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[Senate Treaty Document 110-22]
[From the U.S. Government Printing Office]



110th Congress 
 2d Session                      SENATE                     Treaty Doc.
                                                                 110-22
_______________________________________________________________________

                                     

 
          AGREEMENT ON CONSERVATION OF ALBATROSSES AND PETRELS

                               __________

                                MESSAGE

                                  from

                     THEPRESIDENTOFTHEUNITEDSTATES

                              transmitting

AGREEMENT ON THE CONSERVATION OF ALBATROSSES AND PETRELS, WITH ANNEXES, 
                    DONE AT CANBERRA, JUNE 19, 2001




September 26, 2008.--Treaty was read the first time, and together with 
the accompanying papers, referred to the Committee on Foreign Relations 
          and ordered to be printed for the use of the Senate.
                         LETTER OF TRANSMITTAL

                              ----------                              

                         The White House, September 26, 2008.
To the Senate of the United States:
    With a view to receiving the advice and consent of the 
Senate to accession, I transmit herewith the Agreement on the 
Conservation of Albatrosses and Petrels, with Annexes. In 
addition, I transmit for the information of the Senate the 
report of the Department of State, which includes a detailed 
analysis of the Agreement.
    The Agreement, done at Canberra on June 19, 2001, and that 
entered into force on February 1, 2004, was adopted pursuant to 
the Convention on the Conservation of Migratory Species of Wild 
Animals (the ``Convention''), done at Bonn on June 23, 1979. 
Although the United States not a Party to the Convention, the 
United States may nonetheless become a Party to the Agreement. 
The Agreement's objective is to achieve and maintain a 
favorable conservation status for albatrosses and petrels.
    I believe the Agreement to be fully in the U.S. interest. 
Its provisions advance the U.S. goals of protecting albatrosses 
and petrels. As the Department of State's analysis explains, 
the Agreement is not self-executing and thus does not by itself 
give rise to domestically enforceable Federal law. Implementing 
legislation would be required, which will be submitted 
separately to the Congress for its consideration.
    I recommend that the Senate give early and favorable 
consideration to the Agreement and give its advice and consent 
to accession.

                                                    George W. Bush.
                          LETTER OF SUBMITTAL

                              ----------                              

                                       Department of State,
                                       Washington, August 22, 2008.
The President,
The White House.
    The President: I have the honor to submit to you the 
Agreement on the Conservation of Albatrosses and Petrels, with 
Annexes, done at Canberra June 19, 2001 (the Agreement). The 
Agreement, which entered into for February 1, 2004, sets forth 
provisions relating to the conservation of albatrosses and 
petrels. A detailed analysis is enclosed. I recommend that the 
Agreement be transmitted to the Senate for its advice and 
consent to accession.
    The parties to the Agreement commit to take conservation 
measures to achieve the primary objective of the Agreement, 
which is to achieve and maintain a favorable conservation 
status for albatrosses and petrels. The Agreement also 
facilitates research, information exchange, technology 
transfer, and capacity building among the Parties and through 
regional fisheries management organizations.
    The Agreement is not intended to be enforceable directly in 
U.S. court. The Agreement will require implementing 
legislation, which will be submitted shortly to Congress for 
its consideration. All interested departments and agencies join 
the Department of State in recommending that the Agreement be 
transmitted to the Senate as soon as possible for its advice 
and consent to accession.
    Respectfully submitted,
                                                  Condoleezza Rice.
    Enclosures: As stated

  Article-by-Article Analysis of the Agreement on the Conservation of 
                        Albatrosses and Petrels

    The Agreement on the Conservation of Albatrosses and 
Petrels, with Annexes, done at Canberra June 19, 2001 (the 
Agreement), is ``Agreement'' within the meaning of Article 
IV(3) of the Convention on the Conservation of Migratory 
Species of Wild Animals, done at Bonn June 23, 1979 (the 
Convention). Although the United States is not a party to the 
Convention, Article V(2) of the Convention recognizes that non-
parties to the Convention may become parties to Agreements 
referred to in Article IV(3). In other words, there is no legal 
barrier to the United States becoming a party to the Agreement 
without being a party to the Convention. Similarly, the United 
States would have no obligation to become a party to the 
Convention by virtue of being a party to the Agreement.
    Legislation will be required for the United States to 
implement many of the provisions of the Agreement. Draft 
implementing legislation has been prepared and will be 
submitted to the appropriate congressional committees. The 
following analysis provides a review of the salient aspects of 
the Agreement.

