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. S627, (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 vessel or 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

authorized to receive and respond to any legal process issued in the United States with respect to such owner or operator; and

(G) responsibility be assumed, in accordance with any requirements prescribed by the Secretary, for the reimbursement of United States citizens for any loss of, or damage to, their fishing vessels, fishing gear, or catch which is caused by any fishing vessel of that nation; and will abide by any other monitoring, compliance, or enforcement requirement related to fishery conservation and management which is included in such agreement.

(3) The foreign nation and the owners or operators of all of the fishing vessels of such nation shall not, in any year, exceed such nation's allocation of the total allowable level of foreign fishing, as determined under subsection (e).

(4)The foreign nation will

(A) apply, pursuant to section 204, for any required permits;

(B) deliver promptly to the owner or operator of the appropriate fishing vessel any permit which is used under that section for such vessel; and

(C) abide by, and take appropriate steps under its own laws to assure that all such owners and operators comply with, section 204 (a) and the applicable conditions and restrictions established under section 204 (b) (7).

U.S.-Brazil

Final regulations to carry out the purposes and objectives of the 1975 agreement between the United States and Brazil concerning the conservation of shrimp resources off Brazil (TIAS 8253; 27 UST 1377 entered into force March 22, 1976) were adopted by the National Marine Fisheries Service, with effect from June 11, 1976. They constitute Title 50 Code of Federal Regulations, Part 245, Subparts A and B, and set forth the requirements for issuing permits and the required receipt of those permits by officials of the Federative Republic of Brazil prior to commencement of fishing operations, as well as amendments to various sections of the existing regulations. The same regulations had previously been in effect as interim regulations since April 22, 1976.

Fed. Reg., Vol. 41, No. 79, Apr. 22, 1976, pp. 16805-16811; ibid., No. 114, June 11, 1976, p. 23680. For a summary of the 1975 U.S.-Brazil agreement on shrimp fishing, see the 1975 Digest, pp. 413-414.

U.S.-Canada

On March 16, 1976, the International Pacific Salmon Fisheries Commission, acting under authority of the Convention between the United States and Canada for the protection, preservation, and extension of the sockeye and pink salmon fisheries of the Fraser River System, forwarded to the two Governments for approval under article VI of the convention the regulations to be applicable during the 1976 fishing season in convention waters. The United States, acting through the Department of State, approved the regulations. Paragraph 5 of the regulations applicable in U.S. convention waters provides as follows:

5. Insofar as the foregoing regulations prescribe the type of gear to be used during times open to fishing for sockeye and pink

salmon, such regulations shall be implemented to the extent permissible under the laws of the Parties.

The National Marine Fisheries Service, as the Federal agency responsible for the enforcement of the provisions of the convention, announced on May 28, 1976, that it had determined that the only domestic laws limiting the applicability of the gear regulations of the Commission were the treaties between the United States and certain Pacific Northwest Indian tribes, as interpreted by the U.S. District Court for the Western District of Washington in the case of United States v. State of Washington, 384 F. Supp. 312 (1974), affirmed 520 F.2d 676 (1975), cert. denied, 423 U.S. 1086 (1976). (See the 1975 Digest, pp. 416-417.)

The Service accordingly announced that the regulations of the Commission which prescribe the type of gear would be fully implemented in U.S. convention waters, except that the implementation of such gear regulations was not permissible under the laws of the United States as to treaty Indian fishermen of those Indian tribes found by the U.S. District Court for the Western District of Washington to be entitled to exercise treaty-secured fishing rights in U.S. convention waters, subject to certain stated provisos.

The National Marine Fisheries Service announcement and the 1976 regulations of the Commission applicable in U.S. convention waters are set forth at Fed. Reg., Vol. 41, No. 108, June 3, 1976, pp. 22392-22394.

By an exchange of notes signed April 14 and 22, 1976 (TIAS 8251; 27 UST 1365), the United States and Canada extended to April 24, 1977, their agreement of June 15, 1973 (TIAS 7676, 24 UST 1729), on reciprocal fishing privileges in certain areas off their coasts. The 1973 agreement was to expire on April 24, 1976, but the two Governments mutually agreed that a one-year extension would be desirable while negotiations were undertaken on a new agreement that would take into account the 200-mile fisheries zone legislation contemplated by each Government. The Fishery Conservation and Management Act of 1976 (P.L. 94-265; 90 Stat. 331; 16 U.S.C. 1801 et seq.), approved April 13, 1976 (see ante, p. 351), in section 202(c) contemplated the continuation of existing agreements with Canada, according to the Conference Committee Explanatory Statement on the Act.

The 1973 agreement provides for nationals and vessels of each country to conduct commercial fishing for designated species on a reciprocal basis in defined areas over which each country exercises fisheries jurisdiction. Its purpose is to suspend application of claims of fisheries jurisdiction to the fishermen of the two countries and thereby to avoid needless incidents of arrest and seizure of fishing vessels. See the 1974 Digest, pp. 330-331.