[Congressional Record Volume 156, Number 133 (Wednesday, September 29, 2010)]
[Senate]
[Pages S7719-S7724]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE SESSION
____
HAGUE CONVENTION ON INTERNATIONAL RECOVERY OF CHILD SUPPORT AND FAMILY
MAINTENANCE
Mr. REID. Mr. President, I ask unanimous consent that the Senate
proceed to executive session to consider Calendar No. 2, Treaty
Document No. 110-21; that the treaty be considered as having advanced
through the various parliamentary stages, up to including the
presentation of the resolution of ratification; that any committee
reservations and declarations be agreed to as applicable; that the
DeMint amendment, which is at the desk, be agreed to; that any
statements be printed in the Record; further, that when the vote on the
resolution of ratification is taken, the motion to reconsider be
considered made and laid on the table, and the President of the United
States be immediately notified of the Senate's action.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment (No. 4683) was agreed to, as follows:
(Purpose: To provide an understanding that the preamble to the Treaty
does not create any obligations of the United States under the
Convention on the Rights of the Child as a matter of United States or
international law)
In the section heading for section 1, strike ``TWO
RESERVATIONS AND THREE DECLARATIONS'' and insert ``TWO
RESERVATIONS, ONE UNDERSTANDING, AND THREE DECLARATIONS''.
In section 1, strike ``the reservations of section 2, the
declaration of section 3, and the declarations of section 4''
and insert ``the reservations of section 2, the understanding
of section 3, the declaration of section 4, and the
declarations of section 5''.
Strike ``SEC. 3. DECLARATION'' and insert the following:
SEC. 3. UNDERSTANDING.
The advice and consent of the Senate under section 1 is
subject to the following understanding, which shall be
included in the instrument of ratification:
The United States is not a party to the Convention on the
Rights of the Child and understands that a mention of the
Convention in the preamble of this Treaty does not create any
obligations and does not affect or enhance the status of the
Convention as a matter of United States or international law.
SEC. 4. DECLARATION.
Strike ``SEC. 4. DECLARATIONS'' and insert ``SEC. 5.
DECLARATIONS''.
Mr. DeMINT. Mr. President, Americans seem to be losing more and more
control over their lives due to government intrusion. The government
has decided what kinds of cars we can drive, what kinds of light bulbs
we can purchase and what kind of health insurance we must carry. But
now the government is going even further by reaching into the family
unit.
I rise today to speak about an issue of great importance to families
across America--the rights that parents have over their families and
the ever encroaching role of the international community in American
life--specifically through a treaty, the United Nations Convention on
the Rights of the Child.
While the Convention on the Rights of the Child has many noble goals,
I have significant concerns about the effects a treaty like this would
have on parental rights in America. This week we looked at the Rights
of the Child treaty again when it was referenced in the preamble of a
different treaty--one on the international role in child support
concerns, the Hague Treaty on International Recovery of Child Support
and Other Forms of Family Maintenance.
So today, I am offering an amendment to the resolution of
ratification for the Child Support Recovery Treaty that reinstates that
the United States has not ratified the United Nations Convention on the
Rights of the Child. My amendment states that ``The United States is
not a party to the Convention on the Rights of the Child and
understands that a mention of the Convention in the preamble of this
Treaty does not create any obligations and does not affect or enhance
the status of the Convention as a matter of United States or
international law.''
Last year, I introduced a joint resolution proposing an amendment to
the U.S. Constitution concerning the rights of parents and their
families, which would protect the liberty of parents to direct the
upbringing and education of their children in the face of government
intrusion.
Earlier this year, 30 Senators, including myself, introduced a
resolution to oppose the ratification of the United Nations Convention
on the Rights of the Child. My resolution focuses on the fact that the
Convention on the Rights of the Child is incompatible with the
Constitution of the United States and threatens U.S. principles of
sovereignty and self-governance. It would place the U.S. under
international legal standards in multiple areas of domestic policy that
would have far-reaching effects on the way we educate and raise our
children.
The Federal Government, or any source of international law, should
not be mandating guidelines or setting standards for raising children.
The Convention on the Rights of the Child would create international
standards for parents that could be enforced through U.S. courts at the
expense of the Constitution; courts could inappropriately use
references to the Convention as legal precedent.
Parents are best equipped to decide how their children are raised and
educated, not the government, and certainly not a board of bureaucrats
headquartered in Geneva, Switzerland.
The fight for protecting parental rights goes on. The DeMint
amendment to the Child Support Recovery Treaty is intended to ensure
that despite the reference in the preamble, the Convention on the
Rights of the Child has no place in the U.S. legal system.
As our Nation encounters new challenges, I believe the answers must
include more freedom for Americans, not more government control--and
certainly not more international control. Congress must work to protect
and strengthen the freedom of American families who are the backbone of
our strength as a nation.
I yield the floor.
Mr. REID. Mr. President, I ask for a division vote on the resolution
of ratification.
The PRESIDING OFFICER. A division has been requested.
Senators in favor of the resolution of ratification, please rise.
Those opposed will rise and stand until counted.
With two-thirds of the Senators present having voted in the
affirmative, the resolution of ratification is agreed to.
The resolution of ratification, as amended, was agreed to, as
follows:
[[Page S7720]]
Treaty
[Hague Convention on International Recovery of Child Support and Family
Maintenance (Treaty Doc. 110-21)]
Sec. 1. Senate Advice and Consent subject to two
reservations, one understanding, and three declarations.
