[Senate Executive Report 110-20]
[From the U.S. Government Publishing Office]
110th Congress Exec. Rept.
SENATE
2d Session 110-20
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LAND-BASED SOURCES PROTOCOL TO THE
CARTAGENA CONVENTION
_______
September 11, 2008.--Ordered to be printed
_______
Mr. Dodd, from the Committee on Foreign Relations,
submitted the following
REPORT
[To accompany Treaty Doc. 110-1]
The Committee on Foreign Relations, to which was referred
the Protocol Concerning Pollution from Land-Based Sources and
Activities to the Convention for the Protection and Development
of the Marine Environment of the Wider Caribbean Region, with
Annexes, done at Oranjestad, Aruba on October 6, 1999 and
signed by the United States on that same date (Treaty Doc. 110-
1), having considered the same, reports favorably thereon with
two declarations, as indicated in the resolution of advice and
consent, and recommends that the Senate give its advice and
consent to ratification thereof, as set forth in this report
and the accompanying resolution of advice and consent.
CONTENTS
Page
I. Purpose..........................................................1
II. Background.......................................................2
III. Major Provisions.................................................3
IV. Entry Into Force.................................................6
V. Implementing Legislation.........................................6
VI. Committee Action.................................................7
VII. Committee Recommendation and Comments............................7
VIII.Resolution of Advice and Consent to Ratification.................9
I. Purpose
The purpose of the Protocol Concerning Pollution from Land-
Based Sources and Activities to the Convention for the
Protection and Development of the Marine Environment of the
Wider Caribbean Region (the ``LBS Protocol'' or ``Protocol'')
is to prevent, reduce and control pollution in the wider
Caribbean region caused by land-based sources and activities.
II. Background
The LBS Protocol is a protocol to the 1983 Convention for
the Protection and Development of the Marine Environment of the
Wider Caribbean Region (the ``Cartagena Convention''), which
the United States joined in 1984. The Cartagena Convention is a
regional framework agreement that was negotiated under the
auspices of the Regional Seas Program of the United Nations
Environment Program (UNEP) and sets out general legal
obligations to protect 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 and south of 30 degrees
north latitude)--collectively known as the wider Caribbean
region. The U.S. marine environment covered by the Convention
includes the waters off the coasts of 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. Almost all of the nations of the Caribbean
and Central America have joined the Cartagena Convention, which
now has 23 Parties.\1\
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\1\As of July 2008, the following States had ratified or acceded to
the Cartagena Convention: Antigua and Barbuda, Barbados, Belize,
Colombia, Costa Rica, Cuba, Dominica, the Dominican Republic, France,
Grenada, Guatemala, Jamaica, Mexico, Netherlands (ratified on behalf of
the Netherlands Antilles Federation on 16 April 1984, and for Aruba as
of January 1, 1986), Nicaragua, Panama, St. Kitts and Nevis, Saint
Lucia, St. Vincent and the Grenadines, Trinidad and Tobago, the United
Kingdom (ratified on behalf of the Cayman Islands and Turks and Caicos
Islands, and on behalf of the British Virgin Islands), the United
States of America, and Venezuela.
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The Cartagena Convention serves as an umbrella agreement,
which facilitates the negotiation of more detailed protocols
that address specific marine environmental protection matters
in the wider Caribbean region. The LBS Protocol is the third
and most recent protocol concluded within the framework of the
Convention and addresses one of the most serious sources of
pollution in the region: land-based sources of marine
pollution. The United States is already a party to the first
two protocols to the Cartagena Convention, which respectively
address oil spills and specially protected areas and
wildlife.\2\ In testimony before the committee, Ambassador
David Balton noted that ``overall the United States has been
very satisfied with how the Cartagena Convention and its
Protocols have been implemented.''
