[Senate Executive Report 108-8]
[From the U.S. Government Publishing Office]
108th Congress Exec. Rpt.
SENATE
1st Session 108-8
======================================================================
CONVENTION FOR INTERNATIONAL CARRIAGE BY AIR (TREATY DOC. 106-45) AND
PROTOCOL TO AMEND THE CONVENTION FOR UNIFICATION OF CERTAIN RULES
RELATING TO INTERNATIONAL CARRIAGE BY AIR (TREATY DOC. 107-14)
_______
July 29, 2003.--Ordered to be printed
_______
Mr. Lugar, from the Committee on Foreign Relations,
submitted the following
R E P O R T
[To accompany Treaty Doc. 106-45 and Treaty Doc. 107-14)]
The Committee on Foreign Relations, to which was referred
the Convention for the Unification of Certain Rules for
International Carriage by Air (Treaty Doc. 106-45) and the
Protocol to Amend the Convention for the Unification of Certain
Rules Relating to International Carriage by Air Signed at
Warsaw on October 12, 1929 (Treaty Doc. 107-14), having
considered the same reports favorably thereon with a
reservation, as indicated in the resolutions of advice and
consent, and recommends that the Senate give its advice and
consent to the ratification thereof as set forth in this report
and the accompanying resolutions of advice and consent to
ratification.
CONTENTS
Page
I. Purpose..........................................................1
II. Background.......................................................2
III. Summary of Key Provisions of the Treaties........................3
IV. Implementing Legislation.........................................6
V. Committee Action.................................................6
VI. Committee Recommendation and Comments............................6
VII. Resolutions of Ratification......................................7
VIII.Appendix--Hearing of June 17, 2003 entitled ``Treaties Related to
Aviation and the Environment.....................................9
I. Purpose
These treaties establish rules governing liability arising
from international air carriage. This includes liability
arising from injuries and deaths to persons, as well as damage
to, or loss of, baggage and cargo, that occur in connection
with international air carriage.
II. Background
The Convention for the Unification of Certain Rules for
International Carriage by Air (Treaty Doc. 106-45) (hereinafter
``the Montreal Convention''); and the Protocol to Amend the
Convention for the Unification of Certain Rules Relating to
International Carriage by Air Signed at Warsaw on October 12,
1929 (Treaty Doc. 107-14) (hereinafter ``the Hague Protocol'')
both address liability arising from international air carriage.
Montreal Convention
The Montreal Convention establishes a comprehensive regime
governing liability arising from international air carriage. It
is intended to replace the current patchwork set of liability
regimes in this area, which include the 1929 Warsaw Convention
for the Unification of Certain Rules Relating to International
Carriage by Air, various protocols to that Convention, and
voluntary agreements among air carriers. The Warsaw system, as
it is known, has long been considered antiquated in several
respects. The new Montreal Convention represents the
culmination of decades of efforts by the United States and
other countries to establish a regime providing increased
protection for international air travelers and shippers, and
modern and efficient procedures reflecting developments in the
aviation industry.
Hague Protocol
The Hague Protocol amends the 1929 Warsaw Convention that
the Montreal Convention is designed to replace. Until the
Montreal Convention gains wide adherence, the Warsaw system
will remain in place between many countries. Accordingly, the
Committee recommends that the Senate advise and consent to the
Hague Protocol so that U.S. passengers, shippers, and air
carriers, in this interim period, may take advantage of some
modern elements of the protocol, especially those relating to
the carriage of cargo. At present, there is uncertainty about
whether the United States is a party to the Hague Protocol.
This uncertainty arises, in part, from the confusion that
results from the patchwork nature of the Warsaw system. The
1929 Warsaw Convention has been amended by a series of
protocols. Some countries are parties only to the Warsaw
Convention; others are parties only to particular protocols
amending the Convention. Recent litigation in federal court has
highlighted this confusion. In 2000, the U.S. Court of Appeals
for the Second Circuit held in Chubb & Son, Inc. v. Asiana
Airlines, 214 F.3d 301 (2d Cir. 2000), cert. denied, 533 U.S.
928 (2001), that the United States and South Korea did not have
treaty relations with respect to international air carriage
rules because the two countries were not parties to common
pieces of this regime.
Ratification of the Hague Protocol will serve to clarify
treaty relationships immediately with a number of countries
with which the status of our treaty relationships under the
Warsaw system may be unclear in light of the Chubb case. This
includes countries with which we may have no treaty
relationships at present. It also includes countries with which
our only current treaty relationship may be the relatively
antiquated 1929 Warsaw Convention, unamended by any of the
subsequent protocols. With respect to this latter group of
countries, ratification of the Hague Protocol is useful because
the Protocol streamlines the Warsaw Convention's cumbersome
documentation requirements for cargo transportation. In the
short-term, having cargo shipments to and from such countries
governed by the Hague Protocol rather than by the unamended
Warsaw Convention will benefit shippers.
The relevance of the Hague Protocol will wane as more
countries become parties to the Montreal Convention, which
provides updated rules governing air carriage. Where two
countries are parties both to the Montreal Convention and to
prior conventions governing international air carriage, the
Montreal Convention, by its terms, supersedes the earlier
instruments. The Committee hopes that United States
ratification of the Montreal Convention will serve to encourage
other countries also to become parties to it. The Committee
encourages the Administration to undertake active diplomatic
efforts to promote further ratifications.
III. Summary of Key Provisions of the Treaties
A detailed article-by-article discussion of these treaties
may be found in the Letters of Submittal from the Secretary of
State to the President, which are reprinted in full in the
respective Senate Treaty Documents. A summary of the key
provisions of the treaties is set forth below.
MONTREAL CONVENTION
Continuity of Applicable Warsaw Precedents
The Montreal Convention, like the Warsaw Convention, will
provide the basis for a private right of action in U.S. courts
in matters covered by the Convention. No separate implementing
legislation is necessary for this purpose.
In the nearly seventy years that the Warsaw Convention has
been in effect, a large body of judicial precedent has been
established in the United States. The negotiators of the
Montreal Convention intended to preserve these precedents.
According to the Executive Branch testimony, ``[w]hile the
Montreal Convention provides essential improvements upon the
Warsaw Convention and its related protocols, efforts were made
in the negotiations and drafting to retain existing language
and substance of other provisions to preserve judicial
precedent relating to other aspects of the Warsaw Convention,
in order to avoid unnecessary litigation over issues already
decided by the courts under the Warsaw Convention and its
related protocols.'' (Response to questions for the record
submitted by Chairman Lugar, page 68).
Elimination of Liability Limits and of Defenses to Certain Damages
The Montreal Convention eliminates limits on air carrier
liability for covered damages related to death or personal
injury to passengers that applied under the Warsaw Convention.
Article 21 of the Convention provides that for proven damages
up to 100,000 Special Drawing Rights,\1\ air carriers may not
exclude or limit their liability, subject to the comparative
fault provision in Article 20. For such damages exceeding
100,000 Special Drawing Rights, an air carrier shall not be
liable if it proves that the damages were not due to the
negligence, or other wrongful act or omission of the carriers,
its servants or agents, or that such damage was solely due to
the negligence or other wrongful act or omission of a third
party. As with the similar provision in the Warsaw Convention
(Article 20(1)), the burden is on the air carrier, not the
injured party, to show that the air carrier was not negligent
or that the damage was solely due to the acts of a third party.
In sum, Article 21 permits injured parties or their heirs to
recover all provable damages for death and personal injury
allowed under applicable law and covered by the Convention. The
Montreal Convention thus improves considerably on provisions in
the Warsaw Convention that imposed limits on carrier liability
for such damages. It also codifies an agreement made among
major air carriers in 1996 (known as the IATA Intercarrier
Agreement on Passenger Libaility) to waive the liability limits
of the Warsaw system.
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\1\ ``Special Drawing Rights'' is an artificial ``basket'' currency
developed by the International Monetary Fund for internal accounting
purposes, and is used as the monetary unit of reference in the
Convention. As of July 2003, one Special Drawing Right is equivalent to
approximately $1.40.
---------------------------------------------------------------------------
Limits on Liability for Delay, Baggage, and Cargo Related Damages
Article 22 of the Convention largely preserves limits on
liability for damages related to delay, baggage, and cargo
contained in the Warsaw Convention and the various protocols to
it.
Jurisdiction Over Claims
Article 33 of the Convention addresses jurisdiction over
claims for damages under the Convention. It improves on the
Warsaw Convention by adding what has been referred to as a
``fifth jurisdiction'' for bringing claims for death or
personal injury. Specifically, Article 33 permits claims
relating to passenger death or injury to be brought against an
air carrier in the courts of the country in which the passenger
had his or her principal and permanent residence at the time of
the accident, provided that two additional conditions are met:
(1) the carrier provides service to or from that country either
directly or via a code-share or other similar arrangement with
another carrier, and (2) the carrier conducts business in that
country from premises leased or owned by it or by a carrier
with which it has a commercial arrangement, such as a code-
share arrangement. The Convention also preserves provisions of
the Warsaw Convention providing jurisdiction for death and
injury claims, as well as claims relating to delay, baggage, or
cargo, in the country (1) of the domicile of the carrier; (2)
of the carrier's principal place of business; (3) where the
ticket was purchased; or (4) of destination of the passenger.
Under Article 33, therefore, U.S. courts will have jurisdiction
in nearly all cases involving death or personal injury to
passengers who reside in the United States, thus eliminating
the need for such passengers or their heirs to bring suit in
foreign courts in order to obtain jurisdiction over air
carriers.
Code-Share Liability
Chapter V of the Convention addresses a practice of modern
aviation: ``code-share'' arrangements between airlines in which
two airlines share reservations or contracting operations.
Under the provisions of this chapter, in instances in which a
flight is operated under a code-share or similar arrangement, a
passenger may bring a claim arising under the Convention
against either the carrier from which he or she purchased a
ticket or the carrier that actually operated the flight under
the code-share or similar arrangement. Article 40 provides for
the respective liability of the ``contracting carrier'' and the
``actual carrier'' (terms that are defined by Article 39).
These rules do not, however, create liability on the part of a
carrier merely because of its participation in a code-share
relationship. Where a passenger is traveling on a ticket
purchased directly from the actual carrier, Article 40 provides
that that passenger may only bring a claim against the actual
carrier, and not against another carrier serving as a code-
share partner on the flight. Similarly, a carrier not actually
operating the aircraft is liable only to those passengers to
which it sold tickets.
Exclusivity
Article 29 of the Convention provides that actions for
damages related to the carriage of passengers, baggage, and
cargo, whether under the Convention, in contract, in tort, or
otherwise, can only be brought subject to the conditions and
limits of liability set out in the Convention. This is
consistent with U.S. decisional law under the Warsaw
Convention. Four years ago, the Supreme Court ruled that the
Warsaw Convention is the exclusive means by which passengers
can seek damages for death or personal injury. El Al Israel
Airlines, Ltd. v. Tseng, 525 U.S. 155 (1999). Article 29 also
specifically provides that punitive, exemplary or other non-
compensatory damages shall not be recoverable.
Entry Into Force and Denunciation
The Convention enters into force on the 60th day after the
date of the deposit of the 30th instrument of ratification,
acceptance, approval or accession to the Convention. As of the
date of the Committee's hearing on the Convention, the
Convention had not yet entered into force, but 29 countries had
ratified it. Should the Convention enter into force prior to
the United States becoming a party to it, the Convention would
enter into force for the United States 60 days following the
date of deposit of the United States' instrument of
ratification, acceptance, approval or accession.
Any party to the Convention may denounce the Convention by
written notification to the Convention's depositary. Such
denunciations take effect 180 days after the depositary's
receipt of the notification.
THE HAGUE PROTOCOL
The Protocol amends the 1929 Warsaw Convention for the
Unification of Certain Rules Relating to International Carriage
by Air. These instruments address the same subject matter as
the more recent Montreal Convention discussed above.
The Hague Protocol streamlines the Warsaw Convention's
documentation requirements for international carriage of
passengers, baggage, and cargo by limiting the information
required to be included in cargo airway bills, passenger
tickets, and baggage checks. It also narrows the circumstances
under which failure to comply with such documentation
requirements related to carriage of cargo would preclude the
application of relevant carrier liability provisions. The
Protocol also generally permits plaintiffs to recover court
costs and other expenses of litigation they incur in connection
with pursuing claims under the Warsaw Convention as amended.
The Hague Protocol also amends Article 25 of the Warsaw
Convention, which allows plaintiffs to exceed the liability
limits of Article 22 under certain circumstances. Under the
Warsaw Convention, the liability limits may be exceeded if it
is proved that the damage is caused by the ``willful
misconduct'' of the carrier. Under Article XIII of the Hague
Protocol, the ``willful misconduct'' standard was modified with
a description of the conduct itself. The Committee developed a
record on this matter in an exchange of questions with the
Executive Branch during the review of the Montreal Protocol No.
4 in 1998. See S. Exec. Rept. 105-20, at 47, 52-53. This
provision of the Hague Protocol is, however, unlikely to have
much substantive effect on future litigation in the United
States, because most carriers flying to and from this country
are signatories to the 1996 inter-carrier agreements in which,
by contract, the carriers waived the liability limits of the
Warsaw system.
IV. Implementing Legislation
No implementing legislation is necessary for either the
Montreal Convention or the Hague Protocol.
V. Committee Action
The Committee held a public hearing on these treaties on
June 17, 2003 where it heard testimony from representatives of
the Departments of State and Transportation (a transcript of
this hearing and questions and answers for the record may be
found in the appendix to this report). On July 23, 2003, the
Committee considered these treaties and ordered them favorably
reported by voice vote, with the recommendation that the Senate
give its advice and consent to their ratification, subject to a
reservation contained in the resolution of advice and consent
to ratification to the Montreal Convention.
VI. Committee Recommendation and Comments
The Committee recommends that the Senate advise and consent
to the ratification of both the Montreal Convention and the
Hague Protocol. In the case of the Montreal Convention, the
Committee recommends that the Senate's advice and consent be
made subject to a reservation.
The Committee recommends that the Senate's advice and
consent to the Montreal Convention be made subject to a
reservation that the Convention shall not apply to
international carriage by air performed by the United States of
America for non-commercial purposes in respect of the functions
and duties of the United States of America as a sovereign
state. This reservation is specifically contemplated by Article
57 of the Montreal Convention, and was recommended by the
Executive Branch when it transmitted the Convention to the
Senate. The United States has made a similar reservation to its
ratification of the Warsaw Convention; making this reservation
to the Montreal Convention will thus serve to maintain the
current exemption of such state-operated aircraft from
regulation.
VII. Resolutions of Ratification
The Montreal Convention
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO RESERVATION.
The Senate advises and consents to the ratification of the
Convention for the Unification of Certain Rules for
International Carriage by Air, done at Montreal May 28, 1999
(T. Doc. 106-45, in this resolution referred to as the
``Convention''), subject to the reservation in section 2.
SEC. 2. RESERVATION.
The advice and consent of the Senate to the ratification of
the Convention is subject to the following reservation, which
shall be included in the instrument of ratification:
Pursuant to Article 57 of the Convention, the United
States of America declares that the Convention shall
not apply to international carriage by air performed
and operated directly by the United States of America
for non-commercial purposes in respect to the functions
and duties of the United States of America as a
sovereign State.
The Hague Protocol
Resolved (two-thirds of the Senators present concurring
therein), That the Senate advises and consents to the
ratification of the Protocol to Amend the Convention for the
Unification of Certain Rules Relating to International Carriage
by Air, signed at Warsaw on October 12, 1929, done at The Hague
on September 28, 1955 (T. Doc. 107-14).
VIII. APPENDIX
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TREATIES RELATED TO AVIATION AND THE ENVIRONMENT
----------
CONTENTS
Page
Byerly, Mr. John R., Deputy Assistant Secretary of State for
Transportation Affairs, Department of State, Washington, DC... 17
Prepared statement............................................ 18
Questions for the record on the Montreal Convention (Treaty
Doc. 106-45) and the Hague Protocol (Treaty Doc. 107-14)
submitted by:
Senator Lugar............................................. 68
Senator Biden............................................. 69
Shane, Hon. Jeffrey N., Under Secretary for Policy, U.S.
Department of Transportation, Washington, DC.................. 12
Prepared statement............................................ 15
Questions for the record on the Montreal Convention (Treaty
Doc. 106-45) and the Hague Protocol (Treaty Doc. 107-14)
submitted by:
Senator Lugar............................................. 68
Senator Biden............................................. 69
Turner, Hon. John F., Assistant Secretary of State for Oceans and
International Environmental and Scientific Affairs, Department
of State, Washington, DC...................................... 25
Prepared statement............................................ 27
Questions for the record on the U.S.-Russia Polar Bear Treaty
(Treaty Doc. 107-10) submitted by Senator Biden............. 93
Questions for the record on the U.S.-Canada Albacore Tuna
Treaty (Treaty Doc. 108-1) submitted by Senator Biden....... 99
Questions for the record on the Pacific Island States
Fisheries Treaty (Treaty Doc. 108-2) submitted by:
Senator Lugar............................................. 100
Senator Biden............................................. 101
Questions for the record on the Stockholm POPs Convention
(Treaty Doc. 107-5) submitted by:
Senator Biden............................................. 101
Senator Feingold.......................................... 109
Senator Boxer on behalf of herself and Senators Jeffords,
Kerry and Sarbanes...................................... 108
Questions for the record on the Rotterdam PIC Convention
(Treaty Doc. 106-21) submitted by Senator Biden............. 109
Additional Statements Submitted for the Record
Air Crash Victims Families Group, Hans Ephraimson, spokesman...... 37
Air Transport Association of America, Inc......................... 40
American Chemistry Council, Larry W. Rampy, Product Stewardship
Team.......................................................... 42
Alaska Nanuuq Commission, Charles H. Johnson, executive director.. 44
Bering Sea Program, World Wildlife Fund, Margaret Williams,
director...................................................... 45
Defenders of Wildlife, Mark L. Shaffer, Ph.D., senior vice
president, Programs........................................... 46
Environmental Technology Council, Scott Slesinger, vice president
for Governmental Affairs...................................... 47
FedEx Express, Thomas F. Donaldson, vice president, Regulatory
Affairs....................................................... 51
Global Threats Program, World Wildlife Fund, Brooks B. Yeager,
vice president................................................ 52
Jeffords, Hon. James M., U.S. Senator from Vermont................ 61
Kerry, Hon. John F., U.S. Senator from Massachusetts.............. 62
Madole, Juanita M., counsel to the law firm of Speiser Krause..... 63
Physicians for Social Responsibility, Karen L. Perry, deputy
director, Environment and Health Program...................... 65
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TUESDAY, JUNE 17, 2003
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The committee met, pursuant to notice, at 9:30 a.m. in room
SD-419, Dirksen Senate Office Building, Hon. Richard G. Lugar
(chairman of the committee), presiding.
Present: Senators Lugar and Sarbanes.
The Chairman. This hearing of the Senate Foreign Relations
Committee is called to order. The committee meets today to hear
testimony on a series of treaties on aviation and environmental
issues. Within the Congress, the Senate Foreign Relations
Committee is charged with the unique responsibility of
reviewing treaties concluded by the administration, and our
colleagues in the Senate depend on us to make timely and
judicious recommendations on treaties. It's a serious
responsibility, and I know that all members of the committee
understand the importance of our role in this process.
In advance of this hearing, the committee has worked hard
with the administration to prepare a set of treaties for
committee consideration on which there is substantial
agreement. Committee staff have reviewed these treaties
carefully. We have held a formal committee briefing, and
administration representatives have been available to answer
questions. I appreciate the support and cooperation of Senator
Biden and his staff throughout this process.
I'm pleased to welcome today representatives from the
administration who are with us this morning, and our witnesses
possess deep expertise on these treaties, most of which involve
relatively esoteric matters of policy and international law.
First of all, we will hear from Jeffrey Shane, Under
Secretary for Policy at the Department of Transportation, and
John Byerly, Deputy Assistant Secretary of State for
Transportation Affairs. They will testify on two aviation
agreements, the 1999 Montreal Convention for the Unification of
Certain Rules for International Carriage by Air, and the 1955
Hague Protocol to Amend the 1929 Warsaw Convention for the
Unification of Certain Rules Relating to International Carriage
by Air.
These agreements update antiquated treaty rules that
passengers rely on to protect their interests when they fly
internationally. The treaties will improve the fairness and
efficiency of the rules that govern how passengers on
international flights are compensated for losses during air
travel. These losses include both tragic cases involving the
death or serious injury of passengers, and more routine cases
involving minor injury or damage to property.
The agreements also will fill gaps that currently exist in
our web of treaty relationships, removing uncertainties faced
by individuals and companies that ship cargo to and from
countries with which we currently lack treaty relationships.
Then we will hear from John Turner, Assistant Secretary of
State for Oceans and International Environmental and Scientific
Affairs. Assistant Secretary Turner will testify on five
environmental treaties. Two of these treaties relate to
hazardous chemicals. The Stockholm Convention on Persistent
Organic Pollutants severely restricts the international
production and use of a dozen toxic chemicals, the so-called
dirty dozen. These chemicals include DDT, dioxin, and PCBs. All
12 are already banned or severely restricted domestically by
the United States. President Bush hailed this agreement when
announcing the United States' decision to sign it in 2001. It
represents a major step forward for international environmental
protection.
We also will hear testimony on the Rotterdam Convention on
the Prior Informed Consent Procedure for Certain Chemicals in
International Trade. This agreement will help to ensure that
hazardous chemicals are not transported across national borders
without the prior knowledge and consent of the importing
country. It builds on a set of existing voluntary procedures
that are used by more than 150 countries, including the United
States.
Mr. Turner will then testify on three treaties related to
fish and wildlife. Two of these agreements amend existing
fisheries treaties, one with Canada and the other with Pacific
Island states. The other is a treaty with Russia to help
conserve the polar bear population, chaired by the United
States and the Russian Federation.
I understand that these seven treaties enjoy wide support
among the constituencies whose interests they affect. The
committee welcomes statements or briefing materials on the
treaties from any interested party. These statements should be
submitted to the committee by the end of this week.
I commend the United States officials who have worked on
these agreements for successfully negotiating documents that
command wide support. Some of these agreements are the product
of years of dedication and patient negotiations. Prompt
ratification of these agreements will help the United States
continue to play a leadership role internationally on these
issues and will serve to advance United States' interests. It
is my hope that our committee will report resolutions of
ratification on each of these agreements prior to the August
recess. Today's hearing is an important step in this process.
