[Senate Executive Report 107-8]
[From the U.S. Government Publishing Office]



107th Congress                                               Exec. Rpt.
                                 SENATE
 2d Session                                                       107-8

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



 
   PROTOCOL CONCERNING SPECIALLY PROTECTED AREAS AND WILDLIFE TO THE 
CONVENTION FOR THE PROTECTION AND DEVELOPMENT OF THE MARINE ENVIRONMENT 
                     OF THE WIDER CARIBBEAN REGION

                                _______
                                

               September 3, 2002.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                    [To accompany Treaty Doc. 103-5]

    The Committee on Foreign Relations, to which was referred 
the Protocol Concerning Specially Protected Areas and Wildlife 
to the Convention for the Protection and Development of the 
Marine Environment of the Wider Caribbean Region, done at 
Kingston on January 18, 1990, including Annexes, having 
considered the same, reports favorably thereon, with the 
reservations, an understanding, and a declaration set forth in 
the resolution of advice and consent, 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 
advice and consent to ratification.

                                CONTENTS

                                                                   Page
  I. Purpose..........................................................1
 II. Background.......................................................2
III. Entry Into Force and Termination.................................3
 IV. Committee Action.................................................3
  V. Committee Comments; Discussion of Resolution of Advice and Consent 
     to Ratification..................................................4
 VI. Resolution of Advice and Consent.................................5

                               I. Purpose


    The Protocol Concerning Specially Protected Areas and 
Wildlife to the Convention for the Protection and Development 
of the Marine Environment of the Wider Caribbean Region 
(hereafter ``SPAW Protocol'' or ``Protocol'') is designed to 
protect threatened or endangered species of plants and animals 
in the Caribbean region.

                             II. Background


                             A. IN GENERAL

    In the early 1980s, the United States became a party to 
Convention for the Protection and Development of the Marine 
Environment of the Wider Caribbean Region, also known as the 
Cartagena Convention. The United States signed it in March 
1983, the Senate gave its advice and consent in September 1984, 
and the United States became a party in 1986. The Cartagena 
Convention is a regional environmental agreement ratified by 21 
nations in the Caribbean Region (most of the nations of the 
Caribbean and Central America have become party, though a 
handful have not). Its area of application comprises the marine 
environment of the Gulf of Mexico, the Caribbean Sea and the 
adjacent areas of the Atlantic Ocean, within 200 nautical miles 
off the Atlantic Coasts of the participating States, south of 
30 degrees north latitude. U.S. territory covered by the 
Convention includes the marine environment in the waters off 
Texas, Louisiana, Mississippi, Alabama, and Florida, as well as 
the United States Virgin Islands and Puerto Rico; the 
Convention does not apply to internal waters.

    The Cartagena Convention envisaged that more detailed 
protocols would be developed by the parties to address specific 
matters. The SPAW Protocol is such an agreement. In effect, it 
implements Article 10 of the Cartagena Convention, which 
requires parties to ``take all appropriate measures to protect 
and preserve rare or fragile ecosystems, as well as the habitat 
of depleted, threatened or endangered species,'' in the 
geographic area covered by the Convention.

    The Protocol was signed by the United States at the 
negotiating conference in 1990. It was submitted to the Senate 
by President Clinton in April 1993. The Bush Administration has 
indicated, by letter to the Committee and in testimony, that it 
supports the Protocol. The Protocol entered into force on June 
18, 2000, following the deposit of the ninth instrument of 
ratification. As of July 1, 2002, ten nations were party to the 
Protocol.

    The United States Government and U.S.-based environmental 
groups were instrumental in negotiating the SPAW Protocol and 
in supporting the region-wide Caribbean Environment Program. 
U.S. influence in the development of the Protocol has resulted 
in a regime largely patterned after and consistent with United 
States environmental law already in effect. Indeed, the 
Protocol will be implemented in the United States through 
existing statutes and will not require additional legislation. 
Existing legislation which fulfills the obligations of the 
Protocol include the Marine Protection, Research, and 
Sanctuaries Act, the Coastal Zone Management Act, the 
Wilderness Act, the Endangered Species Act, the Marine Mammal 
Protection Act and the Migratory Bird Treaty Act.

                      B. SUMMARY OF KEY PROVISIONS

    The Letter of Submittal from the Secretary of State to the 
President, set forth in Treaty Doc. 103-5, provides a detailed 
analysis of the Protocol. This section briefly addresses the 
major provisions of the Protocol.

    The basic obligations of the Protocol are set forth in 
Article 3, which requires Parties to take the ``necessary 
measures'' to ``protect, preserve, and manage'' areas that 
``require protection to safeguard their special value'' and 
``threatened or endangered species of flora and fauna.'' Each 
party is required to regulate, and where necessary, prohibit, 
activities having adverse effects on these areas and species.

