[Senate Executive Report 107-8]
[From the U.S. Government Publishing Office]
107th Congress Exec. Rpt.
SENATE
2d Session 107-8
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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.