Treaty on Fisheries Between the Governments of Certain Pacific Island States and the Government of the United States of America (1987)

 

The Governments of the Pacific Island States party to this Treaty and the Government of the United States of America:

ACKNOWLEDGING that in accordance with international law, coastal States have sovereign rights for the purposes of exploring and exploiting, conserving and managing the fisheries resources of their exclusive economic zones or fisheries zones;

RECOGNIZING the strong dependence of the Pacific Island parties on fisheries resources and the importance of the continued abundance of those resources;

BEARING IN MIND that some species of fish are found within and beyond the jurisdiction of any of the parties and range throughout a broad region; and

DESIRING to maximize benefits flowing from the development of the fisheries resources within the exclusive economic zones or fisheries zones of the Pacific Island parties;

HAVE AGREED AS FOLLOWS:

 

Article 1  Definitions and Interpretation

1.1  In this Treaty:

(a) "Administrator" means that person or organization designated by the Pacific Island parties to act as such on their behalf pursuant to this Treaty and notified to the Government of the United States;
 
(b) "final judgement" means a judgement from which no appeal proceedings have been initiated within sixty days;
 
(c) "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 this paragraph; or
(vi) aircraft use, relating to the activities described in this paragraph except for flights in emergencies involving the health or safety of crew members or the safety of a vessel;

(d) "fishing vessel of the United States" or "vessel" means any boat, ship or other craft which is used for, equipped to be used for, or of a type normally used for commercial fishing, which is documented under the laws of the United States;

(e) "Licensing Area" means all waters in the Treaty Area except for:

(i)  waters subject to the jurisdiction of the United States in accordance with international law; and
(ii) waters closed to fishing by fishing vessels of the United States in accordance with Annex I;

(f) "operator" means any person who is in charge of, directs or controls a vessel, including the owner, charterer or master;

(g) "Pacific Island party" means a Pacific Island State party to this Treaty and "Pacific Island parties" means all such States from time to time;

(h) "Pacific Island State" means a party to the South Pacific Forum Fisheries Agency Convention, 1979;

(i) "party" means a State party to this Treaty, and "parties" means all such States, from time to time;

(j) "this Treaty" means this Treaty, its Annexes and Schedules; and

(k) "Treaty Area" means all waters north of 60 degrees south latitude and east of 90 degrees east longitude, subject to the fisheries jurisdiction of Pacific Island parties, and all other waters within rhumb lines connecting the following geographic co-ordinates, designated for the purposes of this Treaty, except for waters subject to the jurisdiction in accordance with international law of a State which is not a party to this Treaty:

 

2o   35'  39" S 

141o 00' 00" E

1o   01'  35" N

140o 48' 35" E

1o   01'  35" N

129o 30' 00" E

10o 00'  00" N

129o 30' 00" E

14o 00'  00" N

140o 00' 00" E

14o 00'  00" N

142o 00' 00" E

12o 30'  00" N

142o 00' 00" E

12o 30'  00" N

158o 00' 00" E

15o 00'  00" N

158o 00' 00" E

15o 00'  00" N

165o 00' 00" E

18o 00'  00" N

165o 00' 00" E

18o 00'  00" N

174o 00' 00" E

12o 00'  00" N

174o 00' 00" E

12o 00'  00" N

176o 00' 00" E

5o   00'  00" N

176o 00' 00" E

1o   00'  00" N

180o 00' 00"

1o   00'  00" N

164o 00' 00" W

8o   00'  00" N

164o 00' 00" W

8o   00'  00" N

158o 00' 00" W

0o   00'  00" 

150o 00' 00" W

6o   00'  00" S

150o 00' 00" W

6o   00'  00" S

146o 00' 00" W

12o 00'  00" S

146o 00' 00" W

26o 00'  00" S

157o 00' 00" W

26o 00'  00" S

174o 00' 00" W

40o 00'  00" S

174o 00' 00" W

40o 00'  00" S

171o 00' 00" W

46o 00'  00" S

171o 00' 00" W

55o 00'  00" S

180o 00' 00"

59o 00'  00" S

160o 00' 00" E

59o 00'  00" S

152o 00' 00" E

 

 and north along the 152 degrees of east longitude until intersecting the Australian 200-nautical-mile limit.
 