                               ARTICLE I

    Article I includes a provision on the Agreement's scope, as 
well as several definitions and interpretations. For example, 
the Agreement only applies to the species of albatrosses and 
petrels listed in Annex 1 to the Agreement and to their ranges 
as defined in Article I(2)(i).
    In addition, conservation status of a migratory species 
will be taken as ``favorable'' when a series of conditions are 
met, relating to population dynamics, the range of the species, 
sufficiency of habitat, and the distribution and abundance of 
the species.
    Article I also provides that the annexes to the Agreement 
form an integral part thereof.

                               ARTICLE II

    Article II establishes the Agreement's objective. The 
objective is to ``achieve and maintain a favorable conservation 
status for albatrosses and petrels.'' Article II provides that 
the Parties are to ``take measures, both individually and 
together, to achieve this objective.'' It also states that, in 
implementing such measures, the Parties are to widely apply the 
precautionary approach. The Article sets forth a common 
approach to precaution, i.e., that ``where there are threats of 
serious or irreversible adverse impacts or damage, lack of full 
scientific certainty shall not be used as a reason for 
postponing measures to enhance the conservation status of 
albatrosses and petrels.''

                              ARTICLE III

    Article III sets forth a series of actions that the 
Parties, individually and together, are to take in furtherance 
of the obligation to take measures to achieve and maintain a 
favorable conservation status for albatross and petrels.
    Article III also requires a Party to prohibit the 
deliberate taking of, or deliberate harmful interference with, 
albatrosses and petrels, their eggs, or their breeding sites.
    Article III permits a Party to grant an exemption to these 
prohibitions, but only if there is no other satisfactory course 
of action and the exemption is made for one of four enumerated 
purposes. A Party granting such an exemption is to submit full 
details of the exemption to the Secretariat as soon as 
possible.
    The Agreement does not apply to sovereign immune vessels 
and aircraft, consistent with customary international law. 
Because the Agreement does not reflect this exclusion, it is 
recommended that the United States include the following 
understanding in its instrument of ratification:

          It is the understanding of the United States of 
        America that the Agreement does not apply to vessels 
        and aircraft that are entitled to sovereign immunity 
        under international law, in particular to any warship, 
        naval auxiliary, and other vessels or aircraft owned or 
        operated by a State and used, for the time being, only 
        on government, noncommercial service. However, it is 
        also the understanding of the United States of America 
        that each Party shall ensure, by the adoption of 
        appropriate measures not impairing operations or 
        operational capabilities of such vessels or aircraft 
        owned or operated by it, that such vessels or aircraft 
        act in a manner consistent, so far as is reasonable and 
        practicable, with this Agreement.

    Article III also provides that, in furtherance of their 
obligation to take measures to achieve and maintain a favorable 
conservation status for albatrosses and petrels, the Parties 
are to progressively implement the Action Plan.

                               ARTICLE IV

    Article IV provides that Parties are to give priority to 
capacity building for the implementation of the Agreement 
through funding, training, information, and institutional 
support. The Article does not impose any funding obligations.

                               ARTICLE V

    Article V describes the ways that the Parties are to 
cooperate, including through exchanges of information, 
training, and implementation of education and awareness 
programs.

                               ARTICLE VI

    Article VI provides that Annex 2 of the Agreement is to 
have effect as an Action Plan for the achievement and 
maintenance of a favorable conservation status for albatrosses 
and petrels, and that progress in implementing the Action Plan 
is to be assessed at each session of the Meeting of the 
Parties.

                              ARTICLE VII

    Article VII contains several provisions on implementation 
and financing. Each Party is required to designate an authority 
or authorities to undertake, monitor, and control all 
activities carried on with a view to the supervision, 
application, and enforcement of the Agreement. These 
authorities are to monitor all activities that may have an 
impact on the conservation status of those albatrosses and 
petrels for which the Party is a Range State.
    Article VII(2) provides that decisions relating to the 
budget and scale of contributions for the operation of the 
Secretariat are to be adopted by the Meeting of the Parties by 
consensus. The term ``consensus'' in the practice of 
multilateral bodies means the adoption of a resolution or a 
decision without a vote in the absence of any formal objection 
or opposition. Contributions for the operation of the 
secretariat are mandatory. The Meeting of the Parties may also 
establish a fund from voluntary contributions for work relating 
to the conservation of albatrosses and petrels. Annual 
appropriations will be necessary for the United States to meet 
the mandatory contribution obligation, which for the United 
States would be approximately $100,000.

