    [Senate Treaty Document 110-22]
    [From the U.S. Government Publishing Office]

    110th Congress
     2d Session                      SENATE                     Treaty Doc.
                                                                     110-22
    _______________________________________________________________________

              AGREEMENT ON CONSERVATION OF ALBATROSSES AND PETRELS

                                   __________

                                    MESSAGE

                                      from

                         THEPRESIDENTOFTHEUNITEDSTATES

                                  transmitting

    AGREEMENT ON THE CONSERVATION OF ALBATROSSES AND PETRELS, WITH ANNEXES,
                        DONE AT CANBERRA, JUNE 19, 2001

    September 26, 2008.--Treaty was read the first time, and together with
    the accompanying papers, referred to the Committee on Foreign Relations
              and ordered to be printed for the use of the Senate.
                             LETTER OF TRANSMITTAL

                                  ----------

                             The White House, September 26, 2008.
    To the Senate of the United States:
        With a view to receiving the advice and consent of the
    Senate to accession, I transmit herewith the Agreement on the
    Conservation of Albatrosses and Petrels, with Annexes. In
    addition, I transmit for the information of the Senate the
    report of the Department of State, which includes a detailed
    analysis of the Agreement.
        The Agreement, done at Canberra on June 19, 2001, and that
    entered into force on February 1, 2004, was adopted pursuant to
    the Convention on the Conservation of Migratory Species of Wild
    Animals (the ``Convention''), done at Bonn on June 23, 1979.
    Although the United States not a Party to the Convention, the
    United States may nonetheless become a Party to the Agreement.
    The Agreement's objective is to achieve and maintain a
    favorable conservation status for albatrosses and petrels.
        I believe the Agreement to be fully in the U.S. interest.
    Its provisions advance the U.S. goals of protecting albatrosses
    and petrels. As the Department of State's analysis explains,
    the Agreement is not self-executing and thus does not by itself
    give rise to domestically enforceable Federal law. Implementing
    legislation would be required, which will be submitted
    separately to the Congress for its consideration.
        I recommend that the Senate give early and favorable
    consideration to the Agreement and give its advice and consent
    to accession.

                                                        George W. Bush.
                              LETTER OF SUBMITTAL

                                  ----------

                                           Department of State,
                                           Washington, August 22, 2008.
    The President,
    The White House.
        The President: I have the honor to submit to you the
    Agreement on the Conservation of Albatrosses and Petrels, with
    Annexes, done at Canberra June 19, 2001 (the Agreement). The
    Agreement, which entered into for February 1, 2004, sets forth
    provisions relating to the conservation of albatrosses and
    petrels. A detailed analysis is enclosed. I recommend that the
    Agreement be transmitted to the Senate for its advice and
    consent to accession.
        The parties to the Agreement commit to take conservation
    measures to achieve the primary objective of the Agreement,
    which is to achieve and maintain a favorable conservation
    status for albatrosses and petrels. The Agreement also
    facilitates research, information exchange, technology
    transfer, and capacity building among the Parties and through
    regional fisheries management organizations.
        The Agreement is not intended to be enforceable directly in
    U.S. court. The Agreement will require implementing
    legislation, which will be submitted shortly to Congress for
    its consideration. All interested departments and agencies join
    the Department of State in recommending that the Agreement be
    transmitted to the Senate as soon as possible for its advice
    and consent to accession.
        Respectfully submitted,
                                                      Condoleezza Rice.
        Enclosures: As stated

      Article-by-Article Analysis of the Agreement on the Conservation of
                            Albatrosses and Petrels

        The Agreement on the Conservation of Albatrosses and
    Petrels, with Annexes, done at Canberra June 19, 2001 (the
    Agreement), is ``Agreement'' within the meaning of Article
    IV(3) of the Convention on the Conservation of Migratory
    Species of Wild Animals, done at Bonn June 23, 1979 (the
    Convention). Although the United States is not a party to the
    Convention, Article V(2) of the Convention recognizes that non-
    parties to the Convention may become parties to Agreements
    referred to in Article IV(3). In other words, there is no legal
    barrier to the United States becoming a party to the Agreement
    without being a party to the Convention. Similarly, the United
    States would have no obligation to become a party to the
    Convention by virtue of being a party to the Agreement.
        Legislation will be required for the United States to
    implement many of the provisions of the Agreement. Draft
    implementing legislation has been prepared and will be
    submitted to the appropriate congressional committees. The
    following analysis provides a review of the salient aspects of
    the Agreement.