1.2  Nothing in this Treaty shall be deemed to affect the applicability of any provision of a Pacific Island party's law which is not identified or otherwise described in this Treaty.

Article 2  Broader Co-Operation

2.1  The Government of the United States shall, as appropriate, co-operate with the Pacific Island parties through the provision of technical and economic support to assist the Pacific Island parties to achieve their objective of maximizing the benefits from the development of their fisheries resources.

2.2  The Government of the United States shell, as appropriate, promote the maximization of benefits generated for the Pacific Island parties from the operations of fishing vessels of the United States licensed pursuant to this Treaty, including:

(a) The use of canning, trans-shipment, slipping and repair facilities located in the Pacific Island parties;

(b) The purchase of equipment and supplies, including fuel supplies, from suppliers located in the Pacific Island parties;

(c) The employment of nationals of the Pacific Island parties on board licensed fishing vessels of the United States.

Article 3  Access to the Treaty Area

3.1  Fishing vessels of the United States shall be permitted to engage in fishing in the Licensing Area in accordance with the terms and conditions referred to in Annex I and licenses issued in accordance with the procedures set out in Annex II.

3.2  It shall be a condition of any licence issued pursuant to this Treaty that the vessel in respect of which the licence is issued is operated in accordance with the requirements of Annex I. No fishing vessel of the United States shall be used for fishing in the Licensing Area without a licence issued in accordance with Annex II or in waters closed to fishing pursuant to Annex I, except in accordance with paragraph 3 of this article, or unless the vessel is used for fishing albacore tuna by trolling the trolling method in high seas areas of the Treaty Area.

3.3  A Pacific Island party may permit fishing vessels of the United States to engage in fishing in waters under the jurisdiction of that party which are:

(a) Within the Treaty Area but outside the Licensing Area; or

(b) Except for purse seine vessels, within the Licensing Area but otherwise than in accordance with the terms and conditions referred to in Annex I,

in accordance with such terms and conditions may be agreed to from time to time with the owners of the said vessels or their representatives. In such a case, if the Pacific Island party gives notice to the Government of the United States of such arrangements, and if the Government of the United States concurs, the procedures of articles 4 and 5.6 shall be applicable to such arrangements.

Article 4  Flag State Responsibility

4.1  The Government of the United States shall enforce the provisions of this Treaty and licences issued thereunder. The Government of the United States shall take the necessary steps to ensure that nationals and fishing vessels of the United States refrain from fishing in the Licensing Area and in waters closed to fishing pursuant to Annex I, except as authorized in accordance with article 3.

4.2  The Government of the United States shall, at the request of the Government of a Pacific Island party, take all reasonable measures to assist that party in the investigation of an alleged breach of this Treaty by a fishing vessel of the United States and promptly communicate all the requested information to that party.

4.3  The Government of the united States shall ensure that:

(a) Each fishing vessel of the United States licensed pursuant to this Treaty is fully insured against all  risks and liabilities;

(b) All measures are taken to facilitate:

(i) Any claim arising out of the activities of a fishing vessel of the United States, including a claim for the total market value of any fish taken from the Licensing Area without authorization pursuant to this Treaty, and the prompt resettlement of that claim;

(ii) The services of legal process by or on behalf of a national of the Government of a Pacific Island party in any action arising out of the activities of a fishing vessel of the United States;

(iii) The prompt and full adjudication in the United States of any claim made pursuant to this Treaty;

(iv) The prompt and full satisfaction of any final judgment or other final determination made pursuant to this Treaty; and

(v) The provision of a reasonable level of financial assurances, if, after consultation with the Government of the United States, all Pacific Island parties agree that the collection of any civil or criminal judgment or judgments or determination or determinations made pursuant to this Treaty has become a serious enforcement problem;

(c) An amount equivalent to the total value of any forfeiture, fine, penalty or other amount collected by the Government of the United States incurred as a result of any actions, judicial or otherwise, taken pursuant to this article is paid to the Administrator as soon as possible following the date that the amount is collected.
 
