex 4

INFORMATION NOTE ON MATTERS BEFORE THE SIXTH SESSION OF THE MULTILATERAL HIGH-LEVEL CONFERENCE ON THE CONSERVATION AND MANAGEMENT OF HIGHLY MIGRATORY FISH STOCKS IN THE WESTERN AND CENTRAL PACIFIC

1. This information note is submitted as an informal background document for the sixth session of the Multilateral High-Level Conference on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific, which will take place at Honolulu, Hawaii, from 11 to 19 April 2000. This note summarizes the work carried out on the draft Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean during the fifth session of the Conference and, based on the discussions that took place during the fifth session, attempts to identify the key outstanding issues which will need to be resolved if the Conference is to succeed in meeting its objective of concluding its work in 2000.

2. The fifth session of the Conference was held from 6 to 15 September 1999. The work of the Conference was, as has been the practice in previous sessions, guided by a list of key issues prepared by the Chairman. In addition, the Conference gave more detailed consideration to certain issues which had been raised during previous sessions as well as proposals on specific issues made by individual delegations. The Conference also gave consideration for the first time to a draft Preamble and final clauses for the proposed Convention.

I. ACHIEVEMENTS OF THE FIFTH SESSION

3. Substantial progress was made on a number of key issues during the fifth session and, at the end of the session, it was possible to issue a revised draft text of the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (MHLC/WP.1/Rev.4, dated 16 September 1999) (hereinafter “the draft Convention text”). This version of the text is complete in that it also incorporates the outcome of the discussions on the draft Preamble and final clauses.

4. While it was not possible to reach agreement on all issues during the fifth session, substantial progress was made on the following issues. The progress made is reflected in the draft Convention text.

A. Area of application

5. At the fourth session, the Conference had reached agreement in principle on the geographic area of competence of the proposed Commission, subject to further consideration of the northern and western boundaries. During the fifth session, despite lengthy discussion, it appeared to be impossible to reach a consensus on a clearly defined western boundary. While several delegations spoke in favour of a northern boundary at 50° N., it appeared that such a boundary would cause difficulties for other delegations and accordingly the revised draft Convention text defines the western and northern boundaries of the Convention Area by reference to the migratory range of the stocks.

B. Northern sub-committee

6. Associated with the definition of the Convention Area was the issue of a northern sub-committee to advise the Commission on the implementation of conservation and management measures in respect of stocks occurring in the northern part of the proposed Convention Area. After lengthy negotiations, it was agreed that the text should make provision for such a sub-committee with the responsibility of making recommendations relating to the implementation of conservation and management measures for stocks in the northern part of the Convention Area. The membership of this sub-committee would be those situated in the northern part of the Convention Area, as well as those fishing in such area, with a right for all interested members of the Commission to attend meetings of the sub-committee as observers.

C. Precautionary approach

7. An important and useful discussion took place on the treatment of the precautionary approach in the context of the draft text. All delegations agreed on the need to apply the precautionary approach in a manner fully consistent with the provisions of the 1995 Fish Stocks Agreement but there were differing views as to the level of detail which needed to be reflected in the text. Taking all views into consideration, it was considered appropriate to delete the proposed annex setting out guidelines for the application of the precautionary approach

35 Annex 4 and simply make a cross-reference in article 6 of the draft Convention text to the guidelines for the application of the precautionary approach set out in annex II of the 1995 Agreement. The effect is to delete what was article 1 of annex I in the previous draft text. In addition, the matter is dealt with by providing in article 5 for the application of “internationally agreed standards and recommended practices and procedures” as such standards and procedures evolve at the international level. This will allow for greater flexibility in the treatment of the precautionary approach.

D. Scientific advice

8. The Conference also revisited some elements of the draft Convention dealing with the provision of scientific advice to the Commission. As a result of the discussion, the text was further streamlined to remove some inconsistencies and repetitions but without departing from the basic scheme for the provision of scientific advice that had been agreed at the fourth session.

E. Transparency

9. The Conference reviewed the provision on transparency (article 21) and adjustments were made to ensure that the provision is fully consistent with the 1995 Fish Stocks Agreement. In addition, provision was made to allow for the participation of non-parties as observers.

F. Boarding and inspection

10. The issue of boarding and inspection was a major concern to some delegations. In order to allay some of these concerns, article 26 of the draft Convention text was revised to allow the Commission a period of two years after entry into force of the Convention to develop an alternative mechanism which effectively discharges the obligations of the members of the Commission under the 1995 Fish Stocks Agreement and the proposed Convention to ensure compliance with the conservation and management measures established by the Commission. If, at the end of that two-year period, the Commission is unable to agree on such a mechanism, articles 21 and 22 of the 1995 Agreement shall apply as if they were part of the Convention. This approach allows for an opportunity at the regional level to agree on a regional scheme while maintaining the provisions of the 1995 Agreement as a fallback instead of the other way around as provided for in the 1995 Agreement.

G. Vessel monitoring system

11. There had been considerable misunderstanding of this issue during previous sessions and it was important therefore that the Conference was able to have a full discussion of the issue during the fifth session. While there was general agreement on the need for vessel monitoring systems, there were widely divergent views on how such systems should be operated, both on the high seas and in areas under national jurisdiction. Some delegations, for example, favoured an annex to the Convention, setting out detailed rules for the operation of a vessel monitoring system. Others did not feel comfortable with the level of detail that had been proposed. Consequently, the draft Convention text refers to the issue of vessel monitoring under article 24, dealing with the duties of the flag State. It establishes the general principles upon which vessel monitoring systems should be implemented within the Convention Area, and provides for compatibility between national and high seas systems. The detailed procedures for the operation of such systems are, however, left to the Commission to develop in due time.

H. Transhipment

12. The Conference examined in greater detail the issue of transhipment (article 29 and Annex II, article 4), which had previously been considered at the fourth session. As a result the text was streamlined and should now offer a basis for agreement.

I. The needs of small island developing States

13. A very thorough discussion took place of the way in which the draft Convention text as a whole deals with the issue of the needs of developing States, particularly small island developing States, territories and possessions. It became apparent that a wide range of interests are represented in the Conference; from the very largest and most powerful States, to the very smallest States. It also became apparent that the needs of developing States may be very different, depending upon their geographical location, size and state of development. Following the discussions, adjustments were made to the Convention text in appropriate places in

36 Annex 4 order to recognize, as far as possible, the concerns expressed and to deal in a coherent manner with the different interests of all developing States, as well as the territories and possessions in the region.

II. OUTSTANDING ISSUES

14. Based upon the discussions during the fifth session, the following areas would appear to require further consideration during the sixth session.

A. Decision-making

15. The issue of decision-making had been identified as one of the most difficult issues to be addressed during the fifth session. Considerable progress was made on this issue during the session and the Conference reached a common understanding on the need to have recourse to a prompt and effective procedure for decision- making, which would avoid the possibility of deadlock on important conservation and management issues. The procedure that was developed in article 20 of the draft Convention text identifies a number of key issues upon which consensus is required, with a four-fifths majority voting procedure for other issues. Decisions upon which consensus is required include the adoption of rules of procedure (article 9), decisions on allocation of total allowable catch or levels of fishing effort (article 10), adoption of financial regulations (article 17), adoption of the budget and the formula for assessment of contributions to the budget (article 18), admission of new members (article 34), and adoption of amendments to the Convention (article 39). In the event that a member of the Commission objects to a decision, the draft provides a system for independent review of that decision, with the possibility for the Commission to modify, amend or revoke its decision in the light of the findings and recommendations of the review panel. In addition, in the event of deadlock within the Commission on an issue requiring consensus, there is a procedure for conciliation in order to achieve consensus within a reasonable time. The scheme that is proposed is designed to remove the “opt-out” provision which is not conducive to modern-day fisheries management where the predominant objective is conservation.

16. Several delegations asked for more time to study the draft text and it will therefore be necessary to return to this critical issue at an early stage during the sixth session. Nevertheless, substantial progress has already been made and the Conference appears to be very close to agreement on a system of decision-making that, as required by the 1995 Agreement, would “facilitate the adoption of conservation and management measures in a timely and effective manner”.

B. Financial arrangements

17. The Conference discussed the proposed financial arrangements for the Commission. It was agreed that decisions relating to the budget of the Commission should be made by consensus. In the event of a failure to achieve consensus on the budget, it was agreed that there should be a fallback mechanism whereby the level of contributions to the budget would be determined in accordance with the budget for the previous year until such time as a new budget can be adopted by consensus. The Conference was not able to reach a conclusion on the formula for the assessment of contributions to the budget by members of the Commission, although some tentative suggestions were made. It was agreed that all delegations should study this issue further, including the means of financing the work of the Commission during its start-up phase. To this end, it is proposed to establish a small informal working group early in the sixth session to examine the issues of budget and interim financial arrangements in more detail and report thereon to the Chairman. The report will be presented to the Plenary for its consideration and discussion.

C. Position of fishing entities

18. A significant amount of time during the fifth session was devoted to the issue of participation in the work of the Commission by fishing entities. The draft Convention text would allow a “fishing entity, being a separate customs territory possessing full autonomy in the conduct of its external commercial relations, and whose vessels fish for highly migratory fish stocks in the Convention Area” to become a full member of the Commission with the same rights and obligations as a Contracting Party after affirming in writing its acceptance of the Convention regime. Such affirmation may be made only after entry into force of the Convention. The draft Convention text further provides that “[M]embership of the Commission does not in any way determine the legal or political status of any such fishing entity.” While the exchange of views on this issue was constructive, this sensitive issue remains to be concluded.

37 Annex 4

D. Participation by territories

19. With respect to the issue of participation by territories, the draft Convention text incorporates a formula based on existing practice in the region whereby certain territories and possession would be eligible to participate in the work of the Commission, without the right to vote, with the appropriate authorization of the Contracting Party having responsibility for the international affairs of the territory or possession concerned. Recognizing the dynamic political and constitutional situation in some territories in the region, those most concerned with this issue have been asked to provide certain additional information on the possible evolution in their status for the sixth session of the Conference.

E. Entry into force

20. Different views were expressed in the fifth session as to how the Convention should be brought into force. The particular concern has been that the entry into force of the Convention should not be stalled for an inordinate length of time. Initially, a simplified provision was proposed whereby the Convention could be brought into force after two years. However, this created problems for those who felt that they may not be in a position to ratify the Convention at an early stage. Furthermore, it was generally accepted that it would be undesirable if the Convention entered into force with only a few participants. Following discussion of this issue, the provisions of article 35 were further developed so that once the Convention enters into force, either in the initial two years, or thereafter, all those who participated in the Conference will be provisional members of the Commission and have the same rights and duties as members for a further period of two years following the date of entry into force.

21. It is hoped that the revised proposal will remove some of the difficulties that had been created by the previous text. As the proposal was made only late in the fifth session and is also closely linked to the question of the interim regime, it will be necessary to give this issue more detailed consideration during the sixth session.

III. INTERIM REGIME

22. It was noted as long ago as the end of the fourth session that the Conference will in due course need to give consideration to an interim regime in order to avoid a vacuum which may well jeopardize the conservation and management objectives it is trying to achieve. The interim regime would apply pending the entry into force of the Convention and would ensure a smooth transition to the Convention regime and structure. Such a regime could be put in place by a resolution of the Conference, as has been done elsewhere, for example the Third United Nations Conference on the Law of the Sea established a Preparatory Commission and adopted an interim regime for deep seabed mining which was applied until the entry into force of the Convention. Under this interim regime, claims to seabed mining sites were registered, fees were paid and exploration activities were carried out in accordance with terms and conditions established by the Conference.

23. A Preparatory, or Interim, Commission would primarily address the practical issues to be resolved in preparation for entry into force of the Convention. These would include, for example, the institutional arrangements for the establishment of the Commission (its rules of procedure, meetings, initial budget, location of the headquarters, structure of the Secretariat, relationship with existing bodies etc.). The Preparatory Commission might also prepare the way for the implementation of the basic functions of the Commission, such as the operation of the vessel register, application of standards and specifications for vessel marking, implementation of the vessel monitoring system, observer programme and the collection of scientific and fisheries data consistent with the provisions of the Convention. All those who participated in the adoption of the Convention would be eligible to participate in the Preparatory Commission. It was also suggested that one of the elements of an interim regime might be the establishment of a total allowable catch for the region, or level of fishing effort, on a provisional basis, in respect of at least four stocks of primary interest, namely skipjack, yellowfin and bigeye tunas and the South Pacific albacore stock.

