[Congressional Record Volume 144, Number 142 (Saturday, October 10, 1998)]
[Senate]
[Pages S12307-S12309]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     EXECUTIVE REPORT OF COMMITTEE

  The following executive report of committee was submitted:

       By Mr. CAMPBELL, from the Committee on Indian Affairs:
       D. Bambi Kraus, of the District of Columbia, to be a Member 
     of the Board of Trustees of the Institute of American Indian 
     and Alaska Native Culture and Arts Development for a term 
     expiring May 19, 2004.

  (The above nomination was reported with the recommendation that she 
be confirmed, subject to the nominee's commitment to respond to 
requests to appear and testify before any duly constituted committee of 
the Senate.)
  Treaty Doc. 105-1(A) Amended Mines Protocol (Exec. Rept. 105-21).

   Text of the Committee-Recommended Resolution of Advice and Consent

       Resolved (two-thirds of the Senators present concurring 
     therein),

     SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A 
                   RESERVATION, UNDERSTANDINGS, AND CONDITIONS.

       The Senate advises and consents to the ratification of the 
     Amended Mines Protocol (as defined in section 5 of this 
     resolution), subject to the reservation in section 2, the 
     understandings in section 3, and the conditions in section 4.

     SEC. 2. RESERVATION.

       The Senate's advice and consent to the ratification of the 
     Amended Mines Protocol is subject to the reservation, which 
     shall be included in the United States instrument of 
     ratification and shall be binding upon the President, that 
     the United States reserves the right to use other devices (as 
     defined in Article 2(5) of the Amended Mines Protocol)

[[Page S12308]]

     to destroy any stock of food or drink that is judged likely 
     to be used by an enemy military force, if due precautions are 
     taken for the safety of the civilian population.

     SEC. 3. UNDERSTANDINGS.

       The Senate's advice and consent to the ratification of the 
     Amended Mines Protocol is subject to the following 
     understandings, which shall be included in the United States 
     instrument of ratification and shall be binding upon the 
     President:
       (1) United states compliance.--The United States 
     understands that--
       (A) any decision by any military commander, military 
     personnel, or any other person responsible for planning, 
     authorizing, or executing military action shall only be 
     judged on the basis of that person's assessment of the 
     information reasonably available to the person at the time 
     the person planned, authorized, or executed the action under 
     review, and shall not be judged on the basis of information 
     that comes to light after the action under review was taken; 
     and
       (B) Article 14 of the Amended Mines Protocol (insofar as it 
     relates to penal sanctions) shall apply only in a situation 
     in which an individual--
       (i) knew, or should have known, that his action was 
     prohibited under the Amended Mines Protocol;
       (ii) intended to kill or cause serious injury to a 
     civilian; and
       (iii) knew or should have known, that the person he 
     intended to kill or cause serious injury was a civilian.
       (2) Effective exclusion.--The United States understands 
     that, for the purposes of Article 5(6)(b) of the Amended 
     Mines Protocol, the maintenance of observation over avenues 
     of approach where mines subject to this paragraph are 
     deployed constitutes one acceptable form of monitoring to 
     ensure the effective exclusion of civilians.
       (3) Historic monuments.--The United States understands that 
     Article 7(1)(i) of the Amended Mines Protocol refers only to 
     a limited class of objects that, because of their clearly 
     recognizable characteristics and because of their widely 
     recognized importance, constitute a part of the cultural or 
     spiritual heritage of peoples.
       (4) Legitimate military objectives.--The United States 
     understands that an area of land itself can be a legitimate 
     military objective for the purpose of the use of landmines, 
     if its neutralization or denial, in the circumstances 
     applicable at the time, offers a military advantage.
       (5) Peace treaties.--The United States understands that the 
     allocation of responsibilities for landmines in Article 
     5(2)(b) of the Amended Mines Protocol does not preclude 
     agreement, in connection with peace treaties or similar 
     arrangements, to allocate responsibilities under that Article 
     in a manner that respects the essential spirit and purpose of 
     the Article.
       (6) Booby-traps and other devices.--For the purposes of the 
     Amended Mines Protocol, the United States understands that--
       (A) the prohibition contained in Article 7(2) of the 
     Amended Mines Protocol does not preclude the expedient 
     adaptation or adaptation in advance of other objects for use 
     as booby-traps or other devices;
       (B) a trip-wired hand grenade shall be considered a 
     ``booby-trap'' under Article 2(4) of the Amended Mines 
     Protocol and shall not be considered a ``mine'' or an ``anti-
     personnel mine'' under Article 2(1) or Article 2(3), 
     respectively; and
       (C) none of the provisions of the Amended Mines Protocol, 
     including Article 2(5), applies to hand grenades other than 
     trip-wired hand grenades.
       (7) Non-lethal capabilities.--The United States understands 
     that nothing in the Amended Mines Protocol may be construed 
     as restricting or affecting in any way non-lethal weapon 
     technology that is designed to temporarily disable, stun, 
     signal the presence of a person, or operate in any other 
     fashion, but not to cause permanent incapacity.
       (8) International tribunal jurisdiction.--The United States 
     understands that the provisions of Article 14 of the Amended 
     Mines Protocol relating to penal sanctions refer to measures 
     by the authorities of States Parties to the Protocol and do 
     not authorize the trial of any person before an international 
     criminal tribunal. The United States shall not recognize the 
     jurisdiction of any international tribunal to prosecute a 
     United States citizen for a violation of the Protocol or the 
     Convention on Conventional Weapons.
       (9) Technical cooperation and assistance.--The United 
     States understands that--
       (A) no provision of the Protocol may be construed as 
     affecting the discretion of the United States to refuse 
     assistance or to restrict or deny permission for the export 
     of equipment, material, or scientific or technological 
     information for any reason; and
       (B) the Amended Mines Protocol may not be used as a pretext 
     for the transfer of weapons technology or the provision of 
     assistance to the military mining or military counter-mining 
     capabilities of a State Party to the Protocol.