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\2\The Protocol Concerning Cooperation in Combating Oil Spills in
the Wider Caribbean Region (Treaty Doc. 98-13), was drafted and adopted
concurrently with the Cartagena Convention; the United States joined
the Protocol in October 1984. The second Protocol, the Protocol
Concerning Specially Protected Areas and Wildlife (Treaty Doc. 103-5),
was adopted in 1990 and entered into force for the United States on
April 16, 2003.
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The LBS Protocol implements Article 7 of the Cartagena
Convention, which requires Parties to ``take all appropriate
measures to prevent, reduce and control pollution of the
Convention area caused by coastal disposal or by discharges
emanating from rivers, estuaries, coastal establishments,
outfall structures, or any other sources on their
territories.'' Such pollution contributes to the degradation of
coral reefs and commercial fisheries, negatively affects
regional economies, and endangers public health, recreation,
and tourism throughout the region. Among the principal land-
based sources of marine pollution in the Caribbean are domestic
wastewater and agricultural nonpoint source runoff, both of
which are addressed by the LBS Protocol. The LBS Protocol lists
priority source categories, activities, and associated
pollutants that affect the wider Caribbean region and sets
forth factors that Parties are required to evaluate and
consider in developing prevention, reduction, and control
strategies to manage land-based sources of pollution. In
particular, the Parties are required to ensure that domestic
wastewater discharges meet specific effluent limitations, and
to develop plans for the prevention and reduction of
agricultural nonpoint source pollution. U.S. influence in the
development of the LBS Protocol has resulted in a regime
largely patterned after and fully consistent with existing U.S.
environmental law. The LBS Protocol will be implemented in the
United States through existing statutes and will not require
additional legislation. The Protocol is expected to raise
standards for treating domestic wastewater throughout the
region to levels close to those already in place in the United
States.
III. Major Provisions
A detailed article-by-article analysis of the Convention
may be found in the Letter of Submittal from the Secretary of
State to the President, which is reprinted in full in Treaty
Document 110-1. A summary of key provisions is set forth below.
Measures to Prevent, Reduce, and Control Pollution in the Wider
Caribbean Region from Land-Based Sources and Activities
Paragraph 1 of Article III of the Protocol obligates each
Party to ``take appropriate measures'' to prevent, reduce, and
control pollution in the wider Caribbean region from land-based
sources and activities. Paragraphs 2 and 3 of Article III
require each Party to develop and implement appropriate
national plans and jointly develop appropriate sub-regional and
regional plans directed at preventing, reducing, and
controlling such pollution. Article IV refers to the Annexes,
which contain more specific obligations.
Annex I defines point sources and nonpoint sources,\3\ sets
out a list of priority source categories and activities that
affect the Convention area, and lists associated pollutants of
concern.
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\3\Pollution originating from a single, identifiable source, such
as a discharge pipe from a factory or sewage plant, is called point-
source pollution. Pollution that does not originate from a single
source, or point, is called nonpoint-source pollution.
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Annex II lists factors to be used in determining
effluent\4\ and emission source controls and management factors
that the Parties are to apply, including the characteristics
and composition of waste; characteristics of the activity or
source category; and alternative production, waste treatment
technologies, or management practices.
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\4\Effluent is waste material discharged into the environment.
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Annex III addresses domestic wastewater discharges. This
Annex sets specific timetables and effluent limitations
concerning such discharges into the Convention area. The Annex
obligates Parties to ensure that such effluent discharged into
the most sensitive (Class I) waters meets specific levels for
total suspended solids; biochemical oxygen demand; pH; fats,
oil and grease; faecal coliform; and floatables. Levels are
also set forth for wastewater effluent discharged into less
sensitive (Class II) waters. Annex III provides for the
possibility of delaying full compliance for up to 10 years for
Parties unable to achieve the effluent limitations within the
prescribed timetables, provided that such Parties meet certain
minimum criteria regarding implementation of effluent controls.