24. To guide the Conference in its initial consideration of a possible interim regime, the Chairman will, in due course, circulate a proposal, in the form of a draft resolution, for the establishment of a Preparatory Commission, with a mandate to make recommendations on the implementation of specific aspects of the Convention and to address the institutional and administrative issues necessary to ensure a smooth transition to the Convention regime upon entry into force of the Convention. It is possible that the Preparatory Commission would also have limited power to recommend such conservation and management measures as may be necessary pending the entry into force of the Convention to ensure the long-term sustainability of highly

38 Annex 4 migratory fish stocks within the Convention Area. Such measures may include the establishment of a total allowable catch or level of fishing effort, on a provisional basis, for skipjack, yellowfin and bigeye tunas and the South Pacific albacore stock, on the basis of the best scientific evidence available. Any recommendations made by the Preparatory Commission must, however, be consistent with the provisions of the Convention concerning the powers and functions entrusted to the Commission. The draft resolution would also need to address the issue of a provisional budget for the operation of the Preparatory Commission, to be funded by Conference participants.

IV. PROGRAMME OF WORK

25. In 1997, the Conference made a commitment to conclude its work by June 2000. In order to fulfil this commitment as closely as possible, it is important that the remaining difficult issues are resolved during the sixth session, so that the draft Convention may be adopted at the end of the session. The final session of the Conference is expected to take place from 28 August to 1 September 2000 in Fiji. It should take the form of a three-day meeting of officials to finalize the resolution or resolutions necessary to establish the interim regime, as well as the Final Act of the Conference and related institutional and administrative issues for the continuation of the process, followed by a two-day ministerial level meeting during which the Convention will be opened for signature.

26. The sixth session of the Conference should begin therefore by addressing the outstanding issues in the draft Convention text. These outstanding issues, which have been identified in this information note, together with all other pending matters, will be considered at plenary sessions of the Conference. As in previous sessions, some aspects of these issues would be the subject of consultations in smaller representative groups with a view to assisting the Chairman to formulate proposals which might be generally acceptable. The results of such consultations would, of course, be presented to the Plenary so that all participants may be kept informed of developments and have an opportunity to comment on them. The Conference should then begin to turn its attention to the question of the interim regime pending entry into force of the Convention. In view of the short time available for the sixth session, it is anticipated that the Conference will need to work long hours, including the Saturday of the first week of the session (15 April).

23 February 2000

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39 Annex 5

MHLC/Draft Convention/Rev.1 19 April 2000

CONVENTION ON THE CONSERVATION AND MANAGEMENT OF HIGHLY MIGRATORY FISH STOCKS IN THE WESTERN AND CENTRAL PACIFIC OCEAN Proposal by the Chairman

The Contracting Parties to this Convention, Determined to ensure the long-term conservation and sustainable use, in particular for human food consumption, of highly migratory fish stocks in the western and central Pacific for present and future generations, Recalling the relevant provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 and the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, Recognizing that, under the Convention and the Agreement, coastal States and States fishing in the region shall cooperate with a view to ensuring conservation and promoting the objective of optimum utilization of highly migratory fish stocks throughout their range, Mindful that effective conservation and management measures require the application of the precautionary approach and the best scientific information available, Conscious of the need to avoid adverse impacts on the marine environment, preserve biodiversity, maintain the integrity of marine ecosystems and minimize the risk of long-term or irreversible effects of fishing operations, Recognizing the ecological and geographical vulnerability of the small island developing States, territories and possessions in the region, their economic and social dependence on highly migratory fish stocks, and their need for specific assistance, including financial, scientific and technological assistance, to allow them to participate effectively in the conservation, management and sustainable use of the highly migratory fish stocks, Further recognizing that smaller island developing States have unique needs which require special attention and consideration in the provision of financial, scientific and technological assistance, Acknowledging that compatible, effective and binding conservation and management measures can be achieved only through cooperation between coastal States and States fishing in the region, Convinced that effective conservation and management of the highly migratory fish stocks of the western and central Pacific in their entirety may best be achieved through the establishment of a regional Commission, Have agreed as follows:

PART I GENERAL PROVISIONS Article 1 Use of terms 1. For the purposes of this Convention: (a) “1982 Convention” means the United Nations Convention on the Law of the Sea of 10 December 1982; (b) “Agreement” means the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks; (c) “Commission” means the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean established in accordance with this Convention;

40 Annex 5

(d) “Contracting Parties” means States, regional economic integration organizations and any territory situated within the Convention Area and listed in Annex I which has been authorized by the Contracting Party having the responsibility for its international affairs to sign and to assume rights and obligations under this Convention, which have consented to be bound by this Convention and for which the Convention is in force; (e) “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 the 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 transhipment; (vi) use of any other vessel, vehicle, aircraft or hovercraft, for any activity described in subparagraphs (i) to (v) except for emergencies involving the health and safety of the crew or the safety of a vessel; (f) “fishing vessel” means any vessel used or intended for use for the purpose of fishing, including support ships, carrier vessels and any other vessel directly involved in such fishing operations; (g) “highly migratory fish stocks” means all fish stocks of the species listed in Annex 1 of the 1982 Convention occurring in the Convention Area, and such other species of fish as the Commission may determine; (h) “regional economic integration organization” means a regional economic integration organization to which its member States have transferred competence over matters covered by this Convention, including the authority to make decisions binding on its member States in respect of those matters; (i) “transhipment” 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. 2. “Member of the Commission” means a Contracting Party and, as appropriate, any fishing entity referred to in article 43, which has affirmed its acceptance of the regime established by this Convention. Membership of the Commission does not in any way determine the legal or political status of any such fishing entity. Article 2 Objective The objective of this Convention is 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 1982 Convention and the Agreement. Article 3 Area of application 1. Subject to article 4, the area of competence of the Commission (hereinafter referred to as “the Convention Area”) comprises all waters of the Pacific Ocean bounded to the south and to the east by the following line: From the south coast of Australia due south along the 141° meridian of east longitude to its intersection with the 55° parallel of south latitude; thence due east along the 55° parallel of south latitude to its intersection with the 150° meridian of east longitude; thence due south along the 150° meridian of east longitude to its intersection with the 60° parallel of south latitude; thence due east along the 60° parallel of south latitude to its intersection with the 130° meridian of west longitude; thence due north along the 130° meridian of west longitude to its intersection with the 4° parallel of south latitude; thence due west along the 4° parallel of south latitude to its intersection with the 150° meridian of west longitude; thence due north along the 150° meridian of west longitude.

41 Annex 5

2. Nothing in this Convention shall constitute recognition of the claims or positions of any of the members of the Commission concerning the legal status and extent of waters and zones claimed by any such members. 3. This Convention applies to all stocks of highly migratory fish within the Convention Area except sauries. Conservation and management measures under this Convention shall be applied throughout the range of the stocks, or to specific areas within the Convention Area, as determined by the Commission. Article 4 Relationship between this Convention and the 1982 Convention Nothing in this Convention shall prejudice the rights, jurisdiction and duties of States under the 1982 Convention and the Agreement. This Convention shall be interpreted and applied in the context of and in a manner consistent with the 1982 Convention and the Agreement.

PART II CONSERVATION AND MANAGEMENT OF HIGHLY MIGRATORY FISH STOCKS Article 5 Principles and measures for conservation and management In order to conserve and manage highly migratory fish stocks in the Convention Area in their entirety, the members of the Commission shall, in giving effect to their duty to cooperate in accordance with the 1982 Convention, the Agreement and this Convention: (a) adopt measures to ensure long-term sustainability of highly migratory fish stocks in the Convention Area and promote the objective of their optimum utilization; (b) ensure that such measures are based on the best scientific evidence available and are designed to maintain or restore stocks at levels capable of producing maximum sustainable yield, as qualified by relevant environmental and economic factors, including the special requirements of developing States in the Convention Area, particularly small island developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global; (c) apply the precautionary approach in accordance with this Convention and all relevant internationally agreed standards and recommended practices and procedures; (d) assess the impacts of fishing, other human activities and environmental factors on target stocks, non-target species, and species belonging to the same ecosystem or dependent upon or associated with the target stocks; (e) adopt measures to minimize waste, discards, catch by lost or abandoned gear, pollution originating from fishing vessels, catch of non-target species, both fish and non-fish species, (hereinafter referred to as non-target species) and impacts on associated or dependent species, in particular endangered species and promote the development and use of selective, environmentally safe and cost-effective fishing gear and techniques; (f) protect biodiversity in the marine environment; (g) take measures to prevent or eliminate over-fishing and excess fishing capacity and to ensure that levels of fishing effort do not exceed those commensurate with the sustainable use of fishery resources; (h) take into account the interests of artisanal and subsistence fishers; (i) collect and share, in a timely manner, complete and accurate data concerning fishing activities on, inter alia, vessel position, catch of target and non-target species and fishing effort, as well as information from national and international research programmes; and (j) implement and enforce conservation and management measures through effective monitoring, control and surveillance. Article 6 Application of the precautionary approach 1. In applying the precautionary approach, the members of the Commission shall:

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(a) apply the guidelines set out in Annex II of the Agreement, which shall form an integral part of this Convention, and determine, on the basis of the best scientific information available, stock-specific reference points and the action to be taken if they are exceeded; (b) take into account, inter alia, uncertainties relating to the size and productivity of the stocks, reference points, stock condition in relation to such reference points, levels and distributions of fishing mortality and the impact of fishing activities on non-target and associated or dependent species, as well as existing and predicted oceanic, environmental and socio-economic conditions; and (c) develop data collection and research programmes to assess the impact of fishing on non-target and associated or dependent species and their environment, and adopt plans where necessary to ensure the conservation of such species and to protect habitats of special concern. 2. Members of the Commission shall be more cautious when information is uncertain, unreliable or inadequate. The absence of adequate scientific information shall not be used as a reason for postponing or failing to take conservation and management measures. 3. Members of the Commission shall take measures to ensure that, when reference points are approached, they will not be exceeded. In the event they are exceeded, members of the Commission shall, without delay, take the action determined under paragraph 1(a) to restore the stocks. 4. Where the status of target stocks or non-target or associated or dependent species is of concern, members of the Commission shall subject such stocks and species to enhanced monitoring in order to review their status and the efficacy of conservation and management measures. They shall revise those measures regularly in the light of new information. 5. For new or exploratory fisheries, members of the Commission shall adopt as soon as possible cautious conservation and management measures, including, inter alia, catch limits and effort limits. Such measures shall remain in force until there are sufficient data to allow assessment of the impact of the fisheries on the long-term sustainability of the stocks, whereupon conservation and management measures based on that assessment shall be implemented. The latter measures shall, if appropriate, allow for the gradual development of the fisheries. 6. If a natural phenomenon has a significant adverse impact on the status of highly migratory fish stocks, members of the Commission shall adopt conservation and management measures on an emergency basis to ensure that fishing activity does not exacerbate such adverse impacts. Members of the Commission shall also adopt such measures on an emergency basis where fishing activity presents a serious threat to the sustainability of such stocks. Measures taken on an emergency basis shall be temporary and shall be based on the best scientific information available. Article 7 Implementation of principles in areas under national jurisdiction 1. The principles and measures for conservation and management enumerated in article 5 shall be applied by coastal States within areas under national jurisdiction in the Convention Area in the exercise of their sovereign rights for the purpose of exploring and exploiting, conserving and managing highly migratory fish stocks. 2. The members of the Commission shall give due consideration to the respective capacities of developing coastal States, in particular small island developing States, in the Convention Area to apply the provisions of articles 5 and 6 within areas under national jurisdiction and their need for assistance as provided for in this Convention. Article 8 Compatibility of conservation and management measures 1. Conservation and management measures established for the high seas and those adopted for areas under national jurisdiction shall be compatible in order to ensure conservation and management of highly migratory fish stocks in their entirety. To this end, the members of the Commission have a duty to cooperate for the purpose of achieving compatible measures in respect of such stocks. 2. In establishing compatible conservation and management measures for highly migratory fish stocks in the Convention Area, the Commission shall: (a) take into account the biological unity and other biological characteristics of the stocks and the relationships between the distribution of the stocks, the fisheries and the geographical particularities of the

43 Annex 5 region concerned, including the extent to which the stocks occur and are fished in areas under national jurisdiction; (b) take into account: (i) the conservation and management measures adopted and applied in accordance with article 61 of the 1982 Convention in respect of the same stocks by coastal States within areas under national jurisdiction and ensure that measures established in respect of such stocks for the Convention Area as a whole do not undermine the effectiveness of such measures; (ii) previously agreed measures established and applied in respect of the same stocks for the high seas which form part of the Convention Area by relevant coastal States and States fishing on the high seas in accordance with the 1982 Convention and the Agreement; (c) take into account previously agreed measures established and applied in accordance with the 1982 Convention and the Agreement in respect of the same stocks by a subregional or regional fisheries management organization or arrangement; (d) take into account the respective dependence of the coastal States and the States fishing on the high seas on the stocks concerned; and (e) ensure that such measures do not result in harmful impact on the living marine resources as a whole. 3. The coastal State shall ensure that the measures adopted and applied by it to highly migratory fish stocks within areas under its national jurisdiction do not undermine the effectiveness of measures adopted by the Commission under this Convention in respect of the same stocks. 4. Where there are areas of high seas in the Convention Area entirely surrounded by the exclusive economic zones of members of the Commission, the Commission shall, in giving effect to this article, pay special attention to ensuring compatibility between conservation and management measures established for such high seas areas and those established in respect of the same stocks in accordance with article 61 of the 1982 Convention by the surrounding coastal States in areas under national jurisdiction.

