[Senate Executive Report 106-18]
[From the U.S. Government Publishing Office]
106th Congress Exec. Rept.
SENATE
2d Session 106-18
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INTER-AMERICAN CONVENTION ON SEA TURTLES
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September 5, 2000.--Ordered to be printed
_______
Mr. Helms, from the Committee on Foreign Relations,
submitted the following
R E P O R T
[To accompany Treaty Doc. 105-48]
The Committee on Foreign Relations, to which was referred
the Inter-American Convention for the Protection and
Conservation of Sea Turtles, with Annexes, done at Caracas,
Venezuela, on December 1, 1996, which was signed by the United
States, subject to ratification, on December 13, 1996, having
considered the same, reports favorably thereon with three
understandings, five declarations and two provisos, and
recommends that the Senate give its advice and consent to the
ratification thereof as set forth in this report and the
accompanying resolution of ratification.
CONTENTS
Page
I. Purpose..........................................................1
II. Background.......................................................2
III. Summary..........................................................2
IV. Entry Into Force and Termination.................................4
V. Committee Action.................................................5
VI. Committee Recommendation and Comments............................5
VII. Explanation of Proposed Convention...............................5
VIII.Text of the Resolution of Ratification...........................5
I. Purpose
The purpose of the Inter-American Convention for the
Protection and Conservation of Sea Turtles (``the Convention'')
is to require Parties to the Convention to promote the
protection and conservation of sea turtle populations and their
habitats; to reduce the incidental capture, injury and
mortality of sea turtles associated with commercial fisheries;
to prohibit the intentional taking of, and domestic and
international trade in, sea turtles, their eggs, parts and
products; and to foster international cooperation in the
research and management of sea turtles. The Convention
specifically obligates Parties to require the use of turtle
excluder devices (``TEDs'') by commercial shrimp trawl vessels
in a manner comparable to the requirements in effect in the
United States. The Convention also includes provisions on
monitoring and compliance.
II. Background
Congress called for the negotiation of multilateral
agreements for the protection and conservation of sea turtles
in Section 609 of the Departments of Commerce, Justice and
State, the Judiciary and Related Agencies Appropriations Act of
1990 (P.L. 101-162). Substantive negotiations on the Convention
concluded on September 5, 1996, at a meeting in Salvador da
Bahia, Brazil. The Convention was opened for signature on
December 1, 1996. The United States signed the Convention,
subject to ratification, on December 13, 1996. The President
submitted the Convention to the Senate for advice and consent
on May 22, 1998. As of the date of this report, twelve
countries (Belize, Brazil, Costa Rica, Ecuador, Honduras,
Mexico, The Netherlands, for its American possessions,
Nicaragua, Peru, Uruguay, Venezuela and the United States) had
signed the Convention, and four (Venezuela, Peru, Brazil and
Costa Rica) had deposited instruments of ratification. The
Convention will enter into force with the eighth ratification.
III. Summary
A. GENERAL
The protection of sea turtles has been addressed in both
national and international law. In 1973, Congress enacted the
``Endangered Species Act'' (ESA) to protect certain fish,
wildlife, and plants from extinction. Under the ESA the
Secretary of Commerce has determined that five species of sea
turtles within the jurisdiction of the United States are
endangered, and that an additional species is threatened.
Consequently, such turtles may not be taken within U.S.
jurisdiction.
In 1973 the U.S. took the lead in negotiating the
``Convention on International Trade in Endangered Species of
Wild Fauna and Flora'' (CITES), and in 1975 became the first
nation to ratify that agreement. All six species of Western
Hemisphere sea turtles have been designated under CITES as
endangered, and trading in any of these species is prohibited.
Other international agreements and guidelines have also
promoted the conservation of sea turtles.
Shrimp trawling has been an activity of particular concern
to sea turtle conservationists and governments. Because the
Department of Commerce concluded that a significant number of
sea turtles were perishing in the nets of shrimp trawlers, in
1987 the Department adopted regulations pursuant to the ESA
requiring large domestic shrimp trawlers to use ``Turtle
Excluder Devices'' (TEDs) in their nets. The regulations also
required smaller domestic trawlers to limit their ``tow
times''--i.e., the period during which their nets are actually
deployed in the sea--to a maximum of 90 minutes. In 1989
Congress amended the ESA to extend those requirements to
foreign shrimp trawlers.
Section 609 of P.L. 101-162 bars the importation into the
United States of shrimp harvested by methods harmful to sea
turtles unless the President certifies that the harvesting
nation requires its trawling vessels to use TEDs or tow-time
restrictions, that trawling occurs in waters uninhabited by sea
turtles, or that the incidental taking of sea turtles--called
``by-catch''--is comparable to that of U.S. vessels using TEDs
and restricted tow times.
Section 609 also mandated that the Secretary of State
negotiate bilateral or multilateral agreements with other
nations to protect and conserve endangered sea turtles.
Subsequently the United States Court of Appeals for the Ninth
Circuit held in Earth Island Institute v. Christopher, 6 F.3d
648 (9th Cir. 1993) that this mandate was an unconstitutional
invasion of the President's treaty-making authority.