Finally, Parts D-F of Annex III call for Parties to take
economically and technically feasible steps to manage
industrial pre-treatment, household systems, and management,
operation and maintenance of wastewater systems. The EPA has
determined that Annex III can be implemented by the United
States under existing statutory and regulatory authorities,
primarily in the Clean Water Act.\5\
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\5\See the Secretary of State's Letter of Submittal at p.8. The
relevant provisions of the Clean Water Act are Sec. Sec. 301, 302, 307,
402, and 403.
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Annex IV addresses agricultural nonpoint source pollution.
This Annex requires Parties to develop plans for the
prevention, reduction, and control of such pollutants that may
adversely affect the Convention area. Such plans must identify
programs to mitigate pollution in the Convention area from
agricultural nonpoint sources. They must include: 1) an
evaluation of agricultural nonpoint sources and their impact on
the Convention area; 2) education, training, and awareness
programs; 3) incentives to increase the use of best management
practices; and 4) an assessment and evaluation of legislative
and policy measures and plans to manage agricultural nonpoint
sources. Each Party is required to report on its plans for
prevention, reduction and control of agricultural nonpoint
source pollution in accordance with Article XII of the
Protocol. The United States would implement these requirements
through the Clean Water Act and the Coastal Zone Management
Act.\6\
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\6\See the Secretary of State's Letter of Submittal at p.9. The
relevant provisions are as follows: Sec. 319 of the Clean Water Act and
Sec. 1455b of the Coastal Zone Management Act.
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Environmental Impact Assessments
Article VII requires each Party, ``as far as practicable,''
to review the potential effects of planned activities that it
has reasonable grounds to believe are likely to cause
substantial pollution of, or significant and harmful changes
to, the Convention area. The obligation is limited to
activities that are subject, with respect to each Party, to
``its regulatory control in accordance with its laws.''
According to the Secretary of State's Letter of Submittal,
``[f]or the United States, this provision would [only] apply to
activities that are conducted by the federal government or that
are subject to regulatory control pursuant to a federal
statute.''\7\ The National Environmental Policy Act and
Executive Order 12114 would be used to implement the
requirement as far as major federal actions are concerned. With
respect to other activities, the Clean Water Act,\8\ the
Coastal Zone Management Act, and a host of other federal laws
regulate, including through reviews and assessments, activities
under U.S. jurisdiction or control that can reasonably be
foreseen to cause substantial marine pollution.
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\7\See the Secretary of State's Letter of Submittal at p.4.
\8\33 U.S.C. Sec. 1251 et seq.
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Cooperation and Assistance
Article V requires Parties to cooperate on a bilateral,
sub-regional, regional or global basis or through competent
organizations in the prevention, reduction and control of
pollution in the wider Caribbean region from land-based sources
and activities. In addition, Parties are to ``promote
cooperation, directly or through competent sub-regional,
regional and global organizations, with those Contracting
Parties which request it in obtaining assistance for the
implementation of [the Protocol].'' Article VIII requires
Parties to cooperate in the development of information-sharing
systems to facilitate implementation of the Protocol. Article
IX provides that, where pollution from land-based sources and
activities from one Party is likely to adversely affect another
Party, the Parties are to use their ``best efforts to consult''
with each other.
In response to questions from the committee regarding how
the United States would implement these provisions regarding
cooperation and assistance, the administration responded as
follows:
The United States already provides substantial assistance to
nations in the Caribbean region for environmental programs,
including for control of land-based sources of marine
pollution. Much of our assistance to the region in this area is
through in-kind services and the provision of technical
expertise. The United States provides technical advice on
marine environmental protection to the Caribbean through USAID,
the Department of Agriculture, NOAA and EPA. In addition, the
United States is a principal contributor to the United Nations
Caribbean Environmental Program (CEP), which supports marine
environmental protection activities in the region. In recent
years we have provided approximately $400,000 in annual support
to the CEP's Caribbean Trust Fund, and an additional $50,000 or
so for the CEP's work on land-based sources of marine
pollution. As a party to the Land-Based Sources Protocol, we
would not incur any new funding obligations. Financing is done
on a voluntary basis. We nevertheless hope that entry into
force of the Protocol may spur international donors to provide
greater assistance to nations of the Caribbean to address these
issues.