PART III COMMISSION FOR THE CONSERVATION AND MANAGEMENT OF HIGHLY MIGRATORY FISH STOCKS IN THE WESTERN AND CENTRAL PACIFIC OCEAN

SECTION 1. GENERAL PROVISIONS Article 9 Establishment of the Commission 1. There is hereby established the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, which shall function in accordance with the provisions of this Convention. Each member of the Commission shall have one representative in the Commission, who may be accompanied by alternates and advisers. 2. The Commission shall hold an annual meeting. The Commission shall hold such other meetings as may be necessary to carry out its functions under this Convention. 3. The Commission shall elect a chairman and a vice-chairman, who shall be of different nationalities. They shall be elected for a period of two years and shall be eligible for re-election. The chairman and vice-chairman shall remain in office until the election of their successors. 4. The principle of cost-effectiveness shall apply to the frequency, duration and scheduling of meetings of the Commission and its subsidiary bodies. The Commission may, where appropriate, enter into contractual arrangements with relevant institutions to provide expert services necessary for the efficient functioning of the Commission and to enable it to carry out effectively its responsibilities under this Convention. 5. The Commission shall have international legal personality and such legal capacity as may be necessary to perform its functions and achieve its objectives. The privileges and immunities which the Commission and its officers shall enjoy in the territory of a Contracting Party shall be determined by agreement between the Commission and the member concerned. 6. The Commission shall determine the location of its headquarters.

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7. The Commission shall adopt, and amend as required, by consensus, rules of procedure for the conduct of its meetings, including meetings of its subsidiary bodies, and for the efficient exercise of its functions. Article 10 Functions of the Commission 1. Without prejudice to the sovereign rights of coastal States for the purpose of exploring and exploiting, conserving and managing highly migratory fish stocks within areas under national jurisdiction, the functions of the Commission shall be to: (a) determine the total allowable catch or total level of fishing effort within the Convention Area for such highly migratory fish stocks as the Commission may decide and adopt such other conservation and management measures and recommendations as may be necessary to ensure the long-term sustainability of such stocks; (b) promote cooperation and coordination between members of the Commission to ensure that conservation and management measures for highly migratory fish stocks in areas under national jurisdiction and measures for the same stocks on the high seas are compatible; (c) adopt, where necessary, conservation and management measures and recommendations for non-target species and species dependent on or associated with the target stocks, with a view to maintaining or restoring populations of such species above levels at which their reproduction may become seriously threatened; (d) adopt standards for collection, verification and for the timely exchange and reporting of data on fisheries for highly migratory fish stocks in the Convention Area in accordance with Annex I of the Agreement, which shall form an integral part of this Convention; (e) compile and disseminate accurate and complete statistical data to ensure that the best scientific information is available, while maintaining confidentiality, where appropriate; (f) obtain and evaluate scientific advice, review the status of stocks, promote and authorize the conduct of relevant scientific research and disseminate the results thereof; (g) develop, where necessary, criteria for the allocation of the total allowable catch or the total level of fishing effort for highly migratory fish stocks in the Convention Area; (h) adopt generally recommended international minimum standards for the responsible conduct of fishing operations; (i) establish appropriate cooperative mechanisms for effective monitoring, control, surveillance and enforcement, including a vessel monitoring system; (j) obtain and evaluate economic and other fisheries-related data and information relevant to the work of the Commission; (k) agree on means by which the fishing interests of any new member of the Commission may be accommodated; (l) adopt its rules of procedure and financial regulations and such other internal administrative regulations as may be necessary to carry out its functions; (m) appoint the Executive Director of the Commission; (n) consider and approve the proposed budget of the Commission; (o) promote the peaceful settlement of disputes; and (p) discuss any question or matter within the competence of the Commission and adopt any measures or recommendations necessary for achieving the objective of this Convention. 2. In giving effect to paragraph 1, the Commission may adopt measures relating to, inter alia: (a) the quantity of any species or stocks which may be caught; (b) the level of fishing effort; (c) limitations of fishing capacity, including measures relating to fishing vessel numbers, types and sizes; (d) the areas and periods in which fishing may occur;

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(e) the size of any species which may be taken; (f) the fishing gear and technology which may be used; and (g) particular subregions or regions. 3. In developing criteria for allocation of the total allowable catch or the total level of fishing effort the Commission shall take into account, inter alia: (a) the status of the stocks and the existing level of fishing effort in the fishery; (b) the respective interests, past and present fishing patterns and fishing practices of participants in the fishery and the extent of the catch being utilized for domestic consumption; (c) the historic catch in an area; (d) the needs of small island developing States, and territories and possessions, in the Convention Area whose economies, food supplies and livelihoods are overwhelmingly dependent on the exploitation of marine living resources; (e) the respective contributions of participants to conservation and management of the stocks, including the provision by them of accurate data and their contribution to the conduct of scientific research in the Convention Area; (f) the record of compliance by the participants with conservation and management measures; (g) the needs of coastal communities which are dependent mainly on fishing for the stocks; (h) the special circumstances of a State which is surrounded by the exclusive economic zones of other States and has a limited exclusive economic zone of its own; (i) the geographical situation of a small island developing State which is made up of non- contiguous groups of islands having a distinct economic and cultural identity of their own but which are separated by areas of high seas; (j) the fishing interests and aspirations of coastal States, particularly small island developing States, and territories and possessions, in the Convention Area in whose areas of national jurisdiction the stocks also occur. 4. The Commission may adopt decisions relating to the allocation of the total allowable catch or the total level of fishing effort. Such decisions, including decisions relating to the exclusion of vessel types, shall be taken by consensus. 5. The Commission shall take into account the reports and any recommendations of the Scientific Committee and the Technical and Compliance Committee on matters within their respective areas of competence. 6. The Commission shall promptly notify all members of the measures and recommendations decided upon by the Commission and shall give due publicity to the conservation and management measures adopted by it. Article 11 Subsidiary bodies of the Commission 1. There are hereby established as subsidiary bodies to the Commission a Scientific Committee and a Technical and Compliance Committee to provide advice and recommendations to the Commission on matters within their respective areas of competence. 2. Each member of the Commission shall be entitled to appoint one representative to each Committee who may be accompanied by other experts and advisers. Such representatives shall have appropriate qualifications or relevant experience in the area of competence of the Committee. 3. Each Committee shall meet as often as is required for the efficient exercise of its functions, provided that each Committee shall, in any event, meet prior to the annual meeting of the Commission and shall report to the annual meeting the results of its deliberations. 4. Each Committee shall make every effort to adopt its reports by consensus. If every effort to achieve consensus has failed, the report shall indicate the majority and minority views and may include the differing views of the representatives of the members on all or any part of the report.

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5. In the exercise of their functions, each Committee may, where appropriate, consult any other fisheries management, technical or scientific organization with competence in the subject matter of such consultation and may seek expert advice as required on an ad hoc basis. 6. The Commission may establish such other subsidiary bodies as it deems necessary for the exercise of its functions, including working groups for the purpose of examining technical issues relating to particular species or stocks and reporting thereon to the Commission. 7. The Commission shall establish a committee to make recommendations on the implementation of such conservation and management measures as may be adopted by the Commission for the area north of the 20° parallel of north latitude and on the formulation of such measures in respect of stocks which occur mostly in this area. The committee shall consist of the members situated in such area and the members fishing in the area. In adopting measures in relation to particular stocks and species in such area, the Commission shall take into account the recommendations of the committee. Such recommendations shall be consistent with the general policies and measures adopted by the Commission in respect of the stocks or species in question and with the principles and measures for conservation and management set out in this Convention. Any member of the Commission not represented on the committee may send a representative to participate in the deliberations of the committee as an observer. Any extraordinary costs incurred for the work of the committee shall be borne by the members of the committee.

SECTION 2. SCIENTIFIC INFORMATION AND ADVICE Article 12 Functions of the Scientific Committee 1. The Scientific Committee is established to ensure that the Commission obtains for its consideration the best scientific information available. 2. The functions of the Committee shall be to: (a) recommend to the Commission a research plan, including specific issues and items to be addressed by the scientific experts or by other organizations or individuals, as appropriate, and identify data needs and coordinate activities that meet those needs; (b) review the assessments, analyses, other work and recommendations prepared for the Commission by the scientific experts prior to consideration of such recommendations by the Commission and provide information, advice and comments thereon, as necessary; (c) encourage and promote cooperation in scientific research, taking into account the provisions of article 246 of the 1982 Convention, in order to improve information on highly migratory fish stocks, non- target species, and species belonging to the same ecosystem or associated with or dependent upon such stocks in the Convention Area; (d) review the results of research and analyses of target stocks or non-target or associated or dependent species in the Convention Area; (e) report to the Commission its findings or conclusions on the status of target stocks or non- target or associated or dependent species in the Convention Area; (f) in consultation with the Technical and Compliance Committee, recommend to the Commission the priorities and objectives of the regional observer programme and assess the results of that programme; (g) make reports and recommendations to the Commission as directed, or on its own initiative, on matters concerning the conservation and management of and research on target stocks or non-target or associated or dependent species in the Convention Area; and (h) perform such other functions and tasks as may be requested by or assigned to it by the Commission. 3. The Committee shall exercise its functions in accordance with such guidelines and directives as the Commission may adopt. 4. The representatives of the Oceanic Fisheries Programme of the Pacific Community and the Inter-American Tropical Tuna Commission, or their successor organizations, shall be invited to participate in the work of the Committee. The Committee may also invite other organizations or individuals with scientific expertise in matters related to the work of the Commission to participate in its meetings.

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Article 13 Scientific services 1. The Commission, taking into account any recommendation of the Scientific Committee, may engage the services of scientific experts to provide information and advice on the fishery resources covered by this Convention and related matters that may be relevant to the conservation and management of those resources. The Commission may enter into administrative and financial arrangements to utilize scientific services for this purpose. In this regard, and in order to carry out its functions in a cost-effective manner, the Commission shall, to the maximum extent possible, utilize the services of existing regional organizations and shall consult, as appropriate, with any other fisheries management, technical or scientific organization with expertise in matters related to the work of the Commission. 2. The scientific experts may, as directed by the Commission: (a) conduct scientific research and analyses in support of the work of the Commission; (b) develop and recommend to the Commission and the Scientific Committee stock-specific reference points for the species of principal interest to the Commission; (c) assess the status of stocks against the reference points established by the Commission; (d) provide the Commission and the Scientific Committee with reports on the results of their scientific work, advice and recommendations in support of the formulation of conservation and management measures and other relevant matters; and (e) perform such other functions and tasks as may be required. 3. In carrying out their work, the scientific experts may: (a) undertake the collection, compilation and dissemination of fisheries data according to agreed principles and procedures, including procedures relating to the confidentiality of data; (b) conduct assessments of highly migratory fish stocks, non-target species, and species belonging to the same ecosystem or associated with or dependent upon such stocks, within the Convention Area; (c) assess the impacts of fishing, other human activities and environmental factors on target stocks and species belonging to the same ecosystem or dependent upon or associated with the target stocks; (d) assess the potential effects of proposed changes in the methods or levels of fishing and of proposed conservation and management measures; and (e) investigate such other scientific matters as may be referred to them by the Commission. 4. The Commission may make appropriate arrangements for periodic peer review of scientific information and advice provided to the Commission by the scientific experts. 5. The reports and recommendations of the scientific experts shall be provided to the Scientific Committee and to the Commission.

SECTION 3. THE TECHNICAL AND COMPLIANCE COMMITTEE Article 14 Functions of the Technical and Compliance Committee 1. The functions of the Technical and Compliance Committee shall be to: (a) provide the Commission with information, technical advice and recommendations relating to the implementation of, and compliance with, conservation and management measures; (b) monitor and review compliance with conservation and management measures adopted by the Commission and make such recommendations to the Commission as may be necessary; and (c) review the implementation of cooperative measures for monitoring, control, surveillance and enforcement adopted by the Commission and make such recommendations to the Commission as may be necessary. 2. In carrying out its functions, the Committee shall: (a) provide a forum for exchange of information amongst members of the Commission concerning the means by which they are applying the conservation and management measures adopted by the Commission on the high seas and complementary measures in waters under national jurisdiction;

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(b) receive reports from each member of the Commission relating to measures taken to monitor, investigate and penalize violations of provisions of this Convention and measures adopted pursuant thereto; (c) in consultation with the Scientific Committee, recommend to the Commission the priorities and objectives of the regional observer programme, when established, and assess the results of that programme; (d) consider and investigate such other matters as may be referred to it by the Commission, including developing and reviewing measures to provide for the verification and validation of fisheries data; (e) make recommendations to the Commission on technical matters such as fishing vessel and gear markings; (f) in consultation with the Scientific Committee, make recommendations to the Commission on the fishing gear and technology which may be used; (g) report to the Commission its findings or conclusions on the extent of compliance with conservation and management measures; and (h) make recommendations to the Commission on matters relating to monitoring, control, surveillance and enforcement. 3. The Committee may establish, with the approval of the Commission, such subsidiary bodies as may be necessary for the performance of its functions. 4. The Committee shall exercise its functions in accordance with such guidelines and directives as the Commission may adopt.

