Page images

States shall not include, nor shall it be construed to extend to, highly migratory species of fish. SEC. 104. EFFECTIVE DATE.

This title shall take effect March 1, 1977.


Title II prohibits foreign fishing within the 200-mile zone, except as provided in the Act and under a valid permit. It gives priority in the zone to U.S. vessels and permits foreign fishing only for that portion of the optimum yield which will not be harvested by U.S. vessels. Title II also calls for renegotiation of existing fishery agreements which are in any manner inconsistent with the purposes of the Act. It declares the sense of Congress that the United States shall withdraw from any such treaty, in accordance with its provisions, which is not so renegotiated within a reasonable time. It also declares the sense of Congress that,

the United States Government shall not recognize the claim of any foreign nation to a fishery conservation zone (or the equivalent) beyond such nation's territorial sea, to the extent that such sea is recognized by the United States, if such nation

(1) fails to consider and take into account traditional fishing activity of fishing vessels of the United States;

(2) fails to recognize and accept that highly migratory species are to be managed by applicable international fishery agreements, whether or not such nation is a party to any such agreement; or

(3) imposes on fishing vessels of the United States any conditions or restrictions which are unrelated to fishery conser

vation and management. Congressional oversight of international fishing agreements is to be accomplished by a requirement that no such agreement may become effective less than 60 days after its transmittal to Congress, where it is subject to a joint resolution to prohibit its entry into force.

Import prohibitions may be imposed on fish or fish products from a foreign nation if the Secretary of State is unable within a reasonable time to conclude an agreement with that nation for equitable U.S. fishing rights in that nation's exclusive managment zone; or if that nation is refusing U.S. vessels access to highly migratory species in accordance with an international agreement or is not complying with its obligations under such an agreement concerning U.S. fishing in its exclusive zone; or if it seizes any U.S. fishing vessel in violation of an international agreement, without authorization under an agreement with the United States or as a consequence of a claim of jurisdiction not recognized by the United States. Title III of the Act establishes a national fishery management plan,

a with eight Regional Fishery Management Councils. Fishery management plans prepared by any Council require approval of the Secretary of Commerce, publication in the Federal Register allowing 45 days for comment by interested persons, public hearings if scheduled by the Secretary, and promulgation of regulations with effect in such manner as not to disrupt the regular fishing season. Regulations are subject to judicial review pursuant to chapter 7 of Title 5 of the U.S. Code.

Upon signing the Fishery Conservation and Management Act into law, President Ford issued a statement expressing his concerns regarding certain legal problems which it raised. An excerpt from his statement follows:

I am concerned about our ability to fulfill the tasks in the time and manner provided in the Act. I am particularly anxious that no action be taken which would compromise our commitment to protect the freedom of navigation and the welfare of our distant water fisheries. Surely we would not wish to see the United States engaged in international disputes because of an absence of needed flexibility.

Additionally, I am concerned about four specific problem areas which are raised by this legislation:

First, absent affirmative action, the subject bill could raise serious impediments for the United States in meeting its obligations under existing treaty and agreement obligations;

Second, the bill contemplates unilateral enforcement of a prohibition on foreign fishing for native anadromous species, such as salmon, seaward of the 200-mile zone. Enforcement of such a provision, absent bilateral or multilateral agreement, would be contrary to the sound precepts of international jurisprudence;

Third, the enforcement provisions of H.R. 200 dealing with the seizure of unauthorized fishing vessels, lack adequate assurances of reciprocity in keeping with the tenets of international law; and

Fourth, the measure purports to encroach upon the exclusive province of the Executive relative to matters under international negotiations. Although these matters are of major importance, I am hopeful

I they can be resolved by responsible administrative action and, if necessary, by curative legislation. Accordingly, I am instructing the Secretary of State to lead Administration efforts toward their effective resolution.