     SEC. 4. CONDITIONS.

       The Senate's advice and consent to the ratification of the 
     Amended Mines Protocol is subject to the following 
     conditions, which shall be binding upon the President:
       (1) Pursuit deterrent munition.--
       (A) Understanding.--The Senate understands that nothing in 
     the Amended Mines Protocol restricts the possession or use of 
     the Pursuit Deterrent Munition, which is in compliance with 
     the provisions in the Technical Annex and which constitutes 
     an essential military capability for the United States Armed 
     Forces.
       (B) Certification.--Prior to deposit of the United States 
     instrument of ratification, the President shall certify to 
     the Committee on Armed Services and the Committee on Foreign 
     Relations of the Senate and to the Speaker of the House of 
     Representatives that the Pursuit Deterrent Munition shall 
     continue to remain available for use by the United States 
     Armed Forces at least until January 1, 2003, unless an 
     effective alternative to the munition becomes available.
       (C) Effective alternative defined.--For purposes of 
     subparagraph (B), the term ``effective alternative'' does not 
     mean a tactic or operational concept in and of itself.
       (2) Export moratorium.--The Senate--
       (A) recognizes the expressed intention of the President to 
     negotiate a moratorium on the export of anti-personnel mines; 
     and
       (B) urges the President to negotiate a universal ban on the 
     transfer of those mines that does not include any restriction 
     on any mine that is primarily designed to be exploded by the 
     presence, proximity, or contact of a vehicle, as opposed to a 
     person and that is equipped with an anti-handling device, as 
     defined in the Amended Mines Protocol, or a tilt rod or 
     magnetic influence sensor, such mine not being considered an 
     anti-personnel mine despite being so equipped.
       (3) Humanitarian demining assistance.--
       (A) Findings.--The Senate makes the following findings:
       (i) United states efforts.--The United States contributes 
     more than any other country to the worldwide humanitarian 
     demining effort, having expended more than $153,000,000 on 
     such efforts since 1993.
       (ii) Development of detection and clearing technology.--The 
     Department of Defense has undertaken a substantial program to 
     develop improved mine detection and clearing technology and 
     has shared this improved technology with the international 
     community.
       (iii) Expansion of united states humanitarian demining 
     programs.--The Department of Defense and the Department of 
     State have significantly expanded their humanitarian demining 
     programs to train and assist the personnel of other countries 
     in developing effective demining programs.
       (B) International support for demining initiatives.--The 
     Senate urges the international community to join the United 
     States in providing significant financial and technical 
     assistance to humanitarian demining programs, thereby making 
     a concrete and effective contribution to the effort to reduce 
     the grave problem posed by the indiscriminate use of non-
     self-destructing landmines.
       (4) Limitation on the scale of assessment.--
       (A) Limitation on assessment for cost of implementation.--
     Notwithstanding any provision of the Amended Mines Protocol, 
     and subject to the requirements of subparagraphs (B) and (C), 
     the portion of the United States annual assessed contribution 
     for activities associated with any conference held pursuant 
     to Article 13 of the Amended Mines Protocol may not exceed 
     $1,000,000.
       (B) Recalculation of limitation.--
       (i) In general.--On January 1, 2000, and at 3-year 
     intervals thereafter, the Administrator of General Services 
     shall prescribe an amount that shall apply in lieu of the 
     amount specified in subparagraph (A) and that shall be 
     determined by adjusting the last amount applicable under that 
     subparagraph to reflect the percentage increase by which the 
     Consumer Price Index for the preceding calendar year exceeds 
     the Consumer Price Index for the calendar year three years 
     previously.
       (ii) Consumer price index defined.--In this subparagraph, 
     the term ``Consumer Price Index'' means the last Consumer 
     Price Index for all-urban consumers published by the 
     Department of Labor.
       (C) Additional contributions requiring congressional 
     approval.--
       (i) Authority.--Notwithstanding subparagraph (A), the 
     President may furnish additional contributions for activities 
     associated with any conference held pursuant to Article 13 of 
     the Amended Mines Protocol which would otherwise be 
     prohibited under subparagraph (A) if--