SECTION 4. THE SECRETARIAT Article 15 The Secretariat 1. The Commission may establish a permanent Secretariat consisting of an Executive Director and such other staff as the Commission may require. 2. The Executive Director shall be appointed by the Commission for a term of four years and may be re-appointed for a further term of four years. 3. The Executive Director shall be the chief administrative officer of the Commission, and shall act in that capacity in all the meetings of the Commission and of any subsidiary body, and shall perform such other administrative functions as are entrusted to the Executive Director by the Commission. 4. The Secretariat functions shall include the following: (a) receiving and transmitting the Commission’s official communications; (b) facilitating the compilation and dissemination of data necessary to accomplish the objective of this Convention; (c) preparing administrative and other reports for the Commission and the Scientific and Technical and Compliance Committees; (d) administering agreed arrangements for monitoring, control and surveillance and the provision of scientific advice; (e) publishing the decisions of and promoting the activities of the Commission and its subsidiary bodies; and (f) treasury, personnel and other administrative functions. 5. In order to minimize costs to the members of the Commission, the Secretariat to be established under this Convention shall be cost effective. The setting up and the functioning of the Secretariat shall, where appropriate, take into account the capacity of existing regional institutions to perform certain technical secretariat functions. Article 16 The staff of the Commission 1. The staff of the Commission shall consist of such qualified scientific and technical and other personnel as may be required to fulfil the functions of the Commission. The staff shall be appointed by the Executive Director.

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2. The paramount consideration in the recruitment and employment of the staff shall be the necessity of securing the highest standards of efficiency, competence and integrity. Subject to this consideration, due regard shall be paid to the importance of recruiting the staff on an equitable basis between the members of the Commission with a view to ensuring a broad-based Secretariat.

SECTION 5. FINANCIAL ARRANGEMENTS OF THE COMMISSION Article 17 Funds of the Commission 1. The funds of the Commission shall include: (a) assessed contributions made by members of the Commission in accordance with article 18, paragraph 2; (b) voluntary contributions made by members of the Commission; (c) the fund referred to in article 30, paragraph 3; and (d) any other funds which the Commission may receive, including fees for specific services. 2. The Commission shall adopt, and amend as required, by consensus, financial regulations for the administration of the Commission and for the exercise of its functions. Article 18 Budget of the Commission 1. The Executive Director shall draft the proposed budget of the Commission and submit it to the Commission. The proposed budget shall indicate which of the administrative expenses of the Commission are to be financed from the assessed contributions referred to in article 17, paragraph 1 (a), and which such expenses are to be financed from funds received pursuant to article 17, paragraphs 1 (b), (c) and (d). The Commission shall adopt the budget by consensus. If the Commission is unable to adopt a decision on the budget, the level of contributions to the administrative budget of the Commission shall be determined in accordance with the budget for the preceding year for the purposes of meeting the administrative expenses of the Commission for the following year until such time as a new budget can be adopted by consensus. 2. The amount of the contribution to the budget from each member of the Commission shall be determined in accordance with a scheme which the Commission shall adopt, and amend as required, by consensus. In adopting the scheme, due consideration shall be given to each member being assessed an equal basic fee, a fee based upon national wealth, reflecting the state of development of the member concerned and its ability to pay, and a variable fee. The variable fee shall be based, inter alia, on the total catch taken within exclusive economic zones and in areas beyond national jurisdiction in the Convention Area of such species as may be specified by the Commission, provided that a discount factor shall be applied to the catch taken in the exclusive economic zone of a member of the Commission which is a developing State or territory by vessels flying the flag of that member. The scheme adopted by the Commission shall be set out in the financial regulations of the Commission. 3. A member of the Commission which is in arrears in the payment of its financial contributions to the Commission shall not participate in the taking of decisions by the Commission if the amount of its arrears equals or exceeds the amount of the contributions due from it for the preceding two full years. Interest shall be payable on such unpaid contributions at such rate as may be determined by the Commission in its financial regulations. The Commission may, nevertheless, waive such interest payments and permit such a member to vote if it is satisfied that the failure to pay is due to conditions beyond the control of the member. Article 19 Annual audit The records, books and accounts of the Commission, including its annual financial statement, shall be audited annually by an independent auditor appointed by the Commission.

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SECTION 6. DECISION-MAKING Article 20 Decision-making 1. In taking decisions, the Commission shall seek to promote the interests of all members. As a general rule, decision-making in the Commission shall be by consensus. For the purposes of this article, “consensus” means the absence of any formal objection made at the time the decision was taken. 2. If all efforts to reach a decision by consensus have been exhausted, decisions by voting on questions of procedure shall be taken by a majority of the members present and voting, and decisions on questions of substance shall be taken by a four-fifths majority of members present and voting, except where this Convention expressly provides that a decision shall be taken by consensus. When the issue arises as to whether a question is one of substance or not, that question shall be treated as one of substance unless otherwise decided by the Commission by consensus or by the majority required for decisions on questions of substance. 3. If it appears to the Chairman that all efforts to reach a decision by consensus have been exhausted, the Chairman shall fix a time during that session of the Commission for taking the decision by a vote. At the request of any member, the Commission may, by a majority of the members present and voting, defer the taking of a decision until such time during the same session as the Commission may decide. At that time, the Commission shall take a vote on the deferred question. This rule may be applied only once to any question. 4. Where this Convention expressly provides that a decision on a proposal shall be taken by consensus and the Chairman determines that there would be an objection to such proposal, the Commission may appoint a conciliator for the purpose of reconciling the differences in order to achieve consensus on the matter. 5. Subject to paragraphs 6 and 7, a decision adopted by the Commission shall become binding on all members 60 days after the date of its adoption. 6. A member which has voted against a decision or which was absent during the meeting at which the decision was made may, within 30 days of the adoption of the decision by the Commission, seek a review of the decision by a review panel constituted in accordance with the procedures set out in Annex II to this Convention on the grounds that: (a) the decision is inconsistent with the provisions of this Convention, the Agreement or the 1982 Convention; or (b) the decision unjustifiably discriminates in form or in fact against the member concerned. 7. Pending the findings and recommendations of the review panel and any action required by the Commission, no member of the Commission shall be required to give effect to the decision in question. 8. If the review panel finds that the decision of the Commission need not be modified, amended or revoked, the decision shall become binding upon all members of the Commission 30 days from the date of communication by the Executive Director of the findings and recommendations of the review panel. 9. If the review panel recommends to the Commission that the decision be modified, amended or revoked, the Commission shall, at its next annual meeting, modify or amend its decision in order to conform with the findings and recommendations of the review panel or it may decide to revoke the decision, provided that, if so requested in writing by a majority of the members, a special meeting of the Commission shall be convened within 60 days of the date of communication to the members of the findings and recommendations of the review panel.

SECTION 7. TRANSPARENCY AND COOPERATION WITH OTHER ORGANIZATIONS Article 21 Transparency The Commission shall promote transparency in its decision-making processes and other activities. Representatives from intergovernmental organizations and non-governmental organizations concerned with matters relevant to the implementation of this Convention shall be afforded the opportunity to participate in the meetings of the Commission and its subsidiary bodies as observers or otherwise as appropriate. The rules of procedure of the Commission shall provide for such participation. The procedures shall not be unduly restrictive in this respect. Such intergovernmental organizations and non-governmental organizations shall be given timely access to pertinent information subject to the rules and procedures which the Commission may adopt.

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Article 22 Cooperation with other organizations 1. The Commission shall cooperate, as appropriate, with the Food and Agriculture Organization of the United Nations and with other specialized agencies and bodies of the United Nations on matters of mutual interest. 2. The Commission shall make suitable arrangements for consultation, cooperation and collaboration with other relevant intergovernmental organizations, particularly those which have related objectives and which can contribute to the attainment of the objectives of this Convention, such as the Commission for the Conservation of Antarctic Marine Living Resources, the Commission for the Conservation of Southern Bluefin Tuna, the Indian Ocean Tuna Commission and the Inter-American Tropical Tuna Commission. 3. Where the Convention Area overlaps with an area under regulation by another fisheries management organization, the Commission shall cooperate with such other organization in order to avoid the application of measures in respect of species in that area which are regulated by that other organization. In particular, the Commission shall cooperate with the Inter-American Tropical Tuna Commission in respect of the Convention Area eastward of the 150º meridian of west longitude. 4. The Commission may enter into relationship agreements with the organizations referred to in this article and with other organizations as may be appropriate, such as the Pacific Community and the South Pacific Forum Fisheries Agency, with a view to obtaining the best available scientific and other fisheries-related information to further the attainment of the objective of this Convention and to minimize duplication with respect to their work. 5. Any organization with which the Commission has entered into an arrangement or agreement under paragraphs 1, 2 and 4 may designate representatives to attend meetings of the Commission as observers in accordance with the rules of procedure of the Commission. Procedures shall be established for obtaining the views of such organizations in appropriate cases.

PART IV OBLIGATIONS OF MEMBERS OF THE COMMISSION Article 23 Obligations of members of the Commission 1. Each member of the Commission shall promptly implement the provisions of this Convention and any conservation, management and other measures or matters which may be agreed pursuant to this Convention from time to time and shall cooperate in furthering the objective of this Convention. 2. Each member of the Commission shall: (a) provide annually to the Commission statistical, biological and other data and information in accordance with Annex I of the Agreement and, in addition, such data and information as the Commission may require; (b) provide to the Commission in the manner and at such intervals as may be required by the Commission, information concerning its fishing activities in the Convention Area, including fishing areas and fishing vessels in order to facilitate the compilation of reliable catch and effort statistics; and (c) provide to the Commission at such intervals as may be required information on steps taken to implement the conservation and management measures adopted by the Commission. 3. The members of the Commission shall keep the Commission informed of the measures they have adopted for the conservation and management of highly migratory fish stocks in areas within the Convention Area under their national jurisdiction. The Commission shall circulate periodically such information to all members. 4. Each member of the Commission shall keep the Commission informed of the measures it has adopted for regulating the activities of fishing vessels flying its flag which fish in the Convention Area. The Commission shall circulate periodically such information to all members. 5. Each member of the Commission shall, to the greatest extent possible, take measures to ensure that its nationals, and fishing vessels owned or controlled by its nationals fishing in the Convention Area, comply with the provisions of this Convention. To this end, members of the Commission may enter into agreements with States whose flags such vessels are flying to facilitate such enforcement. Each member of the

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Commission shall, at the request of any other member, and when provided with the relevant information relating to an alleged violation, investigate fully any alleged violation by its nationals, or fishing vessels owned or controlled by its nationals, of the provisions of this Convention or any conservation and management measure adopted by the Commission and report to the member alleging the violation and the Commission as soon as practicable and in any case within two months on the progress and outcome of the investigation and, as appropriate, on any action taken or proposed to be taken in relation to the alleged violation.

PART V DUTIES OF THE FLAG STATE Article 24 Flag State duties 1. Each member of the Commission shall take such measures as may be necessary to ensure that: (a) fishing vessels flying its flag comply with the provisions of this Convention and the conservation and management measures adopted pursuant hereto and that such vessels do not engage in any activity which undermine the effectiveness of such measures; and (b) fishing vessels flying its flag do not conduct unauthorized fishing within areas under the national jurisdiction of any Contracting Party. 2. No member of the Commission shall allow any fishing vessel entitled to fly its flag to be used for fishing for highly migratory fish stocks in the Convention Area beyond areas of national jurisdiction unless it has been authorized to do so by the appropriate authority or authorities of that member. A member of the Commission shall authorize the use of vessels flying its flag for fishing in the Convention Area beyond areas of national jurisdiction only where it is able to exercise effectively its responsibilities in respect of such vessels under the 1982 Convention, the Agreement and this Convention. 3. It shall be a condition of every authorization issued by a member of the Commission that the fishing vessel in respect of which the authorization is issued: (a) conducts fishing within areas under the national jurisdiction of other States only where the fishing vessel holds any licence, permit or authorization that may be required by such other State; and (b) is operated on the high seas in the Convention Area in accordance with the requirements of Annex III, the requirements of which shall also be established as a general obligation of all vessels operating pursuant to this Convention. 4. Each member of the Commission shall, for the purposes of effective implementation of this Convention, maintain a record of fishing vessels entitled to fly its flag and authorized to be used for fishing in the Convention Area beyond its area of national jurisdiction, and shall ensure that all such fishing vessels are entered in that record. 5. Each member of the Commission shall provide annually to the Commission, in accordance with such procedures as may be agreed by the Commission, the information set out in Annex IV to this Convention with respect to each fishing vessel entered in the record required to be maintained under paragraph 4 and shall promptly notify the Commission of any modifications to such information. 6. Each member of the Commission shall also promptly inform the Commission of: (a) any additions to the record; (b) any deletions from the record by reason of: (i) the voluntary relinquishment or non-renewal of the fishing authorization by the fishing vessel owner or operator; (ii) the withdrawal of the fishing authorization issued in respect of the fishing vessel under paragraph 2; (iii) the fact that the fishing vessel concerned is no longer entitled to fly its flag; (iv) the scrapping, decommissioning or loss of the fishing vessel concerned; and (v) any other reason, specifying which of the reasons listed above is applicable.