4.4 The Government of the United States shall, at the request of the Government of a Pacific Island party, fully investigate any alleged infringement of this Treaty involving a vessel of the United States, and report as soon as practicable and in any case within two months to that Government on that investigation and on any action taken or proposed to be taken by the Government of the United States in relation to the alleged infringement.

4.5 In the event that a report provided pursuant to paragraph 4 of this article shows that a fishing vessel of the United States:

(a) While fishing in the Licensing Area did not have a licence to fish in the Licensing Area, except in accordance with paragraph 2 of article 3; or
 
(b) Was involved in any incident in which an authorized officer or observer was allegedly assaulted with resultant bodily harm, physically threatened, forcefully resisted, refused boarding or subjected to physical intimidation or physical interference in the performance of his or her duties as authorized pursuant to this Treaty; or

that there was probable cause to believe that a fishing vessel of the United States:

(c) Was used for fishing in waters closed to fishing pursuant to Annex I, except as authorized in accordance with paragraph 3 of article 3;

(d) Was used for fishing in any Limited Area described in Annex I, except as authorized in accordance with that Annex I;

(e) Was used for fishing by any method other than the purse seine method, except in accordance with paragraph 2 of article 3;

(f) Was used for directed fishing for southern bluefin tuna or for fishing for any kinds of fish other than tunas, except that other kinds of fish may be caught as an incidental by-catch;

(g) Used an aircraft for fishing which was not identified on a form provided pursuant to Schedule 1 of Annex II in relation to that vessel; or

(h) Was involved in an incident in which evidence which otherwise could have been used in proceedings concerning the vessel has been intentionally destroyed;

and that such vessel has not submitted to the jurisdiction of the Pacific Island party concerned, the Government of the United States shall, at the request of that party, take all necessary measures to ensure that the vessel concerned leaves the Licensing Area and waters closed to fishing pursuant to Annex I immediately and does not return except for the purpose of submitting to the jurisdiction of the party, or after action has been taken by the Government of the United States to the satisfaction of that party.

4.6 In the event that a report provided pursuant to paragraph 4 of this article shows that a fishing vessel of the United States has been involved in a probable infringement of this Treaty, including an infringement of an applicable national law as identified in Schedule 1 of Annex I, other than an infringement of the kind described in paragraph 5 of this article, and that the vessel has not submitted to the jurisdiction of the Pacific Island party concerned, the Government of the United States shall, at the request of that party, take all necessary measures to ensure that the vessel concerned:

(a) Submits to the jurisdiction of that party; or

(b) Is penalized by the Government of the United States at such level as may be provided for like violations in United States law relating to foreign fishing vessels licensed to fish in the exclusive economic zone of the United States but not to exceed the sum of $US 250,000.

4.7 Financial assurances provided pursuant to this Treaty may be drawn against by any Pacific Island party to satisfy any civil or criminal judgement or other determination in favour of a national or the Government of a Pacific Island party.

4.8 Prior to instituting any legal proceedings pursuant to this article concerning an alleged infringement of this Treaty in waters within the jurisdiction, for any purpose, as recognized by international law, of a Pacific Island party, the Government of the United States shall notify the Government of that Pacific Island party that such proceedings shall be instituted.  Such notice shall include a statement of the facts believed to show an infringement of this Treaty and the nature of the proposed proceedings, including the proposed charges and the proposed penalties to be sought.  The Government of the United States shall not institute such proceedings if the Government of that Pacific Island party objects within 30 days of the effective date of such notice.

4.9 The Government of the United States shall ensure that an agent is appointed and maintained in accordance with the requirements of subparagraphs (a) and (b) of this paragraph, with authority to receive and respond to any legal process issued by a Pacific Island party in respect of an operator of any fishing vessel of the United States (identified in the form set out in Schedule 1 of Annex II) and shall notify the Administrator of the name and address of such agent, who:

(a) Shall be located in Port Moresby for the purpose of receiving and responding to any legal process issued in accordance with this article; and

(b) Shall, within 21 days of notification that legal process has been issued in accordance with this article, travel to any Pacific Island party, at no expense to that party, for the purpose of receiving and responding to that process.

