Contact:

MHLC Secretariat C/o Forum Fisheries Agency P.O Box 629 Honiara Tel: (677) 21124 Fax: (677) 23995 Email: [email protected] Annex 8

? MHLC/WP.1/Rev.2 (19 February 1999) Draft Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific, Prepared by the Chairman.

? MHLC/WP.2 (20 July 1999) Draft Preamble and Final Clauses for a Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific, Prepared by the Chairman.

? MHLC/WP.1/Rev.3 (9 September 1999) Draft Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific, Prepared by the Chairman.

? MHLC/WP.1/Rev.4 (16 September 1999) Revised Draft Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific, Prepared by the Chairman.

? Resolution of 19 February 1999, relating to the exercise of restraint in the expansion of fishing effort.

? Resolution of 15 September 1999, relating to future participation in the Conference.

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II. PARTICIPATION IN THE CONFERENCE

4. Participation in the first session of the Conference was by invitation of the South Pacific Forum Fisheries Agency, as convenor of the Conference. Subsequently, other States and entities with an interest in the highly migratory fish stocks in the region have been invited to participate in the Conference, either as full participants, or as observers.

States and entities that participated at sessions of the Conference

Australia, Canada,2 China, , Federated States of Micronesia, , , French , , , , , , , , , , New Guinea, Philippines, Republic of Korea, , Solomon Islands, Chinese Taipei, , , of America, , and Futuna.

Observers that participated at sessions of the Conference

States and entities

Canada (second and third sessions) European Commission (fourth and fifth sessions) Mexico (fifth session) of Great Britain and Northern Ireland, on behalf of Pitcairn Island (fifth session)

Intergovernmental organizations and South Pacific regional organizations

Asian Development Bank Commission for the Conservation of Antarctic Marine Living Resources Food and Agriculture Organization of the United Nations Forum Secretariat Inter-American Tropical Tuna Commission Pacific Community South Pacific Applied Geoscience Commission South Pacific Forum Fisheries Agency South Pacific Regional Environment Programme University of the South Pacific Western Pacific Fisheries Consultative Committee.

III. MAIN DOCUMENTS OF THE CONFERENCE

5. The following is a list of the main documents and resolutions issued during the Conference. In addition to these documents, official accounts of the work of the Conference may be found in the statements of the Chairman issued at the end of each session and published in the reports of the Conference. Additional information on the issues considered by the Conference may be found in the information notes issued by the Chairman prior to each session.

? Majuro Declaration of 13 June 1997

? MHLC/WP.1 (22 June 1998) Draft Articles for a Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific, Prepared by the Chairman.

? MHLC/WP.1/Rev.1 (26 June 1998) Revised Draft Articles for a Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific, Prepared by the Chairman.

2 Admitted as a participant at the fourth session.

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

INTRODUCTION

1. Following the entry into force, on 16 November 1994, of the 1982 United Nations Convention on the Law of the Sea, the South Pacific Forum Fisheries Agency, in December 1994, convened a multilateral high-level conference on South Pacific tuna fisheries. The broad objective of the conference was to promote the full implementation of responsible fishing operations for fishing vessels operating in the South Pacific region, particularly in the light of the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks and the FAO Code of Conduct for Responsible Fisheries. Subsequently, following the adoption, in 1995, of the United Nations 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, a second multilateral conference was convened in June 1997 in order to consider issues relating to the establishment of a regional mechanism for the conservation and management of highly migratory fish stocks.

I. SESSIONS

2. In accordance with those decisions and subsequently, in accordance with decisions of the Conference, the sessions of the Multilateral High-Level Conference on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific were held as follows:

? First session held at Honiara, Solomon Islands, 1 to 5 December 1994;

? Second session held at Majuro, Marshall Islands, 10 to 13 June 1997;

? Third session held at Tokyo, Japan, 22 to 26 June 1998;

? Fourth session held at Honolulu, , 10 to 19 February 1999;

? Fifth session held at Honolulu, Hawaii, 6 to 15 September 1999.

3. In addition, the Conference mandated a number of technical consultations for the consideration of specific technical issues relevant to the work of the Conference. Such technical consultations were held as follows:

? Technical consultation on the collection and exchange of fisheries data, tuna research and stock assessment, held at Noumea, New Caledonia, 15 to 19 July 1996;

? Technical consultation on fishing vessel monitoring systems, held at Suva, Fiji, 13 to 15 November 1996;

? Intersessional technical consultation on issues relating to fisheries management held at Honiara, Solomon Islands, 1 to 5 December 1997;

? Intersessional technical consultation on issues relating to monitoring control and surveillance held at Suva, Fiji, 10 to 13 March 1998.

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

FIFTH SESSION

Honolulu, Hawai’i 6 – 15 September 1999

RESOLUTION

The participants in the fifth session of the Multilateral High-Level Conference on the Conservation and Management of the Highly Migratory Fish Stocks in the Western and Central Pacific (“MHLC”), meeting at Honolulu, from 6 to 15 September 1999,

Recalling the resolution adopted by MHLC on 19 February 1999, in which the participants in the fourth session of MHLC, inter alia, urged all States and other entities concerned to exercise reasonable restraint in respect of any total expansion of fishing efforts and capacity and to apply the precautionary approach forthwith,

Noting the advanced stage of negotiations at MHLC towards a Convention for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific,

1. Decide that the number of participants in MHLC should not be increased;

2. Decide further that requests for participation in MHLC will not be entertained until the draft Convention enters into force;

3. Agree to consider applications for observer status as appropriate;

4. Agree further that in future members of the proposed Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific (“the Commission”) will refrain from consideration of catch history of non-members in the proposed Convention Area during the period of the interim regime in any future decisions by the Commission on allocation.

Honolulu, Hawai’i 15 September 1999

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66 Annex 6

Should it become necessary, we can, of course, review our timetable at the end of the next session.

Distinguished delegates,

It remains for me now to thank you for your cooperation and for the workmanlike manner in which you approached our deliberations. I am sorry if you felt that I drove you too hard at times, but I think we can also feel satisfied that we have achievements to show for our hard work. I hope you will come to the next session in the same spirit so that we can move further towards the completion of this most important contribution to our region and our people.

Let me on behalf of you all thank the host government for once again providing us with these wonderful facilities, which have been very conducive to our work and which has helped us make progress. I would like to thank the Western Pacific Regional Fishery Management Council and, in particular, the dynamic and ebullient Kitty Simmonds and her wonderful colleagues who ensured that the facilities available to the meeting have been more than adequate and who hosted us in most generous ways. I thank those who have performed the traditional ceremonies, both at the beginning of our session and as we conclude our session and leave for our faraway lands.

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Following the discussions we have had, I gave further thought to this matter and have tried to respond to some of the concerns by further developing the provisions of article 35 so that once the Convention enters into force, either in the initial two years, or thereafter, all those who participated in this Conference would 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. This should remove some of the difficulties that may have been created by the previous text. I hope you will study this new proposal in a positive manner as it is designed to keep everyone together and at the same time to encourage prompt ratification or acceptance.

Distinguished delegates,

While we have made substantial progress, a number of issues remain for further discussion. These include:

· Decision-making · Position of fishing entities · Participation by territories · Financial arrangements · Entry into force

I would urge all delegations to give careful consideration to these issues before our next session.

At our next session, we should address the outstanding issues in the draft text and begin to turn our attention to the interim regime pending entry into force of the Convention. Amongst the issues which might be discussed in this context are the following:

· Data collection consistent with annex 1 of the Agreement · A moratorium on total fishing effort (providing it does not limit the development of national capacity by developing coastal States in the region) · Preparatory functions of the Commission Vessel register Standards and specifications for vessel marking Vessel monitoring system Observer programme Scientific advice · Institutional arrangements Rules of procedure Meetings of the parties Initial budget Structure of the Secretariat Relationship to existing bodies

Distinguished delegates,

It is important that we leave MHLC5 with a clear understanding of our future work programme and objectives for 2000. While a number of difficult issues remain to be addressed, it is my hope that the Conference would be in a position to adopt the draft Convention at the end of the next session, which is likely to be in February 2000.

The final session of MHLC should take place in June 2000, consistent with the commitment we made at Majuro in 1997. The final session should take the form of a three day meeting of officials to finalise a resolution establishing an interim regime, as well 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.

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Vessel monitoring system

There had been considerable misunderstanding of this issue during previous sessions and it was important for the Conference to have a full discussion of the issue during this session. I believe our discussions were very useful and helped us to achieve a better understanding of the problems. It appears that there is general agreement on the need for vessel monitoring systems, but differing views on how such systems should be operated, both on the high seas and in areas under national jurisdiction. While some delegations favoured an annex to the Convention, setting out detailed rules for the operation of a vessel monitoring system, I did not feel comfortable, in the light of the discussion, with the level of detail that had been proposed.

The draft 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, best left to the Commission to develop in due time.

Transhipment

We examined in detail the issue of transhipment (article 29 and Annex II, article 4), which had been considered at our fourth session. With some streamlining of the text, I believe this issue has now been resolved to the satisfaction of all delegations.

The needs of small island developing States

We had a very thorough discussion of the way in which the draft text as a whole deals with the issue of the needs of developing States, particularly small island developing States, territories and possessions. It is apparent that a wide range of interests are represented in this Conference; from the very largest and most powerful States, to the very smallest States. It is also apparent that the needs of developing States may be very different, depending upon their geographical location, size and state of development. There are also a number of territories in the proposed Convention Area, some of which are in a highly dynamic state of constitutional development. While it is not easy to reflect in detail the concerns of all, I hope that the revised draft text deals in a coherent manner with the different interests of all developing States, as well as the territories and possessions in the region. Adjustments have been made to the text in appropriate places in order to recognize the concerns and provide for possible measures.

Final clauses and participation by territories and fishing entities

We had a full discussion of the draft preamble and final clauses which I prepared following the fourth session. While the most sensitive issues in relation to the final clauses have not yet been resolved, I believe we had a very constructive exchange of views.

With respect to the issue of participation by territories, I believe we have made considerable progress. Those most concerned with this issue have been asked to provide certain additional information for the next session of the Conference

Entry into force

We have discussed this matter extensively and there are obviously different views as to how the draft Convention should be brought into force. The particular concern has been that the Convention for which we have all worked together should not be stalled for an inordinate length of time. While the mechanism should be such as would encourage a representative group to bring it into force, the issue of concern is what happens if, for any reason, such representation did not occur. Hence I had proposed a simplified provision to bring the Convention into force after two years. This obviously creates problems for those who may not be in a position to ratify the Convention at an early stage. Furthermore, it is recognized that it is not desirable that the Convention enter into force with only a few participants.

63 Annex 6 and recommended practices and procedures”. As such standards and procedures evolve at the international level, this will allow for greater flexibility in our treatment of the precautionary approach.

Scientific advice

We also revisited some elements of the provisions in the draft Convention dealing with the provision of scientific advice to the Commission. As a result of the discussion, I have tried to streamline the text and to remove some inconsistencies and repetitions. In the light of the discussions, however, I felt unable to depart from the basic scheme for the provision of scientific advice that had been agreed at the fourth session.

Financial arrangements

The Conference discussed the proposed financial arrangements for the Commission, including the formula for contributions by members of the Commission. Although we did not reach a conclusion on such a formula, I believe we had a useful exchange of views that will assist us in further consideration of this matter during the next session. I would invite all delegations to study this issue further before we meet again, including the means of financing the work of the Commission during its start-up phase. In particular, we need to clarify the extent to which the observer programme, vessel monitoring system and scientific services will be funded by the Commission, or whether, during the start-up phase, existing services and programmes may be utilized.

Decision-making

I had identified the issue of decision-making as one of the most difficult issues we needed to address during this session. I believe that we have made considerable progress on this issue and have 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 we have developed identifies a number of key issues upon which consensus is required, with a four-fifths majority voting procedure for other issues. In the event that a member of the Commission objects to a decision, we have provided 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. The consensus problem has also been finessed by the addition of a conciliation requirement in the event of deadlock.

I am aware that several delegations need more time to study the draft text, and that we should return to this critical issue during our next session, but I do believe that we have made substantial progress and are now 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”.

Transparency

The Conference reviewed the provision on transparency (article 21) and adjustments were made to ensure that the provision is fully consistent with the 1995 Agreement. In addition, provision has been made to allow the participation of non-parties as observers. It is clear that we shall also need to address the issue of transparency as part of the interim regime, prior to entry into force of the Convention.

Boarding and inspection

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 text has been revised to allow the Commission a period of two years after entry into force in order to develop an alternative mechanism which effectively discharges the obligations of the members of the Commission under the Agreement and the 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 Agreement shall apply as if they were part of the Convention. I believe this is a balanced approach which allows for flexibility at the regional level while remaining faithful to the provisions of the 1995 Agreement.

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

15 September 1999

Distinguished delegates,

We have come to the end of yet another session of MHLC. I hope you feel satisfied that we have done good work and have made good progress towards our goal of achieving a Convention on the conservation and management of highly migratory fish stocks in the western and central Pacific.

In any negotiation, no one goes away with an ideal result from their perspective. It is for you to evaluate whether the result that we achieved is such as would enable us to meet the objective that we set for ourselves: that is, to promote better conservation and management of the highly migratory fish resources of the region. I hope you will look at our progress in that light. Each session has brought us closer together and in the process we have better understood the preoccupations of each other. While we have negotiated hard on a number of issues, I am impressed on every occasion with the constructive atmosphere and the sense of camaraderie that prevails amongst us all. This has certainly helped all of you in making the progress that we have made and it has been of great assistance to me as well.

Distinguished delegates,

At the beginning of this session, I identified a number of key issues to be addressed during the session. During our discussions, many of you raised other issues of concern and we have been able to discuss these as well. As we revised the draft Convention, we have attempted to clean up the text and, wherever possible, harmonize the language throughout. Among the matters we considered during this session are the following.

