[Senate Executive Report 106-18]
[From the U.S. Government Publishing Office]



106th Congress                                              Exec. Rept.
                                 SENATE
 2d Session                                                   106-18

======================================================================



 
                INTER-AMERICAN CONVENTION ON SEA TURTLES

                                _______
                                

               September 5, 2000.--Ordered to be printed

                                _______
                                

          Mr. Helms, from the Committee on Foreign Relations,
                        submitted the following

                              R E P O R T

                   [To accompany Treaty Doc. 105-48]

    The Committee on Foreign Relations, to which was referred 
the Inter-American Convention for the Protection and 
Conservation of Sea Turtles, with Annexes, done at Caracas, 
Venezuela, on December 1, 1996, which was signed by the United 
States, subject to ratification, on December 13, 1996, having 
considered the same, reports favorably thereon with three 
understandings, five declarations and two provisos, and 
recommends that the Senate give its advice and consent to the 
ratification thereof as set forth in this report and the 
accompanying resolution of ratification.

                                CONTENTS

                                                                   Page

  I. Purpose..........................................................1
 II. Background.......................................................2
III. Summary..........................................................2
 IV. Entry Into Force and Termination.................................4
  V. Committee Action.................................................5
 VI. Committee Recommendation and Comments............................5
VII. Explanation of Proposed Convention...............................5
VIII.Text of the Resolution of Ratification...........................5


                               I. Purpose

    The purpose of the Inter-American Convention for the 
Protection and Conservation of Sea Turtles (``the Convention'') 
is to require Parties to the Convention to promote the 
protection and conservation of sea turtle populations and their 
habitats; to reduce the incidental capture, injury and 
mortality of sea turtles associated with commercial fisheries; 
to prohibit the intentional taking of, and domestic and 
international trade in, sea turtles, their eggs, parts and 
products; and to foster international cooperation in the 
research and management of sea turtles. The Convention 
specifically obligates Parties to require the use of turtle 
excluder devices (``TEDs'') by commercial shrimp trawl vessels 
in a manner comparable to the requirements in effect in the 
United States. The Convention also includes provisions on 
monitoring and compliance.

                             II. Background

    Congress called for the negotiation of multilateral 
agreements for the protection and conservation of sea turtles 
in Section 609 of the Departments of Commerce, Justice and 
State, the Judiciary and Related Agencies Appropriations Act of 
1990 (P.L. 101-162). Substantive negotiations on the Convention 
concluded on September 5, 1996, at a meeting in Salvador da 
Bahia, Brazil. The Convention was opened for signature on 
December 1, 1996. The United States signed the Convention, 
subject to ratification, on December 13, 1996. The President 
submitted the Convention to the Senate for advice and consent 
on May 22, 1998. As of the date of this report, twelve 
countries (Belize, Brazil, Costa Rica, Ecuador, Honduras, 
Mexico, The Netherlands, for its American possessions, 
Nicaragua, Peru, Uruguay, Venezuela and the United States) had 
signed the Convention, and four (Venezuela, Peru, Brazil and 
Costa Rica) had deposited instruments of ratification. The 
Convention will enter into force with the eighth ratification.