The Senate advises and consents to the ratification of the
Hague Convention on the International Recovery of Child
Support and Other Forms of Family Maintenance (the
``Convention''), adopted at The Hague on November 23, 2007
(Treaty Doc. 110-21), subject to the reservations of section
2, the understanding of section 3, the declaration of section
4, and the declarations of section 5.
Sec. 2. Reservations. The advice and consent of the Senate
under section 1 is subject to the following reservations,
which shall be included in the instrument of ratification:
(1) In accordance with Articles 20 and 62 of the
Convention, the United States of America makes a reservation
that it will not recognize or enforce maintenance obligation
decisions rendered on the jurisdictional bases set forth in
subparagraphs 1(c), 1(e), and 1(f) of Article 20 of the
Convention.
(2) In accordance with Articles 44 and 62 of the
Convention, the United States of America makes a reservation
that it objects to the use of the French language in
communications between the Central Authority of any other
Contracting State and the Central Authority of the United
States of America.
Sec . 3. Understanding. The advice and consent of the
Senate under section 1 is subject to the following
understanding, which shall be included in the instrument of
ratification:
The United States is not a party to the Convention on the
Rights of the Child and understands that a mention of the
Convention in the preamble of this Treaty does not create any
obligations and does not affect or enhance the status of the
Convention as a matter of the United States or international
law.
Sec. 4. Declaration. The advice and consent of the Senate
under section 1 is subject to the following declaration,
which shall be included in the instrument of ratification:
The United States of America declares, in accordance with
Articles 61 and 63 of the Convention, that for the United
States of America the Convention shall extend only to the
following: all 50 U.S. states, the District of Columbia,
Guam, Puerto Rico, and the U.S. Virgin Islands.
Sec. 5. Declarations. The advice and consent of the Senate
under section 1 is subject to the following declarations:
(1) Article 55 of the Convention sets forth a special
procedure for the amendment of the forms annexed to the
Convention. In the event that the United States of America
does not want a particular amendment to the forms adopted in
accordance with Article 55 to enter into force for the United
States of America on the first day of the seventh calendar
month after the date of its communication by the depositary
to all parties, the Executive Branch may by notification in
writing to the depositary make a reservation, in accordance
with Article 62 of the Convention, with respect to that
amendment and without the approval of the Senate.
(2) This Convention is not self-executing.
Treaty with United Kingdom Concerning Defense Trade Cooperation
Treaty with Australia Concerning Defense Trade Cooperation
Mr. REID. Mr. President, I ask unanimous consent that the Senate
consider Calendar Nos. 5 and 6, Treaty Document Nos. 110-7 and 110-10;
that the treaties be considered as having advanced through the various
parliamentary stages, up to and including the presentation of the
resolutions of ratification; that any committee reservations and
declarations be agreed to as applicable; that any statements be printed
in the Record; further, that when the votes on the resolutions of
ratification are taken, the motions to reconsider be considered made
and laid on the table en bloc, and the President of the United States
be immediately notified of the Senate's action.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Mr. President, I ask for a division vote on each resolution
of ratification.
The PRESIDING OFFICER. A division has been requested.
Senators in favor of the resolution of ratification, please rise.
Those opposed will rise and stand until counted.
With two-thirds of the Senators present having voted in the
affirmative, the resolution of ratification is agreed to.
The resolution of ratification was agreed to, as follows:
Treaty
[Treaty with United Kingdom Concerning Defense Trade Cooperation
(Treaty Doc. 110-7)]
Section 1. Senate Advice and Consent Subject to Conditions,
Understandings And Declarations.
The Senate advises and consents to the ratification of the
Treaty Between the Government of the United States of America
and the Government of the United Kingdom of Great Britain and
Northern Ireland Concerning Defense Trade Cooperation, done
at Washington and London on June 21 and 26, 2007 (Treaty Doc.
110-7) (as defined in section 5 of this resolution), subject
to the conditions in section 2, the understandings in section
3 and the declarations in section 4.
Section 2. Conditions.
The Senate's advice and consent to the ratification of the
Treaty with the United Kingdom Concerning Defense Trade
Cooperation is subject to the following conditions, which
shall be binding upon the President:
(1) United States preparation for treaty implementation.
(A) At least 15 days before any exchange of notes pursuant
to Article 20 of the Treaty, the President shall submit to
the Congress a report--
(i) describing steps taken to insure that the Executive
branch and United States industry are prepared to comply with
Treaty requirements;
(ii) analyzing the implications of the Treaty, and
especially of Article 3(3) of the Treaty, for the protection
of intellectual property rights of United States persons;
(iii) explaining what steps the United States Government is
taking and will take to combat improper or illegal intangible
exports (i.e., exports as defined in part 120.17(a)(4) of
title 22, Code of Federal Regulations) under the Treaty; and
(iv) setting forth the issues to be addressed in the
Management Plan called for by Section 12(3)(f) of the
Implementing Arrangement and the procedures that are expected
to be adopted in that Plan.