For the full text of President Ford's statement, see Weekly Compilation of Presidential Documents, Vol. 12. No. 16, Apr. 19, 1976. p. 644. On Dec. 20, 1976, the National Marine Fisheries Service, NOAA, Dept. of Commerce, made available for public comment draft regulations which could be promulgated to implement Preliminary Management Plans under the Act. The draft regulations were intended to apply only to foreign fishing vessels within the area over which the United States exercises exclusive fishery management authority. Final regulations were to be adopted by early February of 1977. The draft regulations (50 CFR 611.1-611.94) contain general rules and subparts on surpluses and individual geographic areas. Notice of a proposed fee schedule for fishing by foreign vessels in waters under U.S. jurisdiction was issued on the same day. Fed. Reg., Vol. 41, No. 248, Dec. 23, 1976, pp. 55904-55914, 55925-55927; No. 252, Dec. 30. 1976, p. 56879.

Monroe Leigh, Legal Adviser of the Department of State, wrote a letter on January 27, 1976, to Senator Alan Cranston in response to a request for a preliminary opinion on a matter of international law which arose in the Senate in its consideration of the then-proposed legislation for a 200-mile limit. Specifically, Senator Cranston had inquired whether or not the United States would be justified under international law to adopt, pursuant to article 7 of the 1958 Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas (TIAS 5969; 17 UST 138; entered into force for the U.S. March 20, 1966, subject to an understanding), conservation measures which would be applied against nonparties to the Convention. Mr. Leigh wrote, in part:

Before a party to the Convention takes action pursuant to article 7 there must be a need for urgent application of conservation measures; international negotiations must be pursued for six months; the measures adopted must be based on appropriate scientific findings; the measures must not discriminate in form or fact against foreign fishermen; and the measures taken must be subject to compulsory dispute settlement procedures in article 9 if not accepted.

While a treaty may not be applied against nonparties as such, and article 7 did not represent a codification of international law at the time it was drafted, there is growing recognition in international law that coastal States may under certain circumstances take conservation measures of the kind prescribed in article 7. In the 1974 Fisheries Jurisdiction Case the International Court of Justice recognized a broad duty on all States to take conservation measures with respect to high sea fisheries. The Court also recognized the special interest that coastal States have in the conservation and management of high seas fisheries adjacent to their coast. And, the Court held that States are under a mutual obligation to undertake negotiations in good faith for the equitable solution of their differences concerning their respective fishery rights. Thus, a strong case can be made that where, for instance, a coastal State has a substantial economic interest in a particular coastal fishery and that particular stock is being depleted by fishing in excess of the maximum sustainable yield, the coastal State may legally initiate negotiations and other measures as prescribed in article 7 to protect that species pending agreement among the affected States.

It should be noted that the compulsory settlement of disputes requirement is essential to the overall structure of the procedures for implementing regulations pursuant to article 7. At the least, for such measures to be applied to nonparties to the 1958 Convention, the nonparties must have access to reasonable dispute settlement procedures.

Cong. Rec., Vol. 122, No. 7, Jan. 27, 1976, p. 5627, (daily ed.). Art. 7 of the 1958 Convention provides:

1. Having regard to the provisions of paragraph 1 of article 6, any coastal State may, with a view to the maintenance of the productivity of the living resources of the sea, adopt unilateral measures of conservation appropriate to any stock of fish or other marine resources in any area of the high seas adjacent to its territorial sea, provided that negotiations to that effect with the other States concerned have not led to an agreement within six months.

2. The measure which the coastal State adopts under the previous paragraph shall be valid as to other States only if the following requirements are fulfilled:

(a) That there is a need for urgent application of conservation measures in the light of the existing knowledge of the fishery; (b) That the measures adopted are based on appropriate scientific findings:

(c) That such measures do not discriminate in form or in fact against foreign fishermen.

3. These measures shall remain in force pending the settlement, in accordance with the relevant provisions of this Convention, of any disagreement as to their validity.

4. If the measures are not accepted by the other States concerned, any of the parties may initiate the procedure contemplated by article 9. Subject to paragraph 2 of article 10, the measures adopted shall remain obligatory pending the decision of the special commission.

5. The principles of geographical demarcation as defined in article 12 of the Convention on the Territorial Sea and the Contiguous Zone shall be adopted when coasts of different States are involved.