I look forward to the contributions of our witnesses. I
would suggest that we proceed by hearing first from Mr. Shane
and Mr. Byerly on the aviation treaties, and following
questions on those treaties, I will excuse these witnesses,
because Mr. Byerly needs to catch an international flight. We
will then proceed to hear from Mr. Turner on the environmental
treaties and settle into those five treaties later on in the
hearing.
It is a real privilege to have each one of you before us
today, and I would like to call upon you, Mr. Byerly, for your
testimony, or Mr. Shane, if that is your preference. Perhaps
you gentlemen have worked out a modus vivendi for the hearing.
STATEMENT OF HON. JEFFREY N. SHANE, UNDER SECRETARY FOR POLICY,
U.S. DEPARTMENT OF TRANSPORTATION, WASHINGTON, DC
Mr. Shane. Yes, Mr. Chairman, we have, and good morning,
Mr. Chairman. It is a great pleasure to appear before you today
to urge that the Senate give its advice and consent to
ratification of the 1999 Montreal Convention, and the 1955
Hague Protocol.
As you've indicated in your opening remarks, these two
treaties will facilitate a long overdue modernization of the
rules governing airlines' liability to passengers and shippers
during international flights. It's a special pleasure for me to
be here together with my friend and colleague of many years,
John Byerly, who has been a real partner in this long
enterprise.
Mr. Chairman, I have a longer prepared statement that I
would ask to be submitted to the record.
The Chairman. Your statement will be published in the
record in full, and that will be true for you, Mr. Byerly and
Mr. Turner, so each one of you know that you will have that
privilege, and please proceed in any way you wish.
Mr. Shane. Thank you, Mr. Chairman. I'll just try to
summarize the longer statement.
The Montreal Convention was signed by the United States and
51 other countries on May 28, 1999. To date, 29 countries have
ratified it, just one short of the 30 that are needed to become
effective. This new treaty will replace the outdated 1929
Warsaw Convention, and represents the culmination of a 40-year
effort by the Department of Transportation, the State
Department, families' organizations, and many others to
increase the clearly inadequate passenger liability limits that
are currently in place under the Warsaw Convention.
Absent an airline's voluntary waiver of the Warsaw
liability limits, recoveries for death or injury during an
accident that occurs on an international flight to or from the
United States are currently subject to a limit of $75,000 per
passenger. That limit has been in place since 1966, and was
really a product of an agreement extracted by the Civil
Aeronautics Board. The truth is that the limit in many foreign
markets is actually much less than that.
Ratification of Montreal 1999 would bring about a number of
important improvements. Most important, the new convention
entirely eliminates all artificial monetary limits on
recoveries from the airline for proven damages with respect to
the death or injury of a passenger during an international
airline mishap. First, it establishes strict liability on the
part of the airline for proven damages up to 100,000 special
drawing rights, or approximately $141,000 under the current
conversion rate. That means in any accident there will be
automatic recovery of $141,000, regardless of whether the
airline was actually at fault.
Second, the convention permits the recovery of additional
proven damages above 100,000 SDRs without any limit whatsoever.
The only exception would be a case in which the airline was
able to show that it was not responsible for any of the damage
done, or that the damage was solely due to the responsibility
of a third party.
A second major passenger benefit provided by the Montreal
Convention is the right of claimants to bring action in a forum
related to the passenger's principal and permanent residence.
This provision will ensure in the vast majority of cases that
an injured American passenger or a claimant on behalf of a
deceased American passenger will be able to bring action in a
U.S. court. Under Warsaw, not only are the limits of recovery
hopelessly inadequate, and worst of all in many foreign-to-
foreign markets, but Americans have no assurance that they can
even sue in a U.S. court.
The convention also includes provisions that clarify the
liability regime for cooperative marketing arrangements such as
code-sharing. For air travel pursuant to a code-sharing
agreement, both the operator of the aircraft and the carrier
whose airline code is used for ticketing purposes are jointly
liable to the passenger.
Finally, for the carriage of air cargo, the new convention
retains the important improvements brought about by Montreal
Protocol Number 4, which became effective in the United States
in March 1999. The most conspicuous advance in that treaty
permitted the use of state-of-the-art electronic data
transmission in documenting air cargo shipments, an efficiency
that was seriously impeded by the old Warsaw Convention
documentation requirements.
I'm also here today to express the administration's hope
that the Senate will give advice and consent to ratification of
a second aviation treaty, the 1955 Hague Protocol to the Warsaw
Convention. Like the Montreal Convention, the Hague Protocol
contains provisions that modernize the rules governing airline
liability for damage to air cargo, notably, again, the rules
governing the documentation of air freight shipments.
You may wonder why we are proposing ratification of Hague,
when Montreal Protocol Number 4, which is already in force for
the United States, does even more to modernize the air cargo
liability regime, and when that protocol's improvements are
incorporated in the Montreal Convention that I was just
discussing and that we hope will take effect shortly.
The reason is that it will be some time before all possible
shipments to and from the United States are covered, either by
the benefits of Montreal Protocol 4 or the 1999 Montreal
Convention. In the interim, it is important to assure that at
least the Hague documentation improvements prevail in
situations where the origin or destination of the cargo is in a
country that has not ratified either Montreal Protocol 4 or the
Montreal Convention.
To illustrate the point, recent litigation has created
uncertainty about whether the Hague documentation provisions
would apply between the United States, which is not currently a
party to Hague, and countries that are party to the Hague, but
not party to Montreal Protocol 4.
Ratification of the Hague Protocol by the United States
would resolve this issue once and for all, and it is important
to do so immediately because the vast majority of countries
that have not yet ratified Montreal Protocol 4 or the Montreal
Convention have ratified Hague. U.S. ratification of Hague, in
other words, would facilitate the use of modern documentation
in almost all cargo movements between the United States and
other countries, even prior to the expected worldwide adoption
of the Montreal Convention, and it is therefore strongly
supported by our airlines.
In conclusion, Mr. Chairman, let me just note that prompt
ratification of the Montreal Convention of 1999 has been called
for by victims' families' organizations, the airline industry,
plaintiffs' and defense lawyers, and manufacturers of aircraft
and aircraft engines. In all the years that I've been privy to
this effort, and that's a lot of years, Mr. Chairman, I have
never seen so broad and so deep a consensus about what the
United States must do now. After so many years of work by so
many interested groups, I am pleased to report that
ratification now would be a unanimously celebrated win-win
achievement of historic significance.
That concludes my prepared statement. I would certainly be
prepared to answer any questions you may have afterwards.
[The prepared statement of Mr. Shane follows:]
Prepared Statement of Jeffrey N. Shane, Under Secretary for Policy,
U.S. Department of Transportation
Chairman Lugar, Senator Biden and Members of the Committee, it is
with great pleasure that I appear before you today in support of Senate
ratification of the 1999 Montreal Convention and the 1955 Hague
Protocol. Together, these two treaties will facilitate a long overdue
modernization of the rules governing airlines' liability to passengers
during international flights.
montreal convention of 1999
The Montreal Convention was signed by 52 countries, including the
United States, on May 28, 1999. To date, 29 countries have ratified the
Convention, just one short of the 30 needed for it to become effective.
This new Convention is intended to replace the outdated 1929 Warsaw
Convention and the regime that has developed around it. It represents
the culmination of a 40-year effort, by the Department of
Transportation, the State Department and many others, to rectify the
injustices to international airline passengers and their families
created by the archaic and now grossly inadequate passenger liability
limits established under the Warsaw Convention. Currently, absent a
voluntary waiver of the Warsaw liability limits by a carrier,
recoveries for deaths or injuries arising as the result of an accident
that occurs during an international flight to or from the United States
are subject to a limit of $75,000, and can be limited to as little as
$10,000 for flights in other markets, unless the passenger or the
passenger's estate is able to prove ``willful misconduct'' on the part
of the airline.
Ratification of Montreal 1999 would therefore facilitate a long
overdue modernization of the liability regime governing international
air travel.
First and foremost, the new Convention entirely eliminates all
artificial monetary limits on recoveries from the airline for proven
damages with respect to the death or injury of a passenger occurring as
the result of an international airline accident. It also provides for
``strict'' liability--recoveries regardless of the carrier's fault--for
proven damages up to 100,000 Special Drawing Rights, or approximately
$141,000 under the current conversion rate.
Moreover, there would be no limit on the recovery of additional
proven damages. Above the 100,000 SDR amount, the airline would retain
its ability to show that the damage done was either not due to its own
negligence or other wrongful act or omission or that the damage was
solely due to the negligence or other wrongful act or omission of a
third party. If a third party were only partially at fault, the carrier
would remain liable as joint tortfeasor. In other words, if both the
carrier and, for example, an aircraft repair station were each
partially negligent, the carrier would be liable for the full amount of
the proven damages, subject to contribution toward the recovery by the
repair station.
Another major passenger benefit provided by this Convention--not
available under the Warsaw Convention--is the right of claimants to
bring their action in a forum based on the passenger's principal and
permanent residence. This provision will assure, for the vast majority
of cases, that an injured American passenger or a claimant acting on
behalf of a deceased American passenger would be able to bring action
in a U.S. court. Under the Warsaw Convention, when a ticket is
purchased on a foreign carrier outside the United States and the
destination is also a place outside the United States, claims arising
out of an accident on such a flight could not be brought in the United
States. Under the new Convention, an action on behalf of a U.S. citizen
or other passenger that was permanently resident in the United States
at the time of the accident may be brought in a U.S. court as long as
the carrier meets certain reasonable tests to determine whether it has
a commercial presence in the United States, including through code
sharing operations with other carriers.
The new Convention also includes provisions that clarify the
liability regime for cooperative marketing arrangements such as code
sharing. One very important aspect of these provisions is the
clarification that, for carriage pursuant to a code-sharing agreement,
both the operating carrier on whose aircraft the accident occurs and
the carrier whose airline designator code is used for ticketing
purposes are jointly liable to the passenger. Given the proliferation
of code-share arrangements through the global alliances that have
developed in recent years, this is a significant and important new
protection for international air travelers.
Finally, for the carriage of air cargo, the new Convention retains,
in all substantive respects, the important improvements brought about
by Montreal Protocol No. 4, which became effective in the United States
on March 4, 1999. Probably the most conspicuous advance in that treaty
permitted the use of state-of-the-art electronic data transmission in
documenting air cargo shipments. The Warsaw Convention's documentation
requirements are wholly out of step with today's just-in-time,
information-technology-driven approach to logistics. The new Montreal
Convention retains those critical provisions. Importantly, the new
Convention also has a provision for periodic inflation-related
adjustments of the liability limits for baggage, cargo, delay, and the
level up to which ``strict'' liability applies for passenger deaths and
injuries.
As I indicated at the outset, in order to become effective the new
Convention requires 30 ratifications to come into force. Twenty-nine
ratifications already have been deposited with the International Civil
Aviation Organization and so we have every reason to anticipate that
the new treaty will enter into force very soon. It would be both
unfortunate and ironic if it did not enter into force for the United
States--one of the principal advocates of a more humane liability
regime for international passenger travel--because we ourselves had not
yet ratified it. It also seems clear that many more countries will
ratify this Convention once the United States does so. Accordingly, if
the Senate were to ratify this Convention, we anticipate that it would
be very widely adhered to, just as the predecessor Warsaw Convention
was.
the 1955 hague protocol
I am also here today to articulate the Department's strong support
for ratification of the 1955 Hague Protocol to the Warsaw Convention.
The Hague Protocol amended the Warsaw Convention. Montreal Protocol No.
4, which updates the liability regime for air cargo in important ways,
is actually an amendment of the Warsaw Convention as amended by the
Hague Protocol. Montreal Protocol No. 4--which became effective for the
U.S. in 1999--is in fact predicated on cargo documentation improvements
that first appeared in the Hague Protocol, although the new Protocol
refined those provisions even further.
Unfortunately, because Hague contained such low passenger liability
limits--a ceiling on recoveries of $20,000 per passenger--the U.S. was
not willing to ratify it until now. In effect, we intentionally
sacrificed an opportunity to update the air cargo liability regime
through Hague because of its inadequate benefits for passengers.
You may wonder why we are proposing ratification of Hague now, when
its modernization of the air cargo liability regime has already been
accomplished--and more--in Montreal Protocol No. 4. The reason is that
it will be some time before all possible journeys are covered by the
benefits of Montreal Protocol No. 4 or the 1999 Montreal Convention. In
the interim, it is important to assure that the Hague documentation
improvements would prevail in situations where the origin and
destination of the cargo is in a country that had not ratified either
Montreal Protocol No. 4 or the Montreal Convention.
Recent litigation has drawn attention to the question of whether
the Hague documentation provisions would apply as between the United
States and countries that are party to the Hague Protocol, but not to
Montreal Protocol No. 4. Ratification of the Hague Protocol would
eliminate this issue. It is important to do so because the vast
majority of countries that have not yet ratified Montreal Protocol No.
4 or the Montreal Convention have ratified Hague. U.S. ratification of
Hague therefore would facilitate the use of modem documentation in
almost all cargo movements between the U.S. and other countries, even
where those other countries have not yet ratified Montreal Protocol No.
4 or the Montreal Convention. Ratification of the Hague Protocol thus
is deemed essential by our airlines.
The problem of the low passenger liability limits contained in the
Hague Protocol should no longer be an impediment to its ratification.
Recognizing the inadequacy of existing passenger liability limits under
the Warsaw-Hague regime, most of the world's major airlines signed
intercarrier agreements in 1996 that waive the Warsaw-Hague passenger
liability limits in their entirety. Many have also agreed to pay up to
100,000 Special Drawing Rights to accident victims regardless of
whether the carrier was negligent or not. Thus, in those situations
where the Montreal Convention of 1999 does not apply, but where Hague
would apply if ratified for the purpose of modernizing the air cargo
regime more widely, these voluntary carrier agreements will go a long
way towards filling the residual passenger liability gap until the
Montreal Convention of 1999 is more widely adopted.
Prompt ratification of the Montreal Convention of 1999 has been
called for by victims' families' organizations, the airline industry,
plaintiffs' and defense lawyers, and manufacturers of aircraft and
aircraft engines. After years of work by a great many interested
groups, I am pleased to report that ratification now would be a win-win
achievement of historic significance.
That concludes my prepared statement. I would be pleased to answer
any questions you may have.
The Chairman. Thank you very much, Mr. Shane.
Mr. Byerly, do you have additional comments?
STATEMENT OF JOHN R. BYERLY, DEPUTY ASSISTANT SECRETARY OF
STATE FOR TRANSPORTATION AFFAIRS, DEPARTMENT OF STATE,
WASHINGTON, DC
Mr. Byerly. Yes, sir, and thank you very much, Mr.
Chairman, for the opportunity to be before this committee
today, and thank you also for accommodating my need to travel
to Europe this evening. That is very courteous and kind of you.
Under Secretary Shane has outlined what these two treaties
would accomplish, and why ratification is so clearly in our
Nation's interest. With your permission, I have submitted my
written testimony for the record, and I will very briefly
summarize four points I would wish to underscore.
The Chairman. Very well.
Mr. Byerly. First, our country has an historic opportunity
today. For almost half a century, America has sought to alter
and to improve the airline accident liability regime
established in 1929 by the Warsaw Convention, a treaty that was
negotiated in the infancy of commercial aviation and one that
is clearly inadequate today. It has been that way for a long
time.
In fits and starts, the United States achieved partial
improvements over the years, but it was only in 1999, with the
landmark negotiation of the Montreal Convention, that we
achieved the full breakthrough that was needed. This convention
eliminates entirely the artificial caps on liability which are
the bane of the Warsaw system. It also incorporates the so-
called fifth basis of jurisdiction, which will allow access to
U.S. courts for virtually all American accident survivors and
the families of American victims of airline accidents.
A second and related point, the Montreal Convention, if
ratified, will make a true difference in the lives of American
citizens. It will facilitate prompt assistance to survivors and
to the relatives of victims. It will bypass time-consuming
litigation over the myriad complexities of the Warsaw legal
patchwork, and it will also end the burden imposed on so many
American families of having to pursue legal redress far from
home, in foreign legal systems, at great expense, and with huge
uncertainty.
The third point I would wish to make is that ratification
by the United States will ensure that the Montreal Convention
enters into force this year. This action would permit us at the
State Department, at DOT, and at our embassies abroad to go
forth and persuade the rest of the world to join us as parties
to this historic treaty. It will be our goal to achieve for the
Montreal Convention the same virtually universal adherence that
applied in the past to Warsaw.
With the approval of your committee, and with the advice
and consent of the Senate, we can seize this unique
opportunity. We can make an enormous difference for every
American who suffers or whose family members suffer the tragedy
of an airline accident, and we can change the legal framework
of international aviation forever, and for the better.
My fourth and final point concerns the Hague Protocol.
Pending wide adherence to the Montreal Convention by other
countries, U.S. ratification of Hague would provide important
interim modernization of the cargo rules, benefiting both
shippers and consumers as well as airlines.
Mr. Chairman, so many have worked for decades to accomplish
the legal breakthrough represented in the Montreal Convention,
and many of them are in this room today. Hans Ephraimson, who
lost his daughter in the KAL-007 tragedy and is spokesman of
the Air Crash Victims Families Group; Allan Mendelsohn, my
predecessor in two jobs in the State Department and a
contributor to this effort over the years; Don Horn and Peter
Schwarzkopf of the General Counsel's office at the Department
of Transportation; and Jennifer Gergen, Sam Witten, and David
Newman of the Legal Advisor's office at State are among so many
who have contributed and sought to achieve what was
accomplished in 1999 in Montreal, and which we can embark on
right now.
I'm both honored and humbled to be among them and to come
before you today to request that the Senate give its advice and
consent to ratification of these two treaties.
Thank you.
[The prepared statement of Mr. Byerly follows:]
Prepared Statement of John R. Byerly, Deputy Assistant Secretary of
State for Transportation Affairs, Department of State
Mr. Chairman and Members of the Committee:
I welcome the opportunity to present, together with the Department
of Transportation, the views of the Administration regarding the
Convention for the Unification of Certain Rules for International
Carriage by Air, Done at Montreal 28 May 1999 (``the Montreal
Convention'' or the ``Convention'') and the Protocol to Amend the
Convention for the Unification of Certain Rules Relating to
International Carriage by Air Signed at Warsaw on October 12, 1929,
Done at The Hague September 28, 1955 (``The Hague Protocol'' or ``the
Protocol'').
introduction
We urge the Senate to seize an historic opportunity to give its
advice and consent to ratification of these two important treaties. For
almost half a century, the United States has sought to replace the
outmoded airline accident liability system established by the Warsaw
Convention of 1929. The Montreal Convention would do just that and can
make a real difference in the lives of American citizens by abolishing
unreasonable liability limits and allowing most American accident
victims and their families to seek redress in U.S. courts against
foreign airlines. The Convention would modernize and clarify other
aspects of the international airline accident liability system,
including the rules applicable to code-share flights and to liability
for the carriage of cargo. Pending wide adherence to the Montreal
Convention by other countries, U.S. ratification of The Hague Protocol
would provide important interim modernization of the cargo rules, which
recent litigation has shown to be needed.
With the advice and consent of the Senate, the United States can be
among the initial group of countries ratifying the Montreal Convention.
Once we have acted, we will undertake a broad global effort to urge
additional countries to join us, with the goal of achieving universal
adherence.
The Administration seeks the advice and consent of the Senate to
ratification of the Montreal Convention subject to a declaration to be
made on behalf of the United States that the Montreal Convention shall
not apply to international carriage by air performed and operated
directly by the United States for non-commercial purposes in respect to
its functions and duties as a sovereign State. Such a declaration would
be consistent with the declaration made by the United States under the
Convention for the Unification of Certain Rules Relating to
International Transportation by Air, Done at Warsaw 12 October 1929
(the ``Warsaw Convention'') and is specifically permitted by the terms
of the Montreal Convention.
the montreal convention
The Montreal Convention is a remarkable accomplishment for U.S.
aviation policy and U.S. diplomacy. The U.S. delegation at the
diplomatic conference that negotiated this agreement in May of 1999
achieved all of America's core objectives. The new Convention has the
potential to eliminate the patchwork of airline liability regimes
around the world and replace it with a new, uniform set of rules
appropriate for today's airlines and today's passengers and shippers.
Indeed, the 1999 Montreal Convention is the culmination of almost a
half century of efforts by the United States to increase, and later to
eliminate, the unconscionably low limits of liability applicable under
the 1929 Warsaw Convention when passengers are killed or injured in
international air carrier accidents. The Convention contains all of the
key provisions sought by the United States at the outset of the
negotiations. At the same time, since major portions of the Convention
are based on, and generally follow the language of, the 1929 Warsaw
Convention and a related protocol to which the United States is already
a party (Montreal Protocol No. 4), prior judicial interpretations under
those treaties are expected to have continuing validity.
benefits under the montreal convention
The significant new benefits of the Montreal Convention include:
The new Convention eliminates the meager and arbitrary
limits of liability applicable under the Warsaw Convention when
passengers are killed or injured in international air carrier
accidents. These limits applied in all cases, except where the
harm was due to the carrier's willful misconduct.
Under the Convention, in almost every case, American
survivors of international aircraft accidents and the families
of American accident victims will have access to U.S. courts in
seeking damages for the losses they suffered.
The Convention requires air carriers to make payments of up
to approximately $141,000 of proven damages on behalf of
accident victims, without regard to whether the airline was
negligent.
An escalation clause provides that monetary limits and
thresholds that survive in the Convention will be adjusted for
inflation.
Provisions on code sharing and similar arrangements clarify
that when the airline operating a flight is not the airline
from which the transportation was purchased, a passenger may
recover from either the airline operating the aircraft at the
time of the accident or the airline whose code is carried on
the passenger's ticket.
The Convention furthers U.S. efforts to ensure that U.S. air
cargo carriers and shippers can take advantage of technological
innovations now available to facilitate and expedite the
processing of international air cargo.
The Convention simplifies litigation and promotes fairness
through the passenger benefits described above, including
eliminating all arbitrary limits on compensatory damages for
passenger death and injury claims, among others, and by barring
non-compensatory damages in all cases, consistent with existing
law; and by establishing, in clear language, its exclusivity in
the area of claims for damages arising in the international
transportation of passengers, baggage and cargo.