Area of application and the northern sub-committee

We had a lengthy discussion of the northern and western boundaries of the proposed Convention Area. Following the 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 text defines the western and northern boundaries of the Convention Area by reference to the migratory range of the stocks.

Associated with the definition of the Convention Area is 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, we 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.

Precautionary approach

We had a very important and useful discussion on the treatment of the precautionary approach in the draft text. While all delegations agreed on the need to apply the precautionary approach in a manner fully consistent with the provisions of the 1995 Agreement, there were differing views as to the level of detail which needed to be reflected in the draft text. Taking all these views into consideration, I felt it was appropriate at this stage to delete the proposed annex setting out guidelines for the application of the precautionary approach and simply make a cross-reference in article 6 of the draft 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 our previous draft text. In addition, the matter is dealt with by providing in article 5 for the application of “internationally agreed standards

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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 address of operator (manager) or operators (managers) (if any); 4. Previous flag (if any); 5. International Radio Call Sign (if any); 6. Where and when built; 7. Type of vessel; 8. Type of fishing method or methods; 9. Length; 10. Moulded depth; 11. Beam; 12. Gross register tonnage; 13. Power of main engine or engines; 14. The nature of the authorization to fish granted by the flag State; 15. Freezer type, freezer capacity and number and fish hold capacity.

– – –

60 Annex 5

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, or arrange for, 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 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. 3. The vessel shall be marked and identified in accordance with the FAO Standard Specifications for the Marking and Identification of Fishing Vessels. 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), and 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 jurisdiction of a member of the Commission in which it does not have a licence to fish, 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 III. INFORMATION REQUIREMENTS The following information shall be provided in respect of each fishing vessel entered in the record required to be maintained under article 25, paragraph 5, of this Convention:

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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 to the applicant or applicants and the Executive Director within 30 days of the end of the hearing. Reasons in writing shall be communicated to the applicant and the Executive Director within 60 days of the decision. The Executive Director shall circulate copies of the review panel’s findings and recommendations and reasons therefor to all members of the Commission.

ANNEX II. 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.

Article 3 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 such reasonable standard as may be established by the Commission.

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ANNEX I. REVIEW PANEL 1. An application for review of a decision of the Commission shall be submitted within 60 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 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 member 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 Panel, the remaining appointment or 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 Executive Director shall make the necessary appointments. The members so appointed shall be of different nationalities; (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, 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.

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3. Withdrawal from this Convention by a member of the Commission 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 42 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 43 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: New Caledonia 2. In the performance of its functions, and in taking decisions, the Commission shall take into account the interests of all participants.

Article 44 Depositary The original of this Convention shall be deposited with the Government of ______, which shall be the Depositary. 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.

DONE at ... , this ... , two thousand, in a single original.

56 Annex 5

Article 37 Declarations and statements Article 36 does not preclude a State, entity 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 38 Relation to other agreements This Convention shall not alter the rights and obligations of Contracting Parties, and fishing entities referred to in article 35, paragraph 3, 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 39 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 Depositary at least 60 days before the meeting of the Commission at which it is to be considered. The Depositary 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. 3. An amendment to this Convention shall enter into force when the Depositary has received instruments of ratification, formal confirmation, acceptance or approval from all the Contracting Parties.

Article 40 Annexes 1. The annexes form an integral part of this Convention and, unless expressly provided otherwise, a reference to this Convention includes a reference to the annexes relating thereto. 2. The annexes to this Convention shall be considered amended upon the acceptance by all members of the Commission of a proposed amendment to the annex. 3. A member of the Commission approving a proposed amendment to an annex shall notify its acceptance to the Depositary, which shall promptly notify all the members of the date of receipt of each notice of acceptance. Upon receipt by the Depositary of notices of acceptance from all the members of the Commission, such amendment shall be incorporated in the appropriate annex and shall have effect from that date, or from such other date as may be specified in such amendment. The Depositary shall promptly notify all members of the Commission of the adoption of the amendment and its effective date.

Article 41 Withdrawal 1. A member of the Commission 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 member of the Commission shall not affect the financial obligations of such member incurred prior to its withdrawal becoming effective.

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PART XII FINAL PROVISIONS

Article 34 Signature, ratification, formal confirmation, acceptance, approval, accession1 1. This Convention shall be open for signature by the States and entities referred to in article 1, paragraph 2 (a), which participated in its adoption and shall remain open for signature at ... for twelve months from the ... 2000. 2. This Convention is subject to ratification, formal confirmation, acceptance or approval by the signatories. 3. After the entry into force of this Convention, the Commission may, by consensus, invite other States, entities referred to in article 1, paragraph 2 (a), 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. 4. Instruments of ratification, formal confirmation, acceptance, approval or accession shall be deposited with the Depositary.

Article 35 Entry into force 1. This Convention shall enter into force thirty days after the deposit of instruments of ratification, formal confirmation, acceptance or approval by: (a) two States situated north of the 20° parallel of north latitude; and (b) five States situated south of the 20° parallel of north latitude. 2. If, within two years of its adoption, this Convention has not been ratified by at least two of the States referred to in paragraph 1 (a), this Convention shall enter into force twelve months after the deposit of the twelfth instrument of ratification, formal confirmation, acceptance or approval or in accordance with paragraph 1, whichever is the earlier. 3. Upon the entry into force of this Convention, the signatories to this Convention for which this Convention is not yet in force shall be members of the Commission on a provisional basis pending its entry into force for such signatories. Such provisional membership shall terminate upon the entry into force of this Convention for such member or two years after the date of entry into force of this Convention, whichever is earlier. Members of the Commission on a provisional basis shall apply this Convention in accordance with their national laws and regulations and shall have the same rights and obligations as other members, including the obligation to contribute to the budget of the Commission. 4. For each State, entity 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.

Article 36 Reservations and exceptions No reservations or exceptions may be made to this Convention.

1 Within twelve months of the adoption of this Convention, the members of the Commission shall establish, on a provisional basis, total allowable catches of skipjack, yellowfin and bigeye tunas and the South Pacific albacore stock, or such other conservation and management measures as may be necessary, based on the best available scientific information.

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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 non-parties to this Convention shall enjoy benefits from participation in the fishery commensurate with their commitment to comply 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.

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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. Transhipment at a port or in an area within waters under the jurisdiction of a member of the Commission shall take place in accordance with applicable national laws. 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 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 II to this Convention, and any further procedures and measures established by the Commission. Such procedures and measures shall take into account the characteristics of the fishery concerned.

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 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. 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 shall 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.

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4. Nothing in this article affects the exercise by Contracting Parties 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 and coordinate a regional observer programme to collect verified catch data, other scientific data and additional information related to the fishery from the Convention Area. 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. 2. The regional observer programme shall consist of observers authorized by the Commission. The programme should be coordinated, to the maximum extent possible, with other regional, subregional and national observer programmes. 3. 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, if required by the Commission, an observer from the regional observer programme, taking into consideration the provisions of paragraph 4 (a). The provisions of this paragraph 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 4 (d) when the vessel is in waters under the national jurisdiction of its flag State, unless the flag State of the vessel agrees otherwise. 4. The regional observer programme shall operate in accordance with the following guidelines and under the conditions set out in article 3 of Annex II 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; (b) each member of the Commission shall be entitled to have its nationals included in the programme as observers; (c) observers shall be trained and certified in accordance with uniform procedures to be approved by the Commission; (d) the activities of observers shall include 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, including procedures to ensure the security of non-aggregated data and other information which the Commission deems to be of a confidential nature; (e) 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; (f) a reasonable period of notice of the placement of an observer shall be given. 5. The Commission shall develop guidelines with respect to the rights and responsibilities of the captain and crew when an observer is on board a vessel, as well as the rights and responsibilities of observers in the performance of their duties. 6. All costs relating to the regional observer programme shall be agreed between the members of the Commission and shall be provided for in the budget of the Commission. 7. The Commission shall develop procedures for the dissemination to the members of relevant scientific and other information collected by observers.

51 Annex 5 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 to believe 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 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 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 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. 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, articles 21 and 22 of the Agreement shall apply 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 in accordance with the procedures set out therein. 3. All vessels used for boarding and inspection in the Convention Area shall be clearly marked and identifiable as being on government service.

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 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. Contracting Parties 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.

50 Annex 5 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 the relevant information relating to an alleged violation, investigate fully any alleged violation by 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 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 that a 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 or, where the vessel concerned has conducted unauthorized fishing within areas under the national jurisdiction of any coastal State Party to this Convention, 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. 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. 6. Where there are reasonable grounds for believing that a vessel on the high seas has been engaged in unauthorized fishing within an area under the 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

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(c) vessels flying its flag do not conduct unauthorized fishing within areas under the national jurisdiction of any coastal State Party to this Convention. 2. In particular, 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 its area 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 its area of national jurisdiction only where it is able to exercise effectively its responsibilities in respect of such vessels under the 1982 Convention and this Convention. Such flag State authorization shall be required in addition to any licence, permit or authorization that may be required by a coastal State Party to this Convention for fishing in areas under its national jurisdiction within the Convention Area. 3. It shall be a condition of every authorization issued by a member of the Commission to this Convention that the fishing vessel in respect of which the authorization is issued is operated in accordance with the requirements of Annex II, 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 III 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. 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. The Commission, directly, or through 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 determined by the Commission. 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 vessels that fish in the Convention Area in areas under the national jurisdiction of another member to operate near real-time satellite

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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 objectives 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 regularly inform the Commission 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 regularly inform the Commission of the measures it has adopted for regulating the activities of 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 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.

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 undermines the effectiveness of such measures. (b) its nationals and fishing vessels refrain from fishing in the Convention Area except as authorized in accordance with paragraph 2; and

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Commission shall 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 60 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 I 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, the objecting member shall not 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 the objecting member 30 days from the date of communication to such member 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 Commission shall adopt rules of procedure allowing 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.

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 intergovernmental organizations 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.

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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 all efforts to reach a decision on the budget by consensus have been exhausted, 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 and a variable fee based, inter alia, on the total catch in the Convention Area of such species as may be specified by the Commission and the per capita income of each member, provided that catch by vessels flying the flag of a member of the Commission taken in waters under the jurisdiction of that member shall not be included for the purposes of the calculation of the variable fee. The scheme adopted by the Commission shall be set out in the financial regulations of the Commission. 3. Each member of the Commission shall meet its own expenses arising from attendance at meetings of the Commission and its subsidiary bodies. 4. 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. The Commission may, nevertheless, 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.

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. 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 its next meeting or until such time as the Commission may decide. At such meeting, the Commission shall meet for the purpose of taking 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

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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. 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. 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.

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(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 Commission and to the Scientific Committee.

SECTION 3. THE TECHNICAL AND COMPLIANCE COMMITTEE

Article 14 Functions of the Technical and Compliance Committee 1. The Technical and Compliance Committee shall provide the Commission with information, technical advice and recommendations relating to the implementation of, and compliance with, conservation and management measures. 2. The functions of the 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 (c) review the implementation of cooperative measures for monitoring, control, surveillance and enforcement adopted by the Commission. 3. 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; (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, determine 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 vessel and gear markings and the fishing gear and technology which may be used; (f) report to the Commission its findings or conclusions on the extent of compliance with conservation and management measures; and (g) make recommendations to the Commission on matters relating to monitoring, control, surveillance and enforcement. 4. The Committee may establish, with the approval of the Commission, such subsidiary bodies as may be necessary for the performance of its functions. 5. The Committee shall exercise its functions in accordance with such guidelines and directives as the Commission may adopt.

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3. In carrying out its functions, the Committee shall: (a) review the results of research and analyses of target stocks or non-target or associated or dependent species in the Convention Area; (b) identify data needs and research priorities and coordinate activities that meet those needs; (c) in consultation with the Technical and Compliance Committee, determine the priorities and objectives of the regional observer programme and assess the results of that programme; (d) 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; and (e) 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. 4. The Committee shall exercise its functions in accordance with such guidelines and directives as the Commission may adopt. 5. 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.

Article 13 Scientific services 1. The Commission 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 and efficient 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 shall: (a) conduct scientific research and analyses as directed by the Commission 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 requested or assigned to them by the Commission. 3. In carrying out their work, the scientific experts shall: (a) coordinate fisheries data collection and undertake their compilation and dissemination 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;

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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. 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. 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 formulation of conservation and management measures for the area north of the 20° parallel of north latitude in respect of species which occur mostly in such areas and on the implementation of such measures as may be adopted by the Commission. 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 species or stocks 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 attend a meeting of the committee when a matter particularly affecting it is under consideration.

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) review the assessments, analyses, other work and recommendations prepared for the Commission by its scientific experts prior to consideration of such recommendations by the Commission and provide information, advice and comments thereon, as necessary; (b) recommend to the Commission specific issues and items to be addressed by the scientific experts as part of their future work; (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; and (d) perform such other functions and tasks as may be requested by or assigned to it by the Commission.

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(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, financial regulations and 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, including vessel numbers, types and sizes, which may be used; (c) the areas and periods in which fishing may occur; (d) the size of any species which may be taken; (e) the fishing gear and technology which may be used; and (f) particular subregions or regions. 3. In developing criteria for the allocation of total allowable catch or 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 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 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 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. 5. Decisions on allocation of total allowable catch or levels of fishing effort shall be taken by consensus.

40 Annex 5 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 member of the Commission shall be determined by agreement between the Commission and the member concerned. 6. The Commission shall determine the location of its headquarters. 7. The Commission shall adopt by consensus and amend as necessary 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 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 conduct relevant scientific research and disseminate the results thereof; (g) develop, where necessary, criteria for the allocation of total allowable catch or the 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;

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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 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 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 exclusive economic zones, the Commission shall pay special attention to the establishment of conservation and management measures for such areas which are compatible with those established for the surrounding exclusive economic zones. Measures taken in respect of the high seas shall take into account the rights, duties and interests of the surrounding coastal States under the 1982 Convention, shall be based on the best scientific information available and shall also take into account any conservation and management measures adopted and applied in respect of the same stocks in accordance with article 61 of the 1982 Convention by the surrounding coastal States in the 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

38 Annex 5

(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: (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.