(B) Before any exchange of notes pursuant to Article 20 of
the Treaty, the President shall submit to the Congress a
certification that changes to the International Traffic in
Arms Regulations (parts 120-130 of title 22, Code of Federal
Regulations) have been published in the Federal Register
pursuant to the Arms Export Control Act, as appropriate, that
would, upon entry into force of the Treaty--
(i) make clear the legal obligation for any person involved
in an Export, Re-export, Transfer, or Re-transfer under the
Treaty to comply with all requirements in the revised
International Traffic in Arms Regulations, including by
taking all reasonable steps to ensure the accuracy of
information received from a member of the Approved Community
that is party to an Export, Re-export, Transfer, or Re-
transfer under the Treaty;
(ii) make clear the legal obligation for Approved Community
members to comply with United States Government instructions
and requirements regarding United States Defense Articles
added to the list of exempt Defense Articles pursuant to
Article 3(2) of the Treaty;
(iii) limit a person from being a member of the United
States Community, pursuant to Article 5(2) of the Treaty, if
that person is generally ineligible to export pursuant to
section 120.1(c) of title 22, Code of Federal Regulations;
and
(iv) require any nongovernmental entity that ceases to be
included in the United States Community to comply with
instructions from authorized United States Government
officials and to open its records of transactions under the
Treaty to inspection by United States Government and, as
appropriate, authorized United Kingdom Government officials
pursuant to Article 12 of the Treaty.
(C) Before any exchange of notes pursuant to Article 20 of
the Treaty, the President shall submit to the Congress--
(i) a certification that appropriate mechanisms have been
established to identify, in connection with the process for
determining whether a nongovernmental entity is in the United
States Community pursuant to Article 5(2) of the Treaty,
persons who meet the criteria in section 38(g)(1) of the Arms
Export Control Act (22 U.S.C. 2778(g)(1));
(ii) a certification that appropriate mechanisms have been
established to verify that nongovernmental entities in the
United States that Export pursuant to the Treaty are eligible
to export Defense Articles under United States law and
regulation as required by Article 5(2) of the Treaty;
(iii) a certification that United States Department of
Homeland Security personnel at United States ports--
(a) have prompt access to a State Department database
containing registered exporters, freight forwarders and
consignees, and watch lists regarding United States
companies; and
(b) are prepared to prevent attempts to export pursuant to
the Treaty by United States persons who are not eligible to
export Defense Articles under United States law or
regulation, even if such person has registered with the
United States Government;
(iv) a certification that the Secretary of Defense has
promulgated appropriate changes to the National Industrial
Security Program Operating Manual and to Regulation DoD
5200.1-R, ``Information Security Program,'' and has issued
guidance to industry regarding marking and other Treaty
compliance requirements; and
(v) a certification that a capability has been established
to conduct post-shipment verification, end-use/end-user
monitoring and related security audits for Exports under the
Treaty, accompanied by a report setting forth the legal
authority, staffing and budget provided for this capability
and any further Executive branch or congressional action
recommended to ensure its effective implementation.
[[Page S7721]]
(2) Treaty partner preparation for treaty implementation.
Before any exchange of notes pursuant to Article 20 of the
Treaty, the President shall certify to Congress that the
Government of the United Kingdom has promulgated all
necessary regulatory changes, including:
(A) changes to export control regulations, setting forth a
Treaty-specific Open General Export License (OGEL);
(B) changes to the United Kingdom Security Policy Framework
and related security regulations for Government and United
Kingdom Industry; and
(C) changes to the MOD Classified Material Release
Procedure (F680), to take account of Treaty Re-exports and
Re-transfers.
(3) Joint operations, programs and projects.
The Secretary of State shall keep the Committee on Foreign
Relations of the Senate and the Committee on Foreign Affairs
of the House of Representatives informed of the lists of
combined military and counter-terrorism operations developed
pursuant to Article 3(1)(a) of the Treaty; cooperative
security and defense research, development, production, and
support programs developed pursuant to Article 3(1)(b) of the
Treaty; and specific security and defense projects developed
pursuant to article 3(1)(c) of the Treaty.
(4) Exempted defense articles.
(A) The President may remove a Defense Article from the
list of Defense Articles exempt from the Scope of the Treaty,
if such removal is not barred by United States law, 30 days
after the President informs the Committee on Foreign
Relations of the Senate and the Committee on Foreign Affairs
of the House of Representatives of such proposed removal.
(B) When a Defense Article is added to the list of Defense
Articles exempt from the Scope of the Treaty, the Secretary
of State shall provide a copy of the Federal Register Notice
delineating the policies and procedures that will govern the
control of such Defense Article, consistent with Section 4(7)
of the Implementing Arrangement, as well as an explanation of
the reasons for adopting those policies and procedures, to
the Committee on Foreign Relations of the Senate and the
Committee on Foreign Affairs of the House of Representatives
within five days of the issuance of such Notice.
(5) Changes to the definition of the territory of the
United Kingdom.
(A) The Secretary of State shall inform the Committee on
Foreign Relations of the Senate and the Committee on Foreign
Affairs of the House of Representatives within 15 days of the
initiation of consultations with the United Kingdom
concerning the inclusion of any additional territory or
territories in the definition of ``Territory of the United
Kingdom'' for the purposes of Article 1(8) of the Treaty, and
shall inform the Committees within 15 days of receipt through
diplomatic channels of notice that a territory or group of
territories has been added to the definition of ``Territory
of the United Kingdom'' for the purposes of Article 1(8) of
the Treaty.
(B) The Secretary of State shall consult with the Committee
on Foreign Relations of the Senate and the Committee on
Foreign Affairs of the House of Representatives before
approving any addition to the United Kingdom Community of a
non-governmental entity or facility outside the territory of
England, Scotland, Wales, or Northern Ireland.
(6) Approved community membership.
(A) If sanctions are in effect against a person in the
United Kingdom Community pursuant to section 73(a)(2)(B) or
section 81 of the Arms Export Control Act (22 U.S.C.
2797b(a)(2)(B) or 2798), the United States shall raise the
matter pursuant to Article 4(2) of the Treaty and Section
7(9) of the Implementing Arrangement.