                              ARTICLE VIII

    Article VIII contains several provisions on the Meeting of 
the Parties, which is the decision-making body of the 
Agreement. Except as otherwise provided in the Agreement (such 
as with respect to the budget, as noted above), decisions of 
the Meeting of the Parties are to be adopted by consensus or, 
if consensus cannot be achieved, by a two-thirds majority of 
the Parties present and voting. At any of its sessions, the 
Meeting of the Parties may, among other things, adopt measures 
to improve the effectiveness of the Agreement and emergency 
measures as set forth in Article VIII(13)(c). The Agreement 
does not authorize the Meeting of the Parties to adopt measures 
for albatrosses and petrels that are binding under 
international law; new binding measures would need to be 
effectuated through amendments. Article VIII provides that the 
Meeting of the Parties may consider and decide upon proposals 
to amend the Agreement, Annex 1, or Annex 2 (the Action Plan). 
As provided in Article XII, the adoption of an amendment of any 
of these instruments requires a two-thirds majority of the 
Parties present and voting.
    Article VIII further includes a provision that would allow 
for Taiwan to be legally bound by the Agreement.

                               ARTICLE IX

    Article IX provides for the establishment of an Advisory 
Committee to provide expert advice and information to the 
Parties, the Secretariat, and others.

                               ARTICLE X

    Article X lists the functions of the Secretariat, such as 
arranging and servicing the sessions of the Meeting of the 
Parties and the meetings of the Advisory Committee.

                               ARTICLE XI

    Article XI provides for cooperation and coordination with 
relevant international, regional, and sub-regional bodies, 
including those concerned with the conservation and management 
of seabirds and their habitats and other marine living 
resources. It provides, inter alia, that the Secretariat may, 
with the approval of the Meeting of the Parties, enter into 
arrangements with other organizations and institutions.

                              ARTICLE XII

    Article XII covers amendment of the Agreement. An amendment 
to the Agreement may be adopted at any ordinary or 
extraordinary session of the Meeting of the Parties, by a two-
thirds majority of the Parties present and voting. An amendment 
to the body of the Agreement only applies to those Parties 
affirmatively accepting the amendment.
    Any additional Annex or amendment to any Annex may be 
adopted by a two-thirds majority of the Parties present and 
voting. Additional annexes or amendments to existing annexes 
enter into force for all Parties ninety days after adoption, 
except that a Party may, within those ninety days, enter a 
reservation with respect to an additional annex or amendment of 
an existing annex. In the event that an additional annex or 
amendment to any annex were to be adopted that was of such a 
nature that it would need to be sent to the Senate for advice 
and consent in order for the United States constitutionally to 
be bound by it, the Executive Branch would take the necessary 
steps to ensure that such an annex or amendment did not enter 
into force for the United States absent such advice and 
consent. A Party may withdraw a reservation at any time and, by 
doing so, become bound by such an annex or amendment.

                              ARTICLE XIII

    Article XIII provides that nothing in the Agreement 
derogates from the rights and obligations of any Party deriving 
from existing international treaties, particularly in relation 
to the United Nations Convention on the Law of the Sea, and 
also the Antarctic Treaty and the Convention on the 
Conservation of Antarctic Marine Living Resources (CCAMLR), 
especially Article IV of the last two instruments.
    Article XIII provides that, with respect to the Antarctic 
Treaty area, all Parties, whether or not they are Parties to 
the Antarctic Treaty, shall be bound by Articles IV and VI of 
the Antarctic Treaty in their relations with each other. 
Article XIII also provides that nothing in the Agreement, and 
no acts or activities taking place while the Agreement is in 
force, may be interpreted as a renunciation or diminution by 
any Party of, or as prejudicing, any right or claim or basis of 
claim to territorial sovereignty or to the exercise of coastal 
state jurisdiction under international law; or may interpreted 
as prejudicing the position of any Party as regards its 
recognition or non-recognition of any such right, claim or 
basis of claim. This provision is consistent with Article IV of 
the Antarctic Treaty.
    Article XIII provides that Parties are to adopt measures 
for reducing the incidental taking of albatrosses and petrels 
agreed to by regional fisheries organizations, or other 
organizations managing marine living resources more generally, 
such as the Commission for the Conservation of Antarctic Marine 
Living Resources (the Commission). The United States is a 
member of the Commission and of all other regional fisheries 
organizations that regulate fisheries in which U.S. fishing 
vessels operate.
    Further, Article XIII provides that the Agreement does not 
affect the right of any Party to maintain or adopt stricter 
measures for the conservation of albatrosses and petrels and 
their habitats.