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From the south coast of 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 meridian of longitude 130° west; 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. 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 appropriate.

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 information 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 any 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; (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 and promote the development and use of selective, environmentally safe and cost- effective fishing gear and techniques; (h) take into account the interests of artisanal and subsistence fishers;

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(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 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; (d) “Contracting Parties” means States and regional economic integration organizations 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; (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 vessel to another vessel either at sea or in port. 2. (a) This Convention applies, mutatis mutandis, to 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. (b) “Member of the Commission” means a Contracting Party and, as appropriate, any fishing entity referred to in article 42, 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. 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:

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MHLC/WP.1/Rev.4 16 September 1999

REVISED DRAFT CONVENTION ON THE CONSERVATION AND MANAGEMENT OF HIGHLY MIGRATORY FISH STOCKS IN THE WESTERN AND CENTRAL PACIFIC OCEAN

Prepared 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, 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;

34 Annex 4 scheme, due consideration shall be given to each Contracting Party being assessed an equal basic fee and a variable fee based, inter alia, on the total catch and landings of species covered by this Convention in the Convention Area and the per capita income of each Contracting Party, provided that catch by vessels flying the flag of a Contracting Party taken in waters under the jurisdiction of that Contracting Party shall not be included for the purposes of the calculation of the variable fee. This is reflected in article 19 of the draft Convention text.

10. While the precise formula for contributions would be calculated at a later stage, when the Commission begins to function, some participants, particularly some of the small island countries, expressed a desire to examine the formula in more detail at this stage, in order that they might have a better understanding of the financial implications of the Convention.

Preamble and final clauses

11. A working paper (MHLC/WP.2) containing a draft preamble and final clauses is circulated with this information note. The final clauses raise some delicate and sensitive issues with respect to the participation of the various entities taking part in the Conference. In general, however, the final clauses are technical in nature. Nevertheless, the Conference will need to give consideration to such practical matters as the number of ratifications needed to bring the Convention into force and the procedure for amending the Convention and the annexes.

Interim regime

12. As noted at the end of the fourth session, 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. Some of the elements of such a regime might include 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. 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 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.

Programme of work

13. It is intended that the key issues identified in this information note, together with all other pending matters, will be considered at plenary sessions of the Conference. In addition it is proposed that 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.

20 July 1999

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33 Annex 4

Decision-making

5. In the information note prepared for the fourth session of the Conference, it was noted that article 10, paragraphs (j) and (k), of the 1995 Agreement, states that members of regional fisheries management organizations shall “agree on decision-making procedures which facilitate the adoption of conservation and management measures in a timely and effective manner” and “promote the peaceful settlement of disputes …”. Article 28 of the Agreement provides further that “States shall agree on efficient and expeditious decision-making procedures within subregional and regional fisheries management organizations and arrangements and shall strengthen existing decision-making procedures as necessary.” In adopting these provisions the UN Conference was mindful of the fact that traditional decision-making procedures such as objection or consensus procedures, without dispute settlement procedures, have rendered a number of fisheries organizations ineffective or have left member States no other course but to take unilateral enforcement action, including the use of force. It is therefore important that any procedure that is agreed to for decision-making is accompanied by dispute settlement procedures as foreseen in articles 10 and 28 of the 1995 Agreement. It should be further noted that under the 1982 Convention all issues relating to interpretation or application of the Convention are subject to compulsory and binding dispute settlement, or at a minimum they are subject to a conciliation procedure. These provisions are incorporated by reference in the 1995 Agreement.

6. Article 21 of the draft Convention text contains a proposal for a decision-making procedure with a high qualified majority with a provision whereby a Party which did not agree with the majority decision could seek a third party review on certain specified grounds. The procedures for review are set out in annex II. A preliminary exchange of views on the issue of decision-making took place at the fourth session, but it was not possible in the time available to fully discuss this matter. All participants considered that, as a general rule, consensus decision-making was the most desirable objective. Some participants suggested that they would prefer strict consensus on all issues. However, participants held different views on the appropriate procedure to be followed where all attempts at achieving consensus had failed. Some participants favoured a weighted voting system. Others suggested a supermajority voting system with ‘opting-out’ provisions. However, both these proposals were strongly opposed by other participants.

7. One possible approach to the issue of decision-making may be to consider the use of different procedures depending upon the nature of the decisions to be made. This approach recognizes that each different procedure strikes a balance between the desire to protect dissenting positions and the need to ensure that decisions relating to conservation and management measures are taken without undue delay. Thus it may be appropriate to require consensus for decisions that affect the basic framework of rights and obligations under the Convention, such as amendments to the Convention and decisions relating to financial obligations. Decisions on other matters may be taken by a majority of the Parties. Depending on the subject-matter, either a three-fourths or two-thirds majority may be required on some issues. This still leaves open the question of an objection procedure or opting-out provision and how such a procedure could be married to a dispute settlement mechanism. It is important to ensure that such procedures are not used to undermine the effectiveness of the work of the Commission or to encourage unilateral action. For this reason, some participants at the fourth session considered that decisions arrived at by the Commission should be binding on all Parties and that the Convention should provide for finite and time-bound dispute settlement procedures which avoid costly and lengthy reviews of the decisions of the Commission.

Financial arrangements of the Commission

8. During the fourth session, substantive discussions took place on the issue of the financing of the proposed Commission. The discussions were greatly assisted by an information paper circulated by the Chairman on some considerations relating to the establishment of a fishery commission for the conservation and management of highly migratory fish stocks in the western and central Pacific Ocean (MHLC/INF.2 and Corr.1). That paper reviewed various options for the financing of the Commission based on experience in other fora.

9. Following the discussions, agreement in principle was reached that the actual amount of the contribution to the budget from each Contracting Party shall be determined in accordance with a scheme which the Commission shall adopt, and amend as required, by consensus. In adopting the

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INFORMATION NOTE ON MATTERS BEFORE THE FIFTH 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 fifth 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 6 to 15 September 1999.

2. The fourth session of the Conference was held from 10 to 19 February 1999. The main outcome of that session was a revised draft text of a Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (MHLC/WP.1/Rev.2, dated 19 February 1999) (hereinafter “the draft Convention text”).

3. The purpose of this information note is to identify some of the key substantive issues which the Conference will need to consider during the fifth session. These key issues include, inter alia, decision-making and the formula for financing of the Commission, including the possibility of looking at precedents from other organizations. In addition, the Conference needs to consider in more detail certain issues which were raised at the fourth session. These include the issue of a committee to advise the Commission on particular stocks in the northern region of the proposed Convention Area, technical matters relating to the operational details of a regional vessel monitoring system, and how to give practical effect to the provisions of article 31 relating to the special requirements of developing States, territories and possessions.

4. The main achievements of the fourth session may be summarized as follows:

(a) The Conference reached agreement in principle on the geographic area of competence of the proposed Commission, subject to further consideration of the northern and western boundaries.

(b) The Conference made substantial progress in defining the functions of the proposed Commission and the critical issue of the relationship between the powers and functions of the Commission and the sovereign rights and responsibilities of coastal States within areas under national jurisdiction.

(c) The Conference made substantial progress in determining how the proposed Commission will obtain the best scientific evidence available, as well as technical advice and recommendations relating to the implementation of compliance and management measures. In particular, the Conference reached a much better understanding of the way in which the Commission might work with existing regional institutions, such as the Oceanic Fisheries Programme of the Pacific Community.

(d) The Conference gave detailed consideration to a possible institutional structure for the proposed Commission, including the functions of its Secretariat, the need for transparency, and its relationship with other organizations, particularly those which also have competence for highly migratory fish stocks in the same and adjacent regions.

(e) The Conference exchanged views on the issues of flag State duties, compliance and enforcement, boarding and inspection and the role of the port State. There were some divergent views on one or two of these matters and there may be a need for fine-tuning of some of the provisions. Nevertheless, the draft text was improved and streamlined and made more consistent with the provisions of the 1995 UN Agreement.

(f) The Conference held detailed discussions on the possible structure of the regional observer programme and reached a common understanding on the scope and objectives of such a programme.

31 Annex 3 and central Pacific Ocean will also have to cooperate to manage fisheries for those species. I am pleased that the draft Convention provides for cooperation with other organizations and specifically with the IATTC, and also for avoiding application of measures in the area already regulated by another fisheries management organization. In addition, I believe it will be necessary to establish operational procedures for the IATTC and the new Commission to harmonize management arrangement for stocks that require trans-Pacific measures.

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

Mexico

Mexico attends this meeting with the interest to participate in efforts toward the implementation of the principles of the Code of Conduct for Responsible Fisheries in order to develop sustainable fisheries.

As you know, Mexico has been participating very actively in the main fisheries fora, which reflects our commitment to the conservation and sustainable use of living marine resources. We attend this meeting given its importance for the Mexican fisheries in the Pacific Ocean.

Mexican fleet fished in the area of application proposed within this Convention and there are overlaps with the application area within the Interamerican Tropical Tuna Commission. In this regard we have the interest to participate in this meeting having the right to present our comments on the draft Convention where we think it is necessary to observe adequately the rights of the Mexican fleet.

As I mentioned Mexican fleets had operated in the Western and Central Pacific in the past, so Mexico has a real interest in the Convention and in accordance with international law, has the right to fully participate in these negotiations.

In order to ensure the success of this new Convention, Mexico thinks that it is necessary an excellent coordination, consultation and cooperation between the Commission which will be created through this Convention with other intergovernmental organizations which have related objectives, and which can contribute to reach objectives.

The draft Convention includes some provisions from the United Nations Convention on the Law of the Sea (UNCLOS) relating to the conservation and management of straddling fish stocks and highly migratory fish stocks, that have been pointed by some Latin American countries, including Mexico, as issues that go beyond the principles of UNCLOS. Mexico presented these concerns when the United Nations Fish Stocks Agreement was adopted.

We expect that the sovereign rights of coastal States be adequately observed in the text of the Convention and extraterritoriality measures as well as the application of trade measures be avoided in this document.

We hope that the interest to apply the UNCLOS principles be in mind of all the present Delegations as well as the interest to be Contracting Parties of that Convention as an step to advance in the sustainable use of living marine resources in the high seas and in the Economic Exclusive Zones.

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30 Annex 3 archipelagic waters, where approximately 21% of skipjacks, 12% bigeye and 30% yellowfin tuna are harvested, then Vanuatu would like to inform the meeting that, its archipelagic waters must be excluded from the Convention area.

Adjacent high seas

Special interests of coastal states in those areas of high seas which are adjacent to their exclusive economic zones; and where pockets of high seas are entirely surrounded by one or more exclusive zones, the special interest in those pockets of the coastal states surrounding them, should be included as additional criterion for the determination of allocation of total allowable catch or level of fishing effort.

There are a number of other issues, Mr. Chairman, that are also of great importance to Vanuatu, such as, budget matters, transshipment question, and others. We will discuss and present further comments on these and a number of additional issues at the appropriate time.

Mr. Chairman, Vanuatu is highly appreciative of the magnificent work that you have undertaken so far in steering the MHLC process. Vanuatu will continue to pledge its support to your leadership and will continue to approach the MHLC process in the spirit of partnership and cooperation.

Vanuatu looks forward to the discussions during the meeting and to a productive outcome. Thank you.

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Inter-American Tropical Tuna Commission (IATTC)

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

The IATTC welcomes the progress toward an arrangement for the management of highly-migratory species in the western and central Pacific. This is particularly so, given that the management of some Pacific highly migratory species, such as bigeye or northern bluefin tuna, may require co-operation between the IATTC and any arrangement arising from these talks. Furthermore, the IATTC is in the process of reviewing its own Convention, and the work done here is of great interest in that process.

Equally, some of the events that have recently taken place in the eastern Pacific may be of interest to the participants here.

Since the last meeting of the Conference the Agreement on the International Dolphin Conservation Program has come into force. This Agreement provides for measures to be taken within the framework of the IATTC to ensure conservation of the ecosystem and the long-term sustainability of stocks of tuna and other living marine resources associated with the purse-seine fishery in its Agreement Area.

At its 63rd and 64th meetings in June and July 1999 the IATTC adopted management measures to limit catches of yellowfin tuna and bigeye tuna east of 150º W and to control the use of fish aggregating devices. At its 62nd meeting in October 1998 the IATTC agreed on a measure to limit the capacity of the purse-seine fleets of individual states during 1999 and measures for the future will be considered at the 65th meeting to be held in La Jolla next month. These measures have been necessary because of the increasing fishing effort in the eastern Pacific Ocean.

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 150º W. This would constitute an area of overlap with the areas of application of IATTC management measures and of the Agreement on the International Dolphin Conservation Program. Vessels fishing pursuant to the measures established by the IATTC have fished in that area. In particular, surface fishing vessels based in the Americas have taken 13000 tons of tunas from that area during 1995-1998. Any measures taken by the proposed Commission should take into account the historical presence of these vessels and the international management regime they fish under.

We enjoy good scientific co-operation throughout the Pacific, and it is clear that the IATTC and the future Commission for the conservation and management of highly-migratory fish stocks in the western

29 Annex 3 the current text does not accomplish this and scientists from the Pacific Community have recently confirmed this fact. One way to address this problem is to move the western boundary further west. We believe it is important that this session explore this and other alternatives to ensure that the range of the stocks is covered. We need to decide the Convention area soon, since the negotiation of many other issues is related to the area covered.

Third, the question of membership and entry into force are vitally important matters. The U.S. delegation believes it is important that Chinese Taipei be provided the opportunity to participate in the new Commission in a meaningful way, and without prejudice to any government’s political or legal position on this sensitive matter. Similarly, we would like to see the U.S. Pacific territories be allowed to become members of the new organization. With regard to entry into force, the new Commission, in our view, needs to be supported by both coastal States and distant-water fishing states. The U.S. will have a proposal which reflects this view.

Finally, the United States views the topic of sub-regional committees as a fundamental issue in this session and we hope it is one we can work together, with open minds, to resolve.