Public Awareness and Education
Article X requires Parties to ``promote public access to
relevant information and documentation concerning pollution of
the Convention area'' and to promote the ``opportunity for
public participation in decision-making processes concerning
the implementation of this Protocol.'' Article XI requires
Parties to develop environmental education programs for the
public and to promote training for individuals involved in
pollution prevention, reduction and control. The United States
already conducts a variety of public education and training
programs that would fulfill this obligation, including through
the Department of Agriculture's Natural Resource Conservation
Service and numerous federally-funded state education and
training programs.
Scientific, Technical, and Advisory Committee
Article XIV establishes a Scientific, Technical, and
Advisory Committee. Each Party is to designate as its
representative on the committee an expert in fields that are
relevant to the implementation of the Protocol. Parties can
designate additional experts and advisors that may attend
meetings and the committee itself may request scientific and
technical advice from other competent experts and
organizations.
Article XII requires Parties to submit reports concerning
their implementation of the Protocol and, ``whenever possible,
information on the state of the Convention area.'' The reports
are to be used by the Scientific, Technical and Advisory
Committee to prepare regional reports on the implementation of
this Protocol, including the state of the Convention area.
The Scientific, Technical and Advisory Committee is
intended to report to and advise the Parties to the Protocol on
its implementation. The committee is charged with, inter alia,
reviewing on a regular basis the annexes to the Protocol as
well as the state of pollution of the Convention area from
land-based sources and activities and, where necessary,
recommending amendments to additional annexes for consideration
by the Parties. The committee is also to examine, assess,
analyze, and advise Parties on the effectiveness of the
measures adopted to implement the Protocol.
Dispute Resolution
Although the LBS Protocol does not itself contain a dispute
resolution provision, the Cartagena Convention does have a
voluntary dispute resolution provision that is applicable to
the Protocol. Specifically, Article II of the LBS Protocol
notes that ``[e]xcept as otherwise provided in this Protocol,
the provisions of the [Cartagena Convention] relating to its
protocols shall apply to this Protocol.'' Thus, Article 23 of
the Cartagena Convention, which covers the settlement of
disputes arising from ``the interpretation or application of
this Convention or its protocols'' is applicable to the LBS
Protocol. The procedure provided for under Article 23 of the
Cartagena Convention, however, only obligates Parties to ``seek
to resolve'' disputes regarding the interpretation or
application of the Convention or its protocols and does not
subject Parties to a mandatory dispute resolution procedure.
IV. Entry Into Force
In accordance with Article 28 of the Cartagena Convention,
which is applicable pursuant to Article II of the Protocol, the
LBS Protocol will enter into force on the ``thirtieth day
following the date of deposit of the ninth instrument of
ratification, acceptance, or approval of the Protocol, or of
accession thereto.'' To date, only four countries have ratified
the LBS Protocol\9\ and thus it has not yet entered into force.
If the United States is among the first nine States to join the
Protocol, it will enter into force for the United States on the
thirtieth day following the date of deposit of the ninth
instrument of ratification, acceptance, or approval of the
Protocol, or of accession thereto. If the United States
ratifies the Protocol after the ninth State has done so, the
Protocol will enter into force for the United States on the
thirtieth day following the date of deposit of its instrument
of ratification.
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\9\Trinidad and Tobago, France, Saint Lucia, and Panama.
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V. Implementing Legislation
The LBS Protocol would be implemented in the United States
through existing statutes; the Protocol does not require
additional implementing legislation. U.S. laws that would
implement the Protocol include the Clean Water Act,\10\ the
Coastal Zone Management Act,\11\ the Outer Continental Shelf
Lands Act,\12\ the Clean Air Act,\13\ the Solid Waste Disposal
Act,\14\ the Comprehensive Environmental Response,
Compensation, and Liability Act,\15\ FIFRA,\16\ and the
National Environmental Policy Act.\17\
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\10\33 U.S.C. Sec. 1251 et seq.