    The Protocol applies to the area covered by the underlying 
Cartagena Convention, but expands on the definition in the 
Convention. It also covers (1) waters on the landward side of 
the baseline from which the breadth of the territorial sea is 
measured and extending, in the case of watercourses, up to the 
fresh water limit; and (2) such related terrestrial areas 
(including watersheds) as may be designated by a party. The 
United States does not intend to designate a terrestrial area 
under the Protocol unless requested to do so by an interested 
state or territory (to date, none of the parties to the 
Protocol has done so).

    The other key provisions of the Protocol are Articles 4, 10 
and 11.

    Under Article 4, a Party is required, ``when necessary'' to 
establish protected areas within its jurisdiction in order to 
``conserve, maintain and restore'' important habitats and 
ecosystem. The United States does not anticipate designating 
any protected areas under Article 4 at this time.

    Under Article 10, Parties are required to adopt national 
measures for actions within the Protocol areas to protect 
endangered or threatened wild flora and fauna. Under Article 
11, Parties are required to adopt co-operative measures to 
ensure protection and recovery of specific species listed in 
three Annexes, which are an integral part of the Protocol. 
Annexes I and II comprise plant and animal species, 
respectively, requiring the most protection. Annex III 
comprises both plant and animal species requiring some 
protection, but not the extensive protection required by the 
first two Annexes.

                 III. Entry into Force and Termination


    Pursuant to Article 27, the Protocol entered into force on 
June 18, 2000, thirty days after the deposit of the ninth 
instrument of ratification. If the United States ratifies the 
Protocol, it will enter into force for the United States on the 
thirtieth day after the deposit of the U.S. instrument of 
ratification.

    Under Article 29 of the Cartagena Convention, a Party may 
denounce the Protocol at any time after two years from the date 
of entry into force of the Protocol for that Party. The 
denunciation takes effect on the ninetieth day after it is 
received by the depositary (the Government of Colombia).

                          IV. Committee Action


    The Committee held hearings to review the Protocol on 
October 26, 1993 (S. Hrg. 103-379), and on May 7, 2002 (S. Hrg. 
107-594). On July 30, 2002, the Committee considered the 
Treaty, and ordered it favorably reported by voice vote, with 
the recommendation that the Senate give its advice and consent 
to the ratification of the Protocol, subject to the 
reservations, an understanding, and a declaration set forth in 
the resolution of advice and consent to ratification.

 V. Committee Comments; Discussion of Resolution of Advice and Consent 
                            to Ratification


    The Committee recommends that the Senate advise and consent 
to ratification of the SPAW Protocol. The Protocol will advance 
an important U.S. objective of promoting marine conservation in 
the waters of the Caribbean area by fostering cooperation among 
the nations of the region in protecting critical habitats and 
species. In addition to the endorsement from the Bush 
Administration, the Protocol is supported by several non- 
governmental organizations, including the International 
Association of Fish and Wildlife Agencies (representing the 
fish and wildlife agencies of the 50 states and Puerto Rico) 
and several environmental organizations.

    The Committee notes that, in submitting the Protocol to the 
Senate in 1993, the President did not submit the Annexes to the 
Protocol for the advice and consent of the Senate. This 
decision was made, the Executive Branch submission indicates, 
because the State Department ``after consultations with the 
staff of the Foreign Relations Committee, believes that they 
are best treated as an Executive Agreement.'' (Treaty Doc. 103-
5, at v)

    The Committee recommends, instead, that the Annexes also be 
given advice and consent, for this simple reason: the Protocol 
itself treats them as ``an integral part'' of the Protocol 
(Article 26). The Committee agrees, however, with the Executive 
Branch view that amendments to the Annexes may be made without 
the advice and consent of the Senate, provided there is 
adequate consultation with the Senate prior to adoption of the 
amendments by the Parties, and provided there is adequate time 
for public comment on proposed amendments. In its initial 
submission and in its testimony, the Executive Branch has 
committed to soliciting public comment, through notice in the 
Federal Register, on proposed amendments. In a written exchange 
following the May 7, 2002 hearing, the Executive Branch agreed 
to the suggestion made by Chairman Biden that the Annexes be 
given the advice and consent of the Senate.

    In submitting the Protocol to the Senate, the Clinton 
Administration proposed two reservations and one understanding 
to the Protocol. Following the hearing held in 1993, the 
Administration submitted an amended version of the first 
proposed reservation. The Bush Administration reviewed these 
proposals anew, and has indicated to the Committee that it 
supports the reservations and understandings proposed by the 
Clinton Administration, as amended. The Committee has made 
minor modifications to the first two reservations proposed by 
the Executive Branch.

    The first reservation clarifies that the United States does 
not consider itself bound by Article 11(1) to the extent that 
current U.S. law, such as the Marine Mammal Protection Act 
(see, e.g., 16 U.S.C. 1371) or the Endangered Species Act, 
allows the limited taking of fauna and flora for the purpose of 
public display, scientific research, photography for 
educational or commercial purposes, rescue and rehabilitation 
or as incidental catch.

