Article 5
This Decision shall enter into force on the day of its adoption. Done at Luxembourg, 3 June 2010. For the Council The President A. Pérez Rubalcaba -------------------------------------------------- Understanding concerning the conservation of swordfish stocks in the South Eastern Pacific Ocean 1. The document hereby identified replaces the Provisional Arrangement of 25 January 2001 ("2001 Arrangement") and transforms the interim arrangement into a definitive commitment to cooperate for the long-term conservation and management of the swordfish stocks in the South Eastern Pacific. 2. The Understanding is intended to amicably settle the swordfish fishery disputes [1] currently existing between Chile and the European Community (now succeeded by the European Union, EU) in the International Tribunal for the Law of the Sea ("ITLOS") and in the World Trade Organization ("WTO"). 3. The Parties hereby confirm for the record that the present Understanding shall provide the basic framework for the conservation of swordfish in the South Eastern Pacific Ocean, its management and cooperation thereof. 4. The EU/Chile Bilateral Scientific and Technical Committee ("BSTC") will continue to constitute the necessary point of contact in matters of common interest regarding conservation of swordfish and, in order to maximize the efforts on scientific/technical cooperation, shall have the following mandate: (a) To serve as a forum for the exchange of information on the swordfish stocks and fishing activities of the EU and Chile and any other information required for conservation and management decisions. (b) To periodically evaluate the state of stocks, monitor the fishing trends, and assess impacts on non-target species and the marine ecosystem. (c) To review existing conservation measures and advice on possible new ones, including by-catch regulations. (d) To identify research priorities in the context of the Work Programme and draw up any additional programmes, including protocols on data collection. (e) To exchange information and promote the use of environmentally-safe and cost-effective gear. (f) To exchange in advance of the BSTC meeting catch and effort data covering all segments of their respective fleets in the South Eastern Pacific Ocean. (g) To consider further means of cooperation in the scientific, technical or administrative fields. 5. The BSTC shall be convened in extraordinary session (TIMING) in order to commence work on its mandate, taking into account the following objectives and principles agreed by the Parties (a) Their respective swordfish fisheries shall be conducted at catch levels maintaining stocks at or near MSY, in a manner commensurate with the objective of ensuring the sustainability of these resources as well as safeguarding the marine ecosystem. (b) The distribution, spatial structure and dynamics of the stocks shall be monitored by Chilean and EU fishing vessels whose scientific observations comply with agreed research parameters designed to develop robust assessments and subsequently generate the appropriate management responses. (c) Data collection systems put in place should be reliable, expeditious and compatible with the requirements and scale of the swordfish fishery. (d) The Parties shall maintain their current level of swordfish fisheries, as expressed by either the present number of vessels or the historic maximum of their vessels operating in the South Eastern Pacific Ocean, in order to ensure the sustainability of the swordfish stock. 6. The Parties remain committed to further developing the linkage between this bilateral cooperation and the Multilateral Consultation sponsored by the EU and Chile. 7. The Multilateral Consultation currently in place should include all the relevant participants in the South Eastern Pacific Ocean swordfish fishery and invited observers from existing organizations with a legitimate interest in the swordfish fishery. 8. The EU and Chile remain committed to the effective promotion of multilateral cooperation for the conservation and management of these stocks in their habitat and ecosystem, and through their migratory range. 9. Parties shall give due consideration to actions taken at multilateral level, and seek to promote similar conservation and management initiatives in RFMOs of which they are member in order to ensure a sustainable development of the swordfish fishery. 10. In this regard, the Parties shall seek to promote the implementation by other Participants in the swordfish fisheries of the above mentioned principles and objectives notably, in relation to the maintenance of their current fishing levels. 11. In accordance with the abovementioned principles, and in the context of the Work Programme being developed by the BSTC, the Parties will define a general protocol for analyzing, processing and evaluating the information gathered by their fishing vessels. Such protocol should seek to identify the condition, in spatial and time frames, of the stock, probing into its composition and biological features, and exploring its habitats, in order to increase the knowledge of the Parties, considering also the potential impacts of the fishery on its ecosystem components, associated or dependent species and the requirements for mitigation of the environmental impacts and adverse effects on birds, turtles and sharks, as well as the food chains and the physical environment of the South Eastern Pacific Ocean. 12. The Parties declare that under the present Understanding, their fishing vessels will not be bound by specific conservation measures prescribing a minimum length for the harvested species. 13. Nevertheless, they shall apply a precautionary approach considering all biological features of the catches and, on the basis of the best available scientific advice, further strive to develop and apply alternative measures designed to ensure that fishing activities do not pose a risk of unacceptable impacts on sensitive habitats within the marine environment. 14. Parties confirm that their vessels are subject to the following obligations: (a) Use an operational VMS at all times linked to the Flag State; (b) Regularly provide data on the type of vessel, catch, fishing effort by area and periods, to be exchanged by the Parties in advance to BSTC meetings; (c) Provide and exchange information on environmentally-safe and cost-effective fishing gear; (d) Collect data required for the BSTC assessments of the dynamics and status of the swordfish fishery in the South Eastern Pacific Ocean, and other information relevant to conservation and management purposes. 15. Parties agree that EU vessels fishing for swordfish in accordance with the objectives contained in the present understanding concerning the current levels of fishing effort, catch levels maintaining stocks at or near MSY, commensurate with the objective of ensuring sustainability of these resources, as well as the provisions on monitoring and exchange of information, shall be granted access to designated Chilean ports. 16. The procedures for access for landing and transshipment in designated Chilean ports are contained in Annex I to the present Understanding. 17. The Parties will proceed to jointly notify the ITLOS that, as a consequence of having reached a settlement, they have agreed to discontinue the proceedings (ITLOS Case Nr. 7) and request the Tribunal to make an order recording the discontinuance and directing the Registrar to remove this case from the List of cases. Since the Parties have agreed to discontinue the ITLOS proceedings as a direct consequence of them having reached a settlement of the dispute, they shall also request that the Tribunal record this fact and indicate in, or annex to, the respective order of discontinuance, the terms of the settlement. 18. The Parties shall also inform the Director General of the WTO that the compulsory dispute settlement procedure instituted in ITLOS (Case Nr. 7) has been discontinued and communicate to him the terms of the settlement attained, expressing the decision of the Parties not to revive the dispute settlement procedure of the WTO Understanding on Dispute Settlement regarding case DS 193 concerning the application of pertinent GATT articles to transit, transshipment and commercial access to Chilean ports by EU vessels fishing for swordfish. 19. The Parties agree to apply to this Understanding the provisions on dispute avoidance and dispute settlement set out in Title VIII of the Agreement establishing an association between the European Community and its Member States, of the one part, and the Republic of Chile, of the other part, which entered into force on 1 February 2003. 20. This Understanding shall enter into force the first day of the first month following that in which the Parties have notified each other of the completion of the procedures necessary for that purpose. 21. Parties agree to provisionally apply point number 15 above upon signature and in any event not later than 31 December 2009. 22. Notifications shall be sent to the Secretary General of the Council of the European Union, who shall be the depositary of this Understanding. 23. From the date of its entry into force this Understanding shall replace the Provisional Arrangement that Parties have signed on 25 January 2001. For the European Union For the Republic of Chile [1] ITLOS Case n. 7 and WTO DS 19. --------------------------------------------------