While the Convention provides essential improvements upon
the Warsaw Convention in many respects to improve the rights of
passengers, it also preserves established law relating to other
aspects of the Warsaw Convention that were acceptable, to avoid
unnecessary litigation. For example, the Convention preserves
the status quo relative to legal actions against airline
employees (Articles 30, 43). Consistent with existing law in
the United States, the Montreal Convention extends to a
carrier's employees acting within the scope of their employment
all of the ``conditions and limits of liability'' available to
the carrier under the Convention--referring to the monetary
limits set out in Articles 21 and 22 of the Convention and the
conditions under which those monetary limits may be exceeded.
The Montreal Convention has been signed by 71 countries, and has
been ratified by 29 countries to date--only 1 short of the 30 required
to bring the Convention into effect. In addition, given the importance
of the United States and its airlines in international aviation, many
countries are thought to be awaiting U.S. ratification before taking
action themselves.
history of efforts to modernize the warsaw convention
To date, in the area of claims for damages arising in the
international transportation of passengers, baggage and cargo, the
United States has ratified only the Warsaw Convention and the Protocol
to Amend the Convention for the Unification of Certain Rules Relating
to International Carriage by Air, Done at Warsaw 12 October 1929 as
Amended by the Protocol Done at The Hague 28 September 1955, Done at
Montreal 25 September 1975 (``Montreal Protocol No. 4'')
Under Montreal Protocol No. 4, which entered into force for the
United States on March 4, 1999, the Warsaw Convention's rules relating
to international air cargo operations were fully modernized. However,
only 51 states are parties to Montreal Protocol No. 4. Moreover, the
Warsaw Convention's unamended provisions relating to airline liability
for death or injury to passengers are grossly inadequate. There were
several attempts to modernize those provisions through international
negotiations, but those efforts were unsuccessful.
In the early 1950s, multilateral negotiations achieved only
a doubling of the original Warsaw Convention's per passenger
liability limit (to what is now approximately $20,000), as
codified in The Hague Protocol of 1955. The United States did
not ratify The Hague Protocol.
Efforts to amend the Warsaw Convention in 1975 focused on
cargo issues, including the negotiation of Montreal Protocol
No. 4, which modernized Warsaw Convention provisions relevant
to the air-cargo industry. The United States ratified Montreal
Protocol No. 4 in 1998. In the area of airline liability for
passenger claims, provisions developed in a protocol done at
Guatemala City in 1971 were incorporated into Montreal Protocol
No. 3 (1975), but neither instrument was ratified by the United
States or entered into force.
In the absence of progress on airline liability for
passenger deaths or injuries at the intergovernmental level,
the major carriers of the world stepped into the breach, first
in 1966 and again in 1996 with the encouragement of the Civil
Aeronautics Board and Department of Transportation,
respectively. An inter-carrier agreement in 1966 raised
liability limits for airlines serving the United States to
$75,000 per passenger. A 1996 inter-carrier agreement provided
for airlines to waive liability limits with respect to claims
for passenger injury or death. Although these private
agreements provided a reasonable interim fix, the inter-carrier
agreements are not an adequate substitute for international
agreements, particularly in light of their narrow focus and
their voluntary nature.
In response to the inadequacy of the Warsaw Convention liability
limits, a number of States have adopted domestic laws or regulations,
further complicating the maze of rules comprising the international
liability regime. The Montreal Convention has the potential to end the
patchwork of airline liability regulation. U.S. consumers of
international air transportation will benefit from its modernized
liability provisions, and U.S. airlines will benefit from a uniform
international liability regime and a leveling of the playing field in
relation to airlines that now benefit from more limited liability
regimes.
the 1955 hague protocol
The President has also submitted for Senate advice and consent to
ratification the 1955 Hague Protocol to the Warsaw Convention. U.S.
ratification of The Hague Protocol would clarify for the cargo industry
the rules on cargo documentation that apply to the carriage of cargo
between the United States and 86 countries that are parties to that
instrument, but not to Montreal Protocol No. 4. It would secure for
U.S. carriers application of The Hague Protocol provisions in such
cases, which significantly streamline the antiquated cargo
documentation requirements of the Warsaw Convention.
Although The Hague Protocol also doubles the Warsaw Convention
passenger liability limit to what is now approximately $20,000, the
inter-carrier agreements of 1966 and 1996 have, as a practical matter,
superseded this meager recovery limit.
A recent U.S. court decision (Chubb & Son, Inc. v. Asiana Airlines,
214 F.3d 301 (2d Cir. 2000), cert. denied, 533 U.S. 928 (2001)) held
that, where the United States had ratified the Warsaw Convention but
had not ratified The Hague Protocol, and the Republic of Korea had
ratified The Hague Protocol but not the Warsaw Convention, Korea's
adherence to The Hague Protocol did not make it a party to the
unamended Warsaw Convention and there were no treaty relations between
the United States and Korea under either instrument.
Although the Chubb decision did not address Montreal Protocol No.
4, which entered into force in 1999 for the United States, it focused
industry attention on the question of whether the United States, by
reason of its adherence to Montreal Protocol No. 4, automatically
became a party to The Hague Protocol as such and therefore entered into
treaty relations under The Hague Protocol with other countries party to
that instrument (but not to Montreal Protocol No. 4).
If the courts were to conclude that Montreal Protocol No. 4 does
not create treaty relations under The Hague Protocol, the United
States' treaty relations with the 79 countries that are parties to both
the Warsaw Convention and The Hague Protocol, but not to Montreal
Protocol No. 4, would be based on the Warsaw Convention, unamended by
any later protocol, at least until such countries become parties to the
new Montreal Convention. (Nine of these countries have ratified the
Montreal Convention so far.) Further, in that situation, the United
States would have no treaty relations whatsoever under the Warsaw
Convention system with Korea and six other countries that are parties
only to The Hague Protocol. (None of these seven countries has ratified
the Montreal Convention to date.)
This is an unsatisfactory result. The 1929 Warsaw Convention
contains outdated rules in the area of cargo documentation, requiring
much specific information on the air waybill that has no commercial
significance today. These requirements: make international air cargo
transactions time consuming and inefficient, driving up their costs;
inhibit the free flow of international air commerce; and serve as a
barrier to electronic information exchanges. Under the Warsaw
Convention, U.S. cargo carriers must comply with these outmoded
documentation rules or risk deprivation by courts of the Convention's
benefits.
Ratification of The Hague Protocol will eliminate any ambiguity and
secure for the U.S. industry The Hague Protocol's more modern cargo
documentation rules, which are critical to the efficient movement of
air cargo, in relations with the 86 countries party to that instrument
(but not to Montreal Protocol No. 4), pending the entry into force and
widespread ratification of the Montreal Convention.
The Chairman. Thank you very much, Mr. Byerly. I appreciate
your recognition of a number of persons who have worked with
you and worked on behalf of ratification of these treaties.
Let me ask some basic questions which are covered in your
statements, just to underline my understanding and that of
those who may be reading this record. When you have mentioned,
Mr. Byerly, that the Montreal Protocol would clear up the
problem of attempting to bring suits or legal action in far-off
countries, do you mean by this that an American citizen who was
aggrieved could seek redress in American courts? In other
words, how does this simplification occur?
Mr. Byerly. Precisely as you stated, Mr. Chairman. The
Montreal Convention creates for the first time a basis of
jurisdiction, the so-called fifth basis of jurisdiction, in
addition to the four bases of jurisdiction in which the courts
of any State party to the Warsaw system could hear a case. This
allows jurisdiction by the U.S. courts not only in cases
against an airline that is domiciled or has its principal place
of business here, or where the passenger's destination was the
United States, or where the passenger made the contract for
carriage in the United States, but in addition, where the
passenger has his principal and permanent residence in all
cases where the carrier serves the United States, with its own
aircraft or through a commercial agreement such as code-
sharing, and that carrier has a presence here. It can have that
presence either itself, in its own name, or through a code-
share partner. Given the vastness of the United States'
aviation relations with countries and carriers around the
world, virtually all American citizens who are injured or
killed in airline accidents should be able to obtain access to
U.S. courts through this fifth basis of jurisdiction.
This has been a longstanding objective of the United
States. It was one that was opposed by many others, and in
achieving that in 1999, we achieved the breakthrough that was
critical, and that we had sought for decades.
The Chairman. Now, as you pointed out, 29 states ratified
Montreal. Presumably, if the U.S. Senate and our Government
ratifies, we're the 30th, which brings it into force. How soon
will it be brought into force, just in a technical way? At what
point do the provisions begin to prevail?
Mr. Byerly. Upon the deposit of the instrument of
ratification by the 30th state with the International Civil
Aviation Organization in Montreal, 60 days after that date the
treaty enters into force as among the parties to the treaty.
The Chairman. Now, I can understand the desire of those who
have suffered losses to eliminate the limits that were involved
previously. What has been the position of the airlines, both
domestic carriers, and those with whom you have negotiated
abroad? In other words, have they perceived in this some type
of virtually unlimited liability that would be ruinous to a
national airline, for example, in which sometimes countries
vest considerable prestige. I'm just simply curious about the
evolution of the negotiations which have led the parties to
this agreement.
Mr. Shane. Mr. Chairman, the Warsaw Convention has really
been pernicious in its effects, so pernicious that both
airlines and claimants have been disadvantaged by it. The
airline industry itself, recognizing that the reform of the
Warsaw system was going to take some time, took it upon itself
to actually enter into an intercarrier agreement. They have
done that both within the United States and also globally for
purposes of voluntarily waiving some of these really atrocious
limits on liability, simply in order to provide more humane
treatment of claimants in the aftermath of an accident.
What they want, however, rather than simply having a
voluntary agreement, which would obviously lead to some
different effects in different jurisdictions, is to go back
again to a global treaty like the Warsaw Convention, which
would have absolutely uniform application everywhere, and that
provides the stability and the predictability that the airline
industry needs. There was no argument with the industry
whatsoever about the importance of taking those artificial
limits off.
There are, as I mentioned in my statement, some specific
defenses that are available where the airline can say it
actually had nothing to do with the cause of the accident.
Those will be pretty rare instances, I think. The industry
feels that this is the best approach, and so there really has
not been a disagreement with the industry at all on this
important point.
The Chairman. As you pointed out in that last response, the
Warsaw Treaty is comprehensive. At this point, Montreal, with
our ratification, would have 30 countries, which is obviously
somewhat less than that. What does that mean in a common sense
way, if a citizen is unlucky enough to be flying on an airline
that does not have at least a country that has ratified this?
Presumably you fall back on the Warsaw Convention or others,
but--in other words, as a practical matter, how rapidly do the
Montreal provisions come into effect, how comprehensive are the
30 countries that will have ratified it?
Mr. Byerly. Thirty countries will, of course, be 30
countries.
The Chairman. What percentage may be of the airlines of the
world, or the air traffic, do you have any idea?
Mr. Shane. I don't have any idea of what the 30 countries
would represent in terms of coverage, but we don't intend by
any means to stop at 30. What's very clear is, a lot of
countries are sitting on the fence right now waiting to see
what we do. If the United States ratifies, and we anticipate
that that will be the result, then it's fair to say that you
will see a real avalanche of additional ratifications.
The Warsaw Convention is the most widely subscribed to
international treaty that we have on the books. The Montreal
Convention will supersede Warsaw, and there's every reason to
think that the countries that have subscribed to Warsaw will
see good reason to ratify Montreal as well. Perhaps John Byerly
would like to talk about what the State Department intends to
do once we have a ratified treaty in the United States to
ensure that our trading partners follow suit.
The Chairman. That was my next question, will we be
advocates for ratification and work with other countries to
take that step?
Mr. Byerly. Mr. Chairman, absolutely, and I give you our
solemn pledge to that effect. I can give you my solemn pledge
that that will be our effort. We will work in various ways. Our
expectation is that upon U.S. ratification and entry into force
of the treaty we would go out to all countries of the world
through our embassies with what we call demarches in
``diplospeak,'' and we would inform them that we have become a
party, that the treaty is in force, and lay out the reasons, as
we're trying to do today, why it is a good idea for the entire
world.
Second, we would work in our bilateral and multilateral
aviation contacts to put this on the agenda of all our
discussions, urging other countries that aren't yet parties to
Montreal to become parties.
And finally, we would support the efforts of the
International Civil Aviation Organization, where this is a top
priority under the leadership of Dr. Kotaite, the president of
the ICAO Council, to support their efforts to ensure that
adherence to the Montreal Convention is something that is
universal. They've been very active on this front in the past
with prior aviation treaties.
Thank you.
The Chairman. Yes, Mr. Shane.
Mr. Shane. Mr. Chairman, I was just reminded by one of my
colleagues that as soon as the United States ratifies, even if
it ratifies all by itself, in the context of these 30 others,
or if it's part of the 30, all international round trips that
begin and end in the United States will immediately be covered
by the provisions under the Montreal Convention.
The Chairman. Thank you for that addition. I'm curious, I
remember the negotiations surrounding Montreal, and as you
pointed out, 1999 was sort of the year attached to this. What
has happened in the last 4 years? Have there been continuous
discussions or negotiations? I'm just simply curious. I'm
delighted the treaty is coming before us in this year, 2003,
but I'm curious as to why it has not come before us in earlier
years.
Mr. Byerly. Mr. Chairman, just as the Warsaw system is
complex, there is a certain complexity in the evolution of the
Montreal Convention. We submitted that convention to the Senate
under the administration of President Clinton in September
2000. However, it was not possible in that election year to
schedule a hearing.
Later in that year, or early in 2001, some litigation arose
involving a cargo question in litigation called Chubb v. Asiana
Airlines that raised some questions among carriers with respect
to the Hague Protocol and whether the United States was or was
not a party to that treaty in respect of certain other
countries.
After that was carefully considered, and it was a very
complex case, we decided, in conjunction with all the parties--
the relevant private sector parties, the airlines, the victims
groups--to submit or resubmit to the Senate for its advice and
consent to ratification the 1955 Hague Protocol to provide
stop-gap protection that Under Secretary Shane has outlined in
his testimony to you this morning.
Again, we had hoped in 2002 to have a hearing. That proved
impossible that year. It's 2003, and we're before you. Time
moves fast, and we hope that this year it will be possible, as
you have outlined in your statement, to receive positive action
on this before the summer break, if possible, and certainly
this year. Thank you.
The Chairman. Well, thank you for that candid explanation
of all the things that have occurred. I think it is important
in terms of public understanding that these treaties are
difficult. They are complex, and the interests sometimes are
not aligned.
I would just say parenthetically that one of the emphases
of our committee this year really is to work with each of the
departments of our Government to find those treaties that for
some reason are not slumbering, but are there on the shelf and
have not had the light of day. I think it is important that
these issues be brought to the fore, and we will take the time
to do so. We're really appreciative of this opportunity this
morning.
Without going into a great deal of historical reverie, when
I was last chairman of the committee in 1985 we had a similar
cleansing process. We sort of went through all the archives to
see what had been lying there for quite a while, and it was
amazing the number of treaties that stumbled out and that had
their day in court. So at least in that year, why, we
progressed further, and perhaps this will be another remarkable
year with regard to treaties. Certainly this one has enormous
merit.
Obviously, I am supportive, and I think that will be true
of my colleagues. As I pointed out, we will attempt to have a
business meeting of the committee prior to the recess for the
Fourth of July. If we miss that, we will miss by just a week,
and we will be back at it, but I anticipate activity very soon.
There are no more questions because there are no more
Senators to raise them. We appreciate both of you, your
testimony, your complete statements, as well as your
forthcoming responses and the work you're doing is obviously
important. With that, why, you are dismissed to go on to other
duties, and we will proceed to Mr. Turner and the five treaties
under his jurisdiction.
I thank you for coming.
Mr. Shane. Thank you, Mr. Chairman.
Mr. Byerly. Thank you very much, Mr. Chairman.
STATEMENT OF HON. JOHN F. TURNER, ASSISTANT SECRETARY OF STATE
FOR OCEANS AND INTERNATIONAL ENVIRONMENTAL AND SCIENTIFIC
AFFAIRS, DEPARTMENT OF STATE, WASHINGTON, DC
Mr. Turner. Good morning, Mr. Chairman.
The Chairman. Good morning, Mr. Turner.
Mr. Turner. Well, I and my colleagues at the State
Department certainly appreciate this opportunity to discuss
five important international environmental treaties which we
believe are important to environmental stewardship, are
important to protecting public health and provide economic
opportunities for American citizens and our neighbors.
In looking at these five treaties, two on hazardous
chemicals, two on fisheries, one on polar bears, I would just
like in my remarks to briefly describe each treaty.
The first, as you indicated, Mr. Chairman, is the Stockholm
Convention on Persistent Organic Pollutants, also known as the
POPs Convention. This proposal aims to protect human health and
also the environment from the 12 chemicals that have been
initially known as the dirty dozen that are of particular
concern due to their characteristics. And as you are aware,
these four characteristics are: first, they are extremely toxic
to not only humans but to other living resources; second, they
bio-accumulate, they magnify up the food chain especially in
fatty tissues; third, they persist in the environment for a
long time, they're extremely stable; and fourth, they are able
to travel a long distance. So regardless of where these are
released around the world, in fact they can come back, as we
have noticed, and be deposited, especially in our temperate
zone, where they are of concern to our Native Americans, who
often live on subsistence means, taking living resources from
the wild.
The POPs Convention, of course, deals with chemicals that
are already banned or severely restricted here in the United
States. In support of the POPs Convention, President Bush
appropriately said, ``the risks are great and the need for
action is clear. We must work to eliminate or severely restrict
the release of these toxins without delay.''
Under the Convention, parties commit to take steps similar
to those long practiced here in the United States to limit or
significantly restrict their production and use. And there are,
of course, exemptions for developing nations, especially on
DDT, where they have no substitute to address malaria. The
convention also intends that developed countries reach out to
developing countries and help them meet their responsibilities
in this chemical arena.
The second treaty proposed, Mr. Chairman, is the Rotterdam
Convention on the Prior Informed Consent, known as the PIC
treaty. This is the first global treaty designed to protect
human health and the environment from the risks of toxic
chemicals. In fact, I believe the negotiations started back in
the Reagan administration on a voluntary compliance mechanism.
The Convention recognizes that the United States and other
developed countries have the information, the resources, and
the programs to deal with risky chemicals. This Convention has
established a system of information sharing that promotes risk-
based decisions for chemical management by all countries around
the world.
The PIC convention simply stipulates that the export of
certain especially hazardous substances can only take place
with the prior informed consent of the importing countries.
When and if exported, however, the chemicals must be labeled
and accompanied by safety instructions explaining health risks
and application procedures.
Our third treaty is an amendment to a treaty with Canada on
Pacific Coast albacore tuna. This treaty, which has been around
for a long time, originally allowed mutual unlimited access by
U.S. vessels into Canadian water and unlimited access of
Canadian vessels into U.S. waters. In recent years, we've seen
the fish stock, the albacore, drifting south, where now the
fishing is done mostly in U.S. waters. For this reason, we've
seen more and more Canadian vessels fishing in our waters,
causing burdens to U.S. fishing interests.
This agreement before you limits cross-border fishing and
proposes a 3-year regime reducing Canadian entry into our
waters each year until the third year, where their levels will
be about at the 1998 average levels. It's a measure which we
feel is necessary to protect U.S. fishermen and the fish stock.
Our fourth treaty before you is an amendment to the 1987
treaty on U.S. access to the tuna-rich fishing grounds of the
South Pacific Island states. Under this proposal, we simply ask
for a 10-year extension which would allow U.S. vessels into
these waters. These tuna supplies are the life blood of the
economy of the American Samoa economic interests.
In addition, the amendments will allow U.S. longliners to
fish in the pockets of the high seas in this South Pacific
area. It will also allow parties to consider fishing capacity
in the future. It will require data sharing and will ensure
consistency with any future multilateral fish agreements which
might come into play, especially the Western and Central
Pacific Fisheries Convention.
Our last treaty, finally, is an agreement with Russia on
the Chukotka polar bear population in the Chukchi Sea. We feel
this is a very vulnerable population; it lives in the semipolar
region; and there are recent concerns about a higher harvest
level, especially on the Russian side, than this population can
sustain in the future. The treaty would provide a legal and
scientific and administrative framework for managing and
conserving polar bear populations shared by the United States
and Russia. It would coordinate a new regime of harvest
restrictions in cooperation with our Native Alaskans. It
culminates from discussions that I recall we started with
Russia back in the first Bush administration.
Mr. Chairman, in summary, I believe these proposed treaties
reflect well on our diplomatic efforts and U.S. leadership. It
reflects years and sometimes decades of hard work. These
treaties embody concepts that we cherish and embrace. They help
protect the health and economic well-being of the American
people, as well as strengthen our stewardship of living
resources out and around the world.
Our implementation will encourage other nations to take
similar action. We look forward to the Senate's early advice
and consent on these proposals. Again, thank you, Mr. Chairman,
and I look forward to trying to answer any of your questions.
[The prepared statement of Mr. Turner follows:]
Prepared Statement of Hon. John F. Turner, Assistant Secretary of State
for Oceans and International Environmental and Scientific Affairs,
Department of State
introduction
Thank you for the opportunity to appear before this Committee today
to discuss five important international agreements--the Stockholm
Convention on Persistent Organic Pollutants, with annexes, done at
Stockholm May 22-23, 2001 (``POPs''); the Rotterdam Convention on the
Prior Informed Consent Procedure for Certain Hazardous Chemicals and
Pesticides in International Trade, with annexes, done at Rotterdam
September 18, 1998 (``PIC''); the Agreement Amending the Treaty Between
the Government of the United States of America and the Government of
Canada on Pacific Coast Albacore Tuna Vessels and Port Privileges,
effected by exchange of notes July 17 and August 13, 2002 (``Albacore
Tuna Treaty''); Amendments to the 1987 Treaty on Fisheries between the
Governments of Certain Pacific Island States and the Government of the
United States of America, done at Koror March 30, 1999 and Kiritimati
March 24, 2002 (``South Pacific Tuna Access Agreement''); and the
Agreement Between the Government of the United States of America and
the Government of the Russian Federation on the Conservation and
Management of the Alaska-Chukotka Polar Bear Population, done at
Washington October 16, 2000 (``Polar Bear Treaty'').
These agreements directly affect the health and economic well-being
of the American people. They embody concepts and ideas that we cherish,
such as creating economic opportunities and preserving our ecosystems.
Hazardous chemicals, like POPs, respect no boundaries and can harm
Americans even when released abroad. They are of particular concern
because of their impacts on human health and the environment in places
such as Alaska and in the Great Lakes Region. Indigenous people in
Alaska and elsewhere in the United States are particularly at risk due
to their reliance on a subsistence diet. Meanwhile, in the fish
industry, changes are needed to permit more effective control over
fishing for albacore in U.S. and Canadian waters. In American Samoa,
tuna provided by U.S. fishing vessels supplies tuna canneries that
serve as the lifeblood of the economy in this region. If these jobs
disappear, political and economic instability would result. Much
further North, we find the beauty and majesty of a living marine
resource--the polar bear--the population of which could be depleted in
the absence of adequate safeguards.