Nevertheless, the Secretary of State initiated treaty
negotiations with several Latin American nations. Four
negotiating sessions produced the proposed Inter-American
Convention in 1996.
In submitting the Convention to the Senate, the Executive
Branch stated that the Convention will not require implementing
legislation for the United States.
B. KEY PROVISIONS
The Convention has a preamble, twenty-seven articles and
four annexes. Key provisions are summarized below.
The Convention is based on the premise that ``sea turtles
migrate widely throughout marine areas and that their
protection and conservation require cooperation and
coordination among States within the range of such species''
(Preamble). Stating its objective to be ``the protection,
conservation and recovery of sea turtle populations and of the
habitats on which they depend'' (Article II), the Convention
would obligate its Parties to take ``appropriate and necessary
measures'' in service of that objective.
Article IV is the heart of the Convention. It obligates
parties to prohibit the intentional capture, retention, and
killing of sea turtles, as well as domestic trade in sea
turtles, their eggs, parts or products. It obligates parties to
observe the CITES ban on international trade in sea turtles,
their eggs, parts or products. Article IV obligates parties,
``to the extent practicable,'' to restrict human activities
that could have a serious adverse impact on sea turtles. It
also calls for the protection, conservation, and restoration of
sea turtle habitats and nesting areas, including the
designation of protected areas. Parties also would be obligated
to promote scientific research relating to sea turtles and
their habitats, and to promote efforts to enhance sea turtle
populations.
Article IV would also obligate parties to promote
environmental education and dissemination of information as a
means of promoting participation in conservation efforts. In
addition, parties would be obligated to reduce, ``to the
greatest extent practicable,'' incidental capture, retention,
harm or mortality of sea turtles in the course of fishing
activities through, inter alia, the use of turtle excluder
devices (TEDs).
Each Party would also be obligated to establish a program
to monitor the application of the measures it adopts for the
protection and conservation of sea turtles and their habitats
(Article IX) and to ``ensure compliance'' with such measures
(Articles X and XVIII). The measures would have to be in
accordance with the provisions of the WTO (Article XV), and
exceptions to the ban on the intentional capture and killing of
sea turtles would be allowed ``to satisfy economic subsistence
needs of traditional communities'' (Article IV(3)). The Parties
would be encouraged to coordinate their activities with
relevant international organizations (Article XIV).
Under the Convention the Parties would establish a
Scientific Committee to conduct research and formulate
recommendations for the protection and conservation of sea
turtles and their habitats (Article VIII), a Consultative
Committee of Experts to review the annual reports required to
be submitted by each Party on the measures they have undertaken
and to evaluate the efficiency of various measures to reduce
the capture and incidental mortality of sea turtles, including
TEDs (Article VII), and, optionally, a Secretariat (Article
VI). The Parties would also meet periodically to evaluate
compliance with the Convention, to adopt additional
conservation and management measures, to propose amendments to
the Convention, and to modify the annexes (Article IV). All
such decisions by the Parties would be by consensus (Article
V).
Financing of Convention implementation is not provided for
in the text. Rather, this issue will be discussed at the first
meeting of the Parties (Article XIII) following entry into
force. Voluntary dispute settlement measures are discussed in
Article XVI.
The Convention would apply to the land territory in the
Americas of the Parties and to maritime areas over which they
exercise sovereignty (Article III). The Convention is open to
signature or accession by the countries of North, Central, and
South America and the Caribbean, and other countries with
territories in the region (Article I). The Parties would also
be encouraged to negotiate a complementary protocol opening the
Convention to other interested countries (Article XX).
The Convention and any future amendments to the Convention
are subject to ratification by those that signed it by December
31, 1998, and to accession by other States (Article XXI). No
reservations to the Convention may be made in doing so (Article
XXIII). The Convention will enter into effect 90 days after the
deposit of the eighth instrument of ratification (Article
XXII). Withdrawal from the Convention is permitted six months
after the submission of a written notice to the Depositary to
that effect (Article XXV). The Depositary is Venezuela (Article
XXVII).
Four Annexes are attached to the Convention, all of which
are deemed to be ``integral parts'' of the Convention and each
of which can be amended by consensus at any meeting of the
Parties (Article XXVI). Annex I lists the sea turtles to be
protected under the Convention. Annex II sets forth possible
measures that can be taken to protect and conserve sea turtle
habitats. Annex III mandates that, with certain exceptions,
each Party require its shrimp trawl vessels to use TEDs. Annex
IV requires that annual reports on implementation be prepared
by each party.
IV. Entry Into Force and Termination
A. ENTRY INTO FORCE
The Convention will enter into force ninety days after
deposit of the eighth instrument of ratification. For each
State acceding to the Convention after its entry into force,
the Convention shall enter into force on the day such State
deposits its instrument of accession with the Depositary,
namely, the Venezuelan Foreign Ministry.