There are several other issues, Mr. Chairman, that are also of great importance to my delegation, such as the species to be covered, transparency, VMS and other enforcement matters, and others. We will discuss and present further comments on these and other matters at the appropriate time.

It is clear that there are a number of complex issues that must be addressed in some detail. We believe that we made significant progress so far, and, with your leadership Mr. Chairman, we are confident that we will make a great deal more progress in this session. Thank you and I look forward to working closely and constructively with all delegations during the next ten days.

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Vanuatu

The Government of the Republic of Vanuatu would like to express its deepest appreciation to the Government of the United States of America, the State of Hawaii, the Western Pacific Regional Fisheries Management Council and the Forum Fisheries Agency Secretariat for all the arrangements made to host the fifth Multilateral High Level Conference on the Conservation and management of Highly Migratory Fish Stocks in the Western and Central Pacific.

Mr. Chairman, while the objective of this Convention is to ensure long term conservation and sustainable utilization of highly migratory fish stocks in the western and central Pacific ocean, the Convention should not loose sight of the fact that small island Pacific States depend on the tuna resources for their subsistence and economic livelihoods. It is therefore very important to ensure that the thrust of this Convention serves the interest of the small Pacific island states, which are custodians of over 60% of the highly migratory fish stocks.

In order for the Convention to be ready for signing in June 2000, goodwill, commitment, a willingness to cooperate and a desire to achieve a common goal, should be the basic ingredients for successful negotiations.

Mr. Chairman, Vanuatu would like to highlight some issues with regards to the current draft Convention.

Pockets of high seas

A definition of “pockets of high seas” may be required if the reference to such areas is retained in the final Convention.

Archipelagic waters

The current text excludes the Philippines and Indonesia archipelagic waters from the Convention area. Regardless of reasons to exclude their archipelagic waters, Vanuatu views it as an unfair treatment to other Pacific island archipelagic states. If the decision to exclude Indonesia and Philippines

28 Annex 3 realistic and where necessary give the process sufficient time in order for the conference to adequately address all the issues and achieve long lasting and effective management measures. We must not compromise the achievement of an effective management regime by the pressure of time.

In the interest of economy of time, my delegation will reserve its comments and remarks on those other issues until the time that they are specifically address by the conference.

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United States of America

It is my pleasure, on behalf of the United States delegation, to welcome all of the participants to Honolulu. My delegation is pleased to once again serve as your hosts, to this important fifth session of the Conference, and we hope that both your stay and our sessions together are enjoyable and constructive.

Mr. Chairman, as at the previous session of the Conference in Hawaii in February, 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, and also reflects the diversity of interests that we have in these negotiations. We have included on our delegation representatives of the Departments of State and Commerce, the Coast Guard, the Pacific territories of American Samoa, Guam and the Commonwealth of the Northern Mariana Islands, the State of Hawaii, the Western Pacific and the Pacific Regional Fishery Management Councils, the commercial and recreational fishing industry, and non governmental environmental organizations.

The United States believes that these negotiations have been productive thus far, and we are encouraged by our progress. However, we are now at a critical phase in the negotiations. We must focus carefully on the fundamental questions that remain and find cooperative and creative solutions that meet both the varied needs of the parties and the basic goal, shared by all of us, of establishing institutional mechanisms which will ensure, for future generations, long-term sustainable fisheries in the Western and Central Pacific Ocean.

We made progress on many issues at the last session in Hawaii. The discussions we had in February 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 most of the remaining issues. While I will not address all the points made in this paper, but I would like to take a few moments to highlight what we see as some of the fundamental issues to be addressed in the coming days.

First, and foremost, we remain concerned about the prospect that conservation and management decisions for resources under the purview of the Convention would be made simply on the basis of a majority vote. When discussions on establishing a conservation and management regime for the western 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. This is the one issue that could result in the United States not becoming a party to the Convention. A regime which forces a country with a minority view, to be legally bound to decisions on important issues made by the majority, would be very unlikely to receive ratification by the United States Senate, and nor would the U.S. delegation be prepared to present such a regime for Congressional approval. Unfortunately, we have not seen our concerns reflected in the draft text of the Convention.

Because of the critical importance of this Convention to the maintenance of the fisheries in the western Pacific, it is clear that all of us must be able to secure its acceptance with our respective governments and political leaders when we take it back home for approval. Our position has been that decisions should be made by consensus; however, we recognize that requiring consensus on all issues may on occasion lead to unnecessary stalemate, and we have been trying to develop a position with more flexibility. We have a proposal that will be circulated which illustrates this flexibility. We hope that in the coming days we can work creatively to jointly resolve this important question.

Second, with respect to the area of application of the Convention, the United States believes that the agreement should seek to cover the entire range of the stocks to be managed. The area elaborated in

27 Annex 3

Tuvalu

My delegation is also pleased to be here once again, in these beautiful surroundings of Honolulu, to participate in these ongoing multilateral negotiations for a conservation and management regime for the highly migratory fish stocks of the western and central pacific. Like other speakers that preceded me, may I also join them in thanking our host government, the government of the USA and especially the state of Hawaii for agreeing to have us back again.

Allow me also to thank you, Mr Chairman, on behalf of my delegation for the wisdom and guidance that you have guided us so far, in this process. In particular, may I thank you and your secretariat for the information note and the documentation that you provided to delegations before this session, which conveniently summarise the current state of play of these negotiations and also provide a useful guide of issues that this session should address in order to substantially progress these negotiations.

Mr Chairman, my delegation is encouraged and heartened by the progress of the work that the MHLC process has achieved so far, especially the progress made at MHLC 4. However, as you indicated in your Information Note of 20 July, 1999 that you circulated prior to this session, there are still some very substantive and possibly very sensitive issues that this session must address and make substantial progress on them, in order to maintain the momentum that this MHLC process has gathered so far.

At this stage of the process, it is quite clear to my delegation and possibly to all delegations that, despite, our varying interests and concerns we are all united behind the primary objective that the long term conservation and sustainable use of highly migratory fish stocks in our region, will only be achieved, through effective management. And that is the challenge for all of us here today. We must strive to achieve an effective multilateral management regime despite all our differences.

In that respect, it is my delegation’s submission, Mr Chairman, that an effective management and conservation regime for the highly migratory fish stocks in our region, must be one that involve the participation of all stake holders of these precious resources. These stakeholders include all the coastal states on whose waters these highly migratory fish stocks traverse and all those that fish for these resources, however they may be described. Such a management regime must not only facilitate the mere participation of all these stakeholders, but must facilitate their effective participation. This is absolutely necessary because of the varying and diverse capabilities of these stakeholders, especially the small island developing states.

In this regard, my delegation is particularly grateful that you have specifically highlighted the need for this session to address the need to give practical effect to the provisions of article 31 of the negotiating text relating to the special requirements of developing states, territories and possessions. As a small island developing state, my delegation must always keep stock of the cost implications of its obligations under such a multilateral arrangement and to constantly assess its capacity to discharge those obligations. At the end of the day, from the perspective of a small island developing state, there is no point in having an elaborate and highly technical multilateral management and conservation regime, if it cannot contribute to and effectively participate in such a regime because of its incapacity to discharge its obligations. So, Mr Chairman, my delegation looks forward with special interests to discussions on this issue and would expect MHLC 5 to advance the sentiments couched in the present wording of article 31 of the negotiating text by agreeing on some practical mechanisms that will give effect to those sentiments.

Mr Chairman, as I alluded to earlier, you have indicated a few of the substantive issues like the decision making arrangement for the Commission and its financial arrangements that this session must address. There are also other issues that we have discussed in previous sessions but remain outstanding that we need to progress further in this session. Although, my delegation is conscious of the sensitive nature of these issues, I am confident that with your guidance and leadership, this session should be able to substantially progress discussions and possibly achieve some agreement on these issues in this session.

As my delegation noted in its opening statement in the last session, June 2000 is certainly fast approaching. In fact, it is now less than a year to that target we set ourselves in Majuro in 1997. My delegation maintains the assertion, that although we must not loose sight of that target, we must also be

26 Annex 3 regional and/or subregional fisheries management bodies is a must to ensure the effectiveness of any meaningful conservation measures.

Recognizing the importance of conservation of fisheries resources on the high seas, and taking into account the cooperative needs required by the international community, we have long actively and constructively participated in the activities of various regional and/or subregional fisheries organizations. We believe that our participation and cooperation will substantively augment the effectiveness of conservation and management of fisheries resources in question.

The MHLC process has come along a long way since MHLC2 during which substantive issues were discussed. The Majuro Declaration coming out from the MHLC2 in 1997 stated clearly that “States, territories and fishing entities represented by Ministers and senior officials” participated in the 2nd MHLC meeting with a “commitment to establish a mechanism for the conservation and management of highly migratory fish stocks of the region in accordance with the Convention and the Implementing Agreement.” During the Majuro meeting, we participated under the designation of Chinese Taipei with reluctance and expressed in our on-the-record opening statement that “. . . we see ourselves as a constructive force in the formulation of any possible regional arrangement which satisfies the mutual interests of both coastal and fishing nations. We intend to collaborate with all parties concerned on a basis of equality, full participation and full membership to work out a regional arrangement which reflects and embodies the spirit and letter of the 1982 UNCLOS and the 1995 UNIA.” We have since actively participated in the MHLC processes, shared our ocean-going fishing and management experiences with all other participating parties, and constructively contributed to the formulation of the draft Convention.

Now, it is a crucial moment for all of us to develop a well-balanced, well-structured Convention since the preamble and final provisions have been drafted and proposed by our esteemed Chairman. The texts of the draft Convention, especially, articles 1, 35, and 43, with respect to the participation status of any fishing entity to the Convention are conceivably not workable for any democratic government. The rights and obligations of a fishing entity under the present framework are not parallel, and the requirements for obligations and compliance ensued from the present draft Convention will definitely have relevance to the assignment of sovereignty and sovereign rights to an international fisheries management body. On these two grounds, the executive and legislative bodies of a democratic government will not be able to endorse the draft Convention as the way it is. This situation will unfortunately force out a fishing entity with a democratic institution from the present Convention—a situation that no one likes to embrace.

Mr. Chairman, we believe that the design and the language of the present draft Convention with respect to the participation of a fishing entity to the Convention is not workable for us, which, in turn, may damage the future work and operation of the Convention itself. Thus, my Delegation intends to table an amendment to the Chair’s draft to the plenary at an appropriate time in accordance with the Chair’s agenda. This amendment will be circulated to all the delegations on the floor immediately after my statement, so that all delegations can study and consider it in advance.

Mr. Chairman, as a major fishing participant in the region, we feel obliged to the conservation of fisheries resources in the region; we are sensitive to the aspiration of island States in their development of fisheries; we also share the common concern of an effective operation of the conservation and management scheme of the Convention. We are here not only to show our willingness to participate but to collaborate with all delegations to work out a feasible conservation and management scheme in the region. Thus, we will have our comments and inputs to various substantive issues in the plenary and informal meetings. For instance, Annex II Review Tribunal of the present draft Convention refers to Annex VIII, article 2 of the 1982 UNCLOS for the selection of review tribunal members from an FAO list or a list similarly maintained by the Executive Director of the Commission. Since we are not a Contracting Party to the 1982 UNCLOS, we are not entitled to nominate two experts to the list of experts. This arrangement will negatively impact on our interests when it is necessary for us to apply dispute settlement mechanism.

Mr. Chairman, once again, please accept my reassurance that my delegation will collaborate with all other delegates for establishing a balanced and practicable regional regime. Mr. Chairman, I would like to express best wish to you and all the participating delegations and we look forward to a successful and fruitful meeting.

25 Annex 3 text. We either have all archipelagic waters included or exclude all of them from the proposed Convention area.

The Majuro Declaration which was made at the second session of the Conference in Majuro, Marshall Islands, in June 1997, made particular reference to the main four tuna species, namely skipjack, yellowfin, bigeye and southern albacore to be the species of concern of the future management regime. It is our wish that we keep to these tuna species plus the associated species found in the region and not to complicate matters further by including other tuna species such as the northern bluefin and northern albacore. These latter tuna species should come under another management body. In this regard, the Convention area should reflect the species to be covered.

On decision making, my delegation is of the view that decisions of the future Commission must be binding and effective. We all know that in existing fisheries conservation and management bodies which have provisions that allow for those countries voting against decisions not to be bound to those decisions have been ineffective. We need to be creative and innovative to overcome this anomaly experienced in existing in fisheries management organisations. Furthermore, the proposed review process of decisions by arbitration will unnecessarily take up a lot of our time and resources which we cannot afford. Solomon Islands Government will have to consider its position carefully if provisions for opting out on being bound by decisions is included.

Details on some issues need to be set out clearly in the draft text. With regards to the budget and financial arrangements of the Commission, my delegation feels that it is important to define the structures and cost levels in the process of these negotiations. We are concerned about the cost levels and we are wary of signing on to a Convention whose cost is unknown. That is, we cannot sign a ‘blank cheque’.

Regarding the final clauses, Solomon Islands supports the membership of Chinese Taipei as a Contracting Party with rights and obligations as other members. Their fleets account for a significant portion of the catch in the region compared to some of us around this table. We cannot simply ignore their membership and require them to be bound by decisions which they are not a party.

Mr. Chairman, my delegation is pleased to note that we have more or less agreed on monitoring, control and surveillance issues. We are particularly pleased to note that the vessel monitoring system is rapidly becoming the standard method of compliance. However, we would like to see article 25, paragraph 8 of the draft Convention reflect the recognition of enforcement powers of coastal States in their EEZ’s, as granted by the United Nations Convention on the Law of the Sea, by requiring flag States to adhere to the VMS adopted by coastal States when fishing vessels operate in their waters.

Solomon Islands believes the Secretariat of the Commission should be located within the main fishing grounds. In this regard, Solomon Islands would like to register its interest in hosting the Secretariat of the Commission.