\11\16 U.S.C. Sec. 1451 et seq.
\12\43 U.S.C. Sec. 1331 et seq.
\13\42 U.S.C. Sec. 7401 et seq.
\14\42 U.S.C. Sec. 6901 et seq.
\15\42 U.S.C. Sec. 9601 et seq.
\16\7 U.S.C. Sec. 136 et seq.
\17\42 U.S.C. Sec. 4321 et seq.
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VI. Committee Action
The committee held a public hearing on the LBS Protocol on
July 10, 2008. Testimony was received from Ambassador David A.
Balton, Deputy Assistant Secretary of State for Oceans and
Fisheries. A transcript of this hearing is annexed to Executive
Report 110-19.
On July 29, 2008, the committee considered the LBS Protocol
and ordered it favorably reported by voice vote, with a quorum
present and without objection.
VII. Committee Recommendation and Comments
The Committee on Foreign Relations believes that the LBS
Protocol would address some of the most serious sources of
pollution in the region covered by the Protocol, which covers a
substantial portion of the U.S. marine environment, including
waters off the coasts of Texas, Louisiana, Mississippi,
Alabama, and Florida, as well as the United States Virgin
Islands and Puerto Rico. Between 70 and 90 percent of pollution
entering the marine environment emanates from land-based
sources and activities.\18\ Such pollution contributes to the
degradation of coral reefs and commercial fisheries, negatively
affects regional economies, and endangers public health,
recreation, and tourism throughout the region. Although U.S.
law is already fully consistent with the requirements set forth
in the Protocol, U.S. ratification is likely to spur other
countries in the region to join the Protocol and improve their
domestic standards so as to mitigate pollution in the wider
Caribbean region, which has a direct impact on the United
States. Widespread adherence to the LBS Protocol would lead to
an overall improvement of the U.S. marine environment and
result in improved protection of human health and marine
resources, as well as a stronger regional economy and tourism
industry in the wider Caribbean region. Accordingly, the
committee urges the Senate to act promptly to give advice and
consent to ratification of the LBS Protocol, as set forth in
this report and the accompanying resolution of advice and
consent.
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\18\See the President's Letter of Transmittal at III.
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A. AMENDMENTS TO THE ANNEXES
Article XVII of the Protocol, which incorporates by
reference certain provisions of the Cartagena Convention, sets
forth procedures for amending existing annexes and for adding
new annexes to the Protocol. There are four existing annexes to
the Convention: Annex 1--Source Categories, Activities and
Associated Pollutants of Concerns; Annex 2--Factors to Be Used
in Determining Effluent and Emission Source Controls and
Management Factors; Annex 3--Domestic Wastewater; and Annex 4--
Agricultural Non-Point Sources of Pollution. The default rule
provided for in the Protocol, which incorporates by reference
the amendment procedure provided for in the Cartagena
Convention for annexes, is a tacit amendment procedure.
Amendments to existing annexes of the Protocol are to be
adopted by a three-fourths majority vote of the Parties present
and voting at a meeting of the Parties and if adopted, will
enter into force for all Parties except those that indicate
that they object to the amendment within 90 days. The Protocol,
however, also provides for the possibility of amending the
annexes through a more traditional amendment procedure in a
situation in which the Parties are of the view that the nature
of the amendment is inappropriate for a tacit amendment
procedure. Article XVII(2) of the Protocol provides that the
Parties may decide at the time of the adoption of a particular
amendment to an annex that it is of such importance that it
will only bind those Parties that have affirmatively consented
to be bound and will enter into force only when three-fourths
of the Parties have so consented.