B. WITHDRAWAL
The Convention shall remain in force indefinitely, but any
of the Parties may withdraw from it at any time after 12 months
from the date on which it enters into force with respect to
that Party. To withdraw, the Party must give written notice of
withdrawal to the Depositary. The Depositary shall inform the
other Parties of the withdrawal within 30 days of receipt of
such notice. The withdrawal shall become effective six months
after receipt of such notice.
V. Committee Action
The Committee on Foreign Relations held an informal public
meeting on the Convention on July 20, 2000 (a transcript of the
session and questions for the record can be found in the
appendix to Executive Report 106-16, Convention (No. 176)
Concerning Safety and Health in Mines, also filed this day).\1\
The Committee considered the Convention on July 26, 2000, and
ordered it favorably reported by voice vote, with the
recommendation that the Senate give its advice and consent to
the ratification of the proposed Convention subject to three
understandings, five declarations and two provisos.
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\1\ On the day the Committee was scheduled to conduct a hearing on
the treaty, permission to do so pursuant to Senate Rule 26(5)(a) had
not been granted. Therefore, the Committee proceeded in informal
session. A transcript is appended to Executive Report 106-16.
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VI. Committee Recommendation and Comments
The Committee on Foreign Relations recommends favorably the
proposed Convention. On balance, the Committee believes that
the proposed Convention is in the interest of the United States
and urges the Senate to act promptly to give its advice and
consent to ratification.
VII. Explanation of Proposed Convention
For analysis of the proposed Convention, see the
corresponding Letter of Submittal from the Secretary of State,
which is set forth at pages V-IX of Senate Treaty Document 105-
48.
VIII. Text of the Resolution of Ratification
Resolved, (two thirds of the Senators present concurring
therein), that the Senate advise and consent to the
ratification of the Inter-American Convention for the
Protection and Conservation of Sea Turtles, With Annexes, done
at Caracas, Venezuela, on December 1, 1996 (Treaty Doc. 105-
48), which was signed by the United States, subject to
ratification, on December 13, 1996, referred to in this
resolution of ratification as ``The Convention,'' subject to
the understandings of subsection (a), the declarations of
subsection (b) and the provisos of subsection (c).
(a) Understandings.--The advice and consent of the Senate
is subject to the following understandings, which shall be
included in the instrument of ratification of the Convention
and shall be binding on the President:
(1) Article VI (``Secretariat'').--The United States
understands that no permanent secretariat is
established by this Convention, and that nothing in the
Convention obligates the United States to appropriate
funds for the purpose of establishing a permanent
secretariat now or in the future.
(2) Article XII (``International Cooperation'').--The
United States understands that, upon entry into force
of this Convention for the United States, the United
States will have no binding obligation under the
Convention to provide additional funding or technical
assistance for any of the measures listed in Article
XII.
(3) Article XIII (``Financial Resources'').--Bearing in
mind the provisions of paragraph (7), the United States
understands that establishment of a ``special fund,''
as described in this Article, imposes no obligation on
Parties to participate or contribute to the fund.
(b) Declarations.--The advice and consent of the Senate is
subject to the following declarations:
(1) ``No Reservations'' Clause.--Concerning Article
XXIII, it is the sense of the Senate that this ``no
reservations'' provision has the effect of inhibiting
the Senate in its exercise of its constitutional duty
to give advice and consent to ratification of a treaty,
and the Senate's approval of these treaties should not
be construed as a precedent for acquiescence to future
treaties containing such provisions.
(2) Treaty Interpretation.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the State Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(3) New Legislation.--Existing federal legislation
provides sufficient legislative authority to implement
United States obligations under the Convention.
Accordingly, no new legislation is necessary in order
for the United States to implement the Convention.
Because all species of sea turtles occurring in the
Western Hemisphere are listed as endangered or
threatened under the Endangered Species Act of 1973, as
amended (Title 16, United States Code, Section 1536 et
seq.), said Act will serve as the basic authority for
implementation of United States obligations under the
Convention.
(4) Articles IX and X (``Monitoring Programs,''
``Compliance'').--The United States understands that
nothing in the Convention precludes the boarding,
inspection or arrest by United States authorities of
any vessel which is found within United States
territory or maritime areas with respect to which it
exercises sovereignty, sovereign rights or
jurisdiction, for purposes consistent with Articles IX
and X of this Convention.
(5) It is the sense of the Senate that the entry into
force and implementation of this Convention in the
United States should not interfere with the right of
waterfront property owners, public or private, to use
or alienate their property as they see fit consistent
with pre-existing domestic law.
(c) Provisos.--The advice and consent of the Senate is
subject to the following provisos:
(1) Report To Congress.--The Secretary of State shall
provide to the Committee on Foreign Relations of the
Senate a copy of each annual report prepared by the
United States in accordance with Article XI of the
Convention. The Secretary shall include for the
Committee's information a list of ``traditional
communities'' exceptions which may have been declared
by any party to the Convention.
(2) Supremacy of the Constitution.--Nothing in the
Convention requires or authorizes legislation or other
action by the United States of America that is
prohibited by the Constitution of the United States as
interpreted by the United States.