Bilateral Agreements Governing International Fishery Agreements

Title II of the Fishery Conservation and Management Act of 1976 (P.L.94-265; 90 Stat. 337; 16 U.S.C. 1821-1825), approved April 13, 1976, requires that any nation wishing to fish within 200 miles of U.S. coasts must sign a governing international fishery agreement, acknowledging U.S. jurisdiction in the 200-mile fisheries zone established by the Act. It can then apply for permits for its fishing vessels to enter specified fisheries where surpluses have been determined to exist by Regional Fishery Management Councils. See ante, p. 352.

Following signature of the Act, the United States undertook negotiations with a number of interested countries. The first such agreement to be negotiated was between the United States and Poland and was signed on August 2, 1976. In accordance with the requirements of the Act, it was transmitted by the President to the Congress, to lie for 60 days, subject to the possibility of a joint resolution to prohibit its entry into force. (See House Document 94-613.) President Ford recommended that, in the event 60 calendar days of continuous session as required by the Act were not available before March 1, 1977, the Congress consider issuance of a joint resolution in order to bring the agreement into force by that date.

Governing international fishery agreements were subsequently signed with the Republic of China, on September 15, 1976; the German Democratic Republic, on October 5, 1976; Romania, on

November 23, 1976; the Soviet Union, on November 26, 1976; Bulgaria on December 17, 1976; and the Republic of Korea on January 4, 1977. On February 8, 1977, the House of Representatives passed, by a vote of 353 to 35, H.J.Res. 240 waiving certain requirements of the Fishery Conservation and Management Act and providing for entry into force of the agreements signed during 1976, on the date of enactment of the joint resolution.

The agreements set forth principles and procedures under which fishing may be conducted by nationals and vessels of the foreign country for the living resources over which the United States exercises fishery management authority as provided by the Act. They also describe the objectives, taking into account traditional fishing, if any, that the United States will use in determining the portion of the surplus that may be made available to vessels of the other country. Procedures are established with respect to observers, enforcement officials, and arrests for violations. Cooperative measures in the conduct of scientific research, the exchange of information, and periodic consultation are provided. Provision is made, on a prospective basis, for U.S. fishing in the fishery conservation zone of the other country, should the United States indicate its interest. Annexes govern permit procedures and collection and reporting requirements.

Sec. 201(c) of the Fishery Conservation and Management Act of 1976 (16 U.S.C. 1821(c)) sets forth the terms and conditions for governing international fishery agreements. It includes the following provision:

It is the sense of the Congress that each such agreement shall include a binding commitment, on the part of such foreign nation and its fishing vessels, to comply with the following terms and conditions:

(1) The foreign nation, and the owner or operator of any fishing vessel fishing pursuant to such agreement, will abide by all regulations promulgated by the Secretary pursuant to this Act, including any regulations promulgated to implement any applicable fishery management plan or any preliminary fishery management plan.

(2) The foreign nation, and the owner or operator of any fishing vessel fishing pursuant to such agreement, will abide by the requirement that

(A) any officer authorized to enforce the provisions of this Act (as provided for in section 311) be permitted

(i) to board, and search or inspect, any such vessel at any time,

(ii) to make arrests and seizures provided for in section 311 (b) whenever such officer has reasonable cause to believe, as a result of such a search or inspection, that any such vesselor any person has committed an act prohibited by section 307, and

(iii) to examine and make notations on the permit issued pursuant to section 204 for such vessel;

(B) the permit issued for any such vessel pursuant to section 204 be prominently displayed in the wheelhouse of such vessel;

(C) transponders, or such other appropriate position-fixing and identification equipment as the Secretary of the department in which the Coast Guard is operating determines to be appropriate, be installed and maintained in working order on each such vessel;

(D) duly authorized United States observers be permitted on board any such vessel and that the United States be reimbursed for the cost of such observers;

(E) any fees required under section 204(b) (10) be paid in advance;
(F) agents be appointed and maintained within the United States who are

« PreviousContinue »