Finally, Mr. Chairman, there are many issues that need to be discussed and we believe that further progress can be made in the next several days that we are here. My delegation is prepared to work with other delegations towards reaching fruitful outcomes at this session of the Conference. ---- Chinese Taipei

First of all, I would like to join 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 to its final stage.

To add a little bit more nostalgic flavour to this meeting, I would like to recall and share a segment of history with you. In the early 1990s when the international community was promoting the concept of responsible fisheries, it began to realize that excluding us from the international fisheries conventions or agreements was an inadequate and non-constructive approach for the promotion and implementation of conservation and management of fisheries resources. Thus, there has been growing appreciation that to allow us to be a party to international fisheries management conventions and to incorporate us in any

24 Annex 3 would like to see that the practitioners of handline fishing be exempt from the provisions of article 25 (8). We would also like to see the inclusion of some provision to provide for some flexibility on the part of the coastal States in the application of vessel manning and safety requirements.

Mr. Chairman, Sir, we will make the pertinent proposal on these issues when they come up for discussion.

Mr. Chairman, financial arrangements are always crucial to the success of any endeavour. In the past, we had deliberated on possible schemes for funding, such as an equal basic fee and a variable fee based on total catch and landings of species and per capita income of each Contracting party with the provision that catch by vessels flying the flag of a Contracting Party taken in waters under that Contracting Party’s jurisdiction shall not be factored into the calculation of the variable fee.

The Philippines feels that any formula for funding arrangements should be as precise as possible and that each Contracting Party be fully appraised from the very outset of any and all implications of their contribution. Having said that, the Philippines will certainly endeavor to support any funding arrangements and schemes that will be ultimately adopted with these considerations taken into account.

Mr. Chairman, we are sure that there are other areas of interest and concern for the Philippines and for those countries similarly situated and we wish to follow and contribute our share of the discussion, as the agenda would allow.

Mr. Chairman, as in the days of the ancient kingdom of Hawaii, it is believed that the decisions we make here today in the island of Oahu will not only be of benefit to our individual islands and nations fishing entities but will also be of benefit to the world that is about to enter a new world era.

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Solomon Islands

Mr. Chairman, we have again convened in the State of Hawaii at this fifth session of the Conference. Like other delegations, I would like to express, on behalf of my Delegation and my Government, our appreciation to the Government of the United States and the State of Hawaii for hosting this session of the meeting again.

Mr. Chairman, we feel that we made good progress in the negotiations on the draft Convention in the previous sessions of the Conference. However, there are a number of issues that need further detailed discussions at this session. We believe that we can make good progress so that we can meet our target of June 2000 to complete our work.

Solomon Islands strongly believes in the principle that coastal States have the responsibility for the exploration, exploitation, conservation and management of the tuna resources within their exclusive economic zone. In our statement at the fourth session of the Conference, we mentioned the progress on our National Tuna Management and Development Plan for the purposes of conservation and management of the tuna resources within Solomon lands waters. The plan has been developed with the funding assistance by Canada. We would like to recognise the participation of Canada in the Conference not only as a state with an interest in the fish stocks but as a financial supporter of the MHLC process. I am pleased to inform you that the plan has been completed and is now implemented as from June this year. Copies are available at this meeting and will be given to each delegation.

Mr. Chairman, the issue of allocation is tied to the principle of coastal States’ jurisdiction over resources within their exclusive economic zones. As such, using the criteria of catch history for the basis of allocation, the historical catch belongs to the coastal States. Access to fish in the exclusive economic zones (EEZ) would be based on fishing access agreements most advantageous to the coastal State. Just because a fishing state had fished in an EEZ in the past does not give an obligation on us as a coastal State to grant access.

Mr. Chairman, as an archipelagic State, Solomon Islands is still concerned that about the unequal treatment of archipelagic waters in the draft Convention. We feel that there is inconsistency in the draft

23 Annex 3

First of all, Mr. Chairman, on behalf of the delegation from the Republic of the Philippines, consisting of government officials and representatives of the fishing industry of the Philippines, I would like to thank the Government of the United States of America, the State of Hawaii and the Western Pacific Regional Fisheries Management Council for again hosting this very important conference on the Conservation and Management of Highly Migratory Fish Stock in the Western and Central Pacific. The arrangements are truly excellent. We particularly wish to thank the Governor of the State of Hawaii, the Honorable Benjamin Cayatano, who, as we are proud to say in the Philippines, is “one of us.”

We have come a long way since the First 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 said date.

Mr. Chairman, the Philippines signed the Implementing Agreement on August 1996 but deferred ratifying the same until a Convention for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean had been successfully negotiated. It is therefore, against this background that the Philippines is very keen in having the Convention finally signed and ratified.

In the last Conference, held at this very venue early this year, we certainly made considerable and significant progress in the discussion of the issues particularly in the Convention area, issues relating to allocation, minimum terms and conditions for fishing, enforcement, institutional arrangements and decision making and settlement of disputes.

Mr. Chairman, I wish to congratulate you on the highly productive MHLC4. We had very lively discussions and deliberations. It was a manifestation of the many issues that we still have to tackle. We in the Philippine delegation are optimistic that this Conference will address the many interests that the Parties will put forward and that this fifth session will be just as productive under your able leading.

Mr. Chairman, the Philippines is happy with the western boundary of the Convention area where the line should be drawn following the contour of the eastern Philippines because we firmly believe that the Philippines, being an archipelago, must retain sovereignty over its internal waters. We would like to assure 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 is set up and that we assure you that conservation measures within our jurisdiction will be compatible with that of the Convention area.

Suffice to say that when setting the boundaries of the Convention area all the special concerns of Coastal States over waters under their jurisdiction should be taken into account.

The matter of the transshipment at sea is of concern to the Philippines. While the draft Convention provides that this is prohibited, the Philippines would like to suggest instead that the language should be positive and therefore transshipment should 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 provided further that an effective observer programme is set in place.

One issue that was not fully deliberated upon during the fourth session was the decision-making procedure. As this Conference tackles the issue in greater depth, the Philippines would like to see that a decision making procedure if based on consensus be balanced with a provision on dispute settlement as foreseen in articles 10 and 28 of the 1995 Agreement.

We are particularly interested in article 31 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 for such stocks. Likewise, the Contracting Parties shall ensure that subsistence, small-scale and artisanal fisheries and fishworkers of any developing State Parties shall have access to fisheries and that the adverse impact on them of such requirements shall be avoided.

We feel, Mr. Chairman, and we cannot say it often enough, that the Convention should fully take into account the concerns of developing States parties. We in the Philippines would like to voice our concern for instance, for those who practice handline fishing methods on other coastal States. We

22 Annex 3

Our leaders sought these arrangements because they recognised that the future of most island countries, including my own, would depend very much on the sustainable development of their fisheries and marine resources. Moreover, we recognise and accept that to meet this objective, we have to cooperate with existing foreign fishing fleets in our region. But, Mr Chairman, we are particularly concerned that our interests as resource owners are being increasingly diluted.

For instance, we remind ourselves that the MHLC was instituted for the Central and Western Pacific region and we therefore fail to understand the desire to move the boundary of the Convention area northwards to encompass other highly migratory species that perhaps have little significance to the Pacific Island countries. A trend that will undoubtedly allow for an ever increasing number of coastal States and countries declaring a real interest in our region. After four sessions of the MHLC any country with a genuine interest in the region should be here at this table.

My delegation therefore supports calls to impose an immediate moratorium on new entrants until the Commission is properly established. Failure to take this bold move may see further dilution of our interests and we are most likely not to reach consensus on the most critical issues to conclude an appropriate Convention.

Secondly, whilst the draft acknowledges that the rights of coastal States should not to be prejudiced in any form, we must be mindful that the balancing process of compatibility underpins the basis for conservation and management.

We recognise that whilst the intention is to have the entire biological range of stocks taken into account in terms of science and better information for stock assessment, from a management point of view, it is not entirely practical economically, politically and from a commercial perspective. Because to accept this would not just affect the scope of the Convention area but affect our rights in archipelagic waters.

Thirdly, there are special responsibilities of States to conserve living resources of the high seas. Due to the highly migratory nature of the tuna resources, the management of the high seas adjacent to coastal States also becomes a very important and integral aspect of the future of the stocks. Thus, due to the interdependence of stocks between high seas and EEZs, and particularly those pockets of high seas surrounded by the EEZs of coastal States, the issue becomes of paramount importance to the adjacent coastal States, which realistically are the Pacific Island coastal States.

This of course places a significant bearing for high seas allocation on the one side and the national TACs on the other. This should therefore be a determining factor for developing a criteria for allocation under article 10 (4) of the draft Convention for enclosed high sea pockets. No doubt this issue is very central to the interests of the Parties to the Nauru Agreement which we strongly feel must be given due recognition as provided for by the United Nations Implementing Agreement.

Mr Chairman, these are some of the critical issues we believe must be properly addressed. There are other issues that you highlighted in your closing statement in February proposed for discussion at this meeting. Some delegations have alluded to them and we support the need to ensure that we continue to give them due consideration.

We must use the MHLC process to effectively deal with all issues affecting the proposed Convention whilst this opportunity exist and not to defer substantive issues to the proposed Commission which should be ideally located in the FFA region.

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Philippines

In the ancient Kingdom of Hawaii, the ali’i or lord of the islands used to come together to this island to discuss matters of state, of peace and war. They called this island “Oahu the gathering place”. That they were successful is attested by the fact that Hawaii had become the 50th state of the United States of America.

In 1999, at the threshold of the third millennium, representatives of many islands and nations are again gathered at Oahu this time to discuss timely international topics such as those that we have today.

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Palau

On behalf of the Palau Delegation, I would like to express my deep appreciation to our host state of Hawaii, our host country the United States of America, and the Western Pacific Regional Management Council. I thank you for your warm hospitality and the truly beautiful facilities that have been provided this conference for a second time.

I would also like to express my gratitude to the United States Government for its generous financial assistance without which the attendance of some of our delegation would not have been possible. Few issues are as important to the current and long term economic prospects of our small island nation as the continuing health of migratory fish stocks. We appreciate the sensitivity that has been shown in supporting our active involvement in this very important negotiation.

Mr. Chairman, we fully support the objective of the draft Convention to establish an institutional framework that can effectively ensure the long term conservation and sustainable use of highly migratory fish stocks for present and future generations. In our cooperative effort to establish effective conservation and management for these fish stocks, we should be careful not to undermine national efforts to manage and develop these resources within national jurisdictions. My delegation does not want to see an essential principle of the United Nations Convention on the Law of the Sea and the United Nations Implementing Agreement, the sovereign rights of coastal States over their exclusive economic zones, diminished by this Convention.

Mr. Chairman, we anticipate further discussions at this conference concerning the appropriate boundaries for the Convention area. Our position on this very important issue is that the boundaries of the Convention area should be defined in a way that effectively ensures the Convention’s conservation and management objectives. In this light, we support the full inclusion of the archipelagic states in the Convention area and a northern boundary at the 32° parallel of north latitude in the west across to the 180° meridian of longitude and then due east across the 50° parallel of north latitude.

Mr. Chairman, we support the general principles you have provided concerning the selection of the headquarters of the proposed Commission. We would especially like to emphasize two of those points. First, it is wise to ensure that operation of and access to the headquarters is not overly costly so that participation and benefits can be realized by all parties. Second, we agree that the headquarters should be located solidly inside the region where the fish stocks occur.

As I look around this room today and see so many good friends, I am reminded of the significant steps we have taken since the beginning of these negotiations. Much has been done, yet several significant issues still remain. I look forward to progress on these issues over the next several days.

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Papua New Guinea

Like other delegations allow me to express on behalf of my delegation our sincere gratitude to those organising this fifth session of our Conference. Like in February this year, we have enjoyed the welcome and hospitality of Honolulu and feel that this will be justified in a successful outcome.

I would also like to also extend our gratitude to you Mr Chairman for bringing us this far and, under your continuing guidance, I am sure that this occasion will also be another successful session that we all look forward to.

Mr Chairman, since the Majuro Declaration was proclaimed in 1996, substantial work has been undertaken leading to the draft text of the Convention now in front of us. Even so, whilst we continue to work on the draft, we should pause and briefly reflect on the origin of the MHLC process.

It should be recalled that the MHLC was initiated by leaders of South Pacific Forum countries following the adoption of United Nations Implementing Agreement in 1995 given their desire to propose conservation and management arrangements for highly migratory species in their region - namely the Central and Western Pacific.

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Niue

On behalf of my delegation let me first say it is indeed a privilege and pleasure to be back here in Hawaii for this fifth session of MHLC. To this end I would once again like to extend our sincere appreciation to the Government of the United States of America, the State of Hawaii, and the Western Pacific Regional Fisheries Management Council for hosting the fifth session of MHLC. We would like also to acknowledge with gratitude the financial support of the United States which has again allowed our full participation in this Session.

Mr Chairman we think the revised draft Convention is well balanced and has moved us closer to what we believe will eventually be an instrument to which all of us here are comfortable. In this vein we again acknowledge the great work you and your assisting colleagues have done to reach this point. We note there are still issues that need further consideration and which we will wish to comment as they arise.

Mr Chairman I believe we are all aware of the importance of the tuna resources in this region particularly to the small island developing countries in which they occur. Let me also say however Mr Chairman that to the people of my country not only the Highly Migratory tuna species but all the fish in the sea that surrounds us are of equal importance.

We are here, Mr Chairman, to create a management regime for the conservation and management of Highly Migratory Fish Stocks in the Western and Central Pacific. Further we believe that the time, resources and opportunity to carry out such an exercise will probably not re-occur again in this region for a long time. For this reason it is our strong view that while agreeing it is appropriate to focus on the key tuna species identified we must also provide adequate scope for the inclusion of all highly migratory fish stocks of this region, in a way that will not make it difficult to have concerns in regard to assessing their status and or need for management addressed by the commission in the future.