                                   ARTICLE I

        Article I includes a provision on the Agreement's scope, as
    well as several definitions and interpretations. For example,
    the Agreement only applies to the species of albatrosses and
    petrels listed in Annex 1 to the Agreement and to their ranges
    as defined in Article I(2)(i).
        In addition, conservation status of a migratory species
    will be taken as ``favorable'' when a series of conditions are
    met, relating to population dynamics, the range of the species,
    sufficiency of habitat, and the distribution and abundance of
    the species.
        Article I also provides that the annexes to the Agreement
    form an integral part thereof.

                                   ARTICLE II

        Article II establishes the Agreement's objective. The
    objective is to ``achieve and maintain a favorable conservation
    status for albatrosses and petrels.'' Article II provides that
    the Parties are to ``take measures, both individually and
    together, to achieve this objective.'' It also states that, in
    implementing such measures, the Parties are to widely apply the
    precautionary approach. The Article sets forth a common
    approach to precaution, i.e., that ``where there are threats of
    serious or irreversible adverse impacts or damage, lack of full
    scientific certainty shall not be used as a reason for
    postponing measures to enhance the conservation status of
    albatrosses and petrels.''

                                  ARTICLE III

        Article III sets forth a series of actions that the
    Parties, individually and together, are to take in furtherance
    of the obligation to take measures to achieve and maintain a
    favorable conservation status for albatross and petrels.
        Article III also requires a Party to prohibit the
    deliberate taking of, or deliberate harmful interference with,
    albatrosses and petrels, their eggs, or their breeding sites.
        Article III permits a Party to grant an exemption to these
    prohibitions, but only if there is no other satisfactory course
    of action and the exemption is made for one of four enumerated
    purposes. A Party granting such an exemption is to submit full
    details of the exemption to the Secretariat as soon as
    possible.
        The Agreement does not apply to sovereign immune vessels
    and aircraft, consistent with customary international law.
    Because the Agreement does not reflect this exclusion, it is
    recommended that the United States include the following
    understanding in its instrument of ratification:

              It is the understanding of the United States of
            America that the Agreement does not apply to vessels
            and aircraft that are entitled to sovereign immunity
            under international law, in particular to any warship,
            naval auxiliary, and other vessels or aircraft owned or
            operated by a State and used, for the time being, only
            on government, noncommercial service. However, it is
            also the understanding of the United States of America
            that each Party shall ensure, by the adoption of
            appropriate measures not impairing operations or
            operational capabilities of such vessels or aircraft
            owned or operated by it, that such vessels or aircraft
            act in a manner consistent, so far as is reasonable and
            practicable, with this Agreement.

        Article III also provides that, in furtherance of their
    obligation to take measures to achieve and maintain a favorable
    conservation status for albatrosses and petrels, the Parties
    are to progressively implement the Action Plan.

                                   ARTICLE IV

        Article IV provides that Parties are to give priority to
    capacity building for the implementation of the Agreement
    through funding, training, information, and institutional
    support. The Article does not impose any funding obligations.

                                   ARTICLE V

        Article V describes the ways that the Parties are to
    cooperate, including through exchanges of information,
    training, and implementation of education and awareness
    programs.

                                   ARTICLE VI

        Article VI provides that Annex 2 of the Agreement is to
    have effect as an Action Plan for the achievement and
    maintenance of a favorable conservation status for albatrosses
    and petrels, and that progress in implementing the Action Plan
    is to be assessed at each session of the Meeting of the
    Parties.

                                  ARTICLE VII

        Article VII contains several provisions on implementation
    and financing. Each Party is required to designate an authority
    or authorities to undertake, monitor, and control all
    activities carried on with a view to the supervision,
    application, and enforcement of the Agreement. These
    authorities are to monitor all activities that may have an
    impact on the conservation status of those albatrosses and
    petrels for which the Party is a Range State.
        Article VII(2) provides that decisions relating to the
    budget and scale of contributions for the operation of the
    Secretariat are to be adopted by the Meeting of the Parties by
    consensus. The term ``consensus'' in the practice of
    multilateral bodies means the adoption of a resolution or a
    decision without a vote in the absence of any formal objection
    or opposition. Contributions for the operation of the
    secretariat are mandatory. The Meeting of the Parties may also
    establish a fund from voluntary contributions for work relating
    to the conservation of albatrosses and petrels. Annual
    appropriations will be necessary for the United States to meet
    the mandatory contribution obligation, which for the United
    States would be approximately $100,000.

