[Senate Executive Report 106-25]
[From the U.S. Government Publishing Office]



106th Congress                                              Exec. Rept.
                                 SENATE
 2d Session                                                   106-25

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



 
   UNITED NATIONS CONVENTION TO COMBAT DESERTIFICATION IN COUNTRIES 
      EXPERIENCING DROUGHT, PARTICULARLY IN AFRICA, WITH ANNEXES

                                _______
                                

   October 4, (legislative day, September 22), 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. 104-29]

    The Committee on Foreign Relations, to which was referred 
the United Nations Convention to Combat Desertification in 
Those Countries Experiencing Serious Drought and/or 
Desertification, Particularly in Africa, With Annexes, adopted 
at Paris, June 17, 1994, and signed by the United States on 
October 14, 1994, (Treaty Doc. 104-29) (``the Convention''), 
having considered the same, reports favorably thereon with the 
five understandings, three declarations and two provisos 
indicated below, 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. Summary..........................................................2
III. Entry Into Force and Withdrawal..................................3
 IV. Committee Action.................................................3
  V. Committee Recommendation and Comments............................4
 VI. Text of Resolution of Ratification...............................5

                               I. Purpose

    The purpose of the proposed Convention is to combat 
desertification and mitigate the effects of drought on arid, 
semi-arid, and dry sub-humid lands through effective action at 
all levels. In particular, the proposed Convention is intended 
to address the fundamental causes of famine and food insecurity 
in Africa, by stimulating more effective partnership between 
governments, local communities, non-governmental organizations, 
and aid donors, and by encouraging the dissemination of 
information derived from new technology.

                              II. Summary


                               A. GENERAL

    Desertification is the degradation of land in arid, semi-
arid, and dry sub-humid areas (collectively known as drylands). 
While the causes of desertification are varied and complex, it 
is generally attributed to a combination of climatic variations 
and human activities that tax the land's ability to support 
vegetation. The chief climatic problem is drought, while some 
commonly cited man-made factors include population pressure, 
overgrazing, deforestation, overcultivation, overuse of water 
supplies, and poor irrigation. In the past, drylands generally 
recovered from drought, but contemporary human activities in 
many areas may undermine their recovery. Complicating the 
problem is that desertification is not the same everywhere, and 
key factors are site-specific. Among the contributing factors 
in a particular area are the natural environment, natural and 
other disasters, local and international economic conditions, 
land laws and customs, and technologies employed on the land. 
On the other hand, there are critics who challenge the nature, 
extent, causes, and solutions of the dryland problem. Critics 
oppose the Treaty for scientific reasons, and as promoting 
state intervention in land use, rather than allowing people in 
developing countries to determine their own solutions.
    Remedial measures exist to halt desertification, including 
reducing grazing, rotating productive activity (such as 
agriculture), afforesting areas, providing alternatives to 
fuelwood for energy, or providing alternative livelihoods to 
people in arid areas. These measures may be difficult or 
controversial to implement in particular areas, because they 
may require changes in longstanding practices. The U.N. 
Environment Program estimates the cost of combating 
desertification at between $10 billion and $22 billion annually 
for a 20-year program.
    Desertification occurs over approximately one-quarter of 
the land in the world, and could affect about a billion people 
in both developing and developed countries. Desertification 
often is associated with Africa, where 73% of the drylands are 
moderately or severely desertified, but it occurs all over the 
world. In recognition of the global nature of the phenomenon, 
the Treaty contains four regional annexes for addressing 
desertification in Africa, Asia, Latin America and the 
Caribbean, and the Northern Mediterranean.
    Indirect effects of desertification abroad have been 
posited. Desertification may prompt increased United States 
foreign aid outlays and increased migration to the United 
States. It also may reduce trade and other business 
opportunities and reduce the agricultural production that feeds 
the world's population.
    In 1977, the United Nations adopted a Plan of Action to 
Combat Desertification at a Conference on Desertification in 
Nairobi, Kenya. Under the plan, carried out by the UNEP, 
relatively little money was spent on various remedies including 
reforestation, alternative energy sources, and water resource 
management. Despite this and other efforts, in 1991 the UNEP 
determined that overall land degradation had worsened, although 
in limited areas the problems had been remedied. A lack of 
coherent assistance for affected countries has been cited as a 
primary reason for the failure of previous anti-desertification 
efforts.
    Desertification was among the major issues addressed by the 
1992 United Nations Conference on Environment and Development 
(UNCED).(The Conference also is known as the ``Rio Earth 
Summit,'' owing to its convening in Rio de Janeiro, Brazil.) 
The Conference recommended that the United Nations General 
Assembly establish an Intergovernmental Negotiating Committee 
(INCD) to draft, by June 1994, a treaty to combat 
desertification. African countries in particular supported this 
proposal, and the United States ultimately agreed. The INCD 
held five negotiating sessions before adopting the 
Desertification Treaty on June 17, 1994. The Treaty was opened 
for signature on October 14-15, 1994, and it entered into force 
on December 26, 1996, 90 days after ratification by 50 
countries. As of June 23, 1998, 125 countries had ratified the 
Treaty, including nearly all major developed countries. The 
United States signed the Treaty on October 14, 1994, and on 
August 2, 1996, President Clinton sent it to the Senate for 
advice and consent.