Article 5  Compliance Powers

5.1 It is recognized that the respective Pacific Island parties may enforce the provisions of this Treaty and licences issued thereunder, including arrangements made pursuant to article 3.3 and licences issued thereunder, in waters under their respective jurisdictions.

5.2 The Governments of the Pacific Island parties shall promptly notify the Government of the United States of any arrest of a fishing vessel of the United States or any of its crew and of any charges filed or proceedings instituted following the arrest, in accordance with this article.

5.3 Fishing vessels of the United States and their crews arrested for breach of this Treaty shall be promptly released upon the posting of a reasonable bond or other security.  Penalties applied in accordance with this Treaty for fishing violations shall not be unreasonable in relation to the offence and shall not include imprisonment or corporal punishment.

5.4 The Government of the United States shall not apply sanctions of any kind including deductions, however effected, from any amounts which might otherwise have been paid to any Pacific Island party, and restrictions on trade with any Pacific Island party, as a result of any enforcement measure taken by a Pacific Island party in accordance with this article.

5.5 The Governments of the parties shall adopt and inform the other parties of such provisions in their national laws as may be necessary to give effect to this Treaty.

5.6 Where legal proceedings have been instituted by the Government of the United States pursuant to article 4, no Pacific Island party shall proceed with any legal action in respect of the same alleged infringement as long as such proceedings are maintained.  Where penalties are levied or proceedings are otherwise concluded by the Government of the United States pursuant to article 4, the Pacific Island party which has received notice of such final determination shall withdraw any legal charges or proceedings in respect of the same alleged infringement.

5.7 During any period in which a party is investigating any infringement of this Treaty involving a fishing vessel of the United States, being an infringement which is alleged to have taken place in waters within the jurisdiction, for any purpose, as recognized by international law, of a Pacific Island party, and if that Pacific Island party so notifies the other parties, any licence issued in respect of that vessel shall, for the purposes of article 3, be deemed not to authorize fishing in the waters of that Pacific Island party.

5.8 If full payment of any amount due as a result of a final judgement or other final determination deriving from an occurrence in waters within the jurisdiction, for any purpose, of a Pacific Island party is not made to that party within sixty (60) days, the licence for the vessel involved shall be suspended at the request of that party and that vessel shall not be authorized to fish in the Licensing Area until that amount is paid to that party.

Article 6   Consultations and Dispute Settlement

6.1 At the request of any party, consultations shall be held with any other party within sixty (60) days of the date of receipt of the request. All other parties shall be notified of the request for consultations and any party shall be permitted to participate in such consultations.

6.2 Any dispute between the Government of the United States and the Government of one or more Pacific Island parties in relation to or arising out of this Treaty may be submitted by any such party to an arbitral tribunal for settlement by arbitration no earlier than one hundred and twenty (120) days following a request for consultations under article 6.1. Unless the parties to the dispute agree otherwise, the Arbitration Rules of the United Nations Commission on International Trade Law, as at present in force, shall be used.

6.3 The Government or Governments of the Pacific Island party or parties to the dispute shall appoint one arbitrator and the Government of the United States shall appoint one arbitrator.  The third arbitrator, who shall act as presiding arbitrator of the tribunal, shall. be appointed by agreement of the parties to the dispute.  In the event of a failure to appoint any arbitrator within the time period provided in the Rules, the arbitrator shall be appointed by the Secretary-General of the Permanent Court of Arbitration at The Hague.

6.4 Unless the parties to the dispute agree otherwise, the place of arbitration shall be Port Moresby.  The tribunal may hold meetings at such other place or places within the territory of a Pacific Island party or elsewhere within the Pacific Islands region as it may determine.  An award or other decision shall be final and binding on the parties to the arbitration, and, unless the parties agree otherwise, shall be made public.  The parties shall promptly carry out any award or other decision of the tribunal.

6.5 The fees and expenses of the tribunal shall be paid half by the Government or Governments of the Pacific Island party or parties to the arbitration and half by the Government of the United States, unless the parties to the arbitration agree otherwise.