       (I) the President determines and certifies in writing to 
     the appropriate committees of Congress that the failure to 
     make such contributions would seriously affect the national 
     interest of the United States; and
       (II) Congress enacts a joint resolution approving the 
     certification of the President under subclause (I).

       (ii) Statement of reasons.--Any certification made under 
     clause (i) shall be accompanied by a detailed statement 
     setting forth the specific reasons therefor and the specific 
     activities associated with any conference held pursuant to 
     Article 13 of the Amended Mines Protocol to which the 
     additional contributions would be applied.
       (5) United states authority for technical cooperation and 
     assistance.--Notwithstanding any provision of the Amended 
     Mines Protocol, no funds may be drawn from the Treasury of 
     the United States for any payment or assistance (including 
     the transfer of in-kind items) under Article 11 or Article 
     13(3)(d) of the Amended Mines Protocol without statutory 
     authorization and appropriation by United States law.
       (6) Future negotiation of withdrawal clause.--It is the 
     sense of the Senate that,

[[Page S12309]]

     in negotiations on any treaty containing an arms control 
     provision, United States negotiators should not agree to any 
     provision that would have the effect of inhibiting the United 
     States from withdrawing from the arms control provisions of 
     that treaty in a timely fashion in the event that the supreme 
     national interests of the United States have been 
     jeopardized.
       (7) Prohibition on de facto implementation of the ottawa 
     convention.--Prior to the deposit of the United States 
     instrument of ratification, the President shall certify to 
     Congress that--
       (A) the President will not limit the consideration of 
     alternatives to United States anti-personnel mines or mixed 
     anti-tank systems solely to those that comply with with the 
     Ottawa Convention; and
       (B) in pursuit of alternatives to United States anti-
     personnel mines, or mixed anti-tank systems, the United 
     States shall seek to identify, adapt, modify, or otherwise 
     develop only those technologies that--
       (i) are intended to provide military effectiveness 
     equivalent to that provided by the relevant anti-personnel 
     mine, or mixed anti-tank system; and
       (ii) would be affordable.
       (8) Certification with regard to international tribunals.--
     Prior to the deposit of the United States instrument of 
     ratification, the President shall certify to Congress that 
     with respect to the Amended Mines Protocol, the Convention on 
     Conventional Weapons, or any future protocol or amendment 
     thereto, that the United States shall not recognize the 
     jurisdiction of any international tribunal over the United 
     States or any of its citizens.
       (9) Tactics and operational concepts.--It is the sense of 
     the Senate that development, adaptation, or modification of 
     an existing or new tactic or operational concept, in and of 
     itself, is unlikely to constitute an acceptable alternative 
     to anti-personnel mines or mixed anti-tank systems.
       (10) Finding regarding the international humanitarian 
     crisis.--The Senate finds that--
       (A) the grave international humanitarian crisis associated 
     with anti-personnel mines has been created by the 
     indiscriminate use of mines that do not meet or exceed the 