                              III. Summary


                               A. GENERAL

    The protection of sea turtles has been addressed in both 
national and international law. In 1973, Congress enacted the 
``Endangered Species Act'' (ESA) to protect certain fish, 
wildlife, and plants from extinction. Under the ESA the 
Secretary of Commerce has determined that five species of sea 
turtles within the jurisdiction of the United States are 
endangered, and that an additional species is threatened. 
Consequently, such turtles may not be taken within U.S. 
jurisdiction.
    In 1973 the U.S. took the lead in negotiating the 
``Convention on International Trade in Endangered Species of 
Wild Fauna and Flora'' (CITES), and in 1975 became the first 
nation to ratify that agreement. All six species of Western 
Hemisphere sea turtles have been designated under CITES as 
endangered, and trading in any of these species is prohibited. 
Other international agreements and guidelines have also 
promoted the conservation of sea turtles.
    Shrimp trawling has been an activity of particular concern 
to sea turtle conservationists and governments. Because the 
Department of Commerce concluded that a significant number of 
sea turtles were perishing in the nets of shrimp trawlers, in 
1987 the Department adopted regulations pursuant to the ESA 
requiring large domestic shrimp trawlers to use ``Turtle 
Excluder Devices'' (TEDs) in their nets. The regulations also 
required smaller domestic trawlers to limit their ``tow 
times''--i.e., the period during which their nets are actually 
deployed in the sea--to a maximum of 90 minutes. In 1989 
Congress amended the ESA to extend those requirements to 
foreign shrimp trawlers.
    Section 609 of P.L. 101-162 bars the importation into the 
United States of shrimp harvested by methods harmful to sea 
turtles unless the President certifies that the harvesting 
nation requires its trawling vessels to use TEDs or tow-time 
restrictions, that trawling occurs in waters uninhabited by sea 
turtles, or that the incidental taking of sea turtles--called 
``by-catch''--is comparable to that of U.S. vessels using TEDs 
and restricted tow times.
    Section 609 also mandated that the Secretary of State 
negotiate bilateral or multilateral agreements with other 
nations to protect and conserve endangered sea turtles. 
Subsequently the United States Court of Appeals for the Ninth 
Circuit held in Earth Island Institute v. Christopher, 6 F.3d 
648 (9th Cir. 1993) that this mandate was an unconstitutional 
invasion of the President's treaty-making authority. 
Nevertheless, the Secretary of State initiated treaty 
negotiations with several Latin American nations. Four 
negotiating sessions produced the proposed Inter-American 
Convention in 1996.
    In submitting the Convention to the Senate, the Executive 
Branch stated that the Convention will not require implementing 
legislation for the United States.

                           B. KEY PROVISIONS

    The Convention has a preamble, twenty-seven articles and 
four annexes. Key provisions are summarized below.
    The Convention is based on the premise that ``sea turtles 
migrate widely throughout marine areas and that their 
protection and conservation require cooperation and 
coordination among States within the range of such species'' 
(Preamble). Stating its objective to be ``the protection, 
conservation and recovery of sea turtle populations and of the 
habitats on which they depend'' (Article II), the Convention 
would obligate its Parties to take ``appropriate and necessary 
measures'' in service of that objective.
    Article IV is the heart of the Convention. It obligates 
parties to prohibit the intentional capture, retention, and 
killing of sea turtles, as well as domestic trade in sea 
turtles, their eggs, parts or products. It obligates parties to 
observe the CITES ban on international trade in sea turtles, 
their eggs, parts or products. Article IV obligates parties, 
``to the extent practicable,'' to restrict human activities 
that could have a serious adverse impact on sea turtles. It 
also calls for the protection, conservation, and restoration of 
sea turtle habitats and nesting areas, including the 
designation of protected areas. Parties also would be obligated 
to promote scientific research relating to sea turtles and 
their habitats, and to promote efforts to enhance sea turtle 
populations.
    Article IV would also obligate parties to promote 
environmental education and dissemination of information as a 
means of promoting participation in conservation efforts. In 
addition, parties would be obligated to reduce, ``to the 
greatest extent practicable,'' incidental capture, retention, 
harm or mortality of sea turtles in the course of fishing 
activities through, inter alia, the use of turtle excluder 
devices (TEDs).
    Each Party would also be obligated to establish a program 
to monitor the application of the measures it adopts for the 
protection and conservation of sea turtles and their habitats 
(Article IX) and to ``ensure compliance'' with such measures 
(Articles X and XVIII). The measures would have to be in 
accordance with the provisions of the WTO (Article XV), and 
exceptions to the ban on the intentional capture and killing of 
sea turtles would be allowed ``to satisfy economic subsistence 
needs of traditional communities'' (Article IV(3)). The Parties 
would be encouraged to coordinate their activities with 
relevant international organizations (Article XIV).
    Under the Convention the Parties would establish a 
Scientific Committee to conduct research and formulate 
recommendations for the protection and conservation of sea 
turtles and their habitats (Article VIII), a Consultative 
Committee of Experts to review the annual reports required to 
be submitted by each Party on the measures they have undertaken 
and to evaluate the efficiency of various measures to reduce 
the capture and incidental mortality of sea turtles, including 
TEDs (Article VII), and, optionally, a Secretariat (Article 
VI). The Parties would also meet periodically to evaluate 
compliance with the Convention, to adopt additional 
conservation and management measures, to propose amendments to 
the Convention, and to modify the annexes (Article IV). All 
such decisions by the Parties would be by consensus (Article 
V).
    Financing of Convention implementation is not provided for 
in the text. Rather, this issue will be discussed at the first 
meeting of the Parties (Article XIII) following entry into 
force. Voluntary dispute settlement measures are discussed in 
Article XVI.
    The Convention would apply to the land territory in the 
Americas of the Parties and to maritime areas over which they 
exercise sovereignty (Article III). The Convention is open to 
signature or accession by the countries of North, Central, and 
South America and the Caribbean, and other countries with 
territories in the region (Article I). The Parties would also 
be encouraged to negotiate a complementary protocol opening the 
Convention to other interested countries (Article XX).
    The Convention and any future amendments to the Convention 
are subject to ratification by those that signed it by December 
31, 1998, and to accession by other States (Article XXI). No 
reservations to the Convention may be made in doing so (Article 
XXIII). The Convention will enter into effect 90 days after the 
deposit of the eighth instrument of ratification (Article 
XXII). Withdrawal from the Convention is permitted six months 
after the submission of a written notice to the Depositary to 
that effect (Article XXV). The Depositary is Venezuela (Article 
XXVII).
    Four Annexes are attached to the Convention, all of which 
are deemed to be ``integral parts'' of the Convention and each 
of which can be amended by consensus at any meeting of the 
Parties (Article XXVI). Annex I lists the sea turtles to be 
protected under the Convention. Annex II sets forth possible 
measures that can be taken to protect and conserve sea turtle 
habitats. Annex III mandates that, with certain exceptions, 
each Party require its shrimp trawl vessels to use TEDs. Annex 
IV requires that annual reports on implementation be prepared 
by each party.