U.S. negotiation of these agreements sought to address these and
other issues of direct benefit to Americans. They uphold our notion of
U.S. sovereignty, ensuring that the voice of the United States is heard
in appropriate cases, through measures such as consensus-decision
making or the ability to decide whether to opt in to significant new
legal commitments. Additional legislative authority will, however, be
needed to implement certain of our obligations under these agreements.
stockholm convention on persistent organic pollutants (pops)
The Stockholm Convention on Persistent Organic Pollutants, or the
POPs Convention, aims to protect human health and the environment from
twelve chemicals that are of particular concern because they have four
intrinsic characteristics. First, they are toxic and known to have
deleterious health or environmental impacts. Second, they have the
potential to bioaccumulate, meaning that they work their way through
the food chain by accumulating in the fat of living organisms and
become more concentrated as they move from one creature to another.
Third, they are stable and thus resistant to natural breakdown. Fourth,
they can be transported over long distances.
The twelve POPs chemicals, known as the ``dirty dozen'' covered by
the POPs Convention are: aldrin, hexachlorobenzene, chlordane, mirex,
DDT, toxaphene, Dieldrin, polychlorinated biphenyls (PCBs), endrin,
polychlorinated dibenzo-p-dioxins (dioxins), heptachlor, and
Polychlorinated dibenzo furans (furans). Each of these chemicals has
been linked through solid scientific information to adverse human
health effects, including cancer, damage to the nervous system,
reproductive disorders, and disruption of the immune system. Many of
these chemicals are also known to cause deleterious environmental
effects, including egg shell thinning and other effects. All twelve of
these chemicals are already banned or tightly controlled in the United
States.
Nevertheless, U.S. action alone is not enough. These chemicals are
still in use, or are being released, in many places abroad,
particularly in developing countries. The reality is that POPs are
capable of impacting human health and the environment far away from
where they are released; they respect no national boundaries. POPs
released in East Asia or Northern Europe have been shown to travel all
the way to Alaska. As a result, POPs can have impacts all over the
United States, and have been of particular concern in Alaska and in the
Great Lakes Region. Thus, as President Bush remarked in announcing U.S.
plans to sign the POPs Convention, ``[t]he risks are great and the need
for action is clear. We must work to eliminate, or severely restrict
the release of these toxins without delay.''
Under the POPs Convention, parties commit to taking steps similar
to those already taken by the United States to eliminate or restrict
the production, use, and/or release of the twelve POPs. The Convention
will also restrict trade in intentionally produced POPs and includes
obligations with respect to the treatment of POPs stockpiles and
wastes. All of these control measures were carefully negotiated,
keeping in mind the impact they could have in light of existing uses of
these chemicals. As a result, the Convention allows certain exemptions
to its control measures where they were deemed necessary, such as the
need for DDT, for example, to fight malaria in Africa, in line with
World Health Organization guidelines until locally safe, effective and
affordable alternatives are available.
The Convention also recognizes the situation of less-developed
nations, which have fewer resources to phase out their use of these
chemicals of global concern. In order to lend them a hand in addressing
this threat, the Convention includes a flexible system of financial and
technical assistance by which developed countries will help developing
countries meet their obligations under the POPs Convention. The Global
Environment Facility has already initiated action to provide financial
assistance to developing countries to help them implement the
Convention.
Finally, the POPs Convention creates a science-based procedure that
will govern the inclusion of additional chemicals to the Convention,
and defines the criteria that must be met by proposed chemicals. These
criteria insure inclusion of substances that are toxic, that
bioaccumulate, that are resistant to natural breakdown and that can be
transported over long distances. In accordance with Article 8,
paragraph 7(a) of the Convention, this science-based procedure will
involve an evaluation of whether ``the chemical is likely as a result
of its long-range environmental transport to lead to significant
adverse human health and/or environmental effects such that global
action is warranted . . .'' Inclusion of such science based procedures
and criteria in the Convention make it an important vehicle in
protecting human health and the environment in the United States from
the harmful impacts of these POPs chemicals wherever they may be used
in the world. It is particularly important that the United States
ratify the Convention so that we are at the table when it enters into
force and issues of importance to the United States are decided.
rotterdam convention on the prior informed consent procedure for
certain hazardous chemicals and pesticides in international trade
The Rotterdam Convention on Prior Informed Consent (PIC), which was
concluded in 1998 under the auspices of the UN Environment Program and
the UN Food and Agriculture Organization, was the first international
agreement designed to protect human health and the environment from the
risks posed by trade in toxic chemicals. The Convention recognizes
that, while the United States and other developed countries have strong
systems in place to deal with risks presented by imported chemicals,
many countries lack the resources and capability needed to assess and
control such risks. In order to address this issue, the Convention
establishes a system of information sharing and technical assistance
that promotes sound, risk-based decision making for chemicals
management in all countries.
The Convention stipulates that export of certain especially
hazardous chemicals that have been banned or severely restricted in
some parts of the world can only take place with the prior informed
consent (PIC) of the importing country. Prior informed consent is
enabled by the creation of an internationally recognized summary of the
chemical's risks and basis for control measures (known as Decision
Guidance Documents). When exported, these chemicals must be labeled and
accompanied by safety data sheets that explain their potential health
and environmental effects. Importing countries are also required to
inform the other Parties in a timely manner of any controls they would
be placing on the import of PIC listed chemicals. In addition,
countries must also ensure that any such controls they place on imports
also apply to domestically produced PIC chemicals. Thus, the agreement
enhances the safe management of chemicals by enabling countries,
especially developing countries, to identify risks and make informed
decisions about the importation and use of highly dangerous chemicals.
The Rotterdam Convention builds upon an existing voluntary PIC
procedure that is already being implemented by the United States, with
participation from major U.S. chemical manufacturers, and 150 other
countries. The treaty signatories agreed to continue to implement the
procedure on an interim basis until it comes into force. Thus, during
this interim period, 5 additional pesticides have been added to the
list of 27 chemicals developed during the voluntary PIC procedure;
participants have agreed to exchange information and respect import
decisions even before the Rotterdam Convention enters into force. These
interim decisions must be approved by the first Conference of Parties
(COP), but it is expected that the Rotterdam Convention will cover
these same chemicals and provide for the addition of new chemicals to
this list through a science-based process and on the basis of consensus
among the Parties.
It is important to note that, in the case of both the POPs and PIC
Conventions, a significant number of countries have already deposited
their instruments of ratification and both Conventions are expected to
enter into force in the relatively near future. Upon entry into force,
Conferences of the Parties (COP) will be established and begin making
critically important policy decisions on the implementation and future
evolution of these treaties. For example, decisions on the rules of
procedure, financial rules, noncompliance procedures, and consideration
of new chemicals could all take place soon after these two treaties
enter into force. If the United States is not a Party to these
agreements by the time their respective COPs meet, we will not be in a
position to influence major policy decisions that could directly affect
U.S. interests. As a result, the Administration is seeking Senate
advice and consent to these treaties at the earliest possible date. The
Administration is separately working with the appropriate congressional
committees to craft the necessary implementing legislation for these
two treaties that we will need enacted before the United States may
become a party to them.
amendments to agreement with canada concerning pacific coast albacore
tuna vessels and port privileges
The 1981 U.S.-Canada Albacore Treaty permits unlimited fishing for
Pacific albacore tuna by vessels of each Party in waters under the
jurisdiction of the other Party. Since the entry into force of the
Treaty, most of the tuna appear to have shifted their migratory
patterns in a southerly direction. As a result, U.S. fishermen have
fished significantly in Canadian waters only in approximately three out
of the last twenty years, while Canadian fishermen have continued to
fish regularly in U.S. waters.
The imbalance in benefits flowing from the treaty has become
particularly acute in recent years. Since 1998, Canada has more than
doubled its albacore tuna fishery in U.S. waters, from its historical
average of less than 100 vessels to 200 or more vessels per year. The
U.S. albacore fishing industry began in 2000 to complain to the
Administration of overcrowding on U.S. fishing grounds and the
disproportionate benefits received by Canadian fishers under the
Treaty.
The United States entered into negotiations with Canada with a goal
to reduce Canadian fishing effort in U.S. waters to tolerable and more
equitable levels and to create a fishery limitation mechanism for both
Parties that could respond to future needs to conserve and manage the
stock. The negotiations culminated in an Agreement to amend Article
1(b) of the Treaty to allow for a mutually agreed limitation on the
previously unlimited albacore fishery by vessels of each Party in each
others' waters. The Administration seeks the advice and consent of the
Senate to this amendment.
The United States and Canada also agreed to an initial three-year
reciprocal fisheries limitation regime that reduces the permitted
fishing effort each year until a level is reached in the third year
that is slightly above the pre-1998 average level of fishing. This
related agreement to amend the Annexes to the Treaty sets out the
initial regime in a new Annex C as well as making a few minor technical
changes to Annex A. The related agreement has been concluded, pursuant
to Article VII of the Treaty, by executive agreement, but will not
enter into force until the Amendment to the Treaty enters into force.
Prior to entry into force of the treaty amendments, implementing
legislation will also be necessary. The Senate passed such legislation
at the close of 2002, but the House adjourned before taking action. The
Administration hopes that the legislation will be reintroduced and
enacted soon.
amendments to 1987 treaty on fisheries with pacific island states
Since 1987, the Treaty on Fisheries between the Governments of
Certain Pacific Island States and the Government of the United States
of America has contributed substantially to U.S. foreign policy in the
Pacific region, as well as to our commercial and security interests in
the region. Under the Treaty, U.S. vessels have enjoyed access to fish
in the rich tuna fishing grounds in waters under the jurisdiction of
the Pacific Island Parties.
The original regime of the Treaty lasted for five years. In 1993,
the Parties extended it for an additional ten years. Now, they have
agreed to extend the regime for ten more years, until 2013. In doing
so, the Parties have also negotiated several relatively minor
amendments to the original Treaty, as described in the Report of the
Secretary of State to the Senate, and for which the Administration
seeks the advice and consent of the Senate. The extension of the regime
also entails a series of amendments to the technical annexes to the
Treaty, a new related economic assistance agreement and a memorandum of
understanding on provisional application. These amendments to the
annexes and the memorandum of understanding were previously transmitted
by the Administration earlier this year as part of our treaty package.
The Amendments to the Treaty will, among other things: (1) allow
U.S. longline vessels to fish in high seas portions of the Treaty Area;
(2) streamline the way future amendments to the Treaty Annexes enter
into force; (3) allow the Parties to consider the issue of fishing
capacity in the Treaty Area; and (4) promote consistency between the
Treaty and an emerging multilateral fisheries management convention,
which is likely to come into force in the next few years.
Existing legislation, including the Magnuson-Stevens Fishery
Conservation and Management Act and the South Pacific Tuna Act of 1988,
provides sufficient legal authority to implement continuing U.S.
obligations under the Treaty. Thus, no new legislation is necessary in
order for the United States to ratify these Amendments. However, a
minor amendment to Section 6 of the South Pacific Tuna Act will be
necessary to allow U.S. longline vessels to take advantage of the
opportunity afforded by the amendment to the Treaty that opens the high
seas of the Treaty Area to fishing by U.S. longline vessels.
agreement with russian federation on the conservation and management of
the alaska-chukotka polar bear population
Polar bears are a potentially threatened species that live in the
circumpolar North and are unique to five countries: the United States,
Russia, Canada, Norway, and Denmark's Greenland. They are an important
part of a sensitive ecosystem, and know no national boundaries. Polar
bears also continue to be essential to the survival of Native Alaskan
people as a renewable subsistence resource upon which they have
depended for centuries.
The United States has long recognized our common interest in the
responsible management of shared polar bear resources. Since 1976, we
have been party to the 1973 Agreement on the Conservation of Polar
Bears, along with the other four states where polar bears are found.
The 1973 Agreement did several things. First, it generally prohibited
the hunting, killing or capturing of polar bears. Second, it created
several exceptions to this prohibition, including one for local people
using traditional methods in the exercise of traditional rights, in
accordance with applicable laws. Third, it required the parties to
coordinate and consult on research, management of the species, and the
exchange of information. Fourth, the 1973 Agreement explicitly allows
Parties to adopt more stringent controls than those required under the
Agreement itself.
The Polar Bear Treaty signed by the United States and Russia in
2000 would provide legal protections for the Alaska-Chukotka polar bear
population beyond those found in the 1973 Agreement. It would establish
a common legal, scientific, and administrative framework for conserving
and managing the polar bear population shared by the United States and
Russia. This framework is needed because of concerns over the widely
different polar bear harvest provisions and practices of the United
States and Russia. As I just mentioned, the 1973 Agreement allows local
people to take an unlimited number of polar bears for subsistence
purposes. Our own law, the Marine Mammal Protection Act (MMPA)
similarly authorizes Alaska Natives to take polar bears for subsistence
purposes so long as it is done in a non-wasteful manner. However,
despite Russia's general prohibition on hunting polar bears, harvest of
this population is now occurring at levels that, when combined with the
Alaskan legal subsistence harvest, could deplete the population. The
MMPA, however, does not authorize limitations on Alaskan subsistence
harvests until after the population is found to be depleted. The
negotiated agreement would coordinate harvest restrictions to prevent
such an unsustainable combined harvest by both Native people.
Discussions between the United States and Russia on a bilateral
treaty to conserve our shared Alaska-Chukotka polar bear population
began in 1992. The State Department and the Department of the Interior
(Fish & Wildlife Service) jointly led subsequent negotiations. Alaska
and Chukotka Natives and other public and private stakeholders also
participated in these negotiations.
The Polar Bear Treaty with Russia continues to recognize
subsistence use of polar bears from the Alaska-Chukotka region by
Native people. At the same time, however, it includes a definition of
sustainable harvest level, reflecting a clear obligation to conserve
the population while safeguarding the interests of the Native people.
It would also establish a joint management mechanism by creating a
U.S.-Russia Polar Bear Commission that would, by consensus, establish
quotas to ensure that subsistence take of polar bears on both sides is
consistent with maintaining that population at sustainable levels. The
Treaty includes provisions to ensure representation of the interests of
the Native people of Alaska and Chukotka and equitable allocation of
take between them. Finally, the joint research and population
assessment mechanisms foreseen in the Treaty would constitute an
ongoing means for assessing the environmental impact of removals from
the population.
The Administration seeks prompt Senate action on this Treaty as it
would establish a common legal, scientific and administrative framework
for the conservation and management of the Alaska-Chukotka polar bear
population, promote responsible management of the Alaska-Chukotka polar
bear population at sustainable levels, preserve the interests of the
Alaskan Native people, and enhance our collaborative efforts with
Russia to conserve a treasured natural living resource.
conclusion
Protecting our health, fostering international trade and serving as
stewards of our resources are integral parts of U.S. foreign policy.
U.S. ratification of these agreements will reinforce our leadership
role in negotiating treaties that save lives; promote economic
stability; and protect natural resources. Our implementation will
encourage similar action by other nations.
The Chairman. Thank you very much, Mr. Turner. The first
two treaties, the Convention on Persistent Organic Pollutants
and the Rotterdam Convention on Prior Informed Consent would
appear to be treaties that cover 150 countries or the world. Is
that correct, and if so, how many parties have ratified either
of these two documents at this point?
Mr. Turner. Mr. Chairman, taking the POPs convention, the
first one, 151 countries originally signed that. We need 50
countries to have it come into force. To this date, it's my
understanding 33 have ratified.
With the PIC convention, there were 73 nations that
originally signed that, 50 again are needed for it to come into
force, 43 have ratified it.
The Chairman. Is there a probability that the United
States' ratification would accelerate the numbers coming in?
This is analogous to the question we raised on the aviation
treaties. Will our leadership in this respect, or our advocacy,
be likely to bring about the 50 or the required number in each
case?
Mr. Turner. Mr. Chairman, it's my feeling that both these
treaties are in the state they are in because of the United
States' leadership. We are recognized as the world leader in
not only chemical production but our science, our risk
analysis, our cost and benefits of regulation are the best. So
the United States taking responsibility in providing leadership
on this would definitely be an excellent signal to other
nations that this is coming online, and it is important. I
think, that the United States should be on deck early as they
develop the procedures for the conventions, the guidelines, and
the criteria. Our expertise simply needs to be a part of this
process.
The Chairman. Now, as a part of that leadership, how would
the United States implement the conventions' financial and
technical assistance provisions? Do you believe that, in fact,
we would be able to offer assistance to countries under those
provisions? Specifically, for example, in substitution of
chemicals or assistance, can we ensure that we do not get into
the difficulties of having toxic chemicals crossing borders?
Mr. Turner. Well, Mr. Chairman, I think the United States
and other developed countries definitely have an obligation to
share and help, especially developing countries that don't have
the experience, expertise or resources we have. I think the
United States will be the primary leader that developing
countries will look to for technical assistance for substitute
chemicals and applications.
On the financial side, the United States feels that its
contribution has been and will continue to be through the
Global Environmental Fund. In fact, I believe using rough
numbers, the generous contributions that we make and that
Congress authorizes, about $250 million will go to chemical
capacity-building in developing countries from 2002-2006 and,
of course, we have pledged to pay roughly 22 percent of that.
The Chairman. The environmental treaty that we're
discussing provides for a review committee which assesses
whether a chemical is likely to have long-range environmental
impact. I just query whether we're likely to be a member of
that review committee. I presume so, but can you give any
thought about that?
Mr. Turner. We fully expect, Mr. Chairman, to be members of
the scientific and review committee for both the POPs
convention and the PIC convention. There's just no substitute
for U.S. leadership and know-how and capacity in both these
conventions.
The Chairman. So in summary, with these two conventions the
United States has provided leadership which has probably
brought these two documents to the status that they now have.
Our intent through our State Department would be to offer
technical guidance about chemicals from our own experience to
assist other nations to avoid mishaps, whenever possible to
make substitutes, but to have some understanding of the
implications that we can at least testify to from our own
experience. Therefore there is a pro feeling both in trying to
formulate the agreements as well as in attempting to make them
work, and with as few miscues and international difficulties as
possible.
Mr. Turner. Well, as I mentioned, the opportunity for U.S.
leadership is just superb. There are several areas that I
personally feel we lead the world in environmental stewardship,
and one is our ability to do good research and to handle
properly toxic chemicals. It's in our best interests, it's in
the best interests of our relationships out around the world,
and I look forward to working these issues with the expertise
at EPA and Health and Social Services and State regulatory
agencies. We just have great capacity, and we can share that
with our neighbors out around the world.
The Chairman. Now, in the case of the Pacific Island
Fisheries Agreement, how many signatories are there to that?
Mr. Turner. Mr. Chairman, it is the United States'
agreement with 16 island states, and so there will be a total
of 17 parties to that convention.
The Chairman. Now, is there any threshold for that to come
into force?
Mr. Turner. It would have to be agreed to by all 17
countries.
The Chairman. Of course, the last two agreements, the U.S.-
Canada Albacore Tuna Agreement and the U.S.-Russia Polar Bear
Agreement are bilateral agreements with Canada and Russia.
Mr. Turner. Those would come into force upon the acceptance
of the agreement by both nations in both cases.
The Chairman. Now, in the case of the two agreements, the
Pacific Island Fisheries Agreement and the United States-Canada
Albacore Tuna Agreement, you've described the provisions of
those treaties. They are sound, at least in my judgment. I am
curious as to how far-reaching our thinking is. Presently I've
been persuaded that the new Pew Foundation study that deals
with the reserves has great importance, and you've touched upon
this a bit. However, after we've restricted the lines for
Canada or the United States or for whoever, what is occurring,
at least as I understand it from the limited study, is that a
number of waters not only in the Pacific but around the world
are being fished out. Fish are simply disappearing--certain
fish that fishermen are looking for--so again you're looking
for something else at that point.
Obviously, these treaties help in that respect by noting
the overfishing and trying to hold it down to a dull roar. At
the same time, in terms of a more profound situation in which
the countries agree that there are just certain waters we ought
not to be fishing at all for a while--whether it be the tuna or
the cod or whatever--they might grow again. I'm simply curious
as to whether in these negotiations or discussions any of that
sort of thinking has intruded. Surely among professional
people, either as companies or individual countries looking at
their interests, they perceive that the stock is going down,
that there is a potential crisis at least with regard to our
oceans and fish.
Mr. Turner. Well, Mr. Chairman, I welcome that question,
and it is my hope that this will be a year where all of us here
in the United States and out around the world focus on the
status of our marine resources, and especially fisheries.
Certainly the Pew Commission has contributed to that, as have
recent articles in Nature Magazine and elsewhere, and then we
all look forward to the congressionally authorized Oceans
Policy Commission headed up by Admiral Watkins, which we expect
to come out later in the fall.
There is no question that the status of a lot of our major
fish stocks are in trouble. We estimate that about 70 percent
are either fully exploited or they're overexploited or depleted
and in tough shape. What the United States is doing has been to
lead, I believe, in trying to get management regimes out
covering the whole globe, and in fact we're about there, we're
just about there. Of course, then the real test will be
implementing those management regimes. We have to address the
issue of overcapacity. There are too many vessels out there
with new techniques, fishing techniques that are just too
lethal. We also have to address the issue of subsidies, and we
are doing that at to the WTO, at the FAO.
We're looking at codes of conduct and compliance on the
high seas. We ratified a new international fish stocks
agreement, and so we're bringing some other instruments into
force. If we can get the willpower and the enforcement and the
monitoring technique. Certainly it is my hope this year we will
all look for new approaches as a world community of what kind
of stewardship we're giving our oceans and marine resources.
The Chairman. Well, I'm pleased you've given that statement
of advocacy. Obviously you have some willing listeners here,
with the Senator from Maryland as a champion in this area. I've
learned a great deal from my colleagues in recent times about
the urgency here.
I just have one further question and then I will yield to
my distinguished colleague. On the polar bear conservation
treaty, what estimates do you make of the polar bear population
presently that you're attempting to conserve in this case?
Mr. Turner. Mr. Chairman, we need better information on
that population, but it's somewhere hovering below or above
3,000 animals, and the United States' harvest was too high back
in the fifties and sixties, when we had recreational hunting.