In accordance with Article XVII of the Protocol, which
incorporates by reference certain provisions of the Cartagena
Convention, new annexes would similarly be adopted by a three-
fourths majority vote of the Parties present and voting and
would enter into force for all Parties except those that
indicate that they object to the amendment within 90 days.
Article XVIII(2) of the Protocol, however, gives each State the
option to declare when joining the Protocol that any new annex
shall only enter into force for it upon its express consent.
The declaration included in the proposed resolution of advice
and consent would allow the United States to exercise this
option with respect to amendments that include new annexes to
the Protocol, so that the executive branch would have time to
transmit such amendments to the Senate for advice and consent.
In the committee's view, any amendment that required the
inclusion of a new annex to the Protocol would require the
advice and consent of the Senate.
The Committee on Foreign Relations recognizes that the
tacit amendment procedure provided for amending existing
annexes makes it possible for the implementation of the LBS
Protocol to evolve without going through a standard amendment
process, which can take years to complete. The four annexes
currently attached to the Convention are largely technical and
procedural in nature, and amendments to these annexes should
not, in the normal course, rise to the level of those that
require the advice and consent of the Senate. If there is any
question, however, as to whether an amendment to these annexes
requires the advice and consent of the Senate, the committee
expects the executive branch to consult with the committee in a
timely manner in order to determine whether advice and consent
is necessary. Moreover, the committee expects that under such
circumstances, the executive branch will make appropriate use
of the objection procedure described above to prevent an
amendment from entering into force for the United States before
the conclusion of consultations on whether Senate advice and
consent is necessary. Finally, should the Parties decide at the
time of the adoption of a particular amendment to an annex that
it is of such importance that it will only bind those Parties
that have affirmatively consented to be bound, the committee
believes it is likely that such an amendment would require the
advice and consent of the Senate.
B. RESOLUTION
The committee has included in the resolution of advice and
consent two proposed declarations; only one of them would be
included in the instrument of ratification. Both are discussed
briefly below.
First Declaration
This proposed declaration is provided for in Article
XVIII(2) of the Protocol, which states that any State may
declare when depositing its instrument of ratification,
acceptance, approval, or accession that ``any new annex shall
enter into force for it only upon the deposit of its instrument
of ratification, acceptance, approval or accession thereto.''
As a result of making this declaration, any new annexes adopted
by the Parties to the Protocol would enter into force for the
United States if and only if the United States deposits an
``instrument of ratification, acceptance, approval or
accession'' to the relevant annex. This declaration was
recommended by the executive branch and would be included in
the U.S. instrument of ratification. As noted above in the
discussion, this declaration would be made in order to be sure
that the executive branch would have time to transmit such
annexes to the Senate for advice and consent.
Second Declaration
This second proposed declaration states that the LBS
Protocol is not self-executing. The Senate has rarely included
statements regarding the self-executing nature of treaties in
resolutions of advice and consent, but in light of the recent
Supreme Court decision, Medellin v. Texas, 128 S.Ct. 1346
(2008), the committee has determined that a clear statement in
the resolution is warranted. A further discussion of the
committee's view on this matter can be found in Section VIII of
Executive Report 110-12.
VIII. Resolution of Advice and Consent to Ratification
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO DECLARATIONS
The Senate advises and consents to the ratification of the
Protocol Concerning Pollution from Land-Based Sources and
Activities to the Convention for the Protection and Development
of the Marine Environment of the Wider Caribbean Region, with
Annexes, done at Oranjestad, Aruba, on October 6, 1999 (Treaty
Doc. 110-1), subject to the declaration of section 2 and the
declaration of section 3.
SECTION 2. 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:
In accordance with Article XVIII, the United States
of America declares that, with respect to the United
States of America, any new annexes to the Protocol
shall enter into force only upon the deposit of its
instrument of ratification, acceptance, approval or
accession with respect thereto.
SECTION 3. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
This Protocol is not self-executing.