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7. The Commission shall maintain its own record, based on the information provided to it pursuant to paragraphs 5 and 6, of fishing vessels referred to in paragraph 4. The Commission shall circulate periodically the information contained in such record to all members of the Commission, and, on request, individually to any member. 8. Each member of the Commission shall require its fishing vessels that fish for highly migratory fish stocks on the high seas in the Convention Area to use near real-time satellite position-fixing transmitters while in such areas. The standards, specifications and procedures for the use of such transmitters shall be established by the Commission, which shall operate a vessel monitoring system for all vessels that fish for highly migratory fish stocks on the high seas in the Convention Area. In establishing such standards, specifications and procedures, the Commission shall take into account the characteristics of traditional fishing vessels from developing States. The Commission, directly, and simultaneously with the flag State where the flag State so requires, or through such other organization designated by the Commission, shall receive information from the vessel monitoring system in accordance with the procedures adopted by the Commission. The procedures adopted by the Commission shall include appropriate measures to protect the confidentiality of information received through the vessel monitoring system. Any member of the Commission may request that waters under its national jurisdiction be included within the area covered by such vessel monitoring system. 9. Each member of the Commission shall require its fishing vessels that fish in the Convention Area in areas under the national jurisdiction of another member to operate near real-time satellite position-fixing transmitters in accordance with the standards, specification and procedures to be determined by the coastal State. 10. The members of the Commission shall cooperate to ensure compatibility between national and high seas vessel monitoring systems.

PART VI COMPLIANCE AND ENFORCEMENT Article 25 Compliance and enforcement 1. Each member of the Commission shall enforce the provisions of this Convention and any conservation and management measures issued by the Commission. 2. Each member of the Commission shall, at the request of any other member, and when provided with information relating to an alleged violation, investigate fully any alleged violation by fishing vessels flying its flag of the provisions of this Convention or any conservation and management measure adopted by the Commission and report to the member alleging the violation and the Commission as soon as practicable and in any case within two months on the progress and outcome of the investigation and, as appropriate, on any action taken or proposed to be taken in relation to the alleged violation. 3. Each member of the Commission shall, if satisfied that sufficient evidence is available in respect of an alleged violation by a fishing vessel flying its flag, refer the case to its authorities with a view to instituting proceedings without delay in accordance with its laws and, where appropriate, detain the vessel concerned. 4. Each member of the Commission shall ensure that, where it has been established, in accordance with its laws, that a fishing vessel flying its flag has been involved in the commission of a serious violation of the provisions of this Convention or of any conservation and management measures adopted by the Commission, the vessel concerned ceases fishing activities and does not engage in such activities in the Convention Area until such time as all outstanding sanctions imposed by the flag State in respect of the violation have been complied with. Where the vessel concerned has conducted unauthorized fishing within areas under the national jurisdiction of any coastal State Party to this Convention, the flag State shall ensure, in accordance with its laws, that the vessel concerned submits to the jurisdiction of that Party and complies promptly with any sanctions which may be imposed by such coastal State in accordance with its national laws and regulations. For the purposes of this article, a serious violation shall include any of the violations specified in article 21, paragraphs 11 (a) to (h) of the Agreement and such other violations as may be determined by the Commission. 5. Each member of the Commission shall, to the extent permitted by its national laws and regulations, establish arrangements for making available to prosecuting authorities of other members evidence relating to alleged violations.

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6. Where there are reasonable grounds for believing that a fishing vessel on the high seas has engaged in unauthorized fishing within an area under the national jurisdiction of a member of the Commission, the flag State of that vessel, at the request of the member concerned, shall immediately and fully investigate the matter. The flag State shall cooperate with the member concerned in taking appropriate enforcement action in such cases and may authorize the relevant authorities of such member to board and inspect the vessel on the high seas. This paragraph is without prejudice to article 111 of the 1982 Convention. 7. All investigations and judicial proceedings shall be carried out expeditiously. Sanctions applicable in respect of violations shall be adequate in severity to be effective in securing compliance and to discourage violations wherever they occur and shall deprive offenders of the benefits accruing from their illegal activities. Measures applicable in respect of masters and other officers of fishing vessels shall include provisions which may permit, inter alia, refusal, withdrawal or suspension of authorizations to serve as masters or officers on such vessels. 8. Each member shall transmit to the Commission an annual statement of compliance measures, including imposition of sanctions for any violations, it has taken in accordance with this article. 9. The provisions of this article are without prejudice to: (a) the rights of any of the members of the Commission in accordance with their national laws and regulations relating to fisheries, including the right to impose appropriate sanctions on the vessel concerned in respect of violations occurring within areas under national jurisdiction in accordance with such national laws and regulations; and (b) the rights of any of the members of the Commission in relation to any provision relating to compliance and enforcement contained in any relevant bilateral or multilateral fisheries access agreement not inconsistent with the provisions of this Convention, the Agreement or the 1982 Convention. 10. Each member of the Commission, where it has reasonable grounds for believing that a fishing vessel flying the flag of another State has engaged in any activity that undermines the effectiveness of conservation and management measures adopted for the Convention Area, shall draw this to the attention of the flag State concerned and may, as appropriate, draw the matter to the attention of the Commission. To the extent permitted by its national laws and regulations it shall provide the flag State with full supporting evidence and may provide the Commission with a summary of such evidence. The Commission shall not circulate such information until such time as the flag State has had an opportunity to comment, within a reasonable time, on the allegation and evidence submitted, or to object as the case may be. 11. The members of the Commission may take action in accordance with the Agreement and international law, including through procedures adopted by the Commission for this purpose, to deter fishing vessels which have engaged in activities which undermine the effectiveness of or otherwise violate the conservation and management measures adopted by the Commission from fishing in the Convention Area until such time as appropriate action is taken by the flag State. 12. The Commission, when necessary, shall develop procedures which allow for non- discriminatory trade measures to be taken, consistent with the international obligations of the members of the Commission, on any species regulated by the Commission, against any State or entity whose fishing vessels fish in a manner which undermines the effectiveness of the conservation and management measures adopted by the Commission. Article 26 Boarding and inspection 1. The Commission shall establish procedures for boarding and inspection of fishing vessels on the high seas in the Convention Area. Each member of the Commission shall ensure that fishing vessels flying its flag accept boarding by duly authorized inspectors in accordance with such procedures. Each member of the Commission shall also ensure that its duly authorized inspectors comply with the procedures for boarding and inspection. 2. If, within two years of the entry into force of this Convention, the Commission is not able to agree on such procedures, or on an alternative mechanism which effectively discharges the obligations of the members of the Commission under the Agreement and this Convention to ensure compliance with the conservation and management measures established by the Commission, the Contracting Parties to this Convention shall apply articles 21 and 22 of the Agreement as if they were part of this Convention and boarding and inspection of fishing vessels in the Convention Area, as well as any subsequent enforcement action, shall be conducted by the Contracting Parties in accordance with the procedures set out therein and such additional

55 Annex 5 practical procedures as the Commission may decide are necessary for the implementation of articles 21 and 22 of the Agreement. 3. All vessels used by Contracting Parties for boarding and inspection of fishing vessels on the high seas 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 this Convention. Article 27 Measures taken by a port State 1. A port State has the right and the duty to take measures, in accordance with international law, to promote the effectiveness of subregional, regional and global conservation and management measures. When taking such measures a port State shall not discriminate in form or in fact against the fishing vessels of any State. 2. Whenever a fishing vessel of a member of the Commission voluntarily enters a port or offshore terminal of another member, the port State may, inter alia, inspect documents, fishing gear and catch on board such fishing vessel. 3. Members of the Commission may adopt regulations empowering the relevant national authorities to prohibit landings and transhipments where it has been established that the catch has been taken in a manner which undermines the effectiveness of conservation and management measures adopted by the Commission. 4. Nothing in this article affects the exercise by members of the Commission of their sovereignty over ports in their territory in accordance with international law.

PART VII REGIONAL OBSERVER PROGRAMME AND REGULATION OF TRANSHIPMENT Article 28 Regional observer programme 1. The Commission shall develop a regional observer programme to collect verified catch data, other scientific data and additional information related to the fishery from the Convention Area and to monitor the implementation of the conservation and management measures adopted by the Commission. 2. The observer programme shall be coordinated by the Secretariat of the Commission, and shall be organized in a flexible manner which takes into account the nature of the fishery and other relevant factors. In this regard, the Commission may enter into contracts for the provision of the regional observer programme. 3. The regional observer programme shall consist of independent and impartial observers authorized by the Secretariat of the Commission. The programme should be coordinated, to the maximum extent possible, with other regional, subregional and national observer programmes. 4. Each member of the Commission shall ensure that fishing vessels flying its flag in the Convention Area, except for vessels that operate exclusively within waters under the national jurisdiction of the flag State, are prepared to accept an observer from the regional observer programme, if required by the Commission. 5. The provisions of paragraph 4 shall apply to vessels fishing exclusively on the high seas in the Convention Area, vessels fishing on the high seas and in waters under the jurisdiction of one or more coastal States, and vessels fishing in waters under the jurisdiction of two or more coastal States. When a vessel is operating on the same fishing trip both in waters under the national jurisdiction of its flag State and in the adjacent high seas, an observer placed under the regional observer programme shall not undertake any of the activities specified in paragraph 6 (e) when the vessel is in waters under the national jurisdiction of its flag State, unless the flag State of the vessel agrees otherwise. 6. The regional observer programme shall operate in accordance with the following guidelines and under the conditions set out in article 3 of Annex III of this Convention: (a) the programme shall provide a sufficient level of coverage to ensure that the Commission receives appropriate data and information on catch levels and related matters within the Convention Area, taking into account the characteristics of the fisheries; (b) each member of the Commission shall be entitled to have its nationals included in the programme as observers;

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(c) observers shall be trained and certified in accordance with uniform procedures to be approved by the Commission; (d) observers shall not unduly interfere with the lawful operations of the vessel and, in carrying out their functions, they shall give due consideration to the operational requirements of the vessel and shall communicate regularly with the captain or master for this purpose; (e) the activities of observers shall include collecting catch data and other scientific data, monitoring the implementation of conservation and management measures adopted by the Commission and reporting of their findings in accordance with procedures to be developed by the Commission; (f) the programme shall be cost effective, shall avoid duplication with existing regional, subregional and national observer programmes, and shall, to the extent practicable, seek to minimize disruption to the operations of vessels fishing in the Convention Area; (g) a reasonable period of notice of the placement of an observer shall be given. 7. The Commission shall develop further procedures and guidelines for the operation of the regional observer programme, including: (a) procedures to ensure the security of non-aggregated data and other information which the Commission deems to be of a confidential nature; (b) procedures for the dissemination of information to the members of the Commission of information collected by observers, subject to paragraph (a) above; (c) guidelines for boarding of observers which clearly define the rights and responsibilities of the captain or master of the vessel and the crew when an observer is on board a vessel, as well as the rights and responsibilities of observers in the performance of their duties. 8. The Commission shall determine the manner in which the costs of the observer programme would be defrayed. Article 29 Transhipment 1. In order to support efforts to ensure accurate reporting of catches, the members of the Commission shall encourage their fishing vessels, to the extent practicable, to conduct transhipment in port. A member may designate one or more of its ports as transhipment ports for the purposes of this Convention, and the Commission shall circulate periodically to all members a list of such designated ports. 2. Transhipment at a port or in an area within waters under the national jurisdiction of a member of the Commission shall take place in accordance with applicable national laws. 3. The Commission shall develop procedures to obtain and verify data on the quantity and species transhipped both in port and at sea in the Convention Area. 4. Transhipment at sea in the Convention Area beyond areas under national jurisdiction shall take place only in accordance with the terms and conditions set out in article 4 of Annex III to this Convention, and any procedures established by the Commission pursuant to paragraph 3 of this article. Such procedures shall take into account the characteristics of the fishery concerned. 5. Notwithstanding paragraph 4 above, and subject to any specific exemptions which the Commission may allow reflecting existing operations, transhipment at sea by purse-seine vessels operating within the Convention Area shall be prohibited.