(B) The Secretary of State shall inform the Committee on
Foreign Relations of the Senate and the Committee on Foreign
Affairs of the House of Representatives not later than 5 days
before the U.S. Government agrees to the initial inclusion in
the United Kingdom Community of a nongovernmental United
Kingdom entity, if the Department of State is aware that the
entity, or any one or more of its relevant senior officers or
officials:
(i) Has been convicted of violating a statute cited in
paragraph 38(g)(1) of the Arms Export Control Act (22 U.S.C.
2778(g)(1)); or
(ii) is, or would be if that person were a United States
person,
(a) ineligible to contract with any agency of the U.S.
Government;
(b) ineligible to receive a license or other form of
authorization to export from any agency of the U.S.
Government; or
(c) ineligible to receive a license or any form of
authorization to import defense articles or defense services
from any agency of the U.S. Government.
(C) The Secretary of State shall inform and consult with
the Committee on Foreign Relations of the Senate and the
Committee on Foreign Affairs of the House of Representatives
not later than 5 days after the United States Government
agrees to the continued inclusion in the United Kingdom
Community of a nongovernmental United Kingdom entity, if the
Department is aware that the entity, or any one or more of
its relevant senior officers or officials, raises one or more
of the concerns referred to in paragraph (B).
(7) Transition policies and procedures.
(A) No fewer than 15 days before formally establishing the
procedures called for in Section 5(5) of the Implementing
Arrangement, the President shall provide to the Committee on
Foreign Relations of the Senate and the Committee on Foreign
Affairs of the House of Representatives a report
concerning the policies and procedures developed to govern
the transition to the application of the Treaty, pursuant
to Article 3(3) of the Treaty, of Defense Articles
acquired and delivered under the Foreign Military Sales
program.
(B) No fewer than 15 days before formally establishing the
procedures called for in Section 8(2) of the Implementing
Arrangement, the President shall provide to the Committee on
Foreign Relations of the Senate and the Committee on Foreign
Affairs of the House of Representatives a report concerning
the policies and procedures developed to govern the members
of the United Kingdom Community wishing to transition to the
processes established under the Treaty, pursuant to Article
14(2) of the Treaty, from the requirements of a United States
Government export license or other authorization.
(8) Congressional oversight.
(A) The Secretary of State shall inform the Committee on
Foreign Relations of the Senate and the Committee on Foreign
Affairs of the House of Representatives promptly of any
report, consistent with Section 11(4)(b)(vi) of the
Implementing Arrangement, of a material violation of Treaty
requirements or procedures by a member of the Approved
Community.
(B) The Department of State shall brief the Committee on
Foreign Relations of the Senate and the Committee on Foreign
Affairs of the House of Representatives regularly regarding
issues raised in the Management Board called for in Section
12(3) of the Implementing Arrangement, and the resolution of
such issues.
(9) Annual report.
Not later than March 31, 2011, and annually thereafter, the
President shall submit to Congress a report, which shall
cover all Treaty activities during the previous calendar
year. This report shall include:
(A) a summary of the amount of Exports under the Treaty and
of Defense Articles transitioned into the Treaty, with an
analysis of how the Treaty is being used;
(B) a list of all political contributions, gifts,
commissions and fees paid, or offered or agreed to be paid,
by any person in connection with Exports of Defense Articles
under the Treaty in order to solicit, promote, or otherwise
to secure the conclusion of such sales;
(C) any action to remove from the United Kingdom Community
a nongovernmental entity or facility previously engaged in
activities under the Treaty, other than due to routine name
or address changes or mergers and acquisitions;
(D) any concerns relating to infringement of intellectual
property rights that were raised to the President or an
Executive branch Department or Agency by Approved Community
members, and developments regarding any concerns that were
raised in previous years;
(E) a description of any relevant investigation and each
prosecution pursued with respect to activities under the
Treaty, the results of such investigations or prosecutions
and of such investigations and prosecutions that continued
over from previous years, and any shortfalls in obtaining
prompt notification pursuant to Article 13(3) of the Treaty
or in cooperation between the Parties pursuant to Article
13(3) and (4) of the Treaty;
(F) a description of any post-shipment verification, end-
user/end-use monitoring, or other security activity related
to Treaty implementation conducted during the year, the
purposes of such activity and the results achieved; and
(G) any Office of Inspector General activity bearing upon
Treaty implementation conducted during the year, any
resultant findings or recommendations, and any actions taken
in response to current or past findings or recommendations.
Section 3. Understandings.
The Senate's advice and consent to the ratification of the
Treaty with the United Kingdom Concerning Defense Trade
Cooperation is subject to the following understandings, which
shall be included in the instrument of ratification:
(1) Meaning of the phrase ``identified in.''
It is the understanding of the United States that the
phrase ``identified in'' in the Treaty shall be interpreted
as meaning ``identified pursuant to.''
(2) Meaning of the word ``scope.''
It is the understanding of the United States that the word
``Scope'' in the Treaty shall be interpreted as meaning ``the
Treaty's coverage as identified in Article 3.''
(3) Cooperative programs with exempt and non-exempt defense
articles.
It is the understanding of the United States that if a
cooperative program is mutually determined, consistent with
Section 2(2)(e) of the Implementing Arrangement, to be within
the Scope of the Treaty pursuant to Article 3(1)(b) of the
Treaty despite involving Defense Articles that are exempt
from the Scope of the Treaty pursuant to Article 3(2) of the
Treaty, the exempt Defense Articles shall remain exempt from
the Scope of the Treaty and the Treaty shall apply only to
non-exempt Defense Articles required for the program.