                  IV. Entry Into Force and Termination


                          A. ENTRY INTO FORCE

    The Convention will enter into force ninety days after 
deposit of the eighth instrument of ratification. For each 
State acceding to the Convention after its entry into force, 
the Convention shall enter into force on the day such State 
deposits its instrument of accession with the Depositary, 
namely, the Venezuelan Foreign Ministry.

                             B. WITHDRAWAL

    The Convention shall remain in force indefinitely, but any 
of the Parties may withdraw from it at any time after 12 months 
from the date on which it enters into force with respect to 
that Party. To withdraw, the Party must give written notice of 
withdrawal to the Depositary. The Depositary shall inform the 
other Parties of the withdrawal within 30 days of receipt of 
such notice. The withdrawal shall become effective six months 
after receipt of such notice.

                          V. Committee Action

    The Committee on Foreign Relations held an informal public 
meeting on the Convention on July 20, 2000 (a transcript of the 
session and questions for the record can be found in the 
appendix to Executive Report 106-16, Convention (No. 176) 
Concerning Safety and Health in Mines, also filed this day).\1\ 
The Committee considered the Convention on July 26, 2000, and 
ordered it favorably reported by voice vote, with the 
recommendation that the Senate give its advice and consent to 
the ratification of the proposed Convention subject to three 
understandings, five declarations and two provisos.
---------------------------------------------------------------------------
    \1\ On the day the Committee was scheduled to conduct a hearing on 
the treaty, permission to do so pursuant to Senate Rule 26(5)(a) had 
not been granted. Therefore, the Committee proceeded in informal 
session. A transcript is appended to Executive Report 106-16.
---------------------------------------------------------------------------

               VI. Committee Recommendation and Comments

    The Committee on Foreign Relations recommends favorably the 
proposed Convention. On balance, the Committee believes that 
the proposed Convention is in the interest of the United States 
and urges the Senate to act promptly to give its advice and 
consent to ratification.

                VII. Explanation of Proposed Convention

    For analysis of the proposed Convention, see the 
corresponding Letter of Submittal from the Secretary of State, 
which is set forth at pages V-IX of Senate Treaty Document 105-
48.

