[Senate Executive Report 110-20]
[From the U.S. Government Publishing Office]



110th Congress                                              Exec. Rept.
                                 SENATE
 2d Session                                                      110-20

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



 
                  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.

                                    

      
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