(4) Investigations and reports of alleged violations.
It is the understanding of the United States that the words
``as appropriate'' in Section 10(3)(f) of the Implementing
Arrangement do not detract in any way from the obligation in
Article 13(3) of the Treaty, that ``Each Party shall promptly
investigate all suspected violations and reports of alleged
violations of the procedures established pursuant to this
Treaty, and shall
[[Page S7722]]
promptly inform the other Party of the results of such
investigations.''
(5) Exempt defense articles.
It is the understanding of the United States that if one
Party to the Treaty exempts a type of Defense Articles from
the scope of the Treaty pursuant to Article 3(2) of the
Treaty, then Defense Articles of that type will be treated as
exempt by both Parties to the Treaty.
(6) Intermediate consignees.
It is the understanding of the United States that any
intermediate consignee of an Export from the United States
under the Treaty must be a member of the Approved Community
or otherwise approved by the United States Government.
(7) Scope of treaty exemption.
The United States interprets the Treaty not to exempt any
person or entity from any United States statutory and
regulatory requirements, including any requirements of
licensing or authorization, other than those included in the
International Traffic in Arms Regulations, as modified or
amended.
Accordingly, the United States interprets the term `license
or other written authorization' in Article 2 and the term
`licenses or other authorizations' in Article 6(1), as these
terms apply to the United States, and the term `prior written
authorization by the United States Government' in Article 7,
to refer only to such licenses, licensing requirements, and
other authorizations as are required or issued by the United
States pursuant to the International Traffic in Arms
Regulations, as modified or amended; and the United States
interprets the reference to `the applicable licensing
requirements and the implementing regulations of the United
States Arms Export Control Act' in Article 13(1) to refer
only to the applicable licensing requirements under the
International Traffic in Arms Regulations, as modified or
amended.
Section 4. Declarations.
The Senate's advice and consent to the ratification of the
Treaty with the United Kingdom Concerning Defense Trade
Cooperation is subject to the following declarations:
(1) Self-execution.
This Treaty is not self-executing in the United States,
notwithstanding the statement in the preamble to the
contrary.
(2) Private rights.
This Treaty does not confer private rights enforceable in
United States courts.
(3) Intellectual property rights.
No liability will be incurred by or attributed to the
United States Government in connection with any possible
infringement of privately owned patent or proprietary rights,
either domestic or foreign, by reason of the United States
Government's permitting Exports or Transfers or its approval
of Re-exports or Re-transfers under the Treaty.
Section 5. Definitions.
As used in this resolution:
(1) The terms ``Treaty with the United Kingdom Concerning
Defense Trade Cooperation'' and ``Treaty'' mean the Treaty
between the Government of the United States of America and
the Government of the United Kingdom of Great Britain and
Northern Ireland Concerning Defense Trade Cooperation, done
at Washington and London on June 21 and 26, 2007.
(2) The terms ``Implementing Arrangement Pursuant to the
Treaty'' and ``Implementing Arrangement'' mean the
Implementing Arrangement Pursuant to the Treaty between the
Government of the United States of America and the Government
of the United Kingdom of Great Britain and Northern Ireland
Concerning Defense Trade Cooperation, which was signed in
Washington on February 14, 2008.
(3) The terms ``Defense Articles,'' ``Export,'' ``Re-
export,'' ``Re-transfer,'' ``Transfer,'' ``Approved
Community,'' ``United States Community,'' ``United Kingdom
Community,'' and ``Territory of the United Kingdom'' have the
meanings given to them in Article 1 of the Treaty.
(4) The terms ``Management Board'' and ``Management Plan''
have the meanings given to them in Section 1 of the
Implementing Arrangement.
(5) The terms ``person'' and ``foreign person'' have the
meaning given to them by section 38(g)(9) of the Arms Export
Control Act (22 U.S.C. 2778(g)(9)). The term ``U.S. person''
has the meaning given to it by part 120.15 of title 22, Code
of Federal Regulations.
The PRESIDING OFFICER. Senators in favor of the next resolution of
ratification, please rise. Those opposed will rise and stand until
counted.
With two-thirds of the Senators present having voted in the
affirmative, the resolution of ratification is agreed to.
The resolution of ratification was agreed to, as follows:
Treaty
[Treaty with Australia Concerning Defense Trade Cooperation (Treaty
Doc. 110-10)]
Section 1. Senate Advice and Consent Subject to Conditions,
Understandings and Declarations
The Senate advises and consents to the ratification of the
Treaty Between the Government of the United States of America
and the Government of Australia Concerning Defense Trade
Cooperation, done at Sydney, September 5, 2007 (Treaty Doc.
110-10). (as defined in section 5 of this resolution),
subject to the conditions in section 2, the understandings in
section 3 and the declarations in section 4.
Section 2. Conditions.
The Senate's advice and consent to the ratification of the
Treaty with Australia Concerning Defense Trade Cooperation is
subject to the following conditions, which shall be binding
upon the President:
(1) United States preparation for treaty implementation.
(A) At least 15 days before any exchange of notes pursuant
to Article 20 of the Treaty, the President shall submit to
the Congress a report--
(i) describing steps taken to ensure that the Executive
branch and United States industry are prepared to comply with
Treaty requirements;
(ii) analyzing the implications of the Treaty, and
especially of Article 3(3) of the Treaty, for the protection
of intellectual property rights of United States persons;
(iii) explaining what steps the United States Government is
taking and will take to combat improper or illegal intangible
exports (i.e., exports as defined in part 120.17(a)(4) of
title 22, Code of Federal Regulations) under the Treaty; and
(iv) setting forth the issues to be addressed in the
Management Plan called for by Section 12(3)(f) of the
Implementing Arrangement and the procedures that are expected
to be adopted in that Plan.