Article 7  Review of the Treaty

7. The parties shall meet once each year for the purpose of reviewing the operation of this Treaty.

Article 8  Amendment of the Treaty

8. The following procedures shall apply to the adoption and entry into force of any amendment to this Treaty:

(a) Any party may propose amendments to this Treaty;

(b) A proposed amendment shall be notified to the depositary not less than forty-five (45) days before the meeting at which the proposed amendment will be considered;

(c) The depositary shall promptly notify all parties of such proposal;

(d) The parties shall consider proposed amendments to this Treaty at the annual meeting described in article 7, or at any other time that may be agreed by all parties;

(e) Any amendment to this Treaty shall be adopted by the approval of all the parties, and shall enter into force upon receipt by the depositary of instruments of ratification, acceptance or approval by the parties;

(f) The depositary shall promptly notify all parties of the entry into force of the amendment.

Article 9  Amendment of Annexes

9. The following procedures may apply to the adoption and entry into force of any amendment to an Annex of this Treaty, at the request of the party proposing the amendment, in lieu of the procedure set out in article 8, unless otherwise provided in the Annex:

(a) Any party may propose an amendment to an Annex of this Treaty at any time by notifying such proposal to the depositary, which shall promptly notify all parties of the proposed amendment;

(b) A party approving a proposed amendment to an Annex shall notify its acceptance to the depositary, which shall promptly notify all the parties of each acceptance.  Upon receipt by the depositary of notices of acceptance from all parties, 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 parties of the adoption of the amendment and its effective date.

Article 10  Notification

10.1 The Administrator and each party shall notify the depositary of their current addresses for the receipt of notices given pursuant to this Treaty, and the depositary shall notify the Administrator and each of the parties of such addresses or any changes thereof.  Unless otherwise specified in this Treaty, any notice given in accordance with this Treaty shall be in writing and may be served by hand or sent by telex or, where either method cannot readily be effected, by registered airmail to the address of the party or the Administrator as currently listed with the depositary.

10.2 Delivery by hand shall be effective when made.  Delivery by telex shall be deemed to be effective on the business day following the day when the answer back" appears on the sender's telex machine.  Delivery by registered airmail shall be deemed to be effective twenty-one (21) days after posting.

Article 11  Depositary

11. The depositary for this Treaty shall be the Government of Papua New Guinea.

Article 12  Final Clauses

12.1 This Treaty shall be open for signature by the Governments of all the Pacific Island States and the Government of the United States of America.

12.2 This Treaty is subject to ratification by the States referred to in paragraph 1 of this article.  The instruments of ratification shall be deposited with the depositary.

12.3 This Treaty shall remain open for accession by States referred to in paragraph 1 of this article.  The instruments of accession shall be deposited with the depositary.

12.4 This Treaty shall enter into force upon receipt by the depositary of instruments of ratification by the Government of the United States and by the Governments of ten Pacific Island States which shall include the Federated States of Micronesia, the Republic of Kiribati and Papua New Guinea.

12.5 This Treaty shall enter into force for any State ratifying or acceding after the entry into force of this Treaty on the thirtieth day after the date on which its instrument of ratification or accession is received by the depositary.

12.6 This Treaty shall cease to have effect at the expiry of one year following the receipt by the depositary of an instrument signifying withdrawal or denunciation by the United States, any of the Pacific Island States named in article 12.4, or such number of Pacific Island States as would leave fewer than ten such States as parties.

12.7 This Treaty shall cease to have effect for a party at the expiry of the sixth month following the receipt by the depositary of an instrument signifying withdrawal or denunciation by that party, except that where this Treaty would cease to have effect under the last preceding paragraph as the result of the receipt of the said instrument, it shall cease to have effect for that party in the manner provided in the last preceding paragraph.

12.8 Any licence in force pursuant to this Treaty shall not cease to have effect as a result of this Treaty ceasing to have effect either generally or for any party, and articles 1, 3, 4 and 5 shall be regarded as continuing in force between the United States and the Pacific Island State party in respect of such licence until such licence expires in accordance with its terms.

12.9 No reservations may be made to this Treaty.

12.10 Paragraph 9 of this article does not preclude a State, when signing, ratifying or acceding to this Treaty, from making declarations or statements, provided that such declarations or statements do not purport to exclude or modify the legal effect of the provisions of this Treaty in their application to that State.

DONE at Port Moresby on the second day of April, 1987.

Annexes (I and II) omitted