                           B. KEY PROVISIONS

    For a detailed, article-by-article discussion of the 
Convention's provisions, please refer to Treaty Doc. 104-29, 
pp. IX-XXI.

                  III. Entry Into Force and Withdrawal


                          A. ENTRY INTO FORCE

    For the United States, the Convention shall enter into 
force on the ninetieth day after the date of deposit of the 
United States instrument of ratification.

                             B. WITHDRAWAL

    At any time after three years from the date on which the 
Convention has entered into force for the United States, the 
United States may withdraw from the Convention by giving 
written notification to the Depositary. The withdrawal shall 
take effect upon expiry of one year from the date of receipt by 
the Depositary of the notification of withdrawal, or on such 
later date as may be specified in the notification of 
withdrawal.

                          IV. Committee Action

    The Committee on Foreign Relations held an informal public 
meeting on the proposed Convention on July 20, 2000 (a 
transcript of the hearing and questions for the record can be 
found in Senate Exec. Rept. 106-16).\1\ The Committee 
considered the proposed Convention on September 27, 2000, and 
ordered it favorably reported by voice vote, with the 
recommendation that the Senate give its advice and consent to 
ratification of the proposed Convention subject to the five 
understandings, three declarations and two provisos noted 
below.
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    \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 which is appended to Executive Report 106-16.
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                V. 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.
    As noted above, the President has asserted that the 
obligations of the United States under the treaty ``would be 
met under existing law and ongoing assistance programs.'' 
2 The Treaty does not call for any land use 
restrictions, or require legislation or regulations for United 
States implementation. The United States currently deals 
domestically with arid lands and desertification through a 
variety of programs, including the National Forest Management 
Act of 1976, the Coastal Zone Management Act of 1972, the 
Federal Land Policy and Management Act of 1976, the Public 
Rangelands Improvement Act of 1978, and the Global Change 
Prevention Act of 1990.
---------------------------------------------------------------------------
    \2\  Treaty Doc. 104-29, p. III. Information on obligations for the 
United States is drawn primarily from the Treaty Doc. and 
Administration fact sheets.
---------------------------------------------------------------------------
    Ratifying the Treaty would appear to require the United 
States to appropriate funds to support United States 
obligations to support the work of the Global Mechanism and 
permanent secretariat. Although detailed, global data are not 
available, the United States Agency for International 
Development (USAID) obligated $35.6 million in FY 1998 for 
anti-desertification efforts in Africa that are consistent with 
the Treaty. The Treaty seeks to reprioritize, and make more 
efficient use of, existing aid, and to coordinate on-going 
efforts of countries.
    Potential advantages to United States accession to the 
Convention noted by the Administration include a demonstrated 
United States commitment to ending desertification, 
strengthened partnerships with affected countries, and enhanced 
participation of others. A successful international effort may 
reduce the levels of emergency relief, civil conflicts, and 
migration of refugees. Because the United States would be 
accorded full powers at Conference of Parties (``COP'') 
sessions, it might have more influence on policy development. 
The Administration further contends that ratification could 
stimulate cooperation on technical issues, create opportunities 
abroad for United States experts and industries involved in 
dryland issues, and allow United States experts to participate 
in the work of the COP. 3
---------------------------------------------------------------------------
    \3\ See, e.g., primarily Treaty Doc. 104-29 and Administration fact 
sheets.
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    Relatively little formal opposition to the Treaty has 
surfaced, but as noted above, one critical essay has appeared 
challenging the nature, extent, causes, and solutions of the 
dryland problem. 4 This essay opposes the Treaty as 
promoting state intervention in land use, rather than allowing 
people in developing countries to determine their own 
solutions. There also may be concern among individuals and 
groups who generally oppose the assumption of mounting and 
seemingly open-ended United States financial obligations to 
international organizations like the United Nations in the 
absence of concrete, measurable benefits to the United States. 
In addition, these individuals and organizations typically seek 
to avoid possible constraints on United States sovereignty or 
policies, and maintain that international agreements generally 
contain, or lead to, such constraints.
---------------------------------------------------------------------------
    \4\  Julian Morris. ``Why the UN Desertification Treaty is All 
Wet,'' Competitive Enterprise Institute, On Point. April 21, 1998.
---------------------------------------------------------------------------
    Some Members of the Committee have expressed similar 
concerns. The Executive Branch has assured the Committee, 
however, that the Convention and its annexes do not bind the 
United States to specific funding requirements. Nor does the 
Convention prescribe a level of funding for a Secretariat or 
the Global Mechanism. Ratification of the Convention will not 
require the United States to alter its national land management 
or agricultural practices. Nor will the United States be 
obligated to accept adjudication before the International Court 
of Justice or binding arbitration of any matter under the 
Convention. The Convention will not obligate the United States 
to provide increased levels of funding to the Global 
Environment Facility. Having received these assurances from the 
Executive Branch, the Committee has opted to move forward with 
the Convention in spite of the general concerns described above 
and the misgivings of individual Members.