                              ARTICLE XIV

    Article XIV calls upon Parties to cooperate in order to 
avoid disputes. Where a dispute between Parties is agreed by 
the Parties to be of a technical nature, the Parties are to 
confer with each other and the Chair of the Advisory Committee 
with a view to resolving the dispute amicably. If the Parties 
to such dispute are unable to resolve the dispute within twelve 
months of the Chair's having been informed in writing of the 
dispute by one of the Parties, and if the Chair is of the view 
that prolongation of the dispute could have an adverse effect 
on the conservation status of albatrosses and petrels, the 
Parties shall refer the dispute to a technical arbitration 
panel. The final decision of the technical arbitration panel 
will be binding on the Parties to the dispute.
    Any other dispute (i.e., a dispute that any party to the 
dispute considers nontechnical) is subject to the provisions of 
Article XIII of the Convention (whether or not parties to the 
dispute are Parties to the Convention). The Convention (Article 
XIII) provides for negotiation and arbitration, if all parties 
to the dispute consent.

                               ARTICLE XV

    Article XV provides for signature, ratification, 
acceptance, approval and accession.
    The Agreement is open to accession by the United States.

                              ARTICLE XVI

    Article XVI includes provisions on entry into force. The 
Agreement entered into force on February 1, 2004. To date, 
eleven countries have become Parties to the Agreement.

                              ARTICLE XVII

    Article XVII contains provisions for reservations. Although 
Article XII allows for a Party to enter a reservation regarding 
the addition of or an amendment to an existing annex, the 
Agreement's provisions are not subject to general reservations. 
Upon signature or, as the case may be, upon ratification, 
acceptance, approval, or accession, a specific reservation may 
be entered in respect of any species covered by the Agreement, 
or in respect of any specific provision of the Action Plan. 
Such a reservation may be withdrawn at any time.
    A Party to the Agreement that is not a party to the 
Convention may make . declarations or statements to the effect 
of clarifying its status vis-a-vis either the Agreement or the 
Convention, provided that such declarations or statements do 
not purport to exclude or to modify the legal effect of the 
provisions of the Agreement in their application to that Party. 
Accordingly, it is recommended that the United States include 
the following declaration in its instrument of ratification:

    The United States is not a party to the Convention on the 
Conservation of Migratory Species of Wild Animals, done at Bonn 
June 23, 1979. Accordingly, the United States of America shall 
not be bound by any provision of that Convention, except as 
provided in Article XIV, paragraph 5, of the Agreement.

    The United States does not intend to make any specific 
reservations upon accession to the Agreement.

                             ARTICLE XVIII

    Article XVIII provides that a Party may denounce the 
Agreement at any time upon twelve months' notice.

                              ARTICLE XIX

    Article XIX names Australia as the Depositary of the 
Agreement.

                                ANNEX 1

    Annex 1 lists the albatross and petrel species to which the 
Agreement applies. Pursuant to Article XII, this Annex may be 
amended to add or remove one or more albatross or petrel 
species. In November of 2006, the Meeting of the Parties 
amended Annex 1 to adjust the taxonomic nomenclature based upon 
internationally agreed taxonomic reclassifications of species. 
The Executive Branch proposes that the United States accede to 
the amended Agreement.

                                ANNEX 2

    Annex 2 contains the Action Plan. The Action Plan includes 
detailed provisions on species conservation, habitat 
conservation and restoration, management of human activities, 
research and monitoring, collation of information by the 
Advisory Committee, education and public awareness, and 
implementation.