You all addressed that in the Marine Mammal Protection Act, so
we're down to subsistence hunting, which we think is
sustainable, but with the lack of centralized control on the
Russian side and an increase in the black market with bear
parts we feel that the number of bears being taken in the
primary denning area over on the Russian side has just gotten
excessive, so Russia feels that this cooperative agreement will
give them a better handle, and we together, in cooperation with
our subsistence Native interests on both sides of the sea that
we can do a much better job in managing this population.
The Chairman. Obviously, we would not have reached this
point without some Russian enthusiasm for the process. That is
important, because I suppose that has been a problem over the
years. The coming together of the two nations on these issues
has been a tedious process.
Mr. Turner. The cooperation on polar bears has always
struck me as an interesting one between Russia and U.S.
relationships. We were working positively together during the
height of the cold war on polar bears, so this type of goodwill
and intent, whatever we can do together, it would be good for
polar bears and good for both countries.
The Chairman. I thank you, and I recognize the
distinguished Senator from Maryland, Senator Sarbanes.
Senator Sarbanes. Thank you very much, Mr. Chairman, and
Assistant Secretary Turner, we're very pleased to welcome you.
First of all, I want to say, Mr. Chairman, I'm glad we're
moving along with these treaties. They've only recently been
concluded, but I think it is important for us to act
expeditiously and I know you're planning, I think, before the
summer is out, to bring these treaties to the Senate for
ratification.
The Chairman. As soon as we can.
Senator Sarbanes. And we're having so much difficulty in
the international community because of some very high profile
environmental treaties we're not participating in that I think
it obviously behooves us, when the opportunity comes along and
we have reached agreements, to try to seek to put them into
place as promptly as we can, although those larger issues, of
course, continue to hang over us, and presumably, Secretary
Turner, they put you in a difficult posture on occasions in the
international scene.
Let me followup on just the polar bear. I'm looking at a
Fish & Wildlife Service report on the Chukchi Sea polar bears.
It says, ``increased harvest of polar bears in Chukotka, Russia
raises significant concerns about the status of the Chukchi Sea
population. With intrinsically low reproductive rates, polar
bears are vulnerable to long-term effects from overharvest.
Current harvest rates are similar to or potentially greater
than levels that resulted in significant population declines in
the 1960s.'' And later in this report the Fish & Wildlife
Service says, ``while the magnitude of Russian harvests from
the Chukchi Sea population is not quantified, persistent
reports of high harvests from local exports and hunters are of
serious concern. Harvest estimates vary by year, and some
estimates place this harvest as high as 200 to 400 bears per
year. Notably large numbers of polar bear hides are listed for
sale in Russia over the Internet.''
First of all, is that accurate, and second of all, would
this treaty bring that under control?
Mr. Turner. Senator, I think the treaty will bring together
a commission which will get better information. They will start
to agree on a coordinated take level. We will be able to help
the Russians with surveillance. It's my understanding that we
will prohibit the taking of sows with young cubs, which would
be most appropriate, and also prohibit the taking of bears
coming and going from their dens. Their primary denning will be
outside the United States, so it is certainly our hope that
working together we can reduce the harvest and the monitoring
on the Russian side, because indeed that is the area of major
concern.
Senator Sarbanes. Is this harvesting going on contrary to
the desires of the Russian authorities, or is it going on with
their tacit or maybe even more support?
Mr. Turner. Senator, I might have to clarify my response,
but I believe Russia has banned the taking of bears for many
years, except for subsistence takes, so this harvest currently
is not a legal harvest on the Russian side.
Senator Sarbanes. Now, I wanted to ask about the Persistent
Organic Pollutants Treaty. As I understand it, under that
treaty, the technical and financial assistance to less
developed countries will be through the World Bank's Global
Environment Fund, is that correct?
Mr. Turner. The technical assistance can go on bilaterally,
multilaterally with the United States and through the
convention, but it is correct the primary funding mechanism
would be the Global Environmental Fund, known as the GEF.
Senator Sarbanes. Now, we're in significant arrears to the
GEF, aren't we? I understand we're in arrears to the tune of
more than $200 million, is that correct?
Mr. Turner. It is the view of the GEF that the United
States has been in arrears. President Bush has proposed a $70
million increase in our payments, so that the United States
unilaterally took leadership on upping their donation to the
GEF to help developing countries. Other countries have followed
suit, but with those projected fundings I believe I'm correct
in saying we'll be in good standing on our commitments to the
GEF, but I will check that, Senator.
Senator Sarbanes. Well, was the additional commitment the
President made to increase our continuing share, or to
eliminate the arrearages that had built up?
Mr. Turner. I'm reading my notes here, Senator. In fiscal
year 2004, the administration's request for the GEF totaled
$185 million, $107 million of that was for the second
installment of the U.S. pledge of $500 million to the GEF's
third replenishment and $75 million to clear a portion of the
arrears, and I might note that in fiscal 2003, Congress
appropriated a total of $148 million for the GEF. This amount
is less than the administration's 2003 request of $178 million
for the GEF.
Senator Sarbanes. How much are our arrearages? You said the
administration requested, was it $75 million for the
arrearages?
Mr. Turner. We had $77 million to clear a portion of the
arrears.
Senator Sarbanes. Portion. What was the total amount of the
arrearages?
Mr. Turner. I will have to get back to you, Senator. I
cannot recall that.
[The following information was subsequently supplied:]
With the payment of $40.3 million in FY 2003 funds toward previous
contributions due, the U.S. will owe $171.6 million in previous
contributions owed toward the GEF's second replenishment.
Senator Sarbanes. Mr. Chairman, thank you. Thank you very
much.
The Chairman. Thank you very much, Senator Sarbanes.
Mr. Turner, we thank you for your testimony, and we know
that you will respond to Senator Sarbanes' question. I think
there are no other overhanging questions, but to complete the
record we would like to have those answers promptly. Likewise,
as I stated at the outset, statements or opinions from any
interested party on any of the seven treaties we have discussed
today by the end of business this week, would be much
appreciated. It would be our hope to have a business meeting in
which these treaties could be on the agenda soon, as I have
indicated, and place them before the Senate as a whole.
We thank you for bringing along an able staff and we look
forward to working with you and your colleagues in the
Department.
Mr. Turner. Mr. Chairman, our hearty thanks for your
considering these five treaties. Thank you.
The Chairman. The hearing is adjourned.
[Whereupon, at 10:30 a.m., the committee adjourned, to
reconvene subject to the call of the Chair.]
----------
Additional Statements Submitted for the Record
Prepared Statement of Air Crash Victims Families Group, Spokesman Hans
Ephraimson
Mr. Chairman, Members of the Committee:
My name is Hans Ephraimson and I appear before you as the Spokesman
of the Air Crash Victims Families Group, as well as in my own capacity.
The Air Crash Victims Families Group is an informal umbrella
organization for the individual bereaved families associations of
KAL007, TWA800, Swissair 111, Egyptair 990, AF4590 (Concorde),
Birgenair and individual survivors of air crashes, as well as surviving
families.
Although I am privileged to appear before you as the Spokesman of
our Group, besides me stand: A. Frank Carven III who lost his sister
and nephew in TWA800, Miles Gerety who lost his brother Pierce with
Swissair 111, a much beloved assistant of UN Secretary General for
Refugee Affairs, James Brokaw, Paige Stockley and Christoph Kappus who
lost their parents with Egyptair 990, AF4590 (Concorde) and Alaska Air
respectively, Heike Bethke-Weisner who lost her brother with Birgenair
and her husband Claus Weisner, Stephen Push who lost his wife with
American Airlines flight 77 (Pentagon) on September 11, 2001, Victoria
Cummock whose husband perished with PAA 103 (Lockerbie) and the many
others too numerous to mention, all of them leaders in their families
groups--all of them dedicated that through their shared and sad
experiences we can together contribute to the improvement of the after
crash crisis management system, air safety and security.
My oldest daughter Alice Ephraimson was a passenger on Korean
Airlines Flight 007, which strayed 585 miles into Soviet airspace for
over a period of five hours. The flight was tracked by a Soviet fighter
plane, ultimately attacked, and disabled. After a twelve minute
controlled descent Flight KAL007 ultimately crashed into the
territorial waters off the coast of Sakhalin Island on September 1,
1983 with the loss of 269 passengers and crew. None of our loved ones
has ever been returned to us, we are still looking for them.
Alice was 23 years old. She had just graduated from Wittenberg
University in Springfield, OH. During her undergraduate years she had
studied at Exeter University in England, at Fudan University in
Shanghai, China, at the University of Taipei, Taiwan and at the
Eberhard Karls University in Tuebingen, Germany. She was conversant in
four languages. On September 1, 1983 she was on her way to Beijing,
China to teach English at the Peoples University and continue East
Asian graduate studies.
The immediate interests of the surviving families in sixteen
countries was to cope with their grief, to learn how this tragedy could
have happened, to address their immediate needs and to find each other.
Instead we were immediately besieged by the media and solicited by
eager legal advisors who embarrassed us greatly by filing damages
actions in unrealistic amounts, none of which were ever obtained.
We also received an introduction into what was called ``The Warsaw
Convention'' which would be with us for seventeen years.
Since our tragedy occurred outside of the United States we also
discovered the limitations and the impediments that faced our legal
advisers in accessing witnesses and conducting discoveries.
Faced with all of those issues three family groups were organized
in the United States, Japan and Korea--first and foremost to take care
of the families needs, then to assist our attorneys to obtain needed
documentation.
It took the KAL007 families six years before the stage of a
``Wilful Misconduct'' trial was reached. By that time it became quite
clear that there was something fundamentally wrong with ``Warsaw''.
In 1989 in a trial at the United States District Court in
Washington, DC, a jury found that the ``Wilful Misconduct'' of Korean
Airlines was the ``probable cause'' of our tragedy. The Warsaw cap was
broken. However instead of proceeding to settlements, Korean Airlines
with great persistence, chose to use every avenue of appeals over a
period of another six years, including three appearances before the
Supreme Court. Once the appeals process was exhausted, Korean Airlines
invoked the 1920 ``Death On The High Seas Act'' to limit further their
liability. The inequities of this act were remedied in 2000. However,
the KAL007 families lost out again, because the retroactivity was
extended only to the TWA800 crash.
Since efforts starting in 1955 to modernize the Warsaw system were
unsuccessful, our Government, the Airline Associations, American
Airlines and Delta Airlines decided on a concerted effort to form a
coalition to bring the needed changes.
This initiative was started by Huguette LaRose, then General
Counsel of the ``International Air Transportation Association'' (IATA)
with their Washington Counsel: Warren Dean, James Landry, then General
Counsel, later Chairman of the Air Transport Association and his
assistant Nancy van Duyne, later joined by Robert Warren and James
Casey, Anne McNamara, General Counsel at American Airlines, Jeffrey N.
Shane, then Assistant Secretary for Policy at the Department of
Transportation, with Patrick Murphy, Donald Horn, Deputy Assistant
General Counsel and Peter Schwarzkopf, G. Gene Griffiths then Deputy
Assistant Secretary for Aviation Affairs at the Department of State,
later joined by John Byerly, Susan Parson and others.
Our sad experiences with the Warsaw Convention prompted us to join
this coalition. We testified for the first time in 1989 before your
Committee, then chaired by Senator Clayborne Pell, in support of the
Montreal Aviation Protocol No 3. In 1989.
The Montreal Aviation Protocols did not pass, nor was an attempt
successful to enact a ``Supplemental Compensation Plan'' in 1992.
Despite the lack of success, the Warsaw modernization coalition
held together and even expanded its size when the then National
Economic Adviser, Robert Rubin, convened a work group under the
chairmanship of Peter Yu to discuss the needed improvement in the
``Warsaw'' system in 1994.
This time the group included even more of the interested parties,
the plaintiffs and defense bar, the aerospace manufacturers, the
airlines and their association, Government agencies, families
representation, the insurers, etc.
It became quite clear that while the Work Group could make
recommendations Treaty changes had to be negotiated within the
International Civil Aviation Organization in Montreal.
The ICAO treaty process is a long one. Immediate changes in the
system were needed. Like in 1965, when the United States had actually
denounced ``Warsaw'', Alan Mendelsohn at the State Department had
stepped in and convinced IATA to devise an interairline agreement
increasing, for the United States only, the liability cap from the
original ``Warsaw'' $8,300 to $75,000.
Like in 1965 ``IATA'' again provided a solution in 1995--this time
with the assistance of their General Counsel Lorne Clark (Huguette
LaRose had died too prematurely of cancer) to conclude a new global
``IATA'' Intercarrier Agreement (IIA). This IIA agreement became the
bridge between the old ``Warsaw'' system and a new Treaty, to be
negotiated by ICAO, sponsored by ICAO President Assad Kotaite with
Ludwig Weber his Director of the Legal Bureau. The United States
Mission at ICAO, then with Carol Carmody and Jack Orlando, now with
Edward Stimpson and Peter Shapiro assisted in the travails leading to a
new Treaty.
Through a continuous series of meetings and via an ICAO Secretary
General Study Group in which most especially the general Counsel of Air
New Zealand, Anthony Mercer and the Deputy Assistant General Counsel of
the US Department of Transportation Don Horn were most helpful, a new
Treaty Draft evolved which was presented to the ICAO Diplomatic
Conference in May of 1999--discussed, debated, negotiated and adopted
as the ``Montreal Convention'' for the Twenty-first Century.
The original ``Warsaw Convention'' of 1929 and its subsequent
additional Protocols will ultimately be folded into the new ``Montreal
Convention'' to restore a truly unified international system for travel
by air, covering documentation and liability. A companion Treaty (the
present Treaty of Rome of 1952--not ratified by the United States) to
address damages caused by air craft on the ground, is presently the
subject of a General Secretary Study group at ICAO.
We leave it to others, more qualified to discuss the finer points
of the two Treaties before you and limit ourselves to discuss the most
salient improvements in the new ``Montreal Convention'' with ``The
Hague Protocols'' on the basis of our twenty years experience with the
old Warsaw system:
articles 33.2-36 and 39--fifth jurisdiction and carriage
The introduction of the jurisdiction of the principal or permanent
residence of the passenger, with definitions of succeeding carriage and
combined carriage clarifies once and for all where damages are
resolved. It also addresses the continuity of code share and alliance
arrangements.
Our world today operates in global dimensions. Millions of
nationals of individual countries travel or work all around the world,
often far away from the domicile where their families continue to live.
In case of accidents or death their damages issues should be addressed
fairly in the jurisdiction of the domicile, where their surviving
families live.
Presently the jurisdiction is attached to either: where the travel
document was bought, the final destination, the principal place of
business or the domicile of the carrier.
Eva van Schinjdel lived with her husband, an executive of Lucent
Industries, in Mendham Township, New Jersey. He was assigned to the
companies office in Singapore and died when Singapore Airlines flight
SQ006 crashed into construction equipment on taking off from the wrong
runway in Taipei, Taiwan. Presently, three attorney firms in three
countries are trying to untangle the problem of the proper
jurisdiction. In the process Mrs. Van Schinjdel who is a Dutch national
is reduced to live in a trailer in Holland waiting anxiously for the
resolution of her predicament.
Or take Jessica King, an executive of the Marriott Corporation,
resident of California who was on assignment at the Marriott Hotel in
Copenhagen (Denmark). Returning from a trip to Milan, her SAS flight
collided on takeoff with a Cessna business jet, operated by a German
charter company, at Linate airport in Milan (Italy). The
jurisdictional, costly and time-consuming disputes in four countries
are holding up the resolution of her damages to the detriment of her
surviving United States family.
Had the Montreal Convention been in force those convoluted disputes
would not have occurred,
articles 17, 21, 23 and 24--liability
The new Montreal Convention continues to recognize the concept that
``damages sustained'' can be recovered in a two step process. First
step: ``Strict liability'' of SDR100,000 (a basket of currencies from
the United States, England, Japan and the European Community (formerly
France and Germany), followed by determination of actual provable
damages.
This procedure eliminates the ``Warsaw'' cap--originally $8,300 and
the need to prove ``Wilful Misconduct'' before proceeding to damages.
The new Montreal Convention therefore eliminates the onerous and
costly litigation that was to keep the KAL007 families in court for
almost seventeen years.
The SDR100,000 are also attached to an escalation clause to
maintain present day value.
article 38--advance payments
With the development of ever larger, faster planes, flying long
distances at great height with hundreds of passenger, air crashes have
resulted in almost total destruction. Because of the sheer force and
the brutality of such crashes very few identifiable bodies, if any are
ever recovered. Instead, we are left with thousands of body parts,
which takes a long time to recover and to identify, mostly through DNA.
In the Swissair 111 Crash 2\1/2\ million pieces of wreckage and body
parts were recovered and had to be sorted out.
Without any identifiable body no death certificate can be issued.
Without death certificate no will can be probated. Surviving families
have however to continue their daily lives.
There is a specific need of reasonable advance payments against
recoveries for damages sustained. Some carriers have distributed
$25,000 to cover immediate expenses. The more responsible carriers like
Air France, Swissair, American Airlines, Alaska Air have distributed
the the SDR100,000 ``strict liability'' amount. Egyptair has
distributed one half of the initial settlement offers. Some unification
in this process is needed.
article 21 (a) and (b)--preservation of rights
The carrier preserves its rights to prove that it ``has taken all
measures'' for the accident not to happen. It also retains the right of
recourse against third parties.
Once the United States has ratified the ``Montreal Convention'' it
is applicable to our country together with all other countries who have
already deposited their instruments with the 999 ICAO, such as: Canada,
Japan, New Zealand. Two European Countries (Greece and Portugal) have
deposited their ratifications. Eleven European countries have ratified
but wait for the remaining two countries (Germany and Holland) to
complete their process.
Mr. Chairman, Members of the Committee, we thank you for your
attention. We shall gladly answer any questions you may have and we
conclude with the hope that you will recognize the substantial work
which our coalition has done to come before you with a mature Treaty
for the Twenty first Century, worthy for the Senate's Advice and
Consent.
______
Prepared Statement of Air Transport Association of America, Inc.
Chairman Lugar, Senator Biden, and Members of the Committee, the
member airlines of the Air Transport Association of America, Inc.,\1\
would like to thank you for giving the industry the opportunity to
submit its views on two important aviation treaties pending before the
Committee, the Montreal Convention of 1999 and The Hague Protocol of
1955. These two treaties are important components of one of the most
widely accepted treaty systems in effect, consisting of the 1929 Warsaw
Convention and its related instruments. Their ratification by the
United States will not only bring important benefits to both the users
and providers of international air transportation services, it will
also bring the United States into legal conformity with the vast
majority of the aviation partners of the United States.
---------------------------------------------------------------------------
\1\ The ATA's member airlines are: Airborne Express, Alaska
Airlines, Aloha Airlines, America West Airlines, American Airlines, ATA
Airlines (formerly American Trans Air), Atlas Air, Continental
Airlines, Delta Air Lines, DHL Airways, Emery Worldwide, Evergreen
International Airlines, Federal Express, Hawaiian Airlines, JetBlue
Airways, Midwest Airlines, Northwest Airlines, Polar Air Cargo,
Southwest Airlines, United Airlines, United Parcel Service, and US
Airways. Associate members are: Aerovias de Mexico, Air Canada, Air
Jamaica, KLM-Royal Dutch Airlines, and Mexicana de Aviacion.
---------------------------------------------------------------------------
The Committee held a hearing on these important treaties on June
17, 2003, at which representatives of the Departments of State and
Transportation appeared as witnesses. As an initial matter, we would
like to expand upon some important issues raised at the hearing. The
first is that the principal feature of the Montreal Convention, the
elimination of the Warsaw system's limits of liability for passenger
injury and death, is not new. The world's major U.S. and foreign air
carriers, including all members of the Air Transport Association,
agreed to enter into special contracts to waive the limits in 1996 and
implemented those agreements soon thereafter. In effect, the Montreal
Convention codifies the liability rules the industry itself adopted in
1996. The industry took that initiative shortly after it became
apparent that the United States Senate had continuing concerns about
the liability rules reflected in Montreal Protocol No. 3 to the Warsaw
Convention, and that advice and consent to the ratification of that
instrument was not likely.
For these reasons, the ratification of the Montreal Convention
presents an historic opportunity for the United States to realize the
Warsaw system's goal of true uniformity in the documentation and
liability rules applicable to international air transportation. It is
an instrument that recognizes and accepts many principles that are
important to U.S. interests. For example, the Montreal Convention
codifies an unlimited compensatory liability system premised on
presumed air carrier liability to protect international passengers in
the event of an accident that results in injury or death. In addition,
passengers will be able to recover up to approximately $140,000 in
proven compensatory damages without regard to any fault whatsoever. At
the same time, the Montreal Convention recognizes and accepts the
legitimate concerns of the major aviation partners of the United
States. For example, the kinds of damages recoverable under the
Montreal Convention have not changed, the requirement that an accident
must have occurred is preserved, and the exclusivity of the Montreal
Convention's rules is affirmed to preserve their integrity. In sum,
these rules, derived from the industry's 1996 intercarrier agreements,
will continue to provide important benefits to passengers for the
foreseeable future while ensuring their worldwide uniformity.
In the case of cargo, the Montreal Convention incorporates and
modernizes the important documentation and liability reforms of
Montreal Protocol No. 4, to which the Senate gave its advice and
consent in 1998. These rules are extremely important to the economy of
the United States because approximately $600 billion of goods annually
enter and depart the United States by air. Air carriers, shippers, and
insurers depend upon the predictable and uniform application of the
Warsaw system's rules with respect to the international air
transportation of cargo. It was the objective of the United States to
preserve the benefits of Montreal Protocol No. 4 in the Montreal
Convention and the Air Transport Association of America strongly
supported the realization of that objective. The Montreal Convention,
like Montreal Protocol No. 4, allows electronic documentation of
shipments, without unnecessary and archaic documentation requirements,
such as a description of the nature of the goods.
The Montreal Convention reflects many improvements that will bring
up to date the application of the Warsaw system's rules. Important
among these is the addition of a rule that expands the jurisdictional
options available to passengers in the case of transportation that is
not to and from the passenger's state of principal and permanent
residence, the so-called fifth basis ofjurisdiction. The Air Transport
Association of America has been a consistent supporter of this reform,
which we hope will encourage courts to apply the law of passengers'
country of residence to determine the amount of damages to which they
are entitled.
The Montreal Convention also reflects changes in light of modem
commercial practice in the industry, such as code-share operations. The
Montreal Convention provides that both the operating air carrier and
the ticketing air carrier are liable to the code-share passenger. It is
important to understand that the operation of these rules is consistent
with current law. These rules apply only with regard to passengers
actually traveling under a code-share ticket. Passengers traveling
under the code of the operating carrier have recourse only against that
carrier, regardless of whether there are also code-share passengers on
that particular flight.