PART VIII REQUIREMENTS OF DEVELOPING STATES Article 30 Recognition of the special requirements of developing States 1. Members of the Commission shall give full recognition to the special requirements of developing States Parties to this Convention, in particular small island developing States, and of territories and possessions, in relation to conservation and management of highly migratory fish stocks in the Convention Area and development of fisheries for such stocks. 2. In giving effect to the duty to cooperate in the establishment of conservation and management measures for highly migratory fish stocks, the members of the Commission shall take into account the special

57 Annex 5 requirements of developing States Parties, in particular small island developing States, and of territories and possessions, in particular: (a) the vulnerability of developing States Parties, in particular small island developing States, which are dependent on the exploitation of marine living resources, including for meeting the nutritional requirements of their populations or parts thereof; (b) the need to avoid adverse impacts on, and ensure access to fisheries by, subsistence, small- scale and artisanal fishers and fishworkers, as well as indigenous people in developing States Parties, particularly small island developing States Parties, and territories and possessions; and (c) the need to ensure that such measures do not result in transferring, directly or indirectly, a disproportionate burden of conservation action onto developing States Parties, and territories and possessions. 3. The Commission shall establish a fund to facilitate the effective participation of developing States Parties, particularly small island developing States, and, where appropriate, territories and possessions, in the work of the Commission, including its meetings and those of its subsidiary bodies. The financial regulations of the Commission shall include guidelines for the administration of the fund and criteria for eligibility for assistance. 4. Cooperation with developing States, and territories and possessions, for the purposes set out in this article may include the provision of financial assistance, assistance relating to human resources development, technical assistance, transfer of technology, including through joint venture arrangements, and advisory and consultative services. Such assistance shall, inter alia, be directed towards: (a) improved conservation and management of highly migratory fish stocks through collection, reporting, verification, exchange and analysis of fisheries data and related information; (b) stock assessment and scientific research; and (c) monitoring, control, surveillance, compliance and enforcement, including training and capacity-building at the local level, development and funding of national and regional observer programmes and access to technology and equipment.

PART IX PEACEFUL SETTLEMENT OF DISPUTES Article 31 Procedures for the settlement of disputes The provisions relating to the settlement of disputes set out in Part VIII of the Agreement apply, mutatis mutandis, to any dispute between members of the Commission concerning the interpretation and application of this Convention, whether or not they are also Parties to the Agreement.

PART X NON-PARTIES TO THIS CONVENTION Article 32 Non-parties to this Convention 1. Each member of the Commission shall take measures consistent with this Convention, the Agreement and international law to deter the activities of vessels flying the flags of non-parties to this Convention which undermine the effectiveness of conservation and management measures adopted by the Commission. 2. The members of the Commission shall exchange information on the activities of fishing vessels flying the flags of non-parties to this Convention which are engaged in fishing operations in the Convention Area. 3. The Commission shall draw the attention of any State which is not a Party to this Convention to any activity undertaken by its nationals or vessels flying its flag which, in the opinion of the Commission, affects the implementation of the objective of this Convention. 4. The members of the Commission shall, individually or jointly, request non-parties to this Convention whose vessels fish in the Convention Area to cooperate fully in the implementation of conservation and management measures adopted by the Commission with a view to ensuring that such measures are applied to all fishing activities in the Convention Area. Such cooperating non-parties to this Convention shall enjoy

58 Annex 5 benefits from participation in the fishery commensurate with their commitment to comply with, and their record of compliance with, conservation and management measures in respect of the relevant stocks. 5. Non-parties to this Convention, may, upon request and subject to the concurrence of the members of the Commission and to the rules of procedure relating to the granting of observer status, be invited to attend meetings of the Commission as observers.

PART XI GOOD FAITH AND ABUSE OF RIGHTS Article 33 Good faith and abuse of rights The members of the Commission shall fulfil in good faith the obligations assumed under this Convention and shall exercise the rights recognized in this Convention in a manner which would not constitute an abuse of right.

PART XII FINAL PROVISIONS Article 34 Signature, ratification, acceptance, approval 1. This Convention shall be open for signature by the States which participated in its adoption,by the the territories referred to in article 1, paragraph 1 (d), which participated in its adoption, and by any entity referred to in article 305, paragraph 1, subparagraphs (c), (d) and (e) of the 1982 Convention, which is situated in the Convention Area, and shall remain open for signature at ... for twelve months from the ... day of … 2000. 2. This Convention is subject to ratification, acceptance or approval by the signatories. 3. Instruments of ratification, acceptance or approval shall be deposited with the depositary. Article 35 Accession 1. This Convention shall remain open for accession by the States which participated in its adoption, by the territories referred to in article 1, paragraph 1 (d), which participated in its adoption, and by any entity referred to in article 305, paragraph 1, subparagraphs (c), (d) and (e) of the 1982 Convention, which is situated in the Convention Area. 2. After the entry into force of this Convention, the Commission may, by consensus, invite other States and regional economic integration organizations, whose nationals and fishing vessels wish to conduct fishing for highly migratory fish stocks in the Convention Area to accede to this Convention. 3. Instruments of accession shall be deposited with the depositary. Article 36 Entry into force 1. This Convention shall enter into force 30 days after the deposit of instruments of ratification, acceptance, approval or accession by: (a) three States situated north of the 20° parallel of north latitude; and (b) seven States situated south of the 20° parallel of north latitude. 2. If, within three years of its adoption, this Convention has not been ratified by three of the States referred to in paragraph 1 (a), this Convention shall enter into force six months after the deposit of the thirteenth instrument of ratification, acceptance, approval or accession or in accordance with paragraph 1, whichever is the earlier. 3. For each State, territory referred to in article 1, paragraph 1 (d), entity referred to in article 305, paragraph 1, subparagraphs (c), (d) and (e) of the 1982 Convention which is situated in the Convention Area, or regional economic integration organization which ratifies, formally confirms, accepts or approves the Convention or accedes thereto after the entry into force of this Convention, this Convention shall enter into force on the thirtieth day following the deposit of its instrument of ratification, formal confirmation, acceptance, approval or accession.

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Article 37 Reservations and exceptions No reservations or exceptions may be made to this Convention. Article 38 Declarations and statements Article 37 does not preclude a State, entity referred to in article 305, paragraph 1, subparagraphs (c), (d) and (e) of the 1982 Convention which is situated in the Convention Area, or regional economic integration organization, when signing, ratifying or acceding to this Convention, from making declarations or statements, however phrased or named, with a view, inter alia, to the harmonization of its laws and regulations with the provisions of this Convention, provided that such declarations or statements do not purport to exclude or to modify the legal effect of the provisions of this Convention in their application to that State, entity or regional economic integration organization. Article 39 Relation to other agreements This Convention shall not alter the rights and obligations of Contracting Parties, and fishing entities referred to in article 43, which arise from other agreements compatible with this Convention and which do not affect the enjoyment by other Contracting Parties of their rights or the performance of their obligations under this Convention. Article 40 Amendment 1. Any member of the Commission may propose amendments to this Convention to be considered by the Commission. Any such proposal shall be made by written communication addressed to the Executive Director at least 60 days before the meeting of the Commission at which it is to be considered. The Executive Director shall promptly circulate such communication to all members of the Commission. 2. Amendments to this Convention shall be considered at the annual meeting of the Commission unless a majority of the members request a special meeting to consider the proposed amendment. A special meeting may be convened on not less than 60 days notice. Amendments to this Convention shall be adopted by consensus. The text of any amendment adopted by the Commission shall be transmitted promptly by the Executive Director to all members of the Commission. 3. Amendments to this Convention shall enter into force for the Contracting Parties ratifying or acceding to them on the thirtieth day following the deposit of instruments of ratification or accession by a majority of Contracting Parties. Thereafter, for each Contracting Party ratifying or acceding to an amendment after the deposit of the required number of such instruments, the amendment shall enter into force on the thirtieth day following the deposit of its instrument of ratification or accession. Article 41 Annexes 1. The Annexes form an integral part of this Convention and, unless expressly provided otherwise, a reference to this Convention or to one of its Parts includes a reference to the Annexes relating thereto. 2. The Annexes to this Convention may be revised from time to time and any member of the Commission may propose revisions to an Annex. Notwithstanding the provisions of article 40, if a revision to an Annex is adopted by consensus at a meeting of the Commission, it shall be incorporated in this Convention and shall take effect from the date of its adoption or from such other date as may be specified in the revision. Article 42 Withdrawal 1. A Contracting Party may, by written notification addressed to the depositary, withdraw from this Convention and may indicate its reasons. Failure to indicate reasons shall not affect the validity of the withdrawal. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date. 2. Withdrawal from this Convention by a Contracting Party shall not affect the financial obligations of such member incurred prior to its withdrawal becoming effective.

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3. Withdrawal from this Convention by a Contracting Party shall not in any way affect the duty of such member to fulfil any obligation embodied in this Convention to which it would be subject under international law independently of this Convention. Article 43 Fishing entities After the entry into force of this Convention, any fishing entity, being a separate customs territory possessing full autonomy in the conduct of its external commercial relations, and whose vessels fish for highly migratory fish stocks in the Convention Area, may, by an instrument in writing, affirm its acceptance of the regime established by this Convention. Article 44 Participation by territories 1. The Commission and its subsidiary bodies shall be open to participation, without the right to vote, with the appropriate authorization of the Contracting Party having responsibility for its international affairs, to each of the following: American Samoa French Polynesia Guam Northern Mariana Islands Tokelau 2. In the performance of its functions, and in taking decisions, the Commission shall take into account the interests of all participants. Such participants shall be entitled to participate fully in the work of the Commission, including the right to be present and to speak at the meetings of the Commission and its subsidiary bodies. Article 45 Depositary The Government of ______shall be the depositary of this Convention and any amendments or revisions thereto. The depositary shall transmit certified copies of this Convention to all signatory States and shall register this Convention with the Secretary-General of the United Nations pursuant to article 102 of the Charter of the United Nations.

IN WITNESS WHEREOF, the undersigned Plenipotentiaries, being duly authorized thereto, have signed this Convention. OPENED FOR SIGNATURE at ... , this ... day of … , two thousand, in a single original.

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ANNEX I. PARTICIPATION BY TERRITORIES 1. The territories to which the provisions of article 1, paragraph (d), and this Annex apply are: French Polynesia New Caledonia 2. When a territory listed in paragraph 1 is authorized by the Contracting Party having the responsibility for its international affairs to sign, ratify or accede to this Convention, such Contracting Party shall deposit a declaration specifying the matters governed by this Convention in respect of which it has transferred competence to the territory. 3. The instrument of ratification or accession of a territory listed in paragraph 1 shall contain a declaration specifying the matters governed by this Convention in respect of which competence has been transferred to the territory by the Contracting Party having the responsibility for its international affairs. 4. The territory and the Contracting Party having the responsibility for its international affairs shall promptly notify the depositary of this Convention of any changes to the distribution of competence, including new transfers of competence specified in the declarations under paragraphs 2 and 3. 5. Any Contracting Party may request a territory listed in paragraph 1 which has ratified or acceded to this Convention and the Contracting Party having the responsibility for the international affairs of such territory to provide information as to which, as between the territory and the Contracting Party having the responsibility for its international affairs, has competence in respect of any specific question which has arisen. The territory and the Contracting Party having the responsibility for its international affairs shall provide this information within a reasonable time. 6. Declarations, notifications and communications of information under this Annex shall specify the nature and extent of the competence transferred.

ANNEX II. REVIEW PANEL 1. In accordance with article 20, paragraph 6, an application for review of a decision of the Commission shall be submitted within 30 days of the adoption of the decision by written notification to the Executive Director. Such notification shall be accompanied by a statement of the grounds upon which the review is sought. The Executive Director shall circulate copies of the notification and the accompanying statement to all members of the Commission. 2. The review panel shall be constituted as follows: (a) The review panel shall consist of three members appointed in accordance with this Annex from the list of experts in the field of fisheries drawn up and maintained by the Food and Agriculture Organization of the United Nations pursuant to Annex VIII, article 2, of the 1982 Convention or a similar list maintained by the Executive Director; (b) The member of the Commission submitting the application for review (“the applicant”) shall appoint one member, who may or may not be its national. The appointment shall be included in the written notification referred to in paragraph 1; (c) Where more than one member of the Commission is seeking review of the same decision, such members shall, within 20 days of receipt of the first notification submitted, appoint one member of the panel jointly by agreement, irrespective of the grounds upon which review is sought by each applicant. If the members concerned are unable to reach agreement on the appointment, the appointment shall be made in accordance with subparagraph (f), at the request of any such member; (d) The chairman of the Commission shall, within 20 days of receipt of the notification referred to in paragraph 1 of this Annex, appoint one member; (e) The other member shall be appointed by agreement between the member or members of the Commission seeking the review and the chairman of the Commission. They shall appoint the President of the review panel from among those three members. If, within 20 days of receipt of the notification referred to in paragraph 1 of this Annex, the member or members seeking the review and the chairman of the Commission are unable to reach agreement on the appointment of one or more members of the panel to be appointed by agreement, or on the appointment of the President of the review panel, the remaining appointment or

62 Annex 5 appointments shall be made in accordance with subparagraph (f), at the request of any party. Such request shall be made within 10 days of the expiration of the aforementioned 20 day period; (f) Unless the parties agree that any appointment under subparagraphs (c), (d) and (e) of this paragraph be made by a person or a third State chosen by the parties, the President of the International Tribunal for the Law of the Sea shall make the necessary appointments. (g) Any vacancy shall be filled in the manner described for the initial appointment. 3. A hearing shall be convened at a place and on a date to be determined by the panel within 30 days following the constitution of the review panel. 4. The review panel shall determine its own procedures, providing for the expeditious conduct of the hearing and assuring to the applicant or applicants full opportunity to be heard and to present its or their case. 5. The Executive Director shall act on behalf of the Commission and shall provide the review panel with sufficient information to enable it to understand the basis upon which the decision was made. 6. Any member of the Commission may submit a memorandum to the review panel concerning the matter under review and the panel shall allow any such member full opportunity to be heard. 7. Unless the review panel decides otherwise because of the particular circumstances of the case, the expenses of the review panel, including the remuneration of its members, shall be borne as follows: (a) 70 per cent shall be borne by the applicant or, if there is more than one applicant, divided equally among the applicants; and (b) 30 per cent shall be borne by the Commission from its annual budget. 8. Any decision of the review panel shall be taken by a majority of its members. 9. If the applicant or, where there is more than one applicant, any one of them, does not appear before the review panel, the panel may continue the proceedings and make its findings and recommendations. Absence of an applicant shall not constitute a bar to the review proceedings. 10. The findings and recommendations of the review panel shall be confined to the subject matter of the application and state the reasons on which it is based. It shall contain the names of the members who have participated and the date of the finding. Any member of the panel may attach a separate or dissenting opinion to the finding. The review panel shall not, however, substitute its decision for that of the Commission. The panel shall communicate its findings and recommendations, including its reasons, to the applicant or applicants and the Executive Director within 30 days of the end of the hearing. The Executive Director shall circulate copies of the review panel’s findings and recommendations and reasons therefor to all members of the Commission.