    The second reservation relates to the requirement, set 
forth in Article 13, for environmental impact assessments. Such 
assessments are required under the National Environmental 
Policy Act for proposals for legislation and other major 
Federal actions significantly affecting the quality of the 
human environment. But such assessments are not required in all 
cases. The reservation states, therefore, that the United 
States will not be bound by Article 13 to the extent that the 
obligations therein differ from the obligations of Article 12 
of the Cartagena Convention.

    The third reservation clarifies that the United States does 
not consider six species listed on the Annexes to require 
protection in the United States, because they are not currently 
listed under the Endangered Species Act.

    The proposed understanding reflects a common understanding 
expressed at the Diplomatic Conference that adopted the Annexes 
to the Protocol, and which is set forth in the Final Act of 
that Conference. It states the understanding of the United 
States that the provisions of the Protocol do not apply to non-
native species (defined as species found outside of their 
natural geographic distribution) as a result of deliberate or 
incidental human intervention. It should be noted that Article 
12 of the Protocol requires parties to take all appropriate 
measures to ``regulate or prohibit'' intentional or accidental 
introduction of non-native species that may cause harm to the 
natural flora and fauna of the region. The understanding 
indicates that the parties are not required, however, to take 
measures under the Protocol to protect such non-native species. 
In sum, a party must take appropriate steps to keep out non-
native species, but if such species are introduced into the 
area covered by the Protocol, there is no obligation to protect 
such species.

    Finally, the proposed declaration states that existing 
Federal legislation provides sufficient legal authority to 
implement United States obligations under the Protocol, and 
that no new legislation is necessary in order for the United 
States to implement the Protocol. A similar declaration was 
included in the resolution of advice and consent to the Inter-
American Convention for the Protection and Conservation of Sea 
Turtles (Treaty Doc. 105-48), approved by the Senate in 2000.

                  VI. Resolution of Advice and Consent


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

SECTION 1. ADVICE AND CONSENT TO RATIFICATION OF THE PROTOCOL 
                    CONCERNING SPECIALLY PROTECTED AREAS AND WILDLIFE 
                    TO THE CONVENTION FOR THE PROTECTION AND 
                    DEVELOPMENT OF THE MARINE ENVIRONMENT OF THE WIDER 
                    CARIBBEAN REGION, SUBJECT TO RESERVATIONS, AN 
                    UNDERSTANDING, AND A DECLARATION.

    The Senate advises and consents to the ratification of the 
Protocol Concerning Specially Protected Areas and Wildlife to 
the Convention for the Protection and Development of the Marine 
Environment of the Wider Caribbean Region, including Annexes, 
done at Kingston on January 18, 1990 (Treaty Doc. 103-5), 
subject to the reservations in section 2, the understanding in 
section 3, and the declaration in section 4.

SECTION 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) The United States does not consider itself bound 
        by Article 11(1) of the Protocol to the extent that 
        United States law permits the limited taking of flora 
        and fauna listed in Annexes I and II--

                  (A) which is incidental, or

                  (B) for the purpose of public display, 
                scientific research, photography for 
                educational or commercial purposes, or rescue 
                and rehabilitation.

          (2) The United States has long supported 
        environmental impact assessment procedures, and has 
        actively sought to promote the adoption of such 
        procedures throughout the world. U.S. law and policy 
        require environmental impact assessments for major 
        Federal actions significantly affecting the quality of 
        the human environment. Accordingly, although the United 
        States expects that it will, for the most part, be in 
        compliance with Article 13, the United States does not 
        accept an obligation under Article 13 of the Protocol 
        to the extent that the obligations contained therein 
        differ from the obligations of Article 12 of the 
        Convention for the Protection and Development of the 
        Marine Environment of the Wider Caribbean Region.

          (3) The United States does not consider the Protocol 
        to apply to six species of fauna and flora that do not 
        require the protection provided by the Protocol in U.S. 
        territory. These species are the Alabama, Florida and 
        Georgia populations of least tern (Sterna antilllarum), 
        the Audubon's shearwater (Puffinus lherminieri), the 
        Mississippi, Louisiana and Texas population of the wood 
        stork (Mycteria americana) and the Florida and Alabama 
        populations of the brown pelican (Pelicanus 
        occidentalis), which are listed on Annex II, as well as 
        the fulvous whistling duck (Dendrocygna bicolor), and 
        the populations of widgeon or ditch grass (Rupia 
        maritima) located in the continental United States, 
        which are listed on Annex III.

SECTION 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 understands that the Protocol does not 
apply to non-native species, defined as species found outside 
of their natural geographic distribution, as a result of 
deliberate or incidental human intervention. Therefore, in the 
United States, certain exotic species, such as the muscovy duck 
(Carina moschata) and the common iguana (Iguana iguana), are 
not covered by the obligations of the Protocol.

SECTION 4. DECLARATION.

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:

    Existing federal legislation provides sufficient legal 
authority to implement United States obligations under the 
Protocol. Accordingly, no new legislation is necessary in order 
for the United States to implement the Protocol.

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