Agreement on Conservation of Albatrosses and PetrelsSenate Consideration of Treaty Document 110-22
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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.