ANNEX III. TERMS AND CONDITIONS FOR FISHING Article 1 Introductory The operator of every fishing vessel authorized to be used for fishing in the Convention Area shall comply with the following terms and conditions at all times when the vessel is in the Convention Area. Such terms and conditions shall apply in addition to any terms and conditions which may apply to the vessel in areas under the national jurisdiction of a member of the Commission by reason of a licence issued by such member or pursuant to a bilateral or multilateral fisheries agreement. For the purposes of this Annex, “operator” means any person who is in charge of, directs or controls a fishing vessel, including the owner, master or charterer. Article 2 Compliance with national laws The operator of the vessel shall comply with the applicable national laws of each coastal State Party to this Convention in whose jurisdiction it enters and shall be responsible for the compliance by the vessel and its crew with such laws and the vessel shall be operated in accordance with such laws.

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Article 3 Obligations of the operator in respect of observers 1. The operator and each member of the crew shall allow and assist any person identified as an observer under the regional observer programme to: (a) embark at a place and time agreed to; (b) have full access to and use of all facilities and equipment on board which the observer may determine is necessary to carry out his or her duties, including full access to the bridge, fish on board, and areas which may be used to hold, process, weigh and store fish, and full access to the vessel’s records including its logs and documentation for the purpose of records inspection and copying, reasonable access to navigational equipment, charts and radios, and reasonable access to other information relating to fishing; (c) remove samples; (d) disembark at an agreed place and time; and (e) carry out all duties safely. 2. The operator or any crew member shall not assault, obstruct, resist, delay, refuse boarding to, intimidate or interfere with observers in the performance of their duties. 3. The operator shall provide the observer, while on board the vessel, at no expense to the observer or the observer’s government, with food, accommodation and medical facilities of a reasonable standard equivalent to those normally available to an officer on board the vessel. Article 4 Regulation of transhipment 1. The operator shall comply with any procedures established by the Commission to verify the quantity and species transhipped, and any additional procedures and measures established by the Commission with respect to transhipment in the Convention Area. 2. The operator shall allow and assist any person authorized by the Commission or by the member of the Commission in whose designated port or area a transhipment takes place to have full access to and use of facilities and equipment which such authorized person may determine is necessary to carry out his or her duties, including full access to the bridge, fish on board and areas which may be used to hold, process, weigh and store fish, and full access to the vessel’s records, including its log and documentation for the purpose of inspection and photocopying. The operator shall also allow and assist any such authorized person to remove samples and gather any other information required to fully monitor the activity. The operator or any member of the crew shall not assault, obstruct, resist, delay, refuse boarding to, intimidate or interfere with any such authorized person in the performance of such person’s duties. Every effort should be made to ensure that any disruption to fishing operations is minimized during inspections of transhipments. Article 5 Reporting The operator shall record and report vessel position, catch of target and non-target species, fishing effort and other relevant fisheries data in accordance with the standards for collection of such data set out in Annex I of the Agreement. Article 6 Enforcement 1. The authorization issued by the flag State of the vessel and, if applicable, any licence issued by a coastal State Party to this Convention, or a duly certified copy, facsimile or telex confirmation thereof, shall be carried on board the vessel at all times and produced at the request of an authorized enforcement official of any member of the Commission. 2. The master and each member of the crew of the vessel shall immediately comply with every instruction and direction given by an authorized and identified officer of a member of the Commission, including to stop, to move to a safe location, and to facilitate safe boarding and inspection of the vessel, its licence, gear, equipment, records, facilities, fish and fish products. Such boarding and inspection shall be conducted as much as possible in a manner so as not to interfere unduly with the lawful operation of the vessel. The operator and each member of the crew shall facilitate and assist in any action by an authorized officer and shall not assault, obstruct, resist, delay, refuse boarding to, intimidate or interfere with an authorized officer in the performance of his or her duties.

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3. The vessel shall be marked and identified in accordance with the FAO Standard Specifications for the Marking and Identification of Fishing Vessels or such alternative standard as may be adopted by the Commission. At all times when the vessel is in the Convention Area, all parts of such markings shall be clear, distinct and uncovered. 4. The operator shall ensure the continuous monitoring of the international distress and calling frequency 2182 khz (HF) or the international safety and calling frequency 156.8 Mhz (channel 16, VHF-FM) to facilitate communication with the fisheries management, surveillance and enforcement authorities of the members of the Commission. 5. The operator shall ensure that a recent and up to date copy of the International Code of Signals (INTERCO) is on board and accessible at all times. 6. At all times when the vessel is navigating through an area under the national jurisdiction of a member of the Commission in which it does not have a licence to fish, and at all times when the vessel is navigating on the high seas in the Convention Area and has not been authorized by its flag State to fish on the high seas, all fishing equipment on board the vessel shall be stowed or secured in such a manner that it is not readily available to be used for fishing.

ANNEX IV. INFORMATION REQUIREMENTS The following information shall be provided to the Commission in respect of each fishing vessel entered in the record required to be maintained under article 24, paragraph 4, of this Convention: 1. Name of fishing vessel, registration number, previous names (if known), and port of registry; 2. Name and address of owner or owners; 3. Name and nationality of master; 4. Previous flag (if any); 5. International Radio Call Sign; 6. Vessel communication types and numbers (INMARSAT A, B and C numbers and satellite telephone number); 7. Colour photograph of vessel; 8. Where and when built; 9. Type of vessel; 10. Normal crew complement; 11. Type of fishing method or methods; 12. Length; 13. Moulded depth; 14. Beam; 15. Gross register tonnage; 16. Power of main engine or engines; 17. The nature of the authorization to fish granted by the flag State; 18. Carrying capacity, including freezer type, capacity and number and fish hold capacity.

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MHLC/WP.3/Rev.2 19 April 2000

DRAFT RESOLUTION ESTABLISHING A PREPARATORY CONFERENCE FOR THE CONVENTION ON THE CONSERVATION AND MANAGEMENT OF HIGHLY MIGRATORY FISH STOCKS IN THE WESTERN AND CENTRAL PACIFIC OCEAN

Prepared by the Chairman

The Multilateral High-Level Conference on the Conservation and Management of the Highly Migratory Fish Stocks in the Western and Central Pacific Having adopted the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean which provides for the establishment of the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, Having agreed on the desirability of early entry into force of the Convention, Having decided to make the necessary arrangements for the commencement of the functions of the Commission without undue delay and to take all possible measures to ensure its effective operation, Having decided to establish a Preparatory Conference for the fulfillment of these purposes, Recalling its resolution of 15 September 1999, in which participants decided, inter alia, that requests for participation in the Conference would not be entertained until the Convention enters into force, Decides as follows:

1. The participants in the Multilateral High-Level Conference on the Conservation and Management of the Highly Migratory Fish Stocks in the Western and Central Pacific (“the Conference”) shall be eligible to participate in the Preparatory Conference. The representatives of States and entities which participated as observers in the Conference may participate in the deliberations of the Preparatory Conference as observers but will not be entitled to participate in the taking of decisions.

2. The Preparatory Conference will be convened by the depositary of the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean and the first session of the Conference shall take place no sooner than 180 days and no later than 240 days after the Convention is opened for signature.

3. The Preparatory Conference will elect its Chairman and other officers.

4. The Preparatory Conference will adopt its Rules of Procedure.

5. The Preparatory Conference may appoint an interim Executive Director who may appoint such other scientific, technical and administrative staff as may be required to serve as the Secretariat to the Preparatory Conference. The functions of the interim Executive Director will include the following: (a) facilitating the compilation and dissemination of data necessary to fulfil the purposes of this resolution; (b) preparing administrative and other reports for the Preparatory Conference; (c) treasury, personnel and other administrative functions.

6. The Secretariat of the Preparatory Conference will be located in …

7. The Preparatory Conference will: (a) prepare the provisional agenda for the first meeting of the Commission and, as appropriate, make recommendations relating to items thereon; (b) prepare draft rules of procedure of the Commission;

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(c) make recommendations concerning the budget for the first financial period of the Commission, including recommendations for a scheme for contributions to the budget in accordance with article 18, paragraph 2, of the Convention; (d) make recommendations concerning the Secretariat of the Commission in accordance with the relevant provisions of the Convention; (e) make recommendations concerning the establishment of the headquarters of the Commission; (f) make recommendations concerning the relationship between the Commission and existing regional institutions concerned with conservation and management of highly migratory fish stocks; (g) prepare draft rules, regulations and procedures, as necessary, to enable the Commission to commence its functions, including draft regulations concerning the financial management and internal administration of the Commission; (h) formulate recommendations for consideration by the Commission concerning: (i) the implementation of articles 11, 12, 13 and 14 of the Convention; (ii) the collection of data and information in accordance with article 23, paragraph 2 (a) and (b), of the Convention; (iii) the establishment of a record of fishing vessels in accordance with article 24, paragraph 7, of the Convention; (iv) the implementation of article 24, paragraphs 8, 9 and 10, of the Convention; (v) the implementation of article 30, paragraph 3, of the Convention; (i) carry out such other functions as the Conference may decide.

8. The Preparatory Conference will meet as often as necessary for the expeditious exercise of its functions. It will remain in existence until the conclusion of the first meeting of the Commission, at which time its property and records shall be transferred to the Commission.

9. The Preparatory Conference will prepare a final report on all matters within its mandate for presentation to the Commission at its first session.

10. Pending the entry into force of the Convention and the establishment of the Scientific Committee pursuant to article 11 of the Convention, the Preparatory Conference may obtain scientific advice from the Standing Committee on Tuna and Billfish. To the extent practicable, the Standing Committee should function for this purpose in accordance with articles 11 and 12 of the Convention.

11. The Preparatory Conference may make use, as appropriate, of existing regional institutions and outside sources of expertise to facilitate its work.

12. The Preparatory Conference will seek provisional scientific advice on the status of skipjack, yellowfin and bigeye tuna stocks and the South Pacific albacore stock and may, if it considers necessary, recommend such conservation and management measures, including provisional harvest level, as may be necessary pending the entry into force of the Convention to ensure the long-term sustainability of stocks within the Convention Area.

13. The costs of the Preparatory Conference, including Secretariat costs, will be met by the participants through voluntary contributions in such manner as may be agreed, taking into account, where appropriate, the need to obtain national appropriations as well as the need to minimize the costs to all participants.

14. The Commission and its subsidiary bodies will recognize and honour the rights and obligations arising from this resolution and the decisions of the Preparatory Conference taken pursuant to it. Nothing in this resolution restricts the Commission in the exercise of its functions under article 10 of the Convention.

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CLOSING STATEMENT BY THE CHAIRMAN, AMBASSADOR SATYA N. NANDAN, TO THE SIXTH SESSION OF THE MULTILATERAL HIGH-LEVEL CONFERENCE

19 April 2000

Distinguished delegates,

We have come through a very intensive session of this Conference in which we have expended considerable effort in finding solutions to all outstanding issues. I would like to thank you for your dedication and willingness to work long hours and especially for the spirit of give and take which characterized this particular session.

We had come here with a view to concluding our negotiations on the key substantive issues. I believe we have indeed met our goal. Most of the key issues have been discussed and negotiated and it would not be constructive to re-open them except to the extent that further technical refinements are possible. This, however, does not foreclose further discussion of substantive issues.