(B) Before any exchange of notes pursuant to Article 20 of
the Treaty, the President shall submit to the Congress a
certification that changes to the International Traffic in
Arms Regulations (parts 120-130 of title 22, Code of Federal
Regulations) have been published in the Federal Register
pursuant to the Arms Export Control Act, as appropriate, that
would, upon entry into force of the Treaty,--
(i) make clear the legal obligation for any person involved
in an Export, Re-export, Transfer, or Re-transfer under the
Treaty to comply with all requirements in the revised
International Traffic in Arms Regulations, including by
taking all reasonable steps to ensure the accuracy of
information received from a member of the Approved Community
that is party to an Export, Re-export, Transfer, or Re-
transfer under the Treaty;
(ii) make clear the legal obligation for Approved Community
members to comply with United States Government instructions
and requirements regarding United States Defense Articles
added to the list of exempt Defense Articles pursuant to
Article 3(2) of the Treaty;
(iii) limit a person from being a member of the United
States Community, pursuant to Article 5(2) of the Treaty, if
that person is generally ineligible to export pursuant to
section 120.1(c) of title 22, Code of Federal Regulations;
and
(iv) require any nongovernmental entity that ceases to be
included in the United States Community to comply with
instructions from authorized United States Government
officials and to open its records of transactions under the
Treaty to inspection by United States Government and, as
appropriate, authorized Australian Government officials
pursuant to Article 12 of the Treaty.
(C) Before any exchange of notes pursuant to Article 20 of
the Treaty, the President shall submit to the Congress--
(i) a certification that appropriate mechanisms have been
established to identify, in connection with the process for
determining whether a nongovernmental entity is in the United
States Community pursuant to Article 5(2) of the Treaty,
persons who meet the criteria in section 38(g)(1) of the Arms
Export Control Act (22 U.S.C. 2778(g)(1));
(ii) a certification that appropriate mechanisms have been
established to verify that nongovernmental entities in the
United States that Export pursuant to the Treaty are eligible
to export Defense Articles under United States law and
regulation as required by Article 5(2) of the Treaty;
(iii) a certification that United States Department of
Homeland Security personnel at United States ports--
(a) have prompt access to a State Department database
containing registered exporters, freight forwarders and
consignees, and watch lists regarding United States
companies; and
(b) are prepared to prevent attempts to export pursuant to
the Treaty by United States persons who are not eligible to
export Defense Articles under United States law or
regulation, even if such person has registered with the
United States Government;
(iv) a certification that the Secretary of Defense has
promulgated appropriate changes to the National Industrial
Security Program Operating Manual and to Regulation DoD
5200.1-R, ``Information Security Program,'' and has issued
guidance to industry regarding marking and other Treaty
compliance requirements; and
(v) a certification that a capability has been established
to conduct post-shipment verification, end-use/end-user
monitoring and related security audits for Exports under the
Treaty, accompanied by a report setting forth the legal
authority, staffing and budget provided for this capability
and any further Executive branch or congressional action
recommended to ensure its effective implementation.
(2) Treaty partner preparation for treaty implementation.
Before any exchange of notes pursuant to Article 20 of the
Treaty, the President shall certify to Congress that the
Government of Australia has--
(A) enacted legislation to strengthen generally its
controls over defense and dual-use goods, including controls
over intangible
[[Page S7723]]
transfers of controlled technology and brokering of
controlled goods, technology, and services, and setting
forth:
(i) the criteria for entry into the Australian Community
and the conditions Australian Community members must abide by
to maintain membership, including personnel, information and
facilities security requirements;
(ii) the record-keeping and notification and reporting
requirements under the Treaty;
(iii) the handling, marking and classification requirements
for United States and Australian Defense Articles Exported or
Transferred under the Treaty;
(iv) the requirements for Exports and Transfers of United
States Defense Articles outside the Approved Community or to
a third country;
(v) the rules for handling United States Defense Articles
that are added to or removed from the list of items exempted
from Treaty application;
(vi) the rules for transitioning into and out of the
Australian Community;
(vii) auditing, monitoring and investigative powers for
Commonwealth officials and powers to allow Commonwealth
officials to perform post-shipment verifications and end-use/
end-user monitoring; and
(viii) offenses and penalties, and administrative
requirements, necessary for the enforcement of the Treaty and
its Implementing Arrangement; and
(B) promulgated regulatory changes setting forth:
(i) the criteria for entry into the Australian Community,
and terms for maintaining Australian Community membership;
(ii) the criteria for individuals to become authorized to
access United States Defense Articles received pursuant to
the Treaty;
(iii) benefits stemming from Australian Community
membership, including a framework for license-free trade with
the United States in classified or controlled items falling
within the scope of the Treaty;
(iv) the conditions Australian Community members must abide
by to maintain membership, including:
(a) record-keeping and notification requirements;
(b) marking and classification requirements for defense
articles Exported or Transferred under the Treaty;
(c) requirements for the Re-transfer to non-Approved
Community members and Re-export to a third country of defense
articles; and
(d) maintaining security standards and measures articulated
in Defense protective security policy to protect defense
articles pursuant to the Treaty;
(v) provisions to enforce the procedures established
pursuant to the Treaty, including auditing and monitoring
powers for Australian Department of Defence officials and
powers to allow Department of Defence officials to perform
post-shipment verifications and end-use/end-user monitoring;
(vi) offenses and penalties, including administrative and
criminal penalties and suspension and termination from the
Australian Community, to enforce the provisions of the
Treaty; and
(vii) requirements and standards for transition into or out
of the Australian Community and Treaty framework.