               VI. Text of the Resolution of Ratification

      Resolved (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to ratification to 
the United Nations Convention to Combat Desertification in 
Those Countries Experiencing Serious Drought and/or 
Desertification, Particularly in Africa, With Annexes, adopted 
at Paris, June 17, 1994, and signed by the United States on 
October 14, 1994 (Treaty Doc. 104-29), (hereinafter, ``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 to the Convention 
and shall be binding on the President:
            (1) Foreign Assistance.--The United States 
        understands that, as a ``developed country,'' pursuant 
        to Article 6 of the Convention and its Annexes, it is 
        not obligated to satisfy specific funding requirements 
        or other specific requirements regarding the provision 
        of any resource, including technology, to any 
        ``affected country,'' as defined in Article 1 of the 
        Convention. The United States understands that 
        ratification to the Convention does not alter its 
        domestic legal processes to determine foreign 
        assistance funding or programs.
            (2) Financial Resources and Mechanism.--The United 
        States understands that neither Article 20 nor Article 
        21 of the Convention impose obligations to provide 
        specific levels of funding for the Global Environment 
        Facility, or the Global Mechanism, to carry out the 
        objectives of the Convention, or for any other purpose.
            (3) United States Land Management.--The United 
        States understands that it is a ``developed country 
        party'' as defined in Article 1 of the Convention, and 
        that it is not required to prepare a national action 
        program pursuant to Part III, Section 1, of the 
        Convention. The United States also understands that no 
        changes to its existing land management practices and 
        programs will be required to meet its obligations under 
        Articles 4 or 5 of the Convention.
            (4) Legal Process for Amending the Convention.--In 
        accordance with Article 34(4), any additional regional 
        implementation annex to the Convention or any amendment 
        to any regional implementation annex to the Convention 
        shall enter into force for the United States only upon 
        the deposit of a corresponding instrument of 
        ratification, acceptance, approval or accession.
            (5) Dispute Settlement.--The United States declines 
        to accept as compulsory either of the dispute 
        settlement means set out in Article 28(2), and 
        understands that it will not be bound by the outcome, 
        findings, conclusions or recommendations of a 
        conciliation process initiated under Article 28(6). For 
        any dispute arising from this Convention, the United 
        States does not recognize or accept the jurisdiction of 
        the International Court of Justice.
      (b) Declarations.--The advice and consent of the Senate 
is subject to the following declarations, which shall be 
binding on the President:
            (1) Consultations.--It is the sense of the Senate 
        that the Executive Branch should consult with the 
        Committee on Foreign Relations of the Senate about the 
        possibility of United States participation in future 
        negotiations concerning this Convention, and in 
        particular, negotiation of any Protocols to this 
        Convention.
            (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) Adoption of No Reservations Provision.--It is 
        the sense of the Senate that the ``no reservations'' 
        provision contained in Article 37 of the Convention has 
        the effect of inhibiting the Senate in its exercise of 
        its constitutional duty to give advice and consent to 
        accession to a treaty, and that the Senate's approval 
        of the Convention should not be construed as a 
        precedent for acquiescence to future treaties 
        containing such provisions.
      (c) Provisos.--The advice and consent of the Senate is 
subject to the following provisos:
            (1) Report to Congress.--Two years after the date 
        the Convention enters into force for the United States, 
        and biennially thereafter, the Secretary of State shall 
        provide a report to the Committee on Foreign Relations 
        of the Senate setting forth the following:
                    (i) a description of the programs in each 
                affected country party designed to implement 
                the Convention, including a list of community-
                based non-governmental organizations involved, 
                a list of amounts of funding provided by the 
                national government and each international 
                donor country, and the projected date for full 
                implementation of the national action program;
                    (ii) an assessment of the adequacy of each 
                national action program (including the 
                timeliness of program submittal), the degree to 
                which the plan attempts to fully implement the 
                Convention, the degree of involvement by all 
                levels of government in implementation of the 
                Convention, and the percentage of government 
                revenues expended on implementation of the 
                Convention;
                    (iii) a list of United States persons 
                designated as independent experts pursuant to 
                Article 24 of the Convention, and a description 
                of the process for making such designations;
                    (iv) an identification of the specific 
                benefits to the United States, as well as 
                United States persons (including United States 
                exporters and other commercial enterprises), 
                resulting from United States participation in 
                the Convention;
                    (v) a detailed description of the staffing 
                levels and budget of the Permanent Secretariat 
                established pursuant to Article 23;
                    (vi) a breakdown of all direct and indirect 
                United States contributions to the Permanent 
                Secretariat, and a statement of the number of 
                United States citizens who are staff members or 
                contract employees of the Permanent 
                Secretariat;
                    (vii) a list of affected party countries 
                that have become developed countries, within 
                the meaning of the Convention; and
                    (viii) for each affected party country, a 
                discussion of results (including discussion of 
                specific successes and failures) flowing from 
                national action plans generated under 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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