                               SECTION 1

    Section 1 of the Action Plan contains provisions on species 
conservation.
    Section 1 provides that, in addition to actions specified 
in Article III and without prejudice to any obligations they 
may have under the Convention on International Trade in 
Endangered Species of Wild Fauna and Flora (CITES), the Parties 
are to prohibit the use of, and trade in, albatrosses and 
petrels or their eggs, or any readily recognizable parts or 
derivatives thereof. The Administration understands this 
provision to apply both to international use and trade as well 
as to use and trade within the United States and its 
territories. Section 1 also provides that Parties may grant 
exemptions to this prohibition according to the exemption 
provisions set forth in Article III(3) of the Agreement.
    Section 1 also provides that, in the event of a request by 
the Advisory Committee for a Meeting of Parties under the 
emergency provisions of Article IX(7), the Parties affected, in 
cooperation with each other and with any others, shall develop 
and implement emergency measures. The process for adopting and 
implementing such measures is set forth in Article IX(7).
    Section 1 also provides that the Parties are to take a 
precautionary approach when re-establishing albatrosses and 
petrels into parts of their traditional breeding range. In such 
cases, the Parties must develop and follow a detailed re-
establishment scheme, based on the best scientific evidence.
    Section 1 also requires the Parties to take all feasible 
action to prevent the introduction into habitats, deliberately 
or otherwise, of non-native taxa of animals, plants or hybrids 
or disease-causing organisms that may be detrimental to 
populations of albatrosses and petrels. In addition, this 
Section requires Parties to take measures, to the extent 
feasible, to control and, where possible, eradicate non-native 
taxa of animals or plants, or hybrids thereof, that are, or may 
be, detrimental to populations of albatrosses or petrels.

                               SECTION 2

    Section 2 contains provisions on habitat conservation and 
restoration.
    A paragraph provides that, so far as appropriate and 
necessary, the Parties are to take such management action, and 
introduce such legislative and other controls, as will maintain 
populations of albatrosses and petrels at, or restore them to, 
favorable conservation status and prevent the degradation of 
habitats.
    Section 2 also includes provisions on land-based 
conservation, including the protection of breeding sites, as 
well as on the conservation of marine habitats.
    Section 2 also requires Parties to take special measures, 
individually and collectively, to conserve marine areas which 
they consider critical to the survival and/or restoration of 
species of albatrosses and petrels that have unfavorable 
conservation status.

                               SECTION 3

    Section 3 includes provisions on the management of human 
activities.
    Section 3 requires the Parties to assess the potential 
impact on albatrosses and petrels of policies, plans, programs 
and projects that they consider likely to affect the 
conservation status of albatrosses and petrels before any 
decision on whether to adopt such policies, plans, programs or 
projects, and to make the results of these assessments publicly 
available.
    Section 3 also requires Parties that are parties to other 
relevant treaties, such as CCAMLR, or members of relevant 
international organizations, such as FAO, to encourage the 
institutions of, and other parties to or members of such 
treaties or organizations, to give effect to the objective of 
the Agreement.
    Section 3 also requires the Parties to endeavor to adopt 
additional measures to combat illegal, unregulated and 
unreported fishing activities that may have an adverse effect 
on albatrosses and petrels.
    Section 3 also requires the Parties to take appropriate 
measures, within environmental conventions and by other means, 
to minimize the discharge of land-based sources and from 
vessels, of pollutants that may have an adverse effect on 
albatrosses and petrels either on land or at sea.
    Section 3 also requires the Parties to seek to manage, in 
ways consistent with the aims of the Agreement, mineral 
exploration and exploitation in waters under their jurisdiction 
which are frequented by albatrosses and petrels.
    Section 3 further requires the Parties, in both marine and 
terrestrial habitats, to seek to minimize disturbance of 
albatrosses and petrels, and to establish and maintain some 
areas that are kept free from disturbance.
    Section 3 also requires the Parties to seek to avoid or 
minimize disturbance caused . by tourism, and in particular by 
controlling the proximity of approach to breeding albatrosses 
or petrels.

                               SECTION 4

    Section 4 sets forth provisions on research and monitoring 
both at sea and on land.
    Section 4 requires Parties, through the use of at-sea 
observers on fishing vessels or through other appropriate 
methods, to collect reliable and, where possible, verifiable 
data to enable the accurate estimation of the nature and extent 
of albatross and petrel interactions with fisheries.

                               SECTION 5

    Section 5 contains provisions on the content of the reports 
of the Advisory Committee, including assessment of population 
trends, identification of important breeding sites, information 
on the foraging range and migration routes, identification and 
assessment of threats, review of data on mortality and several 
other topics.

                               SECTION 6

    Section 6 includes provisions on education, public 
awareness and training.

                               SECTION 7

    Section 7 contains provisions on implementation. This 
Section requires the Advisory Committee to develop conservation 
guidelines to assist with the implementation of the Action 
Plan.