(3) Joint operations, programs and projects.
The Secretary of State shall keep the Committee on Foreign
Relations of the Senate and the Committee on Foreign Affairs
of the House of Representatives informed of the lists of
combined military and counter-terrorism operations developed
pursuant to Article 3(1)(a) of the Treaty; cooperative
security and defense research, development, production, and
support programs developed pursuant to Article 3(1)(b) of the
Treaty; and specific security and defense projects developed
pursuant to article 3(1)(c) of the Treaty.
(4) Exempted defense articles.
(A) The President may remove a Defense Article from the
list of Defense Articles exempt from the Scope of the Treaty,
if such removal is not barred by United States law, 30 days
after the President informs the Committee on Foreign
Relations of the Senate and the Committee on Foreign Affairs
of the House of Representatives of such proposed removal.
(B) When a Defense Article is added to the list of Defense
Articles exempt from the Scope of the Treaty, the Secretary
of State shall provide a copy of the Federal Register Notice
delineating the policies and procedures that will govern the
control of such Defense Article, consistent with Section 4(7)
of the Implementing Arrangement, as well as an explanation of
the reasons for adopting those policies and procedures, to
the Committee on Foreign Relations of the Senate and the
Committee on Foreign Affairs of the House of Representatives
within five days of the issuance of such Notice.
(5) Approved community membership.
(A) If sanctions are in effect against a person in the
Australian Community pursuant to section 73(a)(2)(B) or
section 81 of the Arms Export Control Act (22 U.S.C.
2797b(a)(2)(B) or 2798), the United States shall raise the
matter pursuant to Article 4(2) of the Treaty and Section
6(9) of the Implementing Arrangement.
(B) The Secretary of State shall inform the Committee on
Foreign Relations of the Senate and the Committee on Foreign
Affairs of the House of Representatives not later than 5 days
before the U.S. Government agrees to the initial inclusion in
the Australian Community of a nongovernmental Australian
entity, if the Department of State is aware that the entity,
or any one or more of its relevant senior officers or
officials:
(i) Has been convicted of violating a statute cited in
paragraph 38(g)(1) of the Arms Export Control Act (22 U.S.C.
2778(g)(1)); or
(ii) is, or would be if that person were a United States
person,
(a) ineligible to contract with any agency of the U.S.
Government;
(b) ineligible to receive a license or other form of
authorization to export from any agency of the U.S.
Government; or
(c) ineligible to receive a license or any form of
authorization to import defense articles or defense services
from any agency of the U.S. Government.
(C) The Secretary of State shall inform and consult with
the Committee on Foreign Relations of the Senate and the
Committee on Foreign Affairs of the House of Representatives
not later than 5 days after the United States Government
agrees to the continued inclusion in the Australian Community
of a nongovernmental Australian entity, if the Department is
aware that the entity, or any one or more of its relevant
senior officers or officials, raises one or more of the
concerns referred to in paragraph (B).
(6) Transition policies and procedures.
(A) No fewer than 15 days before formally establishing the
procedures called for in Section 5(5) of the Implementing
Arrangement, the President shall provide to the Committee on
Foreign Relations of the Senate and the Committee on Foreign
Affairs of the House of Representatives a report concerning
the policies and procedures developed to govern the
transition to the application of the Treaty, pursuant to
Article 3(3) of the Treaty, of Defense Articles acquired and
delivered under the Foreign Military Sales program.
(B) No fewer than 15 days before formally establishing the
procedures called for in Section 7(2) of the Implementing
Arrangement, the President shall provide to the Committee on
Foreign Relations of the Senate and the Committee on Foreign
Affairs of the House of Representatives a report concerning
the policies and procedures developed to govern the members
of the Australian Community wishing to transition to the
processes established under the Treaty, pursuant to Article
14(2) of the Treaty, from the requirements of a United States
Government export license or other authorization.
(7) Congressional oversight.
(A) The Secretary of State shall inform the Committee on
Foreign Relations of the Senate and the Committee on Foreign
Affairs of the House of Representatives promptly of any
report, consistent with Section 11(6)(f) of the Implementing
Arrangement, of a material violation of Treaty requirements
or procedures by a member of the Approved Community.
(B) The Department of State shall brief the Committee on
Foreign Relations of the Senate and the Committee on Foreign
Affairs of the House of Representatives regularly regarding
issues raised in the Management Board called for in Section
12(3) of the Implementing Arrangement, and the resolution of
such issues.
(8) Annual report.
