[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.