                                  ARTICLE VIII

        Article VIII contains several provisions on the Meeting of
    the Parties, which is the decision-making body of the
    Agreement. Except as otherwise provided in the Agreement (such
    as with respect to the budget, as noted above), decisions of
    the Meeting of the Parties are to be adopted by consensus or,
    if consensus cannot be achieved, by a two-thirds majority of
    the Parties present and voting. At any of its sessions, the
    Meeting of the Parties may, among other things, adopt measures
    to improve the effectiveness of the Agreement and emergency
    measures as set forth in Article VIII(13)(c). The Agreement
    does not authorize the Meeting of the Parties to adopt measures
    for albatrosses and petrels that are binding under
    international law; new binding measures would need to be
    effectuated through amendments. Article VIII provides that the
    Meeting of the Parties may consider and decide upon proposals
    to amend the Agreement, Annex 1, or Annex 2 (the Action Plan).
    As provided in Article XII, the adoption of an amendment of any
    of these instruments requires a two-thirds majority of the
    Parties present and voting.
        Article VIII further includes a provision that would allow
    for Taiwan to be legally bound by the Agreement.

                                   ARTICLE IX

        Article IX provides for the establishment of an Advisory
    Committee to provide expert advice and information to the
    Parties, the Secretariat, and others.

                                   ARTICLE X

        Article X lists the functions of the Secretariat, such as
    arranging and servicing the sessions of the Meeting of the
    Parties and the meetings of the Advisory Committee.

                                   ARTICLE XI

        Article XI provides for cooperation and coordination with
    relevant international, regional, and sub-regional bodies,
    including those concerned with the conservation and management
    of seabirds and their habitats and other marine living
    resources. It provides, inter alia, that the Secretariat may,
    with the approval of the Meeting of the Parties, enter into
    arrangements with other organizations and institutions.

                                  ARTICLE XII

        Article XII covers amendment of the Agreement. An amendment
    to the Agreement may be adopted at any ordinary or
    extraordinary session of the Meeting of the Parties, by a two-
    thirds majority of the Parties present and voting. An amendment
    to the body of the Agreement only applies to those Parties
    affirmatively accepting the amendment.
        Any additional Annex or amendment to any Annex may be
    adopted by a two-thirds majority of the Parties present and
    voting. Additional annexes or amendments to existing annexes
    enter into force for all Parties ninety days after adoption,
    except that a Party may, within those ninety days, enter a
    reservation with respect to an additional annex or amendment of
    an existing annex. In the event that an additional annex or
    amendment to any annex were to be adopted that was of such a
    nature that it would need to be sent to the Senate for advice
    and consent in order for the United States constitutionally to
    be bound by it, the Executive Branch would take the necessary
    steps to ensure that such an annex or amendment did not enter
    into force for the United States absent such advice and
    consent. A Party may withdraw a reservation at any time and, by
    doing so, become bound by such an annex or amendment.

                                  ARTICLE XIII

        Article XIII provides that nothing in the Agreement
    derogates from the rights and obligations of any Party deriving
    from existing international treaties, particularly in relation
    to the United Nations Convention on the Law of the Sea, and
    also the Antarctic Treaty and the Convention on the
    Conservation of Antarctic Marine Living Resources (CCAMLR),
    especially Article IV of the last two instruments.
        Article XIII provides that, with respect to the Antarctic
    Treaty area, all Parties, whether or not they are Parties to
    the Antarctic Treaty, shall be bound by Articles IV and VI of
    the Antarctic Treaty in their relations with each other.
    Article XIII also provides that nothing in the Agreement, and
    no acts or activities taking place while the Agreement is in
    force, may be interpreted as a renunciation or diminution by
    any Party of, or as prejudicing, any right or claim or basis of
    claim to territorial sovereignty or to the exercise of coastal
    state jurisdiction under international law; or may interpreted
    as prejudicing the position of any Party as regards its
    recognition or non-recognition of any such right, claim or
    basis of claim. This provision is consistent with Article IV of
    the Antarctic Treaty.
        Article XIII provides that Parties are to adopt measures
    for reducing the incidental taking of albatrosses and petrels
    agreed to by regional fisheries organizations, or other
    organizations managing marine living resources more generally,
    such as the Commission for the Conservation of Antarctic Marine
    Living Resources (the Commission). The United States is a
    member of the Commission and of all other regional fisheries
    organizations that regulate fisheries in which U.S. fishing
    vessels operate.
        Further, Article XIII provides that the Agreement does not
    affect the right of any Party to maintain or adopt stricter
    measures for the conservation of albatrosses and petrels and
    their habitats.