Quite clearly, in any such negotiation, no one can claim, nor should one expect to claim, one hundred percent success in all that they wanted. The essence of evaluating a satisfactory outcome lies in the assessment of the package as a whole. It must be recognized that everyone has interests to protect or promote and that, overall, the outcome is fair to all and the best that could be achieved. I hope that when you go back, you will look at the overall achievement of this session and agree that the Convention will provide a sound framework for cooperation in the interest of long-term sustainable use of the resources of the western and central Pacific.

In reviewing some of the specific issues I would like to make the following observations.

Area of application

We again discussed the matter of the Convention Area and this appears now to be relatively settled. It is important to clarify in this regard that the Convention applies to the waters of the Pacific Ocean. In particular, on the western side the Convention Area is not intended to include waters in South-East Asia which are not part of the Pacific Ocean; nor is it intended to include the waters of the South China Sea as this would involve States which are not participants in this Conference. With respect to the eastern boundary, a proposal was made by Canada to extend the competence of the Commission over albacore tuna. The Conference was informed that this proposal is to be the subject-matter of further consultations between Canada, the United States and IATTC.

Scientific advice

The Conference reviewed once again articles 12 and 13 of the Convention relating to the provision of scientific advice and made certain adjustments to the text in order to reflect more accurately the respective functions of the Commission, the Scientific Committee and the scientific experts. The text of these articles has been improved and streamlined and, with these revisions, this difficult matter has now been resolved.

Decision-making

Decision-making is always a very delicate and difficult issue which requires adequate protection for all members as well as a system which ensures that decisions can be taken in an efficient and responsible manner. There are various approaches to the decision-making process and in the case of this Convention it is provided that on a number of key substantive matters decisions should be taken by consensus. The normal rule for adoption of substantive matters in most fora is by a two-thirds majority. However, in this case, the bar has been raised to require a four-fifths majority for decisions on substantive matters in addition to those which are subject to consensus.

This is a very high threshold which can only be achieved if there is broad agreement. I believe the requirement for a four-fifths majority would have the effect in practice of promoting consensus on all matters. This should be more than sufficient assurance to all sides.

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To add other procedures on top of this would in effect negate the whole purpose of ensuring that all States work together with a view to ensure better conservation and management of the valuable resources of the Pacific for their long-term and sustainable use. The participants in the Conference have come together in good faith and I have no doubt that in the future they will continue to work together in the same spirit. In spite of the different roles of coastal States and distant water fishing nations, they nevertheless have a common interest in proper conservation and use of the resources for their mutual benefit.

Financial arrangements

At the beginning of this session, the Conference established an informal group under the chairmanship of Mr Grant Bryden (New Zealand) to consider issues relating to financial and budgetary matters. The group carried out its work on the basis of an information paper prepared by the representative of FAO, Dr David Doulman. I wish to express the gratitude of the Conference to Mr Bryden and Dr Doulman for their assistance in this regard as well as all those who contributed to the work of the group. The informal group was able to make a great deal of progress and reached a good understanding of the way in which the budget of the Commission might be funded in the future. As a result, certain revisions were made to article 18 of the Convention to reflect the outcome of the discussions in the informal group. The notes of the chairman of the informal group are attached to this statement.

Observer programme

Several constructive proposals were made to improve the text of article 28 relating to the regional observer programme. The Conference established another informal group to work on this matter under the chairmanship of Mr Feleti Teo (Tuvalu). The group was able to reach agreement on the key issues involved and the outcome of its work has been incorporated into the revised text of the Convention. I am grateful to the chairman of the informal group for his constructive leadership on this matter and to all those who participated in the work of the group.

Transhipment

Several delegations raised issues relating to transhipment as reflected in article 29 of the Convention. Following discussions in informal meetings, it was possible to revise the text to the satisfaction of most delegations. The most difficult issue was the question of the prohibition of transhipment at sea by purse-seiners in paragraph 4 of article 29, where some delegations felt that it should be possible to provide exemptions for certain types of vessels. As a result of the discussions, I revised the text so as to allow for “any specific exemptions which the Commission may allow”.

Compliance and enforcement (including vessel monitoring system)

By working in informal groups, the Conference was able to improve the text of articles 23, 24 and 25 of the Convention. A number of technical adjustments have been made to the text in order to further clarify the provisions and remove certain inconsistencies. The most difficult issue was the matter of the high seas vessel monitoring system under article 24, paragraph 8, where a number of delegations had specific concerns. As a result of the discussions, further adjustments were made in order to take into account the situation of certain traditional fishing vessels from developing States and to require the Commission to adopt appropriate measures to protect the confidentiality of information received from the vessel monitoring system.

The more difficult aspect of this problem, however, was that of the procedures for transmission of information from the vessel monitoring system to the flag State and to the Commission. Following much discussion, an attempt was made by the chairman to provide a compromise, which apparently was not acceptable as a basis to move forward. After further consideration of the issue, towards the end of the session, a revision was requested to provide that transmission should be simultaneous, and the present text reflects this.

In addition to the above, a further change was made to article 25, paragraph 12, to clarify that non- discriminatory trade measures may be taken by the Commission “when necessary” and in accordance with existing international obligations.

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Boarding and inspection

The issue of boarding and inspection was revisited in light of concerns raised by a number of delegations. Improvements were made to paragraphs 1 and 3 of article 26 in order to clarify the nature and application of the procedures that the Commission will need to adopt in due course. While some delegations remained concerned about the application of articles 21 and 22 of the 1995 Agreement, it was felt that the better approach would be to allow the Commission to adopt such additional procedures of a practical nature as it may decide are necessary for the implementation of those articles. This should go a long way towards meeting the concerns raised.

Final clauses and entry into force

Different views were expressed in the fifth session as to how the Convention should be brought into force. We revisited this matter during the early part of the present session and after much discussion it was possible to reach a compromise solution whereby the Convention would require ratification by a representative group of States in order to enter into force. However, it was also felt that entry into force should not be inordinately delayed and provision has therefore been made for the Convention to enter into force upon ratification by a majority of participants should there be a lengthy delay. The outcome of the discussions on this matter are reflected in article 36.

On the question of participation, certain technical issues remain to be resolved concerning the possible participation of the French territories in the region. Those concerned with the issue have indicated that they will continue to consult inter-sessionally with a view to finding a satisfactory solution. I hope that they will report to me as soon as possible on the outcome of such consultations, if possible prior to the beginning of the next session.

At the beginning of this session, the Conference received a request, through the Chairman, from the Government of the to allow full participation in the Conference by the United Kingdom in respect of Pitcairn Island. In this respect, it was noted that an invitation to the Government of the United Kingdom had not arrived in time. The Conference granted the request on the basis that Pitcairn is a territory situated within the Convention Area and I note that the United Kingdom, in respect of Pitcairn, Henderson, Ducie and Oeno Islands, will therefore be eligible to become an original signatory of the Convention.

There is one particularly difficult issue remaining on which, I must confess, it was not possible to make progress. That relates to the relationship of fishing entities to the Convention regime. As you know this is a sensitive political issue for the two parties concerned, but it is equally important for all other participants because they want to ensure that in any conservation and management regime all major actors are involved and comply with the regime that is being established. The situation, therefore, is a very awkward one as it involves two very friendly parties whom all of us respect and whose integrity we wish to uphold. However, if we were to follow the demands of each side on this issue, the solution would be unsatisfactory for all others. Most other participants in this Conference would like to see an outcome which creates legal obligations on fishing entities and enables substantive participation. The difficulty is how to find a formula which creates a legally binding relationship without prejudging the legal and political status of such entities.

I hope that both parties would recognize that their respective positions are not satisfactory to the rest of the Conference and that they will reconsider their positions in the light of the special circumstances prevailing with respect to the subtantial fishing activities in this region and the views of other States that a satisfactory outcome of this Conference in the interests of conservation and management of the resources would be compromised if we cannot find a solution to this problem. I urge all concerned to give further thought to this matter so that we can proceed to adopt the Convention with their help at the next session.

Preparatory Conference

As anticipated at the previous sessions, we had a very useful deliberation on the arrangements to prepare for entry into force of the Convention. We were able to consider this on the basis of a draft resolution which I presented to you. Following our discussion, that draft was revised and further considered and I am very pleased to see that there is agreement on the text of the resolution which provides for the preparation of most of the practical and administrative arrangements for the future Commission so that the Commission will have before it the necessary

70 Annex 7 recommendations to consider and adopt so that it can begin its work without delay. The participants in the Preparatory Conference would be the participants in this Conference. The resolution anticipates that the Preparatory Conference would begin its work within a reasonable time after the adoption of the Convention. The revised text of the resolution has been circulated as MHLC/WP.3/Rev.2.

We also addressed the question of the funding of the work of the Preparatory Conference and it is clear that the administrative costs will rely heavily on voluntary funding. I hope that all participants and others who support sustainable use of resources would make financial contributions to enable the Conference to work effectively. This work is not only necessary to assist the future Commission but also to ensure that the cooperation and collaboration that has already been established through this Conference continues during the interim period before entry into force of the Convention with the goodwill and participation of all.

Future work programme

The final session of the Conference will take place in Fiji from 30 August to 5 September 2000. It will take the form of a three-day meeting of officials to finalize the Convention text and the resolution establishing the Preparatory Conference, as well as the Final Act of the Conference and related institutional and administrative issues for the continuation of the process. This will be followed by a two-day ministerial level meeting during which the Convention will be opened for signature.

During the first three days we will have to formally adopt the text of the Convention and the Final Act. For this purpose, it is my intention to work on the basis of standard procedures for multilateral conferences, the most appropriate example of which is to be found in the rules of procedure of the UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks (A/CONF.164/6). Those rules will be applied, mutatis mutandis, to our Conference. Let me assure you that I will make every effort to have the Convention and related instruments adopted by consensus and I count on your cooperation in this regard. That would be our ideal goal.

For those who are not familiar with the procedures, let me explain that the Final Act is a simple factual record of the proceedings of the Conference. It does not contain substantive issues but rather indicates when the Conference began, how many times it met and who were the participants, as well as recording various procedural developments. The resolution establishing the Preparatory Conference would be annexed to the Final Act and adopted at the same time. The Final Act would also be signed by participants to authenticate the proceedings.

Distinguished delegates,

We have come to the end of our session. It remains for me to thank our hosts most warmly and sincerely for spoiling us with their hospitality, not to speak of the excellence of the facilities which have been provided at this and previous sessions.

Finally, I would like to thank the Director of the Forum Fisheries Agency and his staff for their assistance and to express my sincere gratitude to my collaborators and conference secretariat, Dr David Doulman and Blaise Kuemlangan from FAO, and Michael Lodge.

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Annex

INFORMAL GROUP ON BUDGET AND RELATED MATTERS

Notes by the chairman of the informal group

All participants in the Working Group participated on the understanding that the discussions in the group would neither preempt nor prejudices the rights of participants to speak on any matter in plenary.

Basic Components of budget

Secretariat Expenses Basic Scientific services

Observer Programme on the High Seas VMS Operation Vessel Registration Additional Scientific Services

SIDs Fund for participation Special Purpose Donor Funds

Budget structure and sources of funding

The core budget of the Commission, which would be funded by assessed contributions would cover the administration costs and costs of the Commission’s scientific services and processes.

Activities such as observer programme, registry services (vessel register), VMS, and additional scientific services would not be recovered as part of the assessed contributions. One option for funding such services would be to recover the costs directly from those members whose vessels use the services (or create the need for the provision of the service). Some members, however, felt that activities such as observers should be recovered as part of assessed contributions.

Considerable discussion surrounded options to fund SIDs participation. One option raised was to include this funding as part of assessed contribution.

Assessed Contributions

Funding to cover the core budget (administration and scientific services) should be based on following principles: · an equal basic fee which should be kept as low as possible. · a wealth payment which would reflect the development status of the member and the ability to pay · a variable fee based upon catch from the convention area (excluding archipelagic waters for the purpose of budget issues) with a weighting factor to be applied to the catch taken by developing States by their own flag vessels in their own EEZ. Consideration as to the value of the catch may also be appropriate.

Funding Scenario

One scenario considered to assist discussion was based upon a core budget of approx. US$2.2 million and the following funding companents: · 5% of core budget as a Equal Basic fee (5% is one option) · 20% of budget as a wealth payment · 75% of budget as a variable production based fee.

The percentage values used are arbitrary figures used simply for the basis of illustration.

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The scenario considered by the working group used total catch in the western and central Pacific and due to lack of data that differentiated EEZ catch from catch in archipelagic waters it was not possible to exclude catch in archipelagic waters (this together with the weighting likely to be applied to catch taken in a developing State member’s own EEZ will greatly reduce the contributions of such members). For this reason the table has not attached to this record as it may misrepresent the likely contributions of members.

Delegations should not use the budget figures distributed in the Working Group as a definitive indication of their likely contributions. Improved data sets to calculate the catch subject to assessment in the variable fee and the application of a weighting figure for the EEZ catch of developing State members will greatly influence the contributions of members. In addition, the group considered the necessity of attributing different values to catches of different species.

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