Another important improvement is that the Montreal Convention
brings up to date the rules applicable to cargo in light of the fact
that many air cargo terminals are now located outside the boundaries of
the airport itself. Some courts have held that the language of the old
Warsaw Convention effectively excludes losses that occur in off-
airport, as opposed to on-airport, warehouses. The Montreal Convention
adds new language recognizing that surface carriage outside the airport
itself takes place in performance of the carriage by air, to be deemed
to be within the period of carriage by air. That includes off-airport
facilities, and should allow air carriers to cover those activities by
their contract of carriage.
The Montreal Convention is unique among the instruments of the
Warsaw system in that it is a recodification of its rules in their
entirety and will replace, according to its terms, the Warsaw
Convention, as amended. As with any recodification effort, the treaty
contains changes in language that reflect the passage of the seventy
years since the original Warsaw Convention was finalized. It is
therefore important that courts not read the Montreal Convention as
changing the legal landscape in ways that were not intended just
because the Montreal Convention may use somewhat different language
from that used by the Warsaw Convention to state the same rule. We
therefore believe that the Committee's report on the Montreal
Convention should reflect this principle, which commonly accompanies
recodifications of U.S. law by the Congress.
Finally, the Air Transport Association of America is pleased that
the Committee is also considering The Hague Protocol of 1955 to the
Warsaw Convention. This treaty was before the Committee when it
recommended that the Senate give its advice and consent to ratification
of Montreal Protocol No. 4. At that time, it was assumed that adherence
to Montreal Protocol No. 4 effected adherence to The Hague Protocol.
There continues to be agreement on that principle for transportation
involving other countries party to Montreal Protocol No. 4. However, a
recent judicial decision has raised uncertainty about the application
of this principle to transportation involving a state that has ratified
The Hague Protocol but not Montreal Protocol No. 4. While the Air
Transport Association believes that decision to be incorrect, the
uncertainty created by that decision could undermine many of the
benefits often associated with the ratification of Montreal Protocol
No. 4, and those largely will be corrected with prompt ratification of
The Hague Protocol.
In conclusion, the Air Transport Association appreciates this
opportunity to express its views on the two important aviation
treaties. We look forward to working with you in support of the advice
and consent of the United States Senate for these two instruments.
______
American Chemistry Council,
1300 Wilson Blvd.,
Arlington, VA, June 20, 2003.
The Honorable Richard Lugar, Chairman
Senate Foreign Relations Committee,
United States Senate,
Washington, DC.
The Honorable Joseph Biden
Senate Foreign Relations Committee,
United States Senate,
Washington, DC.
Dear Senator Lugar and Senator Biden:
On behalf of the American Chemistry Council and the Chlorine
Chemistry Council, I am submitting our written statement in support of
the Senate Foreign Relations Committee's action on two new treaties
designed to improve international chemicals management, the Stockholm
Convention on Persistent Organic Pollutants and the Rotterdam
Convention on Prior Informed Consent.
The Councils and their members worked with the U.S. and other
governments throughout the negotiations to assure that these agreements
enhance health and environmental protection and protect commercial
interests. We believe it is in the interest of the United States to be
one of the original ratifying governments on each of the treaties, and
we look forward to working with you and your staff as the Committee
considers the agreements.
If we can provide any additional information on these treaties or
the Council's position, please let me know, or have your staff contact
Michael Walls, ACC's Senior Counsel.
Sincerely,
Larry W. Rampy
American Chemistry Council
Product Stewardship Team
Prepared Statement of the American Chemistry Council
The American Chemistry Council (ACC), on behalf of itself and the
Chlorine Chemistry Council (CCC), is pleased to state strong support
for the Stockholm Convention on Persistent Organic Pollutants (POPs)
and the Rotterdam Convention on Prior Informed Consent (PIC). The
Council and its members urge the Senate Foreign Relations Committee to
recommend that the Senate provide advice and consent to U.S.
ratification of the treaties as soon as possible.
The American Chemistry Council is the national trade association
whose member companies represent more than 90 percent of the productive
capacity for basic industrial chemicals in the United States. The
Chlorine Chemistry Council is a unit of the ACC dedicated to
representing the interests of chlorine manufacturers. Together, ACC and
CCC members represent an industry on the cutting-edge of technological
innovation and progress, whose products provide significant benefits to
every sector of the global economy. The industry was actively engaged
in the negotiation of both the Stockholm and Rotterdam Conventions for
many years, and has been a strong supporter of measures necessary to
implement both Conventions into U.S. law and practice.
The chemical industry's support for these treaties lies in several
simple points.
The industry's support is based on our commitment to product
stewardship, including our goal of preventing health and
environmental damage in the manufacture and use of chemical
products. Our industry's product stewardship commitment is an
integral part of our Responsible Care program, which
is now being implemented by the chemical industry in more than
42 countries.
The Stockholm Convention is the culmination of many
different initiatives by both industry and governments to
address the concerns about persistent organic pollutants. It is
the next best step to assure that governments around the world
take appropriate measures to control the manufacture, use and
disposal of POPs and to reduce unwanted POPs emissions.
The Stockholm Convention adopts a risk-based, science-
justified approach to considering possible additions to the
list of chemicals. It is an approach entirely consistent with
longstanding U.S. law and practice, and one that will lead to
appropriate controls on those POPs chemicals that pose global
threats.
The Rotterdam Convention reflects the internationalization
of a chemical export notification process first adopted by the
United States as part of the Toxic Substances Control Act
(TSCA). The treaty provides an appropriate mechanism to inform
importing governments of the chemical regulatory measures
adopted in other countries, in a way that does not
unnecessarily burden international trade or commerce.
Further, the treaty codifies an existing voluntary program
already being implemented by 155 countries around the world.
The voluntary program was first implemented in 1987, as a set
of guidelines for industry and governments developed through
the U.N. Environment Programme (UNEP) and the U.N. Food and
Agriculture Organization (FAO).
The U.S. chemical industry's work on the Stockholm and Rotterdam
Conventions dates back to 1986, when the international
intergovernmental community began to turn its attention to the need for
improved information exchange between governments on chemical
regulatory matters. We worked with UNEP and FAO on the U.N. Guidelines
for the Exchange of Information on Chemicals in International Trade,
and we provided critical support for the amendments to the Guidelines
that first adopted the concept of Prior Informed Consent. Our efforts
on POPs began shortly after the Rio Summit on Environment and
Development, in 1992. We worked with the Intergovernmental Forum on
Chemical Safety (IFCS) in its effort to map the best approaches to
dealing with POPs, particularly in discussions on criteria for
identifying potential POPs. The industry also participated in the
negotiations sponsored by the U.N. Economic Commission for Europe
(UNECE) and the North American Commission on Environmental Cooperation
(NACEC) as those regional POPs programs were developed and implemented.
In short, the U.S. chemical industry has been an early and
consistent supporter of enhanced, harmonized international programs on
chemicals, including appropriate controls on global pollutants of
concern such as POPs.
The Council believes that it is critical for the United States to
continue its longstanding leadership role in both the Stockholm and
Rotterdam Conventions. In order to continue in that role, however, the
United States must be a full Party to the agreements. In ACC's view,
the United States should be one of the first 50 countries ratifying the
Stockholm and Rotterdam Conventions. As an original ratifying Party,
the United States will be able to lead--and appropriately influence--
the development of procedures necessary to implement the treaties at
the international level. The U.S. government's ability to influence the
further development and implementation of the treaties at the
international level requires, simply, full U.S. participation in the
agreement.
Several provisions of the two treaties warrant the Committee's
attention.
The Council is particularly pleased that the Stockholm Convention
incorporates the use of a risk/benefit approach in implementing
appropriate regulatory controls on listed chemicals, and in considering
chemicals nominated as potential POPs. The treaty's reliance on
technical and economic considerations should ensure that priority
pollutants are targeted and meaningful control actions taken.
It is imperative that the Senate maintains a strong oversight role
with regard to chemical additions under the Stockholm Convention. The
addition of a chemical to the Stockholm Convention constitutes an
amendment to the Convention and could result in significant
implications for U.S. commerce. Therefore, in ACC's view, it is
important that the Senate in general, and the Foreign Relations
Committee in particular, retain appropriate oversight of the additions
process. This strong oversight role is consistent with the Senate's
actions on other agreements.
Article 25 of the Stockholm Convention contains a provision
allowing any government to ``opt-in'' to potential amendments listing
new chemicals. The Council believes that the resolution of ratification
on the Stockholm Convention should expressly note the United States'
intention to rely on that provision with respect to future amendments.
Further, the Council believes that the Committee should be notified and
consulted regarding potential Administration decisions on amendments,
including additions, to the Convention. This advance notice and
consultation should be ongoing so that it occurs at critical intervals
during the international process for considering additions under the
Convention.
The Rotterdam Convention on Prior Informed Consent also merits the
Committee's favorable consideration. As noted earlier, this Convention
was negotiated on the basis of a very successful government-to-
government information exchange system that reflects existing U.S. law
and practice. The Convention requires the United States to provide
appropriate notification of exports of PIC chemicals to other
countries, a requirement well in keeping with our industry's efforts to
assure appropriate stewardship of chemical products.
In conclusion, the American Chemistry Council believes that the
Stockholm and Rotterdam Conventions are an important step in
harmonizing international and national chemical regulatory approaches.
Once these agreements are implemented, they should make a meaningful
contribution to improvements in public health and environmental
protection. The Council looks forward to working with the Committee in
its consideration of the Stockholm and Rotterdam Conventions.
______
Prepared Statement of Alaska Nanuuq Commission, Charles H. Johnson,
Executive Director
u.s.-russia agreement on the conservation and management of the alaska-
chukotka polar bear population
Chairman Lugar,
Thank you for this opportunity to submit testimony on this historic
hearing to ratify a treaty that insures that nanuuq the polar bear will
be enjoyed by our descendants. This treaty is a tribute to the late
Mollie Beatty, director of the U.S. Fish and Wildlife Service and her
Native American Policies.
The Alaska Nanuuq Commission (ANC) was formed in 1994 to represent
Alaska Natives in North and Northwest Alaska on matters concerning the
conservation and sustainable subsistence use of polar bears. Our goal
and objectives are:
1. Encourage and implement self-regulation of polar bear
hunting and use by Alaska Natives.
2. Enter into co-management and other local and international
agreements with appropriate governmental, Native, or other
organizations.
3. Be involved in all phases of scientific, biological, and
other research programs involving polar bears and the Arctic
ecosystem.
4. Provide information and educational materials to the
public, appropriate state and federal agencies, and other
interested parties.
In 1989 the Soviet Union informed the U.S. Fish and Wildlife
Service that it had reclassified the polar bear in the Alaska-Chukotka
population from endangered to ``recovered'' in it ``Red Book'' and
wanted to share in the harvest with Alaska Natives. The Service then
notified the Alaska Native organizations in North and Northwest Alaska
that an agreement with the Soviet Union was being considered that would
allow Native Peoples of Chukotka to legally hunt polar bears and
invited representatives of the Native community to participate in the
negotiation.
The Alaska Nanuuq Commission participated as an equal partner with
the Service in the negotiations with Russia and encouraged Russia to
include representatives of the Chukotka native community on their
delegation.
In 1997 a grass roots organization to represent native hunters was
formed in Chukotka. That organization now called the Chukotka
Association of Traditional Marine Mammal Hunters (CHAZTO in Russian) is
now well established in Chukotka and was able to participate in the
final negotiations of the treaty. The ANC and CHAZTO have developed a
draft Native-to-Native agreement to implement the treaty and develop
methods for quota distribution and management of the subsistence hunt
when it becomes legal in Chukotka.
Because polar bear hunting in Chukotka has been banned since 1956,
measures to manage the hunt and enforce regulations are not in place. A
draft management plan has been developed by CHAZTO for Chukotka in
cooperation with the government of Chukotka and the Ministry of Natural
Resources. However the Russian government is waiting for the U.S.
ratification of the treaty before it enacts its management plan.
Unfortunately many native (and some non-native) hunters in Chukotka
are under the false impression that hunting polar bear is now legal
because the treaty was signed on October 16, 2000 and polar bears are
being harvested in alarming numbers.
During a meeting in Anadyr, Chukotka, CHAZTO and ANC issued a joint
statement urging our respective governments to quickly ratify the
treaty for the conservation of our shared polar bear population. I have
attached that joint statement.
This treaty allows the Native Peoples of Alaska and Chukotka to
actively participate in the management of the subsistence hunt of polar
bears and we hope that it is quickly passed on the full Senate for
ratification.
Thank you.
______
Prepared Statement of Bering Sea Program, World Wildlife Fund
World Wildlife Fund,
1250 Twenty-Fourth St., NW,
Washington, DC, June 17, 2003.
The Honorable Richard Lugar, Chairman
Senate Foreign Relations Committee,
U.S. Senate,
Washington, DC.
Re: U.S.-Russia Agreement on The Conservation and Management of the
Alaska-Chukotka Polar Bear Population
Dear Chairman Lugar:
On behalf of World Wildlife Fund's 1.2 million members in the
United States, I wish to express support for the ratification of the
U.S.-Russia agreement ``On the Conservation and Management of the
Alaska-Chukotka Polar Bear Population,'' and to ask that you please
make this letter a part of the committee's hearing record on the
treaty.
This agreement represents an important measure needed to conserve a
species which the U.S. and Russia share in the region that binds our
two nations--the Bering-Chukchi Sea. In October 2000, after several
years of negotiation, the U.S. and Russia signed the polar bear
agreement. However, despite broad national and international support
and support within Chukotka and Alaska--particularly among the Alaska
congressional delegation--the treaty has yet to be ratified.
Implementing legislation for the treaty is long overdue.
There are an estimated 2,000-5,000 polar bears in the Alaska-
Chukotka polar bear population. These animals range widely along
northeastern Siberia's Chukotka Peninsula, on the ice and islands and
nearshore areas (seasonally) of the Chukchi and northern Bering seas,
and in northwest Alaska. Conservation efforts have been hampered by a
lack of adequate coordinated management and funding across the U.S.-
Russia boundary. This agreement is a critical step forward in
overcoming these obstacles, restricting hunting of the bear for the
first time and instituting a system to sustainably manage the polar
bear population.
Currently a wide range of threats to the bears and their habitat
continues to pose concern to conservationists. Climate change, toxic
contamination, poaching, habitat loss, oil spills, and the disruption
of their food chain caused by fisheries mismanagement are among those
factors that may adversely affect the polar bear's future.
More urgent, however, is the unregulated and illegal hunting
occurring on the Russian side of the Bering Sea. According to local
Russian experts monitoring the situation on the ground, approximately
100-200 bears have been harvested annually in recent years. Although
the main motivation for taking polar bears in Russia is for food, many
of the hides from these animals are entering commercial markets
illegally and acting to fuel harvest demand. In the 1950's in the
United States, sport hunting of polar bears at the same or lower levels
severely depleted the polar bear population, which finally gained
protection under the Marine Mammal Protection Act. In Russia, the polar
bear is listed in the Russian Red Book of Rare and Endangered Species
(because this population is listed as Category V--``recovered''--it is
eligible to be hunted). This bilateral agreement is critical to
establishing a sanctioned program of management and enforcement of
subsistence-use only harvesting.
The bilateral agreement specifically bans the hunting of bears in
dens or females with cubs and prohibits the use of poison, traps and
snares, as well as the use of aircraft or large motorized vessels or
vehicles to hunt polar bears. The agreement also authorizes limited
hunting by native peoples for subsistence purposes, and creates a
bilateral commission to determine and allocate annual harvest quotas
and requires monitoring and enforcement to protect against the kind of
polar bear population decline that might occur at the hands of poachers
or commercial hunters.
We urge you to ratify this agreement for the benefit of this
population of polar bears, a keystone species in the northern
environment, as well as for future generations of Americans.
Sincerely,
Margaret Williams
Director, Bering Sea Program
______
Defenders of Wildlife,
1130 Seventeenth St., N.W.,
Washington, DC, June 18, 2003.
The Honorable Richard Lugar, Chairman
Foreign Relations Committee,
U.S. Senate,
Washington, DC.
The Honorable Joseph Biden, Ranking Member
Foreign Relations Committee,
U.S. Senate,
Washington, DC.
Dear Mr. Lugar and Mr. Biden:
Defenders of Wildlife is writing to reiterate our wholehearted
support for ratification of Treaty Doc. 107-10, dated July 11,2002 and
titled:
Agreement between the Government of the United States of
America and the Government of the Russian Federation on the
Conservation and Management of the Alaska-Chukotka Polar Bear
Population done at Washington on October 16, 2000.
Defenders represents nearly a million members and supporters from
all walks of life across the United States and we focus much of our
efforts on issues such as this that help to preserve biodiversity and
ensure good scientific management of the world's wildlife resources.
Enclosed is a copy of our original letter of support written to
Interior Secretary Gale Norton and Assistant Secretary of State John
Turner urging their support of this Treaty. Conditions for this
population of polar bears have not improved since we sent the original
letter and are unlikely to do so until this Treaty is ratified. We
respectfully urge you to do what you can to expedite this process and
get the Treaty in action. Thanks for your attention to this matter.
Sincerely Yours,
Mark L. Shaffer, Ph.D.
Senior Vice President for Programs
Defenders of Wildlife,
1130 Seventeenth St., N.W.,
Washington, DC, June 18, 2003.
Honorable Gale Norton
Secretary of the Interior
Department of the Interior
1849 C Street, NW
Washington D.C. 20240
RE: Agreement Between the Government of the United States of America
and the Government of the Russian Federation on the Conservation and
Management of the Alaska-Chukotka Polar Bear Population
Dear Secretary Norton:
We are writing to express our concern at the apparent delay in
presenting the Agreement on the Conservation and Management of the
Alaska-Chukotka Polar Bear Population, to the U.S. Senate for
ratification. This landmark agreement was signed by both the United
States and Russia on 16 October 2000 but has not yet been ratified. The
exact status of this polar bear population unknown and it may be
vulnerable to over-exploitation because of illegal hunting in the
Chukotka region of Russia, and because of unrestricted, but legal,
hunting by Alaskan natives on the American side (unrestricted unless
they become ``Threatened'' or ``Endangered'' under the Endangered
Species Act or ``depleted'' under the Marine Mammal Protection Act).
This agreement ensures the long-term conservation of the Alaska-
Chukotka polar bear population through unified management, conservation
and research programs between Russia and the US. It also provides the
authority to develop and enforce harvest limits for this western arctic
population of bears, something that is lacking at present. The
Agreement also is responsive to the indigenous culture of both
countries regarding subsistence hunting, and includes a native official
and a government official from both countries on the joint commission
that establishes enforceable harvest limits. In fact, the agreement is
fully supported by Native organizations from both countries who
identified the need for cooperative management of this polar bear
population and freely surrender their unlimited harvest rights to this
end.
The agreement is similar to existing management guidelines
established for American bear populations and would prohibit the taking
of cubs, females with cubs and denning bears. It would also prohibit
all commercial use of harvested bears and eliminate the use of aircraft
and large motorized craft in the hunt. Finally the agreement would help
coordinate habitat conservation and population monitoring between the
two countries. In our consultations with many of the world's leading
polar bear experts there is unified agreement that this agreement is
necessary for long-term conservation of this polar bear population. The
danger of over-harvesting most of the remaining polar bear populations
has been virtually eliminated because of cooperative management using
the most modern monitoring techniques available. It is time to ensure
the same for the Alaska-Chukotka population as well.
Thanks for your consideration in this matter and we hope you will
agree with the value of this Agreement and send your endorsement on to
the Senate for ratification in the near future.
Sincerely,
Mark L. Shaffer, Ph.D.
Senior Vice President for Programs
______
Prepared Statement of Environmental Technology Council, Scott
Slesinger, Vice-President for Governmental Affairs
on the ratification of the stockholm convention on persistent organic
pollutants
My name is Scott Slesinger. I am Vice-President for Governmental
Affairs of the Environmental Technology Council. Our council represents
environmental service companies that dispose, destroy and recycle
hazardous waste. Several of our companies have Toxic Substances Control
Act (TSCA) permits for destruction and disposal of PCBs, the most
ubiquitous of the Annex A chemicals. Many of our companies hold
Resource Conservation and Recovery Act (RCRA) permits for proper
destruction and disposal of the other POPs Annex A chemicals. We
support the entire Persistent Organic Pollutant Treaty. However,
because the Senate is expected not to pass language implementing a key
principle of the treaty dealing with destruction of persistent
pollutants, we urge that this Committee recommend that the Senate
reject the Treaty's ratification.
the intent of the treaty
The treaty is concerned with the intention and unintentional spread
of organic persistent organic pollutants. Because of their chemical
make-up, these chemicals persistent in the environment, vaporize into
the atmosphere and eventually drop back to earth to contaminate areas
sometimes thousands of miles from their source. EPA has noted that
despite the over 25-year ban on PCBs in Canada and the United States,
PCBs continue to appear in the Great Lakes and Great Lakes organisms
from foreign sources.
As the Treaty notes, ending the manufacturing and use of these
chemicals does not solve the problem. The chemicals must be chemically
or molecularly changed so they no longer have the dangerous
characteristics. Because the technology to properly disposed and
destroy is expensive, complex and dangerous in unskilled hands, few
countries have the volume of these chemicals to justify the costs to
construct facilities to meet the Treaty's standards for proper
disposal. In recognition of this, the treaty bans imports and exports
except for proper disposal.
domestic law
Because of an anomaly in domestic law only one chemical in the
universe cannot be imported into the United States even for proper
disposal except through a unique burdensome administrative rulemaking
procedure that makes it impractical.\1\ That chemical is PCBs, a Treaty
Annex A chemical. Under a 1976 provision in the Toxic Substances
Control Act (TSCA) Section 6(e), a full rulemaking is required before
PCBs can be imported for manufacturing or use. If such rule is issued,
it allows imports for only one year. Private entities have tried to
import PCBs for disposal but have found the legal cost--not to mention
the likelihood of the petition being rejected--to far outweigh the
financial revenue such import could justify. In recognition of this
problem, former EPA Administrator Carol Browner issued a programmatic
rule that stated that importing for disposal (as opposed to use) was an
environmental preferable option and stated that importing PCBs for
disposal is consistent with Section 6(e) of TSCA and protecting public
health and the environment. 61 FR 11096 (March 18, 1996). However the
Ninth Circuit threw out the rule on a narrow interpretation that the
term ``manufacture'' in TSCA included ``import for disposal.''