                                  ARTICLE XIV

        Article XIV calls upon Parties to cooperate in order to
    avoid disputes. Where a dispute between Parties is agreed by
    the Parties to be of a technical nature, the Parties are to
    confer with each other and the Chair of the Advisory Committee
    with a view to resolving the dispute amicably. If the Parties
    to such dispute are unable to resolve the dispute within twelve
    months of the Chair's having been informed in writing of the
    dispute by one of the Parties, and if the Chair is of the view
    that prolongation of the dispute could have an adverse effect
    on the conservation status of albatrosses and petrels, the
    Parties shall refer the dispute to a technical arbitration
    panel. The final decision of the technical arbitration panel
    will be binding on the Parties to the dispute.
        Any other dispute (i.e., a dispute that any party to the
    dispute considers nontechnical) is subject to the provisions of
    Article XIII of the Convention (whether or not parties to the
    dispute are Parties to the Convention). The Convention (Article
    XIII) provides for negotiation and arbitration, if all parties
    to the dispute consent.

                                   ARTICLE XV

        Article XV provides for signature, ratification,
    acceptance, approval and accession.
        The Agreement is open to accession by the United States.

                                  ARTICLE XVI

        Article XVI includes provisions on entry into force. The
    Agreement entered into force on February 1, 2004. To date,
    eleven countries have become Parties to the Agreement.

                                  ARTICLE XVII

        Article XVII contains provisions for reservations. Although
    Article XII allows for a Party to enter a reservation regarding
    the addition of or an amendment to an existing annex, the
    Agreement's provisions are not subject to general reservations.
    Upon signature or, as the case may be, upon ratification,
    acceptance, approval, or accession, a specific reservation may
    be entered in respect of any species covered by the Agreement,
    or in respect of any specific provision of the Action Plan.
    Such a reservation may be withdrawn at any time.
        A Party to the Agreement that is not a party to the
    Convention may make . declarations or statements to the effect
    of clarifying its status vis-a-vis either the Agreement or the
    Convention, provided that such declarations or statements do
    not purport to exclude or to modify the legal effect of the
    provisions of the Agreement in their application to that Party.
    Accordingly, it is recommended that the United States include
    the following declaration in its instrument of ratification:

        The United States is not a party to the Convention on the
    Conservation of Migratory Species of Wild Animals, done at Bonn
    June 23, 1979. Accordingly, the United States of America shall
    not be bound by any provision of that Convention, except as
    provided in Article XIV, paragraph 5, of the Agreement.

        The United States does not intend to make any specific
    reservations upon accession to the Agreement.

                                 ARTICLE XVIII

        Article XVIII provides that a Party may denounce the
    Agreement at any time upon twelve months' notice.

                                  ARTICLE XIX

        Article XIX names Australia as the Depositary of the
    Agreement.

                                    ANNEX 1

        Annex 1 lists the albatross and petrel species to which the
    Agreement applies. Pursuant to Article XII, this Annex may be
    amended to add or remove one or more albatross or petrel
    species. In November of 2006, the Meeting of the Parties
    amended Annex 1 to adjust the taxonomic nomenclature based upon
    internationally agreed taxonomic reclassifications of species.
    The Executive Branch proposes that the United States accede to
    the amended Agreement.

                                    ANNEX 2

        Annex 2 contains the Action Plan. The Action Plan includes
    detailed provisions on species conservation, habitat
    conservation and restoration, management of human activities,
    research and monitoring, collation of information by the
    Advisory Committee, education and public awareness, and
    implementation.