     specifications on detectability, self-destruction, and self-
     deactivation contained in the Technical Annex to the Amended 
     Mines Protocol; and
       (B) United States mines that do meet such specifications 
     have not contributed to this problem.
       (11) Approval of modifications.--The Senate reaffirms the 
     principle that any amendment or modification to the Amended 
     Mines Protocol other than an amendment or modification solely 
     of a minor technical or administrative nature shall enter 
     into force with respect to the United States only pursuant to 
     the treaty-making power of the President, by and with the 
     advice and consent of the Senate, as set forth in Article II, 
     section 2, clause 2 of the Constitution of the United States.
       (12) Further arms reductions obligations.--The Senate 
     declares its intention to consider for approval an 
     international agreement that would obligate the United States 
     to reduce or limit the Armed Forces or armaments of the 
     United States in a militarily significant manner only 
     pursuant to the treaty-making power as set forth in Article 
     II, section 2, clause 2 of the Constitution of the United 
     States.
       (13) Treaty interpretation.--The Senate affirms the 
     applicability to all treaties of the constitutionally-based 
     principles of treaty interpretation set forth in condition 
     (1) of the resolution of ratification of the INF Treaty, 
     approved by the Senate on May 27, 1988, and condition (8) of 
     the resolution of ratification of the CFE Flank Document, 
     approved by the Senate on May 14, 1997.
       (14) Primacy of the united states constitution.--Nothing in 
     the Amended Mines Protocol requires or authorizes the 
     enactment of legislation, or the taking of any other action, 
     by the United States that is prohibited by the Constitution 
     of the United States, as interpreted by the United States.

     SEC. 5. DEFINITIONS.

       As used in this resolution:
       (1) Amended mines protocol or protocol.--The terms 
     ``Amended Mines Protocol'' and ``Protocol'' mean the Amended 
     Protocol on Prohibitions or Restrictions on the Use of Mines, 
     Booby-Traps and Other Devices, together with its Technical 
     Annex, as adopted at Geneva on May 3, 1996 (contained in 
     Senate Treaty Document 105-1).
       (2) CFE flank document.--The term ``CFE Flank Document'' 
     means the Document Agreed Among the States Parties to the 
     Treaty on Conventional Armed Forces in Europe (CFE) of 
     November 19, 1990, done at Vienna on May 31, 1996 (Treaty 
     Document 105-5).
       (3) Convention on Conventional Weapons.--The term 
     ``Convention on Conventional Weapons'' means the Convention 
     on Prohibitions or Restriction on the Use of Certain 
     Conventional Weapons Which May be Deemed to be Excessively 
     Injurious or to Have Indiscriminate Effects, done at Geneva 
     on October 10, 1980 (Senate Treaty Document 103-25).
       (4) Ottawa convention.--The term ``Ottawa Convention'' 
     means the Convention on the Prohibition of the Use, 
     Production, Stockpiling, and Transfer of Anti-Personnel Mines 
     and on Their Destruction, opened for signature at Ottawa 
     December 3-4, 1997 and at the United Nations Headquarters 
     beginning December 5, 1997.
       (5) United states instrument of ratification.--The term 
     ``United States instrument of ratification'' means the 
     instrument of ratification of the United States of the 
     Amended Mines Protocol.

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