---------------------------------------------------------------------------
\1\ In 27 years, EPA has approved only one 6(e) exemption. That was
in January of this year for the only entity with the resources and
volume of PCBs to justify going through the process--The Department of
Defense. 68 Federal Register 4934 (January 31, 2003).
---------------------------------------------------------------------------
where do pcbs come from?
Ironically, most the PCBs that are banned for importation for
disposal were manufactured in the United States. The vast majority of
PCBs in the world, 700,000 tons, were manufactured in the United States
between 1927 and 1977.\2\ Before the risks of PCBs were known, American
companies exported equipment that used PCBs as an insulator. Because of
Sec. 6(e), those American-made PCBs, even those owned by American
companies, are now considered ``foreign'' and cannot be imported back
into the United States for destruction. Imagine if the Canadians
exported a dangerous substance, shipped it to the Untied States and
then banned their export back into Canada. That is exactly the case
with PCBs except we are the country that refuses to repatriate the
chemical in question. That arguably contradicts the Treaty's references
to manufacturers' and polluters' responsibility under this and various
other international agreements.
---------------------------------------------------------------------------
\2\ ``Status of PCB Management in the United States,'' Ross and
Associates, prepared for the Commission for Environmental Cooperation,
Montreal, Canada, August 24, 1995. The volume eventually exported is
estimated by Ross to be 75,000 tons.
---------------------------------------------------------------------------
proper treatment and disposal
The United States, through both TSCA and the Resource Conservation
and Recovery Act (RCRA) have world class standards for PCB disposal and
destruction that meets the Treaty's requirements for proper disposal.
Chemical dechlorination is an effective non-thermal technology for
lower concentration PCB wastes. Chemical dechlorination separates the
chlorine molecule from the PCBs to form salts. This chemical treatment
is 100% effective in destroying PCBs that are in concentrations below
12,000 parts per million but it is too dangerous at higher
concentrations. Most of the PCBs, including all 1,500 tons that is now
being imported by the Department of Defense are in concentrations of
less that 12,000 parts per million. Incineration is the necessary
treatment with higher concentrations. Under TSCA, incinerators are
required to have an efficiency of PCB destruction of 99.9999%. Land
disposal in engineered Subtitle C landfills is permitted when PCBs are
below 500 parts per from remediation sites or otherwise to 50 parts per
million. These are consistent with world-class requirements required in
Article 6 of the Treaty.
Those who are urging the Senate not to implement this part of the
treaty concentrate on the issue of thermal destruction of PCBs would
cause dioxin releases. Under the Clean Air Act, these incinerators must
meet the most protective emission standards of any industrial source in
the U.S. that include specific technologies to control dioxin. As the
EPA data in Appendix A shows, hazardous waste combustors are very minor
emitters of dioxin compared to wood burning stoves, municipal
incinerators and most sources of dioxin in the United States.
Critics of our position believe that exporting technology is the
answer to destruction of foreign-based PCBs. However, such exports are
a chimera. Basel and other treaties, as well as activists are very
concerned that if developing countries have the capacity for hazardous
waste disposal, they will become the dumping ground for first world
waste. Hence, any attempt to export mobile technologies to destroy
U.S.-made PCBs is seen in that light. Clearly, exporting such
technology is not politically practical.
In addition, we must remember that the technology to properly
dispose of these chemicals is highly capital intensive. Many countries,
such as Mexico, have significant volumes of PCBs but not the volumes
justifying investment into the treatment technologies that are required
to meet international standards. As President Bush stated at the Treaty
signing:
``. . . This treaty takes into account understandable concerns
of less-developed nations. When these chemicals are used, they
pose a health and environmental threat, no matter where in the
world they are allowed to spread. But some nations with fewer
resources have a harder time addressing these threats, and this
treaty promises to lend them a hand.''
If we don't allow imports for proper disposal, unused equipment,
contaminated with PCBs will be continued to be improperly disposed in
municipal landfills or stored indefinitely until they leak and enter
the environment. These conditions pose a continuing potential threat to
health and the environment in those countries and in the United States.
When Administrator Carol Browner issued their programmatic PCB
determination, the preamble state:
``The EPA believes that PCB wastes which are not disposed of
for extended periods of time or which are not disposed of in
facilities providing equivalent protection from release to the
environment may pose an unreasonable risk of injury to health
and the environment. Therefore, EPA believes today's rule which
allows foreign generated PCB wastes to be disposed of in a
proper and safe manner in the United States is consistent with
the requirements it has promulgated for storage and disposal of
domestically generated PCB wastes.'' \3\ Id. at 11096.
---------------------------------------------------------------------------
\3\ The Agency makes clear that it only considered the impact on
the environment in the United States in making its determination. Id.
at 11097. Clearly, there is a benefit in the country where the PCBs
were being stored.
---------------------------------------------------------------------------
In 1979, EPA stated
``that closing the U.S. border to shipment of PCB wastes at
this time
. . . could have a serious adverse effects on the environment
by making safe disposal of PCBs more difficult In particular,
baring import of PCBs for disposal could make export for
disposal impossible and thereby eliminate what in many cases
would be the most desirable disposal alternative. 44 FR 31514,
31526-27 (May 31, 1979). . . . [f]oreign disposal alternatives
may not adequately destroy the PCBs and create a threat to
human health and the environment in the Untied States. Id. at
31526.
what does the treaty require?
Some have tried to argued that a narrow reading of the treaty is
consistent with continuing the restrictions on PCB imports. We believe
that is an improper reading of the treaty. Article 3 Section 2.(a)
states ``Each Party shall take measures to ensure that a chemical
listed in Annex A is imported only for the purpose of environmentally
sound disposal as set forth in paragraph 1(d) of Article 6.'' It does
not say ``No export or import of Annex A except a country may make an
exception for proper disposal.'' The preamble notes that developed and
developing countries have different capabilities and needs and there is
a conscious need to take measures to prevent adverse effects caused by
possess at all stages of their life cycle. The preamble also states the
general theory that the polluter is responsible for the pollution.
Restricting the importation of a pollutant into the country of origin
is inconsistent with this treaty intent.
Some argue that placing a three-year delay rulemaking process that
is not required for importing any other item into the United States is
consistent with this section. We believe such a barrier is not only
inconsistent with this treaty but with virtually all our trading
agreements such as NAFTA. As I noted, most countries do not have the
volumes of PCBs to justify the sophisticated technology to properly
dispose or destroy their domestic supplies of PCBs. Keeping the present
regulatory barrier at the border would make it economically infeasible
to import and therefore destroy PCBs is clearly contrary to the
Treaty's preamble to ``protect human health and the environment through
measures which will reduce and/or eliminate emissions and discharges of
persistent organic pollutants.''
The Carter, Clinton and George W. Bush Administration recognized
that disposal of ``foreign'' PCBs in the United States was good
environmental policy that was barred by a Court interpretation that
precluded imports of PCBs. Now the Senate is presented with a Treaty
that is consistent with that policy but still contradicts the wording
in TSCA. However, it appears the authorizing Committee, listening to
narrow interests and those who feel this issue is too controversial,
are going to spurn good environmental policy that helps American
companies abroad, helps the world environment and the goals of the
Treaty.
Some critics of environmental treaties argue that place a
disproportional burden on our country. As the country of origin of the
key pollutant in this treaty, that is clearly not the case with this
Treaty. In fact, not amending TSCA to be consistent with the Treaty is
inconsistent with our moral obligations as the manufacturer of PCBs.
In conclusion, until the authorizing Committee demonstrates that it
intends to implement the entire Treaty, we urge the Senate to not
ratify a treaty our country has no intention in implementing.
APPENDIX A--Inventory of Sources of Dioxin-Like Compounds in the United States
[grams dioxin equivalent emitted per year]
----------------------------------------------------------------------------------------------------------------
1987 Emissions 1995 Emissions Percent
Source (g TEQdf-WHO (g TEQdf-WHO Reduction 1987-
98/yr) 98/yr) 1995
----------------------------------------------------------------------------------------------------------------
Municiple Solid Waste Incineration, air......................... 8877.0 1250.0 88%
Backyard Refuse Barrel Burning, air............................. 604.0 628.0 -4%
Medical Waste Incineration, air................................. 2590.0 488.0 81%
Secondary Copper Smelting, air.................................. 983.0 271.0 72%
Cement Kilns (hazardous waste burning), air..................... 117.8 156.1 -33%
Sewage Slude/land applied, land................................. 76.6 76.6 0%
Residential Wood Burning, air................................... 89.6 62.8 30%
Coal-fired Utilities, air....................................... 50.8 60.1 -18%
Diesel Trucks, air.............................................. 27.8 35.5 -28%
Secondary Aluminum Smelting, air................................ 16.3 29.1 -79%
2,4D, land...................................................... 33.4 28.9 13%
Iron Ore Sintering, air......................................... 32.7 28.0 14%
lndustriaI Wood Burning, air.................................... 26.4 27.6 -5%
Bleached Pulp and Paper Mills, water............................ 356.0 19.5 95%
Cement Kilns (non-hazardous waste burning)...................... 13.7 17.8 -30%
Sewage Sludge Incineration, air................................. 6.1 14.8 -143%
EDC/Vinyl chloride, air......................................... NA 11.2 NA
Oil-fired Utilities, air........................................ 17.8 10.7 40%
Crematoria, air................................................. 5.5 9.1 -65%
Unleaded Gasoline, air.......................................... 3.6 5.6 -56%
Hazardous Waste Incineration, air............................... 5.0 5.8 -16%
Lightweight ag kilns, haz waste, air............................ 2.4 3.3 -38%
Commercially Marketed Sewage Sludge, land....................... 2.6 2.6 0%
Kraft Black Liquor Boilers, air................................. 2.0 2.3 -15%
Petrol Refine Catalyst Reg., air................................ 2.24 2.21 1%
Leaded Gasoline, air............................................ 37.5 2.0 95%
Secondary Lead Smelting, air.................................... 1.29 1.72 -33%
Paper Mill Sludge, land......................................... 14.1 1.4 90
Cigarette Smoke, air............................................ 1.0 0.8 20%
EDC/Vinyl chloride, land........................................ NA 0.73 NA
Primary Copper, air............................................. 0.5 0.5 0%
EDC/Vinyl chloride, water....................................... NA 0.43 NA
Boiler/industrial furnaces...................................... 0.78 0.39 50%
Tire Combination, air........................................... 0.11 0.11 0%
Drum Reclamation, air........................................... 0.1 0.1 0%
Carbon Reactivation Furnace,air................................. 0.08 0.06 25%
Totals...................................................... 13,998 3,255 77%
Percent Reduction from 1987 to 1995............................. .............. .............. 77%
----------------------------------------------------------------------------------------------------------------
The ``Database of Sources of environmental Releases of Dioxin-Like Compounds in the United States'' EPA/600/C-O1/
O12.
______
FedEx Express,
Legal Department,
3620 Hacks Cross Rd.,
Memphis, TN, June 20, 2003.
The Honorable Richard G. Lugar,
Chairman, United States Senate,
Senate Foreign Relations Committee
Washington, DC.
The Honorable Joseph R. Biden, Jr.
United States Senate,
Washington, DC.
Re: The Montreal Convention and The Hague Protocol
Dear Mr. Chairman and Senator Biden:
On behalf of Federal Express, I would like to express our support
for the United States Senate advice and consent to ratification of two
aviation treaties pending before the Committee, the Montreal Convention
for the Unification of Certain Rules for International Carriage by Air
and The Hague Protocol to Amend the Convention for the Unification of
Certain Rules Relating to International Carriage by Air. Federal
Express believes that the ratification of these important treaties is a
prudent and necessary step in the evolution of air transportation. Once
ratified, they will bring the law regarding the international
transportation of cargo into step with the realities of the modem
shipping industry.
Federal Express anticipates numerous benefits to the shipping
industry once the Montreal Convention is ratified and gains wide
acceptance. One of the first benefits will be the simplification of the
notice requirement to the shipper of the Convention's applicability,
which is a significant improvement over the Warsaw Convention. The
Montreal Convention also provides for the use of electronic shipping
documents, and also allows carriers to refuse to accept cargo for
carriage if use of electronic forms is impossible. These changes
acknowledge the technological advancements made in the transportation
industry since the Warsaw Convention was finalized in 1929.
The Montreal Convention also clears up several issues that have
troubled the air cargo transportation industry. In particular, the
Convention clarifies that the consignor is responsible for the
particulars of documentation of the air waybill, even where the person
acting on behalf of the consignor is an agent of the carrier. The
Montreal Convention also rectifies one of the most confusing issues for
cargo carriers regarding loss or damage occurring off airport property.
Article 18 allows a carrier to substitute another mode of carriage for
carriage by air, but the substitute transportation is deemed to be
carriage by air and subject to the Convention. This provision should
rectify the uncertainties surrounding loss of or damage to cargo
outside of airport boundaries.
The comparative negligence scheme for cargo will also be expanded
by the new Convention. A carrier's liability will be limited to the
extent that damage to the cargo resulted from inherent defects, quality
or vice of the cargo, defective packing, act of war or of a public
authority. Presently, a carrier may limit its liability only if the
damage to the cargo results solely from the above listed acts.
Some of the other improvements found in the Montreal Convention
include providing an unbreakable limit of liability for cargo carriers
equal to 17 Special Drawing Rights per kilogram; an improved defense
for delayed cargo when the carrier proves it took all measures that
could reasonably be required to avoid the damage; a provision for
factoring in inflation every five years for cargo and baggage liability
limitations; and a prohibition against the recovery of punitive,
exemplary and non-compensatory damages against cargo carriers.
Ratification of The Hague Protocol will in turn resolve uncertainty
concerning the application of the rules of the Protocol that are
incorporated by reference into Montreal Protocol No. 4, which entered
into force for the United States in 1999. A recent judicial decision
called into question the applicability of those rules, and that
question will be resolved by ratification of The Hague Protocol.
Federal Express is grateful that the Committee is also considering this
instrument for advice and consent to ratification.
Federal Express strongly supports the advice and consent to
ratification of these treaties by the United States Senate. The new
provisions found in the Montreal Convention will modernize the current
Warsaw Convention regime while improving certain aspects of cargo
transportation by clarifying issues that have confused both carriers
and shippers for decades. If our company can be of assistance to your
Committee by providing further information, please do not hesitate to
contact me.
Sincerely,
Tomas F. Donaldson
Vice President, Regulatory Affairs
Federal Express Corporation
______
Prepared Statement of Global Threats Program, World Wildlife Fund
World Wildlife Fund,
1250 Twenty-Fourth St., NW,
Washington, DC, June 16, 2003.
Honorable Richard Lugar, Chairman,
Senate Foreign Relations Committee,
Dirksen Senate Office Building, Room 450,
Washington, DC.
Re: June 17, 2003 Hearing on Stockholm POPs Convention and Other
Treaties
Dear Mr. Chairman,
In the context of the scheduled June 17 Committee hearing on
treaties available for ratification, and on behalf of 1.2 million
Americans who are members of the World Wildlife Fund, I would like to
express our support for the ratification of the Stockholm and Rotterdam
Conventions concerning toxic chemicals. These two important
environmental agreements have the potential to contribute significantly
to making this world a safer place for people and wildlife.
At the same time, I would like to draw to the Committee's attention
our serious concern regarding the adequacy of Stockholm Convention-
related legislative proposals put forward by the administration, and to
request that the Committee seek assurances from the administration that
it will cooperate in the development of effective implementing
legislation for this very critical treaty.
Before joining WWF, I was Deputy Assistant Secretary for
Environment and Development at the U.S. Department of State, in which
capacity I led the U.S. delegation for the negotiation of the Stockholm
Convention. I have attached for the Committee's consideration a copy of
my testimony presented on May 9, 2002, before the Senate Committee on
Environment and Public Works. The testimony outlines the significant
benefits that the United States will derive from the elimination of
persistent organic pollutants (POPs) chemicals under the Stockholm
Convention, and addresses a number of key issues that will determine
the effectiveness of the Convention's implementation.
Principal among these issues is the process for adding chemicals to
the Convention. The Convention contains a carefully worked out
scientific and institutional process for adding chemicals that are
determined to have POPs characteristics and therefore warrant global
concern. This process fully protects the rights of parties to challenge
or even reject the addition of any particular chemical. It is critical,
in ratifying the Convention, to ensure that the United States, as a
party, is fully capable of regulating chemicals that may be added to
the POPs list. Without the enactment of implementing legislation
including expedited provisions allowing the appropriate regulation of
new POPs chemicals, the United States will not be able to fully carry
out its obligations under the treaty. However, the administration's
approach to this issue has been one of confusion and crossed signals.
Advice and consent to ratification would, in WWF's view, be a hollow
victory if this situation is not remedied.
During the past twelve months, WWF and other environmental and
public health NGOs have met on several occasions with representatives
of the American Chemistry Council (ACC) and Bush Administration to
discuss differences regarding implementing legislation. NGOs and ACC
representatives were able to reach substantial common ground regarding
the information that should be taken into account, domestically, for
chemicals being considered for inclusion in the Stockholm Convention.
Regrettably, though, there has been very little progress in agreeing on
the ``adding mechanism'' that would be the basis, domestically, for
deciding whether to regulate a chemical once it is added to the
Convention.
We applaud Senators Chafee and Jeffords for their perseverance and
hard work in striving to craft a legislative text that addresses the
adding mechanism issue effectively. Unfortunately, efforts to include
an effective adding mechanism that gives substantial weight to the
international listing decision have been delayed and impeded by
interventions of administration officials. The initial implementing
language proposed last year by the White House would have left out the
adding mechanism altogether. Proposals put forward earlier this year,
coordinated by the White House's Office of Management and Budget, risk
bogging down that mechanism in lengthy and cumbersome cost-benefit
related proceedings that would make it extremely difficult if not
impossible for EPA to take action when POPs are added to the treaty.
Earlier this month, the administration, chemical industry, and NGO
representatives each submitted comments on these issues to Senator
Chafee's Subcommittee on Superfund and Waste Management as a basis for
arriving at a more acceptable legislative text on this critical
element. We look forward to reviewing revised legislative text as soon
as it is available.
A timely and effective mechanism to allow the appropriate
regulation of POPs chemicals as they are added to the Convention is in
our view the most important component of the POPs treaty implementing
legislation. We therefore urge Members of the Foreign Relations
Committee to request explicit assurances from the administration that
it will support the enactment of effective implementing legislation,
including provisions for the expeditious regulation of new POPs
consistent with the following principles:
(1) The domestic regulatory process should promote timely
decisions by the United States on new chemicals that are added
to the Stockholm Convention. The legislation should seek to
avoid redundancy and unnecessary delays whenever possible. It
should facilitate, through the rulemaking process, the
development of a U.S. position on these chemicals that is in
sync with the scope and timing of the Convention's Article 8
international process. This will avoid the necessity of a de
novo domestic review and scientific determination after the
Conference of Parties (COP) decides to add a chemical; and
(2) The COP listing process and decision should provide the
default option for domestic action, unless the EPA
Administrator finds that the COP has erred and the chemical in
question is not likely, as a result of its long-range
environmental transport, to lead to significant adverse human
health and/or environmental effects such that global action is
warranted.
We would be happy to provide further assistance to Members of this
Committee or staff in your consideration of advice and consent action
on the Stockholm and Rotterdam Conventions.
Sincerely,
Brooks B. Yeager
Vice President, Global Threats Program
World Wildlife Fund
[Attachment.]
Legislation to Implement the 2001 Stockholm Convention, including The
Persistent Organic Pollutants (POPs) Implementation Act of 2002 (S.
2118)
testimony of brooks b. yeager, vice president for global threats, world
wildlife fund, before the committee on environment and public works,
united states senate--may 9, 2002
Mr. Chairman and Members of the Committee:
On behalf of World Wildlife Fund's 1.2 million members, thank you
for the opportunity to testify on the implementing legislation for the
Stockholm Convention on Persistent Organic Pollutants (POPs). Known
worldwide by its panda logo, World Wildlife Fund (WWF) is dedicated to
protecting the rich biological diversity on which the prosperity and
survival of human societies depends. As the leading privately supported
international conservation organization in the world, WWF has sponsored
conservation work in more than 100 countries since 1961.
For the record, I am Brooks Yeager, Vice President for Global
Threats at WWF, where I supervise campaigns to conserve global forests
and ocean resources, to avert damage to the global environment from
climate change and toxic pollution, and to ensure the environmental
sustainability of global commerce. Before joining WWF, I served as the
Deputy Assistant Secretary for Environment and Development at the U.S.
State Department. At State I was responsible for the development and
negotiation of U.S. Government policy in a range of bilateral and
global environmental discussions and undertakings. These included the
Convention on Biological Diversity (CBD), the CBD Biosafety Protocol,
the Global Environment Facility, the International Coral Reef
Initiative (ICRI), the International Tropical Timber Organization, and
United Nations forest discussions.
I also served as the United States' lead negotiator for the
Stockholm POPs Convention. We are here today to discuss the
implementing legislation for this ground-breaking treaty. With your
permission, I will try to distinguish the views I express on behalf of
WWF from those observations I can make from my involvement on behalf of
the U.S. Government in the Convention's development.
The Stockholm POPs Convention represents the most important effort
by the global community, to date, to rein in and ultimately halt the
proliferation of toxic chemicals. It's an agreement that is at once
ambitious, comprehensive, and realistic. The treaty targets some of the
world's most dangerous chemicals--POPs include pesticides such as
chlordane, industrial chemicals such as PCBs, and by-products such as
dioxins.
POPs pose a particular hazard because of four characteristics: they
are toxic; they are persistent, resisting normal processes that break
down contaminants; they accumulate in the body fat of people, marine
mammals, and other animals and are passed from mother to fetus; and
they can travel great distances on wind and water currents. Even small
quantities of POPs can wreak havoc in human and animal tissue, causing
nervous system damage, diseases of the immune system, reproductive and
developmental disorders, and cancers.
Persistent organic pollutants are a threat to human health,
wildlife, and marine and terrestrial ecosystems in the United States
and around the world. From Alaska to the Great Lakes to Florida,
Americans face an insidious but largely invisible threat from POPs
chemicals. Despite more than two decades of U.S. efforts to control
POPs pollution, POPs used and released in other countries--often
thousands of miles from our borders--continue to contaminate our lands
and waterways, the food we eat, and the air we breathe.