Mr Chairman, we note that the current text as drafted provides the ability to add species to the list of highly migratory species found in Annex I of the United Nations Convention on the Law of the Sea. We think this is perhaps fair as a minimum which we could accept no less, however we believe that a comprehensive list of highly migratory species particular to the Western and Central Pacific, with the provision for the commission to add to such a list as necessary would help to avoid possible future difficulties in regard to which species should or can be looked at by the Commission.

Mr Chairman, in a similar vein we must also ensure that we are able to assess the impacts of fishing and other influences on non-target, associated and dependent species, consistent with the obligations within the United Nations Implementing Agreement in regard to such species. In this regard we note that the revised draft text has removed the function of the commission to do this and would wish to see that this is re-instated.

In regard to issues relating to the institutional structure, financing of, and participation in, the Commission, and the obligations inherent within this Convention we would wish to see that any further discussion on these issues continue to recognize and take into full consideration the resources and financial constraints of some of the small island developing countries in the region.

There are other important issues we will wish to speak to during the course of this session Mr Chairman, but let me close in saying that my delegation has come to this meeting again in a spirit to cooperate with all delegations here to ensure we reach an outcome which will ensure the long term future of fishery resources in this region.

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New Zealand

On behalf of the New Zealand delegation I wish to join others in expressing our sincere appreciation to the United States and the State of Hawaii for hosting this fifth session of the Conference. The excellent arrangements and the warm hospitality shown us by the Aloha State bodes well for a successful outcome to our deliberations.

May I also extend our thanks to our distinguished Chairman, Ambassador Nandan, for his tireless efforts in guiding and steering us towards our goal. New Zealand appreciates the time and effort that Ambassador Nandan and his dedicated staff have put into the MHLC process. We also extend our appreciation to the International Seabed Authority for continuing to make Ambassador Nandan available for our meetings and for their preparation. We cannot continue to expect to impose such demands on our Chairman’s time.

This is one reason why New Zealand is firm and clear in our overall objective: the conclusion by June 2000 of a Convention for the conservation and management of highly migratory fish stocks in the central and western Pacific Ocean that will ensure the sustainable harvest of those stocks for the benefit of future generations. While this date seems ever closer, we believe the timetable is an achievable one, especially considering the good progress that has been made to date.

Mr Chairman, New Zealand believes that your latest text provides a solid foundation for our efforts. In particular we consider that it provides a fair balance between the sovereign rights of coastal States in economic zones and the duty of all States to cooperate in the conservation and management of highly migratory stocks throughout their range. While there are of course some issues on which further in- depth discussion is required, New Zealand firmly believes that we are heading in the right direction.

This should come as no surprise since the draft text is designed to fall within the framework of the United Nations Implementing Agreement on Straddling and Highly Migratory Fish Stocks, which came into being under the strong leadership of our Chairman. In this connection, I am very pleased to announce that today the legislation required to implement the Fish Stocks Agreement is proceeding through its final reading in the New Zealand Parliament. As a result New Zealand will shortly be able to ratify the Agreement. We regard this as a significant step in the obligations which we accept as a coastal State in whose waters highly migratory stocks are found, and as a flag State whose vessels are reaching out beyond our waters to fish within the region.

New Zealand also recognises its responsibilities for Tokelau, a situated in the central Pacific, for whom tuna resources are central to its wellbeing. Unfortunately Tokelau could not be represented at this meeting in Hawaii due to shipping schedules, but remains interested in the MHLC process. At its request, we will convey to Tokelau the outcomes of the meeting.

Mr Chairman, we have paid close attention to the issues which you have set out in your information note which are to be the main areas of our work programme. In these and other areas New Zealand’s focus will be on ensuring the effectiveness of the conservation and management arrangement we develop. We need to have an effective regime where procedures are clear and do not become the object of discord. For example, in our view while decision-making should wherever possible be by consensus, there should also be a finite conclusion to the process where consensus cannot be reached, so that inaction does not undermine the effectiveness of the work of the Commission. Similarly we see the need for an effective and robust provision on the establishment of a vessel monitoring system, which New Zealand regards as a vital tool for monitoring and compliance in the region. And we would aim for a workable interim arrangement that would allow for effective conservation and management pending entry into force of the Convention.

While we have touched here on some issues of concern, there are other issues of importance to the New Zealand delegation which we will raise at the appropriate time.

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Finally, we totally agree with the suggestion that the Secretariat, when established, must be located in the region where the fish stocks occur. We would like to believe that the suggestion directly refers to a State (or contracting party for that matter) where the fish stocks occur. We believe this is an important qualification to give meaning to the objective of the Convention. We do not need to complicate the matter anymore by confusing this important criterion with the ability of a State, however small or infrastructurally disadvantaged it may be. We believe that even if that resource-State is disadvantaged infrastructure wise, it is only a matter of time and commitment by that State to be able to come up with infrastructures and services needed. But the primary point remains that the Secretariat is located in a State, let me emphasize, in a State where the stocks occur.

Mr. Chairman, those are some of our thoughts on some of the major issues remaining outstanding which my delegation would like to share at this stage. Indeed, we remain committed to working closely with you and with all other delegations to achieve, once again, our common objectives in this important undertaking.

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Republic of Korea

On behalf of the Korean delegation, I would like to express our sincere appreciation to the United States Government and Hawaii for hosting this Fifth Conference. We also appreciate the warm hospitality shown to all of us. I wish we can settle down all our pending problems and finally can leave this beautiful place with full satisfaction.

As an opening statement, I want to point out three items for the efficient meeting procedures and better understanding of their outcomes. They are about the domain of the issues we need to cope with at this conference, about the convergence of various opposing opinions proposed by the representatives of each nation, and finally about the specific items that need to be seriously reconsidered.

First, for the efficient utilization of our time and effort, we need to differentiate top-down from bottom- up approach in constructing our issues and documenting our draft. Since we are molding a new framework for this Convention, we need to carve the whole frame of principles that can be reasonable, practical, and acceptable. Details of specific issues should be discussed and embodied later, once all the representatives attending here reach consensus on the general principles. We could have devoted our time and effort more to establishing the basic principles for the conservation and management measures rather than settling down the acute details of the stakeholders’ interests. Top-down strategy, therefore, seems highly recommendable for fruitful outcomes.

As a subsequent remark, second thing I want to mention about is the convergence of diverse and/or even opposing opinions among representatives. We are here to understand and share our common denominator of the stakeholder’s interest. As far as I understand, some participants even doubt whether our meeting has been fair, balanced, and transparent in reaching agreements on various opinions regarding the articles of the draft Convention. In order to avoid later conflicts and to promote future compliance, I suggest that we should adopt the draft text article by article by consensus.

Finally and regarding the details of what I have mentioned above, Korea has reserved the specifics of several articles. We still concern about the fairness of the revised draft Convention. For example, pockets of high seas and trade sanctions need to be addressed more prudently; Scientific Service, conducting the core function of this Convention, should be open to all contracting parties; and decision-making needs to be more balanced. Also development and implementation of management measures such as adopting observer programs, transshipment, and deploying VMS need to take the practicalities into account. In addition, cost-effective operations of the Commission system including Secretariat, Scientific Committee, and Scientific Service are strongly recommended as an aspect of constructing general principles. Once again, my delegation highlights that fair, equitable, and balanced approaches are essential to promote cooperation and collaboration necessary for the achievement of the goals of Multilateral High Level Conference.

Mr. Chairman, we see this conference as an important opportunity to find ways to establish an implementable regional agreement. The Korean delegation is ready to work closely with other delegations from other countries. We look forward to fruitful discussions.

17 Annex 3 do not possess and with the increase in demand and markets beyond the Pacific region. We do not wish to see that when the time comes to fish, we find that the resource has gone. Nor do we want to have a Convention that will strangle us to remain where we are in our present level of fisheries development. We must have a Convention that conserve the resource sustainably but also enable the resource-States to harvest their own resource.

From our experience, we have learnt from the mistakes made against us. And we have lived with them all these years. For example, when the provision on archipelagic States of the Law of the Sea Convention was negotiated, little was made to take into account the special features of the scatteredness of the islands that make up what it is of the Republic of Kiribati today. Whilst this may be water already under the bridge, the important point is that we do not gloss over the issues before us at this stage of the negotiation simply for the sake of concluding a Convention. We must have a workable Convention of which we can all become a contracting Party. And let us not make the same mistakes again.

In the interest of brevity, let me echo in summary few general remarks on certain issues remaining outstanding in the current text for negotiation and offer our thoughts on some of them, as we will have the opportunity to deal with them in greater detail in the subsequent sessions.

First, we do not believe that the need for conservation should necessarily override the rights and sovereignty of coastal States over their resources. Conservation and management of the resource in question is desirable but the mechanism to carry out the task should be clearly demarcated so that we do not confuse the issue of sovereignty with that of conservation. The functions of the Commission therefore must be seen and examined in this regard. The Commission must be strengthened in order to be able to carry out its functions effectively. But in doing so, it must not in any way compromise the rights and sovereignty of coastal States.

Second, there is a need to strengthen the provision for the requirements of developing States as presented in the current text of article 31. The issue of vulnerability must also take into account environmental concerns such as global warming and its impact on the rise of sea level, as well as ocean pollution from oil spill and wastes caused from human activity through vessels traversing the Convention area. We can not take these matters for granted. The impact of global warming and climate change on our seawaters has already caused alarming situations to our disadvantage. Whilst these can become part of the overall tasks of the Scientific Committee to be established to provide scientific advice and services to the Commission and the contracting Parties, we feel that the current functions of the Scientific Committee are not adequate to address this important matter. We must therefore enable the Scientific Committee to take into account the climate change issues, including global warming and the rise of sea level, that have direct bearing on the biology of the fishery resource in question as part of its overall tasks.

Third, we believe that the issue of adjacency of national waters to the enclaves and the high seas must be taken into account in the allocation of the national total allowable catch. For qualification, the enclaves and the high seas must be productive of the resource. They should not include those waters which do not play an important part in the production of this resource. We should not discourage ourselves against the difficulty of working out an appropriate mechanism to address this important issue. Given the migratory nature of the resource, it is only most logical and appropriate that the issue merits serious consideration. It is not an issue of getting more from the pie; rather it is to do with one’s own immediate resource that happens to move into no man’s waters immediately next to that person’s waters. The argument that we should not create unnecessary precedents in international law is unfortunately not acceptable. This is because the argument goes against the very essence and importance of precedence to the making up of international law through States’ practices.

Fourth, there is a need for the decision-making mechanism to be simple and effective. We believe that a Convention must have teeth to bite with. But at the same time, contracting parties must have recourse to an impartial body for dispute settlements. We do not expect to have many disputes to take up but experiences from other Conventions have confirmed, from time to time, the necessity of having a simple and effective mechanism to make decisions and settle disputes. The settlement of disputes, once done, must be final. We can not afford to go in vicious circle.

16 Annex 3 precautionary approach, part of article 24 on Obligation of Contracting Parties including the Annex, article 25 on Flag State Duties including the Annex, article 27 on Boarding and Inspection, article 29 on observer program and article 30 on transshipment etc. When we come to the relevant articles, we would explain our view in more detail. Also, I would like to make it clear that we may not attend the intra-sessional working groups on some of these items, because our position is to defer the matter to the commission’s consideration when the Commission is established. Discussing partial revision of the wordings in the draft Convention is contrary to our position.

There is another outstanding question of the Convention area. Our basic position on this matter is quite simple. The Convention area should cover the entire migratory range of the tuna and tuna like species, regardless of what legal or political status of particular areas. When particular conservation and management measures are to be introduced, then consideration should be given to the actual legal and political status of various areas. It might not be easy but it is not so difficult as it appears, since it is clear that in the area under national jurisdiction such measures are to be applied under the authority of the coastal states and in other areas by the flag state authority. It could also be pointed out that number of times to take such measures would not be so many, because the number of species of our concern is rather limited and kind of measures we would take are also rather limited particularly in case of the highly migratory species. Therefore, we are optimistic that a realistic and practical solution can be found on the question of the western limit of the Convention area. But if equity is not achieved vis-a- vis our neighboring countries as to the geographical boundary of the Convention area or Japan is forced to accept meaningless lines splitting its own 200 mile zones, then we have to insist that northern boundary should be brought down to 20° N parallel in order to avoid such shameful treatment.

I must apologize for taking your precious time so long by complaining about various draft articles you must have devised after careful consideration, Mr. Chairman. However, I wanted to reiterate these basic points at the outset of this round of Conference to which my delegation attach greatest importance. I said so because Japan does not want you and our friends in this Conference room to underestimate the degree of its frustration with the process and intermediate outcome of the Conference up to the present. My delegation sincerely desires that I can make amicable statement at the conclusion of this round of the Conference.

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Kiribati

I do not wish to repeat the words of appreciation and thanks conveyed by previous speakers to our host for the usual excellent hospitality extended to us since our arrival and also during our last meeting in this same place earlier this year, but equally I do not want to let this occasion pass without acknowledging my delegation’s appreciation for the magnificent organization put in place for the convening of the fifth session of the MHLC on this occasion. We fully share the sentiments already expressed, in particular, the need to work closely together to achieve our common objective of concluding a Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific.

The central feature of our primary undertaking is to conserve and manage the highly migratory fish stocks resource available in our region. There is no doubt that all of us depend on this resource in various ways. But there is also no doubt that the smaller island developing states, such as Kiribati, depend more heavily on this resource. For the purpose of achieving a workable Convention, we must put aside our differences. But equally, we must not lose sight of the extent and level of our dependency on this resource. For us in Kiribati, the resource is central to the fabric of our society, as is the case in many of our other Pacific islands. The resource is a source of our livelihood. Let us not pretend not to know that in safeguarding the resource from rapid depletion, we are similarly safeguarding our livelihood.