              VIII. Text of the Resolution of Ratification

    Resolved, (two thirds of the Senators present concurring 
therein), that the Senate advise and consent to the 
ratification of the Inter-American Convention for the 
Protection and Conservation of Sea Turtles, With Annexes, done 
at Caracas, Venezuela, on December 1, 1996 (Treaty Doc. 105-
48), which was signed by the United States, subject to 
ratification, on December 13, 1996, referred to in this 
resolution of ratification as ``The Convention,'' subject to 
the understandings of subsection (a), the declarations of 
subsection (b) and the provisos of subsection (c).
    (a) Understandings.--The advice and consent of the Senate 
is subject to the following understandings, which shall be 
included in the instrument of ratification of the Convention 
and shall be binding on the President:
          (1) Article VI (``Secretariat'').--The United States 
        understands that no permanent secretariat is 
        established by this Convention, and that nothing in the 
        Convention obligates the United States to appropriate 
        funds for the purpose of establishing a permanent 
        secretariat now or in the future.
          (2) Article XII (``International Cooperation'').--The 
        United States understands that, upon entry into force 
        of this Convention for the United States, the United 
        States will have no binding obligation under the 
        Convention to provide additional funding or technical 
        assistance for any of the measures listed in Article 
        XII.
        (3) Article XIII (``Financial Resources'').--Bearing in 
        mind the provisions of paragraph (7), the United States 
        understands that establishment of a ``special fund,'' 
        as described in this Article, imposes no obligation on 
        Parties to participate or contribute to the fund.
    (b) Declarations.--The advice and consent of the Senate is 
subject to the following declarations:
          (1) ``No Reservations'' Clause.--Concerning Article 
        XXIII, it is the sense of the Senate that this ``no 
        reservations'' provision has the effect of inhibiting 
        the Senate in its exercise of its constitutional duty 
        to give advice and consent to ratification of a treaty, 
        and the Senate's approval of these treaties should not 
        be construed as a precedent for acquiescence to future 
        treaties containing such provisions.
          (2) 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 
        Document Agreed Among the State Parties to the Treaty 
        on Conventional Armed Forces in Europe, approved by the 
        Senate on May 14, 1997.
          (3) New Legislation.--Existing federal legislation 
        provides sufficient legislative authority to implement 
        United States obligations under the Convention. 
        Accordingly, no new legislation is necessary in order 
        for the United States to implement the Convention. 
        Because all species of sea turtles occurring in the 
        Western Hemisphere are listed as endangered or 
        threatened under the Endangered Species Act of 1973, as 
        amended (Title 16, United States Code, Section 1536 et 
        seq.), said Act will serve as the basic authority for 
        implementation of United States obligations under the 
        Convention.
          (4) Articles IX and X (``Monitoring Programs,'' 
        ``Compliance'').--The United States understands that 
        nothing in the Convention precludes the boarding, 
        inspection or arrest by United States authorities of 
        any vessel which is found within United States 
        territory or maritime areas with respect to which it 
        exercises sovereignty, sovereign rights or 
        jurisdiction, for purposes consistent with Articles IX 
        and X of this Convention.
          (5) It is the sense of the Senate that the entry into 
        force and implementation of this Convention in the 
        United States should not interfere with the right of 
        waterfront property owners, public or private, to use 
        or alienate their property as they see fit consistent 
        with pre-existing domestic law.
    (c) Provisos.--The advice and consent of the Senate is 
subject to the following provisos:
          (1) Report To Congress.--The Secretary of State shall 
        provide to the Committee on Foreign Relations of the 
        Senate a copy of each annual report prepared by the 
        United States in accordance with Article XI of the 
        Convention. The Secretary shall include for the 
        Committee's information a list of ``traditional 
        communities'' exceptions which may have been declared 
        by any party to the Convention.
          (2) Supremacy of the Constitution.--Nothing in the 
        Convention requires or authorizes legislation or other 
        action by the United States of America that is 
        prohibited by the Constitution of the United States as 
        interpreted by the United States.

                                  
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