                                   SECTION 1

        Section 1 of the Action Plan contains provisions on species
    conservation.
        Section 1 provides that, in addition to actions specified
    in Article III and without prejudice to any obligations they
    may have under the Convention on International Trade in
    Endangered Species of Wild Fauna and Flora (CITES), the Parties
    are to prohibit the use of, and trade in, albatrosses and
    petrels or their eggs, or any readily recognizable parts or
    derivatives thereof. The Administration understands this
    provision to apply both to international use and trade as well
    as to use and trade within the United States and its
    territories. Section 1 also provides that Parties may grant
    exemptions to this prohibition according to the exemption
    provisions set forth in Article III(3) of the Agreement.
        Section 1 also provides that, in the event of a request by
    the Advisory Committee for a Meeting of Parties under the
    emergency provisions of Article IX(7), the Parties affected, in
    cooperation with each other and with any others, shall develop
    and implement emergency measures. The process for adopting and
    implementing such measures is set forth in Article IX(7).
        Section 1 also provides that the Parties are to take a
    precautionary approach when re-establishing albatrosses and
    petrels into parts of their traditional breeding range. In such
    cases, the Parties must develop and follow a detailed re-
    establishment scheme, based on the best scientific evidence.
        Section 1 also requires the Parties to take all feasible
    action to prevent the introduction into habitats, deliberately
    or otherwise, of non-native taxa of animals, plants or hybrids
    or disease-causing organisms that may be detrimental to
    populations of albatrosses and petrels. In addition, this
    Section requires Parties to take measures, to the extent
    feasible, to control and, where possible, eradicate non-native
    taxa of animals or plants, or hybrids thereof, that are, or may
    be, detrimental to populations of albatrosses or petrels.

                                   SECTION 2

        Section 2 contains provisions on habitat conservation and
    restoration.
        A paragraph provides that, so far as appropriate and
    necessary, the Parties are to take such management action, and
    introduce such legislative and other controls, as will maintain
    populations of albatrosses and petrels at, or restore them to,
    favorable conservation status and prevent the degradation of
    habitats.
        Section 2 also includes provisions on land-based
    conservation, including the protection of breeding sites, as
    well as on the conservation of marine habitats.
        Section 2 also requires Parties to take special measures,
    individually and collectively, to conserve marine areas which
    they consider critical to the survival and/or restoration of
    species of albatrosses and petrels that have unfavorable
    conservation status.

                                   SECTION 3

        Section 3 includes provisions on the management of human
    activities.
        Section 3 requires the Parties to assess the potential
    impact on albatrosses and petrels of policies, plans, programs
    and projects that they consider likely to affect the
    conservation status of albatrosses and petrels before any
    decision on whether to adopt such policies, plans, programs or
    projects, and to make the results of these assessments publicly
    available.
        Section 3 also requires Parties that are parties to other
    relevant treaties, such as CCAMLR, or members of relevant
    international organizations, such as FAO, to encourage the
    institutions of, and other parties to or members of such
    treaties or organizations, to give effect to the objective of
    the Agreement.
        Section 3 also requires the Parties to endeavor to adopt
    additional measures to combat illegal, unregulated and
    unreported fishing activities that may have an adverse effect
    on albatrosses and petrels.
        Section 3 also requires the Parties to take appropriate
    measures, within environmental conventions and by other means,
    to minimize the discharge of land-based sources and from
    vessels, of pollutants that may have an adverse effect on
    albatrosses and petrels either on land or at sea.
        Section 3 also requires the Parties to seek to manage, in
    ways consistent with the aims of the Agreement, mineral
    exploration and exploitation in waters under their jurisdiction
    which are frequented by albatrosses and petrels.
        Section 3 further requires the Parties, in both marine and
    terrestrial habitats, to seek to minimize disturbance of
    albatrosses and petrels, and to establish and maintain some
    areas that are kept free from disturbance.
        Section 3 also requires the Parties to seek to avoid or
    minimize disturbance caused . by tourism, and in particular by
    controlling the proximity of approach to breeding albatrosses
    or petrels.

                                   SECTION 4

        Section 4 sets forth provisions on research and monitoring
    both at sea and on land.
        Section 4 requires Parties, through the use of at-sea
    observers on fishing vessels or through other appropriate
    methods, to collect reliable and, where possible, verifiable
    data to enable the accurate estimation of the nature and extent
    of albatross and petrel interactions with fisheries.

                                   SECTION 5

        Section 5 contains provisions on the content of the reports
    of the Advisory Committee, including assessment of population
    trends, identification of important breeding sites, information
    on the foraging range and migration routes, identification and
    assessment of threats, review of data on mortality and several
    other topics.

                                   SECTION 6

        Section 6 includes provisions on education, public
    awareness and training.

                                   SECTION 7

        Section 7 contains provisions on implementation. This
    Section requires the Advisory Committee to develop conservation
    guidelines to assist with the implementation of the Action
    Plan.