One of the essential features of our Kiribati tradition which plays a major role in our ability to conserve and manage our scarce resources is the application of the concept of self-discipline and restraint. We call it in our local language, Te Taongengeaki. Simply, it means not to live beyond what is available. It demands for self-discipline and calls for effective management. The concept is relevant to the application of the proposed objectives of the draft Convention that we fully support. The threat on the highly migratory fish stocks has only been felt with the advancement of fishing technology which we

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My delegation looks forward to working on all these issues with other delegations. I seize this opportunity to reaffirm our full confidence in the capacity and the leadership of our Chairman to continue to guide us and to bring our canoe to a safe harbour.

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Japan

First of all, I would like to express my delegation’s most sincere appreciation to the host Government of the United States and its people for hosting this huge Conference once again in such a short interval of only six months. Our appreciation goes, in particular, to our colleagues in Hawaii who are undertaking the enormous effort in organizing and supporting the Conference.

The same Conference hall and the same familiar faces of delegations bring back to me the vivid memory of the last Conference. The most outstanding impression I could not escape from was a feeling that my delegation might not belong to the Conference. We tried our best to contribute to the progress through our experience and knowledge on tuna fishery, conservation and management of the tuna resources and fishery as well as through our conduct of business at other regional fisheries bodies. And yet, things were going further and further away from the direction we felt appropriate. Among others, an example was about the question of participation of a certain country to the Conference. One day, there was a statement by a representative of a group that they decided to welcome the participation and it was carried. I raised the question on what was catch history of that country and what was the standard to let in or not, since I thought there were other countries, say Russia, Southeast Asian countries and even some others who might have similar potential interest to participate. There was no reply. Without clear criteria shared by all the Conference members, this Conference can not respond properly and in trustworthy manner to any of such legitimate inquiry from those who at present are outside this Conference. And this seems to me to be a situation far from transparent, which, when we discuss the various provisions of the Convention, is regarded as indispensable condition in conduct of business under the proposed Convention. The example I referred to above may be an inappropriate one. Particularly, I have to apologize to the new participant involved. But I had to mention this because I believe that the decision taken by a big caucusing group always to dominate the conference is far from healthy picture.

In the past Conferences, we made serious proposals to improve the text of the draft Convention. When we met in Tokyo, we proposed a series of concrete amendments to many articles. When we met here last time we made a comprehensive proposal in the form of a full text. We consider that these proposals we made in the past, particularly the one at the last conference, are still on the table. Quite regrettably, however, none of these proposals have been reflected in the chairman’s text, not even with the bracket. We recognize that in most cases, Japan’s views belong to minority. But our proposed amendments are based on our true experience as a responsible fishing nation, based on scientific knowledge on the resources and fisheries and based on conservation and management practices in various regional fisheries organizations. We are seriously concerned about the effect of such tendency to disregard the minority view, which might well brought into in the final outcome of the Conference, if this tendency is to continue. Our particular concern relates to the decision-making (article 21). The present text will put the interest of the minority to be bound to be disregarded, and the minorities, say for example the fishing countries would eventually be shot down one by one. There seems to be two groups of thought regarding the decision making process. One is to develop a rule of the game in which one party would never lose. The other is to develop a rule in which everyone will have to endeavor to come to an agreement by promoting cooperation and encouraging to develop a solution which everyone can live with although with some degree of sacrifice by everyone. We consider the second one is what we need. Should the rule be like the first one we would feel better not to participate in the game at all.

Another point we have been emphasizing in past Conferences is that many matters now incorporated in the present chairman’s text should best be deferred to the considerations by the Commission to be established. This is because we need careful consideration of nature of the resources, fishery, geography, method of enforcement and financial resources available, before we jump to decide that many provisions of the United Nations Imeplementing Agreement should be copied in their entireties, saying in our Convention “shall”, “shall”, “shall”. Unless we can comply with all these “shalls”, it can automatically lead to the contravention of the Convention itself. To amend the Convention later requires enormous effort and time for all the parties involved. Some of such examples are article 6 on

14 Annex 3 which seems to make clear that the functions of the Commission are without prejudice to the sovereign rights of coastal States over highly migratory fish stocks within areas under national jurisdiction. However, we also recognize that as a coastal State we have an obligation to cooperate in the conservation and management of the stocks throughout their range. Consequently, Mr. Chairman, the Commission should have a facilitating and coordinating role in areas under national jurisdiction in order to achieve the Convention objectives.

Mr. Chairman, with regard to decision-making, we stand firm in our position that an alternative to consensus decision making must be available to ensure the timely implementation of conservation and management measures and to avoid deadlock and delay in the Commission. While we appreciate the provisions of the current draft which require consensus decision making in some key administrative and procedural areas, we are convinced that alternatives must remain in place for decisions relating to implementation of conservation and management measures. To do otherwise would be to subject the Commission to deadlock and paralysis in its efforts to implement a conservation and management regime. Moreover, we are confident that by providing for a three-quarter majority on substantive issues and a fair and balanced review procedure, any concerns about block voting or discrimination in voting outcomes can be adequately addressed.

Mr. Chairman, we would reiterate a concern we have raised in previous meetings about the June 2000 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 once the Convention is in force, other issues, such as allocation and financial arrangements, are so critical that they must be thoroughly addressed before ratification of a final Convention by the Federated States of Micronesia would be possible. In that respect, we would encourage consideration of a later deadline only if it appears likely that such key issues have not been agreed. 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 entire Convention area. Like our other Pacific Island colleagues, this fishery represents our nation’s most important, if not our 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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France

I would like, first of all, to extend our thanks to our hosts, the United States Government and the Hawaii authorities for their traditional warm welcome and the facilities offered to us in this magnificent conference center.

This is an inspiring location to work together “in the Pacific way” for achieving our common goal: the set up of a Convention on conservation and management of migratory fish stocks in this area. France, as in previous meetings, will participate fully in the works and contribute constructively to the improvement of the revised text which already represents a solid foundation. We have listened carefully to our Chairman and his call for flexibility and openness to set up a machinery to regulate the largest tuna fisheries in the world.

Mr. Chairman, this session is a particularly critical one as it should reach a general agreement on the main issues left to be agreed upon. We will take our part in the debate and present amendments and proposals. Written proposals on certain articles including the one related to the decision-making process will be circulated during this session.

Among the issues we want to put on record, is the financing of the proposed Organization. We will present a proposal on a modified scale or formula of contributions which should take into account the present level of development of all countries and territories. It should not come as a surprise if I mention also the question of French as a reference language for the Convention and a working language in the future Commission as it is the case in other fora.

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Mr. Chairman, we need to solve the pending issues in an appropriate manner before the completion of our work, including the issues of the Convention area, decision making and the final provisions. The Chinese delegation would like to use this opportunity to reiterate that we are now implementing the provisions of United Nations Convention on the Law of the Sea (UNCLOS) and the United Nations Implementing Agreement (UNIA) in accordance with the characteristics of the region as well as the fisheries in the region. Therefore, the work and outcome of the conference must be under the framework of UNCLOS and UNIA. Any provision of the drafted Convention shall not go beyond the provisions of UNCLOS and UNIA.

Mr. Chair, this 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 to the Government of the United States for its financial support and, together with 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 last met here in February, we are overwhelmed by the generous hospitality and fine 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 fine and able leadership throughout the MHLC process. In particular, we 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 February. 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.

Mr. Chairman, the Federated States of Micronesia is encouraged by the directions taken in discussions at the last meeting of this Conference. The language of the current draft text reflects a greater recognition of the rights and interests of coastal States, particularly in the areas of decision making, compatibility, and Commission functions. We are pleased with the balance that has been achieved, although we recognize that there is some distance to go before the Convention will ensure a conservation and management regime that is both fair and effective.

Mr. Chairman, we note with satisfaction the most recent amendments to article 8, relating to the compatibility of conservation and management measures. While the current draft is not yet as emphatic in its commitment to the United Nations Implementing Agreement (UNIA) principles as we might like, we note the newly added language, drawn largely from UNIA article 7(1), which reiterates the obligation to establish high seas measures which are compatible with those in zone, and for all parties to cooperate to achieve that goal.

Mr. Chairman, we also note a newly added reference to the high seas pockets or enclaves in the Convention area. This new provision recognizes that the special interests of the adjacent coastal States in the maintenance of the productivity of the highly migratory fish stocks in the pocket areas should be a consideration in the establishment of conservation and management measures for those areas. Such a provision, we believe, is entirely consistent with the rights and obligations defined in articles 116 and 119 of United Nations Convention on the Law of the Sea, relating to the conservation and management of the living resources in the high seas. Moreover, Mr. Chairman, we believe it is equally appropriate to afford special consideration in any high-seas allocation process to those states whose exclusive economic zone’s border on a high seas enclave, and we would support an amendment to the allocation criteria found in article 10 that would reflect that.

Mr. Chairman, with regard to article 10, dealing with the functions of the Commission, we are pleased to see that efforts have been made to create clear distinctions between activities of the Commission on the high seas and those which impact in-zone areas. In particular, we support the addition of language

12 Annex 3

Canada

On behalf of my delegation, I thank the United States, the Hawaiian authorities and the Western Pacific Regional Fishing Management Council for hosting the Conference once again and the excellent facilities provided to us.

I would like to take this opportunity to commend Ambassador Nandan for the considerable work done to date. You are very well positioned to guide us over the next two weeks. On a personal level, I recall many meetings where we worked together with great success, and I am delighted to work with you again.

Canada has participated in ealier meetings of this group and has made a contribution on a number of levels. We will continue our broad range of support to this endeavour and, as a full participant, we will try to add to the deliberations based on our experience in multilateral fisheries organizations and the negotiation of the 1995 United Nations Agreement on Straddling and Highly Migratory Fish Stocks. We thank the representative of the Solomon Islands for his kind words welcoming us as a full participant in the Conference.

Canada is a Pacific country. We have a long Pacific coast, intergovernmental ties with Asian Pacific countries going back to the early years of this century and, of course, strong ties at the personal level. Very many Canadians have family members living in Asian Pacific Rim countries; just as Canadians have left Canada to make their fortune in Asia, so have Asians come to Canada.

I would be remiss if I did not mention Canada's cooperative programmes with Asian Pacific Rim countries which go back some 30 years. A key objective of these programmes is to strengthen regional organizations and assist in the development and management of oceans resources. We have every intention of continuing this valuable cooperation.

Canada has also been actively engaged in the Pacific tuna fishery. Our fishery has focussed on northern albacore, in the waters off the North American coast to west of the dateline, well inside the proposed Convention area. Canadian industry has also fished southern albacore since the late 1980, and has fished for other Pacific tuna species in recent years.

Mr. Chairman, our current deliberations are important at two levels at least. They are important to the conservation and management of a number of tuna stocks. The stocks must be harvested on a sustainable basis so that we and our children may benefit from them. Our deliberations are also important to the implementation of the 1995 Agreement on Straddling and Highly Migratory Fish Stocks. The Agreement has now been ratified by 23 countries, Canada did so last month, and it is vital that the treaty that we elaborate be fully consistent with that Agreement.

The Canadian delegation will work with you to ensure that the fishing communities of all participating countries are treated equitably and that the treaty that we develop is faithful to the 1995 Agreement and ensures a tuna fishery for generations to come.

-----

China

First of all, on behalf of the Chinese delegation, I would like to thank the Government of the United States of America for hosting the Conference for the second time.

Mr. Chairman, it is the third time we gather together to discuss the working paper drafted by you. The participants have expressed their views or made amendment proposals in Tokyo and then in the Honolulu meeting. As the result of the discussion in the previous two meetings, amendments were made by you to the draft Convention. Prior to this meeting, we received your proposal on the preamble and the final provisions of the drafted Convention. This is the reflection that the process of establishing a fisheries management regime has reached its final stage. The Chinese delegation hopes that significant progress will be made during this meeting, so that the negotiation can be concluded before June 2000.

11 Annex 3

STATEMENTS BY DELEGATIONS AND OBSERVERS

Australia

We share the feelings of deep appreciation expressed by other delegations for the warm welcome and the generous provision for our work provided by our hosts, the Governments of the United States and Hawaii and the Central and Western Pacific Fisheries Council.

We are now in the fifth session of this Conference and it is appropriate that we should feel ourselves under some pressure to find agreements which can bring our discussions to a successful conclusion. For Australia’s part, we listened with appreciation to your own comments on the importance of finding common ground and compromise between the range of views represented here. As a member of the Forum Fisheries Agency, Australia is particularly focussed on the concerns and aspirations of the island States of the region in conserving and managing its fish resources. But we are also very conscious of the importance of the role played by the distant water fishing nations, and expect to have a growing direct interest of our own in that dimension of fishing activity in the Pacific.

I would like to offer some brief comments on three areas of the draft Convention which we expect to be of particular priority at this session.

Decision-making

The Commission must be in a position to act authoritatively in support of the Convention’s conservation and management objectives. Consensus is the strongest source of that authority and will, in our view, be achievable in all but a few areas. That is certainly what we will always strive for. But where every effort to achieve it has failed, the Commission should not be prevented from acting in a way supported by a very substantial majority of its members. Appropriate review provisions will provide for the legitimate interests of contracting parties. Mandatory consensus requirements, for example, on adoption of the budget, could allow the potential for any single contracting party to hold the Commission hostage in a manner which would be very damaging to our collective purpose.

The Convention area

The Convention’s geographic scope should aim to encompass the entire range of the stocks, and the obligations of parties should be the same in this respect. Against that background we have some substantial concerns relating to the western boundary of the area as set out in the present text. We believe these can be addressed in a way which is fair and equitable to all potential parties, which does not prejudice respective positions on difficult political or doctrinal issues. We will be interested in pursuing further discussions on this.

Monitoring, control and surveillance

We want to see an effective regime which provides a high level of transparency in the relevant fishing activities of all parties. We think that can best be done, and probably only be done, if the Commission plays a central role in establishing and operating standards and procedures, including for vessel monitoring, in cooperation with flag and coastal States.

-----

10 Annex 2

We also need to further develop the idea of an interim regime for conservation and management pending entry into force of the Convention. This is an important matter and I would urge you to give some consideration to this before the end of this session. Linked with the question of an interim regime are the conditions required for entry into force of the Convention in order to ensure that the initial parties reflect a representative group. This we shall also discuss in the context of the final clauses.