Not later than March 31, 2011, and annually thereafter, the
President shall submit to Congress a report, which shall
cover all Treaty activities during the previous calendar
year. This report shall include:
(A) a summary of the amount of Exports under the Treaty and
of Defense Articles transitioned into the Treaty, with an
analysis of how the Treaty is being used;
(B) a list of all political contributions, gifts,
commissions and fees paid, or offered or agreed to be paid,
by any person in connection with Exports of Defense Articles
under the Treaty in order to solicit, promote, or otherwise
to secure the conclusion of such sales;
(C) any action to remove from the Australian Community a
nongovernmental entity or facility previously engaged in
activities under the Treaty, other than due to routine name
or address changes or mergers and acquisitions;
(D) any concerns relating to infringement of intellectual
property rights that were raised to the President or an
Executive branch Department or Agency by Approved Community
members, and developments regarding any concerns that were
raised in previous years;
(E) a description of any relevant investigation and each
prosecution pursued with respect to activities under the
Treaty, the results of such investigations or prosecutions
and of such investigations and prosecutions that continued
over from previous years, and any shortfalls in obtaining
prompt notification pursuant to Article 13(3) of the Treaty
or in cooperation between the Parties pursuant to Article
13(3) and (4) of the Treaty;
(F) a description of any post-shipment verification, end-
user/end-use monitoring, or other security activity related
to Treaty implementation conducted during the year, the
purposes of such activity and the results achieved; and
(G) any Office of Inspector General activity bearing upon
Treaty implementation conducted during the year, any
resultant findings or recommendations, and any actions taken
in response to current or past findings or recommendations.
Section 3. Understandings.
The Senate's advice and consent to the ratification of the
Treaty with Australia Concerning Defense Trade Cooperation is
subject to the following understandings,
[[Page S7724]]
which shall be included in the instrument of ratification:
(1) Meaning of the phrase ``identified in.''
It is the understanding of the United States that the
phrase ``identified in'' in the Treaty shall be interpreted
as meaning ``identified pursuant to.''
(2) Cooperative programs with exempt and non-exempt defense
articles.
It is the understanding of the United States that if a
cooperative program is mutually determined, consistent with
Section 2(2)(e) of the Implementing Arrangement, to be within
the Scope of the Treaty pursuant to Article 3(1)(b) of the
Treaty despite involving Defense Articles that are exempt
from the Scope of the Treaty pursuant to Article 3(2) of the
Treaty, the exempt Defense Articles shall remain exempt from
the Scope of the Treaty and the Treaty shall apply only to
non-exempt Defense Articles required for the program.
(3) Investigations and reports of alleged violations.
It is the understanding of the United States that the words
``as appropriate'' in Section 10(3)(f) of the Implementing
Arrangement do not detract in any way from the obligation in
Article 13(3) of the Treaty, that ``Each Party shall promptly
investigate all suspected violations and reports of
alleged violations of the procedures established pursuant
to this Treaty, and shall promptly inform the other Party
of the results of such investigations.''
(4) Exempt defense articles. It is the understanding of the
United States that if one Party to the Treaty exempts a type
of Defense Articles from the scope of the Treaty pursuant to
Article 3(2) of the Treaty, then Defense Articles of that
type will be treated as exempt by both Parties to the Treaty.
(5) Intermediate consignees. It is the understanding of the
United States that any intermediate consignee of an Export
from the United States under the Treaty must be a member of
the Approved Community or otherwise approved by the United
States Government.
(6) Scope of treaty exemption. The United States interprets
the Treaty not to exempt any person or entity from any United
States statutory and regulatory requirements, including any
requirements of licensing or authorization, other than those
included in the International Traffic in Arms Regulations, as
modified or amended. Accordingly, the United States
interprets the term ``license or other written
authorization'' in Article 2 and the term ``licenses or other
authorizations'' in Article 6(1), as these terms apply to the
United States, and the term ``prior written authorization by
the United States Government'' in Article 7, to refer only to
such licenses, licensing requirements, and other
authorizations as are required or issued by the United States
pursuant to the International Traffic in Arms Regulations, as
modified or amended; and the United States interprets the
reference to ``the applicable licensing requirements and the
implementing regulations of the United States Arms Export
Control Act'' in Article 13(1) to refer only to the
applicable licensing requirements under the International
Traffic in Arms Regulations, as modified or amended.
Section 4. Declarations.
The Senate's advice and consent to the ratification of the
Treaty with Australia Concerning Defense Trade Cooperation is
subject to the following declarations:
(1) Self-execution. This Treaty is not self-executing in
the United States, notwithstanding the statement in the
preamble to the contrary.
(2) Private rights. This Treaty does not confer private
rights enforceable in United States courts.
(3) Intellectual property rights. No liability will be
incurred by or attributed to the United States Government in
connection with any possible infringement of privately owned
patent or proprietary rights, either domestic or foreign, by
reason of the United States Government's permitting Exports
or Transfers or its approval of Re-exports or Re-transfers
under the Treaty.
Section 5. Definitions.
As used in this resolution:
(1) The terms ``Treaty with Australia Concerning Defense
Trade Cooperation'' and ``Treaty'' mean the Treaty between
the Government of the United States of America and the
Government of Australia Concerning Defense Trade Cooperation,
done at Sydney, September 5, 2007.
(2) The terms ``Implementing Arrangement Pursuant to the
Treaty'' and ``Implementing Arrangement'' mean the
Implementing Arrangement Pursuant to the Treaty between the
Government of the United States of America and the Government
of Australia Concerning Defense Trade Cooperation, which was
signed in Washington on March 14, 2008.
(3) The terms ``Defense Articles,'' ``Export,'' ``Re-
export,'' ``Re-transfer,'' ``Transfer,'' ``Approved
Community,'' ``United States Community,'' ``Australian
Community,'' and ``Scope'' have the meanings given to them in
Article 1 of the Treaty.
(4) The terms ``Management Board'' and ``Management Plan''
have the meanings given to them in Section 1 of the
Implementing Arrangement.
(5) The terms ``person'' and ``foreign person'' have the
meaning given to them by section 38(g)(9) of the Arms Export
Control Act (22 U.S.C. 2778(g)(9)). The term ``U.S. person''
has the meaning given to it by part 120.15 of title 22, Code
of Federal Regulations.
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