This list of issues is only indicative. It does not preclude discussion of other matters that you might wish to be considered. In addition, in the course of discussion of the matters I have referred to, other issues are bound to arise and we will deal with them as we go along.

Distinguished delegates, We have reached a stage that requires us to be more statesmanlike in our approach as we proceed towards forging a generally acceptable Convention. This would require careful consideration of all views that are expressed, understanding of each other’s concerns and flexibility in order to accommodate differing positions in a manner that will allow us to make progress towards our goal.

In any negotiation which seeks cooperation from all, the best results are achieved when everyone appreciates that such results are neither the result of a tyranny of the majority nor a tyranny of the minority. The outcome must therefore reflect a result which is for the good of all. The result may not be the ideal for everyone, but sufficient that everyone can live with it in the interests of progress.

Distinguished delegates, If we succeed in achieving our goal we would have set up a machinery which would have the responsibility to regulate the largest tuna fishery in the world, encompassing most of the surface of the Pacific Ocean.

Once again I count upon your cooperation in achieving our common goal of establishing a viable regime for the effective conservation and management of the highly migratory fish stocks of the region in a manner that would benefit both present and future generations of our peoples. Given the biological characteristics of highly migratory fish stocks, the sustainable use of these resources is vital both to the central and western Pacific nations that have jurisdiction over large areas of fishing grounds and to the distant water fishing nations and entities that harvest most of the catch in the proposed Convention area. We cannot, of course, overlook the fact that these resources are also an essential source of food for humanity as a whole.

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9 Annex 2

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

6 September 1999

Excellencies, distinguished delegates, colleagues and friends,

E komo mai. That is, welcome to Honolulu and to the fifth 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 we meet in this magnificent city to enjoy the warm hospitality and kindness of our hosts. May I, on your behalf, thank the Government of the United States for hosting this fifth session and express our appreciation to the State of Hawai’i and in particular to the Western Pacific Regional Fisheries Management Council for the wonderful facilities they have made available to us to conduct our proceedings.

I would like particularly on your behalf to express gratitude to Kitty Simmonds and her colleagues who have once again organized this meeting with their usual efficiency and generosity. We also acknowledge the contribution of the Director and the Secretariat of the Forum Fisheries Agency.

This morning we have again been accorded a traditional Hawai’ian welcome. Our Conference will benefit from the prayers offered as well as from the invocation of the gods of the sea to guide us in our deliberations as we continue on our voyage for the better conservation and management of the resources of the central and western Pacific Ocean.

Distinguished delegates,

We have eight working days in which to discuss a wide range of complex issues which require our attention as we move forward towards our goal of achieving a convention. I hope therefore you will cooperate with me to make the maximum use of our time, including some evening meetings and, if necessary, a part of the weekend, in order that we can make substantial progress during this session.

We are now at a stage in the negotiations which require us to be flexible in the procedures that we follow. I propose that we meet in plenary, in informal sessions and in representative groups, on the understanding, of course, that eventually all matters would be reported to the plenary where everyone has the opportunity of being informed and to make their comments as appropriate.

Distinguished delegates, I had already identified a number of issues that we might address during this session at the closing meeting of the last session and I further listed some of the issues in the information note that was circulated to you all in June. These key issues include the western boundary of the proposed Convention area, decision-making and procedures for the settlement of disputes, technical matters relating to the operational details of a regional vessel monitoring system, the formula for financing of the Commission, including the possibility of looking at precedents from other organizations, and how to give practical effect to the provisions of article 31 relating to the special requirements of developing States, territories and possessions. Consideration of some of these, such as the issue of financing of the Commission, may perhaps be deferred until the key issues of the Convention area and decision-making have been addressed.

In addition, the Conference needs to consider in more detail certain issues which were raised at the fourth session. These include the issue of a committee to advise the Commission on particular stocks in the northern region of the proposed Convention Area. A number of other suggestions have been made to me and I intend, in the course of this meeting, to take these up.

Since the last session I also circulated a draft preamble and final clauses, consisting of articles 35 to 45. In this regard, I should mention that the main body of the text, which was circulated at the end of the last session, has not yet been harmonized with the draft preamble and final clauses. It will therefore be necessary at a later stage to make consequential changes to certain provisions in the main body of the text following discussion of the final clauses.

8 Annex 1

William Hogarth Observers Walter Ikehara Chuck Janisse Mexico Charles Karnella Ricardo Belmontes Holly Koehler Raul Cortez Paul Krampe Ricardo Ramirez Thompson Marilyn Luipold Dwight Mathers European Community Tana McHale Julio Moron Ann Notthoff Ernesto Penas Linda Paul Gabriel Sarro Palmer Pedersen Gary Sakagawa IATTC Richard Seman Robin Allen John Sibert Manuel Silva Pacific Community Kitty Simonds Tim Lawson Bob Smith Tony Lewis George Sousa Lisa Speer Pacific Islands Development Programme Leona Stevenson Kim Small Dean Swanson Joaquin Tenorio University of the South Pacific Mike Testa Sandra Tarte Mike Tosatto Ray Tulafono Chairman Tom Webster Satya N. Nandan Julius Zolezzi Conference Secretariat Vanuatu Blaise Kuemlangan Moses Amos Michael Lodge Richard Kaltonga Hope Holiona Paul Sami Mark Minton Anthony Tillett Mark Mitsuyasu Bani Timbaci Ellen Reformina Sylvia Spalding Wallis & Futuna Alice Worthy Bernard Guegan Patalione Kanimoa Forum Fisheries Agency Pelenatita Papilio Fred Amoa Transform Aqorau Ian Cartwright Gerry Geen Barbara Hanchard Andrew Richards Victorio Uherbelau Anna Willock

7 Annex 1

New Zealand Solomon Islands Andrew Bedford John Baura Grant Bryden Senda Fifi’i Nicky McDonald Phil Roberts Talbot Murray Albert Wata Chris O’Brien Adrian Wickham Penelope Ridings Chinese Taipei Niue Paul Chang Christine Ioane Chu-Lung Chen Brendon Pasisi Chien-Te Fan Shin-Fuu Fuh Palau Peter Ho Mario Gulibert Claire Hsiao Theo Isamu Alfred Nien-Tsu Hu James Kelleher Yu-Feng Ko Ramon Rechebei Chung-Hai Kwoh Charles Lee David Liang Norman Barnabas Hui-Yin Lin Maurice Brown-John Kevin Lin Henry Chow Andy Liu Masio Nidung James Sha Maimu Raka-Nou Chi-Lu Sun Dennis Renton James Tsai Roy Rivera Jennifer Tu Rudy Rivera Aquila Sampson Tonga Akau’ola Philippines Mafi Akau’ola Gil Adora Viliami Malolo Avelino De Leon Benjamin Domingo Tuvalu Cesar Drilon Elisala Pita Eduardo Esteban Feleti P. Teo Minerva Jean Falcon Reuben Ganaden United States of America Bahnarim Guinomla Louis Agard Carlos Hagosojos William Aila Jake Lu Violanda Botet Gina Lu David Burney Augusto Natividad Scott Burns Stanley Swerdloff Paul Callaghan Richard Sy Ray Clarke Marfenio Tan Elaine Carlin Bernabe Veloria Jim Cook Rosalinda Veloria Paul Dalzell Peter Flournoy Samoa William Gibbons-Fly Ueta Fa’asili Eric Gilman Vitolio F. Lui Tom Grasso Raymond Schuster Mike Gonzalez Brian Hallman Joe Hamby Dorothy Harris Louis Hao Wayne Heikkila

6 Annex 1

LIST OF PARTICIPANTS

Australia Japan Michael Bliss Yoshio Ishizuka Peter Cassells Kosuke Higaki Mark Gray Kimio Kawasaki Neil Hughes Kenji Kagawa Hans Jusseit Masaaki Nakamura Mary Lack Shuya Nakatsuka Geoff Miller Ichiro Nomura Glenn Sant Junichiro Okamoto Joe Thwaites Eiko Ozaki Peter Ward Tatsuo Saito Kenichi Shibasaki Canada Maki Shojiro Sandy Argue Ryuichi Tanabe Nadia Bouffard Hiroaki Yamamoto Howard Strauss Ito Yoshiaki Eric Wickham Kiribati China Johnny Kirata Mr. Li Jianhua Kaburoro Ruaia Mr. Fang Jianming Emile Schutz Mr. Yan Jianxin Rimeta Tinga Mr. Yang Li Mr. Song Liming Republic of Korea Mr. Peng Rongtao Yong-Ja Cho Mr. Liu Xiaobing Jang-Hyun Choi Ms. Wang Xiaodu Gab-Yong Jeong Jung-Soo Kim Cook Islands Kwang-Ryong Kim Ian Bertram Jong-Koo Lee Carl Hunter Kwang-Se Lee Joshua Mitchell Woo-Kun Lim Robert Worthington Dae-Yeon Moon Moo-Sung Park Federated States of Micronesia Hyun-Soo Yun Elizabeth McCormick Lorin Roberts Marshall Islands Nicholson Solomon Rhea Moss Bernard Thoulag David Paul Danny Wase Fiji Ken Cokanasiga Nauru Maciu Lagibalavu Ellington Dowabobo Esaroma Ledua Chitra Jeremiah Silipa Tagicaki Anton Jimwereiy Alefina Vuki Christine Stewart

France New Caledonia Pierre Garrigue-Guyonnaud Jean-Pierre Diahaiouf Serge Segura Regis Etaix-Bonnin Samuel Hnepeune Indonesia Hasjim Djalal

5 7. The Chairman delivered a closing statement outlining the progress that had been made during the session. The Chairman’s closing statement is attached as Annex 6. In his closing statement, the Chairman noted that, while substantial progress had been made, a number of issues remained outstanding. These included: decision-making; the position of fishing entities; participation by territories; financial arrangements and entry into force. The Chairman urged all delegations to give careful consideration to these issues before the next session. He also suggested that, at the next session, the Conference should address the outstanding issues in the draft text and begin to turn its attention to the interim regime pending entry into force of the Convention. The Chairman noted that the following issues might be discussed in that context: · Data collection consistent with annex 1 of the Agreement · A moratorium on total fishing effort (providing it does not limit the development of national capacity by developing coastal States in the region) · Preparatory functions of the Commission Vessel register Standards and specifications for vessel marking Vessel monitoring system Observer programme Scientific advice · Institutional arrangements Rules of procedure Meetings of the parties Initial budget Structure of the Secretariat Relationship to existing bodies

8. The Conference also adopted a resolution relating to future participation in the Conference. The resolution adopted by the Conference is attached as Annex 7.

9. The Conference agreed that it would reconvene early in 2000 to continue its work on the draft Convention. The objective at that session would be to adopt the draft Convention. The final session of MHLC should take place in June 2000, consistent with the commitment made at Majuro in 1997. The final session should take the form of a three day meeting of officials to finalise a resolution establishing an interim regime, as well 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.

10. The Conference was adjourned on 15 September 1999.

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

FIFTH SESSION

Honolulu, Hawai’i 6 – 15 September 1999

REPORT

1. The fifth 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 6 to 15 September 1999. The Conference was attended by representatives from Australia, Canada, China, Cook Islands, Federated States of Micronesia, Fiji, France, French Polynesia, Indonesia, Japan, Kiribati, Marshall Islands, Nauru, New Caledonia, New Zealand, Niue, Palau, Papua New Guinea, Philippines, Republic of Korea, Samoa, Solomon Islands, Chinese Taipei, Tonga, Tuvalu, United States of America, Vanuatu and Wallis 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 Community (PC) 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 Brian Hallman, 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), noted that the key issues for consideration during the fifth session included the western boundary of the proposed Convention area, decision-making and procedures for the settlement of disputes, technical matters relating to the operational details of a regional vessel monitoring system, the formula for financing of the Commission, including the possibility of looking at precedents from other organizations, and how to give practical effect to the provisions of article 31 relating to the special requirements of developing States, territories and possessions. In addition, the Conference needed to consider in more detail certain issues which were raised at the fourth session, including the issue of a committee to advise the proposed Commission on particular stocks in the northern region of the Convention Area. The Chairman further noted that, since the fourth session, he had circulated, under symbol MHLC/WP.2, a draft preamble and final clauses, consisting of articles 35 to 45, and these would be taken up by the Conference.

4. Statements were made by the representatives of Australia, Canada, China, Federated States of Micronesia, France, Japan, Kiribati, New Zealand, Niue, Palau, Papua New Guinea, Philippines, Solomon Islands, Chinese Taipei, Tuvalu, United States of America and Vanuatu. Statements were made by the observers from Mexico and IATTC. Statements made by delegations and observers are attached as Annex 3.

5. 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 of the fourth session (MHLC/WP.1/Rev.2 dated 19 February 1999) and the draft Preamble and Final Clauses (MHLC/WP.2 dated 20 July 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 July 1999, and in the light of other issues identified by the participants. The information note is attached as Annex 4.

6. Following the discussion, the Chairman introduced a further revision of the draft Convention under symbol WP.1/Rev.3. The Conference considered the revised text in detail in informal sessions held on 10, 11, 13 and 14 September. Following the discussions, the Chairman further refined the text and issued a further revision of the draft Convention under symbol MHLC/WP.1/Rev.4. The revised draft Convention is attached as Annex 5.

3 Contents

Page

REPORT 3

ANNEX 1 List of Participants 5

ANNEX 2 Opening Remarks by the Chairman 8

ANNEX 3 Statements by Delegations and Observers 10

ANNEX 4 Information Note on Matters Before the Fifth Session 31

ANNEX 5 Draft Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific 34 Ocean (WP.1/Rev.4 at 16 September 1999)

ANNEX 6 Closing Statement by the Chairman of 19 February 1999 61

ANNEX 7 Resolution 66

ANNEX 8 MHLC Chronicle 67

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

FIFTH SESSION

Honolulu, Hawaii 6 – 15 September 1999