Our government made a concerted effort, starting not long after the
publication of Rachel Carson's pathbreaking ``Silent Spring,'' to
eliminate the production and use of known POPs chemicals in the United
States--yet we are still vulnerable to POPs pollution. Our environment,
wildlife, and human health continue to be affected by POPs from
unremediated contaminated sites at home and the production and use of
POPs elsewhere in the world. This last fact is central to understanding
the United States' strong national interest in the success of this
global effort to reduce and eliminate POPs. POPs' mobility in air and
water currents, for example, makes possible their presence along with
metals and other particulates in incursions of Saharan dust into the
continental United States. African dust is the dominant aerosol
constituent in southern Florida's dense summer hazes. Similarly, one
potential source of DDT in some salmon returns to Alaska rivers is its
extensive use in Asian agriculture. A global mechanism to reduce these
``chemical travelers without passports'' is necessary, urgent, and very
much in our national interest.
[Note: ``A Toxic Hot Spots'' map submitted with this testimony will
be referred to in relation to statements made in the prior paragraph.]
The Stockholm POPs Convention was negotiated by more than one
hundred and twenty governments over a four-year period. As the head of
the U.S. delegation, I was responsible for developing the United
States' negotiating objectives and strategies, and for assuring that
our national interest, positions, and requirements were reflected in
the final text. Development of the U.S. position was accomplished
through a thorough, not to say exhaustive, domestic process involving
regular consultations with seven domestic agencies, industry, the
environmental and public health communities, native American
representatives, and various interested state governments, including
the State of Alaska.
This careful process of developing the U.S. negotiating position is
one of the reasons, I believe, that President Bush's decision to sign
the Stockholm Convention last April received such broad support. WWF
and many others--including the chemical industry, environmental and
public health organizations and members of Congress on both sides of
the aisle--applauded the President's Rose Garden announcement. We are
pleased that the President has decided to send the treaty package to
the Senate for ratification.
In fact, both industry and environmental representatives made
important contributions to the final product. I would like to note in
particular the constructive roles played by Mr. Michael Walls and Mr.
Paul Hagen of the American Chemistry Council (ACC). A letter to
Governor Whitman on February 26, 2002, from Mr. Frederick Webber, ACC's
President and CEO, noted that,
ACC strongly recommends that the Administration seek the U.S.
Senate's advice and consent to ratification as soon as
possible. We believe it is important for the United States to
continue its leadership role in the global effort to address
the risks posed by POPs emissions, and believe that the United
States should make every effort to be among the first 50
countries ratifying the Convention.
WWF looks forward to working with our environment and public health
NGO colleagues, indigenous peoples, the ACC and other business groups,
and other stakeholders in moving forward the POPs implementing
legislation and treaty ratification packages as expeditiously as
possible.
The POPs treaty represents a significant and innovative
breakthrough in global chemicals management, calling for concrete steps
to restrict or phase out dangerous chemicals rather than relying on
expensive, end-of-pipe measures such as pollution scrubbers and
filters. The treaty's ambitious control obligations were developed with
enough flexibility that they can be accomplished largely within the
established U.S. statutory and regulatory structure. As we will discuss
today, only limited adjustments are needed to the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA) and the Toxic Substances Control
Act (TSCA).
In Stockholm in May 2001, the POPs treaty was signed by 91
governments and ratified by two. Already those numbers have climbed to
128 signatories and the equivalent of 7 Parties (six ratifications and
one accession) as of May 1, 2002. WWF is working with governments
around the world in the hope of generating the required 50
ratifications by the World Summit on Sustainable Development in late
August in Johannesburg, South Africa, so that the treaty can enter into
force before the end of 2002. This is an ambitious target, but one
fully justified by the urgency of the problem. WWF believes that the
Johannesburg Summit presents a significant opportunity for American
leadership in the global effort to eliminate POPs, as well as in
broader issues affecting the global environment and human development.
Achieving Senate advice and consent for ratification within the next 15
weeks is admittedly a much-accelerated timeframe, but with energy and
determination we believe this is achievable. Enacting implementing
legislation in such a period may be even more challenging, but we urge
you to try and do so.
WWF extends heartfelt thanks and congratulations to Senator
Jeffords and his staff on the Senate Environment and Public Works
Committee for introducing sound, forward-thinking legislation to
implement the POPs treaty.
overview of the stockholm pops convention
Before delving into the specifics of the implementing legislation,
a brief overview of the structure and mechanisms of the Stockholm POPs
Convention may be in order. The POPs treaty is designed to eliminate or
severely restrict production and use of POPs pesticides and industrial
chemicals; ensure environmentally sound management and chemical
transformation of POPs waste; and avert the development of new
chemicals with POPs-like characteristics.
Eliminating intentionally produced POPs. The agreement targets
chemicals that are detrimental to human health and the environment
globally, starting with a list of 12 POPs that includes formerly used
pesticides, dioxins, and PCBs. Most of the pesticides are slated for
immediate bans once the treaty takes effect. A longer phase-out (until
2025) is planned for certain PCB uses. With regard to DDT, the
agreement sets the goal of ultimate elimination, with a timeline
determined by the availability of cost-effective alternatives for
malaria prevention. The agreement limits use in the interim to disease
vector control in accordance with World Health Organization guidelines,
and calls for research, development, and implementation of safe,
effective, and affordable alternatives to DDT.
Ultimately eliminating byproduct POPs. For dioxins, furans, and
hexachlorobenzene, parties are called on to reduce total releases with
the goal of their continuing minimization and, where feasible, ultimate
elimination. The treaty urges the use of substitute or modified
materials, products, and processes to prevent the formation and release
of by-product POPs.
Incorporating precaution. Precaution, including transparency and
public participation, is a guiding approach throughout the treaty, with
explicit references in the preamble, objective, provisions for adding
POPs, and determination of best available technologies.
Disposing of POPs wastes. The treaty includes provisions for the
environmentally sound management and disposal of POPs wastes (including
stockpiles, products, articles in use, and materials contaminated with
POPs). The POP content in waste is to be destroyed, irreversibly
transformed, or, in very limited situations, otherwise disposed of in
an environmentally sound manner in coordination with Basel Convention
requirements.
Controlling POPs trade. Trade in POPs is allowed only for the
purpose of environmentally sound disposal or in other very limited
circumstances where the importing State provides certification of its
environmental and human health commitments and its compliance with the
POPs treaty's waste provisions.
Allowing limited and transparent exemptions. Most exemptions to the
treaty requirements are chemical-and country-specific. There are also
broader exceptions for use in laboratory-scale research; for small
quantities in the possession of an end-user; and for quantities
occurring as unintentional trace contaminants in products. Notification
procedures and other conditions apply to exemptions for POPs as
constituents of manufactured articles and for certain closed-system
site-limited intermediates.
Funding commitments enabling all countries to participate. The
ability of all countries to fulfill their obligations will be integral
to the treaty's success. The treaty contains a sensible and realistic
financial mechanism, utilizing the Global Environment Facility (GEF),
through which donor countries have committed to assisting developing
countries and transitional economies in meeting their obligations under
the treaty. Adequacy, predictability, and timely flow of funds are
essential. The treaty calls for regular review by the Conference of
Parties of both the level of funding and the effectiveness of
performance of the institutions entrusted with the treaty's financial
operations.
the pops treaty as a careful balance of interests
In my view, Mr. Chairman, this is a solid and carefully crafted
treaty. But it is also a treaty that reflects a careful balance of
interests achieved through negotiation and compromise. The U.S.
interest, as we articulated it during the negotiations, was to achieve
an ambitious treaty that would address the global environmental damage
caused by POPs, but do so in a way that would be practical,
implementable, financially efficient, and consistent with the
fundamental structure of our national approach to chemical regulation.
Other countries had different interests, some similar, some at
variance with ours. The developing countries were neither willing nor
able to invest in what to them was a new environmental priority such as
POPs control and remediation without financial and technical assistance
from the developed world. The G-77 negotiators insisted throughout the
negotiation on a new financial mechanism, specific to the Convention,
with mandatory assessments. The establishment of the GEF as the
Convention's interim financial mechanism represents a genuine
compromise in which the donor countries committed to provide additional
financial resources, but through a channel with a proven track record
and one over which donor countries exert significant control.
Similarly, the EU and a number of other countries insisted early in
the negotiations on a framework for regulating byproducts such as
dioxins based on quantitative baselines and mandatory percentage
reductions. The United States and some developing countries considered
this unrealistically rigid, in view of the highly varying levels of
knowledge regarding dioxin sources in various national contexts and the
even higher variation among countries in the capacity to address such
sources. The framework for dioxin regulation which emerged sets an
ambitious goal of ``ultimate elimination . . . where feasible,'' but
seeks to reach this goal through a nationally-driven process of
inventory, planning, and appropriate regulation, under guidance from
the Convention. This too was a genuine compromise that should produce
real progress in dioxin source reduction in the coming years.
The process of balancing interests and finding a unified way
forward was critical to developing a consensus as to how to add new
POPs chemicals to the treaty over time. All parties clearly recognized
that the Convention could not be successful if it were limited solely
to the 12 chemicals already on the POPs list. All parties recognized,
and stated, that the Convention was intended to be dynamic rather than
static. But the question of what scientific and institutional process
to use in adding chemicals to the list was fraught with difficulties
and misunderstandings.
For the United States, it was critical that this process be
scientifically-driven and not subject to political whim. Some in the
U.S. feared that other countries might be almost cavalier in adding
chemicals to the list, and that such an approach would distort the
treaty and distract parties from the strong efforts needed to deal with
the chemicals already on the list.
For some in the EU and elsewhere, it was critical that the process
for adding chemicals not be subject to endless procedural roadblocks.
This concern reflected an anxiety that the affected industries or
governments might use procedural challenges to block the addition of
chemicals that would legitimately qualify for the list on scientific
grounds, and that this approach would impede the effectiveness of the
Convention over time.
The procedure for adding new chemicals which was finally adopted
is, once again, a genuine compromise, but one which, in my view,
successfully protects the U.S. interest in every respect. It may be
useful to give a short account of the negotiations on this important
issue.
First, the U.S. negotiating team insisted on, and successfully
negotiated, the scientific criteria according to which a nominated
chemical would be evaluated. These criteria are contained in Annex D of
the Convention. Then we negotiated the process through which these
criteria should be applied, by a scientific screening committee (the
so-called POPs Review Committee or ``POPRC''), working under the
supervision of the Conference of the Parties (the COP). Finally, we
negotiated the terms under which the COP would review the
recommendation of this scientific group, the conditions under which the
COP could make a decision to add or reject a chemical, and the
procedures for party governments to accept or reject the COP's
decision.
The process which emerged is described in more detail in our
substantive discussion of the new chemicals provisions. Let me just say
here that it offers the United States the safeguards of rigorous
science, a careful review procedure, a high institutional threshold for
COP decisions to add chemicals, and the right to reject the addition of
a new chemical, if appropriate. In addition, this compromise also
successfully resolved, at least in this context, the long-running
controversy between the United States and the European Union on the
subject of precaution, and did so in a way which may have useful
applications in the future.
congressional action needed to implement the stockholm convention
The Congressional action necessary to implement the POPs treaty
must come in two areas--financial support and implementing legislation.
POPs Financial Support
Negotiators agreed to request that the Global Environment Facility
serve as the treaty's principal financial mechanism, on an interim
basis. It is WWF's strong view that the GEF must be fully funded in
order to provide sufficient resources for developing countries to begin
to eliminate POPs. In order to take on the added responsibility of
assisting the global effort to eliminate POPs without robbing its other
critical priorities, the GEF needs to be replenished at a higher level.
It will take American leadership to do this. The Administration's
$177.5 million FY03 request for the GEF, including paying a portion of
U.S. arrears, is an important first step towards this goal. We urge the
Committee to work with the Appropriations Committee to fully fund the
Administration's $177.5 million request, and to allow the President
sufficient flexibility within the request to position the United States
to lead efforts to replenish the GEF at the level necessary.
POPS Implementing Legislation
As WWF has not had an opportunity to review the official
transmission from the Administration, our comments will be directed
primarily to the Chairman's bill, S. 2118. We would be happy to submit
comments on the Administration's bill at a later date.
S. 2118 amends FIFRA and TSCA (the first amendments to TSCA since
its enactment in 1976) to implement both the Stockholm POPs Convention
and the Protocol on POPs to the Convention on Long-Range Transboundary
Air Pollution (LRTAP POPs Protocol). My comments will address primarily
the implementing legislation for the Stockholm Convention.
S. 2118 would provide EPA with the authority to prohibit
manufacture of the twelve POPs identified in the Stockholm Convention
annexes as well as other POPs subsequently added to the Convention. The
legislation also includes related provisions calling on the National
Academy of Sciences to develop new methodologies for screening future
POPs candidates.
First and foremost, I would like to address the provisions for
adding new chemicals to the treaty. Speaking both as the lead U.S.
negotiator and in my capacity for WWF, I want to emphasize the
importance of including the targeted statutory amendments needed to add
other chemicals to the treaty.
The international community envisioned a dynamic instrument that
could take into account emerging scientific knowledge about chemicals
beyond the initial 12. Integral to the treaty is a process for
nomination, science-based assessment (including risk profiles and risk
assessments), and decision-making that involves both the subsidiary
POPs Review Committee and the Conference of Parties before a substance
can be added to the treaty's annexes. Unless this element of the treaty
is considered to be self-executing, the legal mechanism to eliminate
the production, use, and export of new POPs must be reflected in the
implementing legislation. We applaud Senator Jeffords for including in
his bill the critical amendments to TSCA and FIFRA to regulate
subsequent additions.
WWF and other environmental and public health organizations stand
alongside the chemical industry in voicing our support for full
implementation. Again to quote from the American Chemistry Council's
letter to Governor Whitman,
ACC believes it is possible to craft appropriate amendments to
TSCA and FIFRA to reflect the treaty additions process. . . .
Although we have not yet seen the Administration's draft
implementing legislation, we are confident that matters
concerning the substance selection process can be addressed as
necessary in the course of the legislative process.
It is our understanding that both the Jeffords bill and the
Administration proposal are based on a legislative proposal crafted by
EPA and other U.S. Government agencies last summer, but the
Administration removed these essential provisions for adding new POPs
from its final implementing package.
The Administration's proposal apparently envisions a case-by-case
revision of domestic legislation for each POP candidate beyond the
initial 12. Such an approach risks politicizing decisions that would
otherwise be based on sound science. Moreover, we find it hard to
believe that Congress will be willing or able to repeatedly reopen
domestic laws such as TSCA and FIFRA which have rarely if ever been
amended.
In our view, as I have already mentioned, the Convention as
negotiated provides the U.S. with a great deal of flexibility in
deciding whether and how to take domestic action against future POPs:
The international selection process involves input from all
countries that are Parties to the Convention: Article 8 of the
Convention provides for the evaluation and addition of
chemicals beyond the initial 12. Upon entry into force, the
Conference of the Parties (COP) will establish a Persistent
Organic Pollutants Review Committee (POPRC). Parties will
submit chemical nominations to the POPRC, which will evaluate
them based on agreed scientific criteria including persistence,
bioaccumulation, long-range transport, and toxicity. The POPRC
must prepare a draft risk profile in accordance with Annex E,
to be made available for input from all Parties and observers.
The POPRC will then make recommendations that must be approved
by the entire Conference of the Parties before a nominated
chemical can be added to the treaty as a binding amendment.
The Convention does not automatically obligate the U.S. to
eliminate each new POP that is added internationally: Under
Article 22(3) of the Convention, COP-agreed amendments to add
new chemicals become binding upon all Parties, subject to the
opportunity to ``opt out'' of such obligations within one year.
However, there exists another safeguard under Article 25(4),
which was proposed by the U.S., allowing a Party to declare
when ratifying the Convention that it will be bound by new
chemical amendments only if it affirmatively ``opts in'' via a
separate, subsequent ratification process. The State Department
has indicated that the U.S. will take advantage of the ``opt
in'' provision, enabling the Senate to give its advice and
consent to the addition of each new POP in the future.
Including these and other safeguards in the POPs treaty was a major
objective of U.S. negotiators, and one which I believe was fully
achieved. At the end of the long, hard concluding week of negotiations
in Johannesburg in December 2000, I can say that the U.S. negotiators
felt extremely pleased with the balance of the treaty, and were fully
satisfied with the particular provisions for the addition of new
chemicals. In my view, the Administration's reluctance to include
authority to regulate new POPs--the so-called 13th POP, and beyond--
cannot be justified by any need to add to an already elaborate system
of protections. It is also my view that the absence of such provisions
jeopardizes U.S. participation in the Convention, and will injure the
credibility of the United States in this context.
We recognize that broad options exist for regulating additional
POPs under U.S. law. Two major options can be considered for amending
TSCA and FIFRA to deal with future POPs under the Convention. The first
option would amend these statutes to allow for automatic regulation of
new POPs once the United States ``opts in'' to the corresponding treaty
amendments. This option is preferred by environmental and public health
NGOs, given the other existing safeguards described above. The second
option, according to Administration officials, would provide that a
``rebuttable presumption'' be given to the COP's decision on a new POP,
while preserving the right to make a persuasive case that modified
controls are necessary.
From the point of view of an environmental organization, in view of
the safeguards built into the treaty mechanism itself, it would make
sense to make regulation of newly-listed POPs automatic, triggered by
the government's decision to ``opt in'' to the listing under Article
25(4). While the rebuttable-presumption language contained in S. 2118
offers the additional reassurance of a domestic process of notice and
comment, which may be attractive for some interests, we would note that
FIFRA's special review and cancellation process, if challenged,
generally takes at least five years and often more than 10. This is
clearly far too long a period to revisit, via the procedures set forth
in domestic regulations that govern the cancellation process, a
scientific conclusion and policy decision already taken by the
government in its role as a party to the Convention.
One solution to this dilemma might be to amend the cancellation
process so that when a pesticide is listed as a POP, or in the judgment
of EPA deserves to be listed as a POP, the EPA's evidentiary burden
would be restricted to proving that the basic POPs listing criteria
apply--thereby precluding a full FIFRA cost-benefit analysis.
Administrative review would be limited to the data and scientific
judgments supporting EPA's conclusion that the POPs criteria apply to a
given pesticide.
In addition, it is important that the legislation ensure the
elimination of any POPs pesticide--whether registered for a formulated
end-use product or a technical material--to enable U.S. compliance with
obligations under the POPs treaty. In other words, each of a
pesticide's registrations--the one covering ``technical material,''
i.e., the pure active ingredient, and the second for ``end-use
products'' formulated with the addition of inert ingredients
(surfactants, emulsifiers, carriers, etc.)--should count as ``existing
registrations'' even if the pesticide is not being actively marketed or
used in the United States.
In step with the cancellation action (but lagged by about two years
to allow channels of trade to clear), whenever a pesticide is listed as
a POP, EPA should be directed to phase out all tolerances covering food
uses of the pesticide. Likewise, listing as a POP should be enough to
trigger EPA revocation of any ``import tolerances'' or exemptions.
Revocation of a tolerance is the only tool the EPA has to alter how
high-risk pesticides are used outside U.S. borders--and to protect
human health inside the United States. Tolerances set in the United
States can serve as de facto global standards because so many countries
depend on access to the U.S market and because changes in U.S.
tolerance levels often trigger changes in the international Maximum
Residue Limits set by Codex.
WWF is undertaking a thorough assessment of these issues as
presented in S. 2118, with the intent of assisting the Committee in
assuring that any changes to FIFRA and TSCA effectively and efficiently
carry out the aims of the POPs treaty. We would be happy to share that
analysis upon completion.
Research Program to Support POPs Convention
WWF is pleased to see that S. 2118 calls for a program of
scientific research to assist the U.S. Government in meeting its
obligations under the POPs treaty. The bill directs the National
Academy of Sciences to review scientific models and testing methods for
screening candidate POPs; to propose alternative designs for a global
monitoring program on persistent and bioaccumulative substances; and to
recommend priority POPs chemical substances or mixtures for possible
nomination to the POPRC.
WWF strongly supports these provisions, which are described in
Section 107 of the bill. While not essential to the legislation
amending TSCA and FIFRA, the research provisions are a valuable
complement to POPs treaty implementation. They will help ensure that
proposals for subsequent additions to the treaty target the worst
offenders and are supported by sound testing methods, risk assessment
models, and environmental monitoring techniques. Carrying out this
program of rigorous scientific research on POPs places the United
States in a strong position not only to nominate the most appropriate
candidates for future POPs but also to question any proposed listings
that are based on misguided information or inaccurate data.
The Chairman's bill also very appropriately calls upon the
Administrator of EPA to submit no later than 90 days after enactment of
S. 2118 the agency's final exposure and human health reassessment of
2,3,7,8-Tetrachlorodibenzo-p-Dioxin (TCDD) and related compounds, which
are among the most dangerous POPs. In this regard, less than two weeks
ago the U.S. General Accounting Office released a report,
``Environmental Health Risks: Information on EPA's Draft Assessment of
Dioxins.'' In its transmittal letter, the GAO notes that, according to
EPA officials, the assessment will conclude that (p. 1)
dioxins may adversely affect human health at lower exposure
levels than previously thought and that most exposure to
dioxins occurs from eating such dietary staples as meats, fish,
and dairy products, which contain minute traces of dioxin.
These foods contain dioxins because animals eat plants and
commercial feed, and drink water contaminated with dioxins,
which then accumulate in animals' fatty tissue.
The GAO report is significant in that it endorses the work
undertaken thus far by EPA and provides a solid basis for the long-
awaited reassessment to be expeditiously completed and released.
Release of the dioxin reassessment will contribute important
information relevant to actions that may be required to address dioxins
and other unwanted byproducts under the POPs treaty, measures that
would benefit citizens in the United States and other countries.
LRTAP POPs Protocol
WWF also supports the inclusion of implementing legislation for the
Economic Commission for Europe's Long-Range Transboundary Air Pollution
(LRTAP) POPs Protocol. An outgrowth of scientific findings linking
sulfur emissions in continental Europe to acid deposition in
Scandinavian lakes, LRTAP was the first legally-binding agreement to
address air pollution problems on a broad regional basis. Parties to
LRTAP include the United States, Canada, and Western and Eastern
European countries including Russia.
The LRTAP POPs Protocol--the first legally-binding multi-lateral
instrument on POPs--was added in 1998. It targets 16 substances
including the 12 POPs chemicals plus chlordecone, hexabromobiphenyl,
and hexachlorocyclohexane (including lindane). It also includes
obligations to reduce emissions of polycyclic aromatic hydrocarbons
(PAHs) which--as with other byproduct chemicals--do not require changes
to TSCA or FIFRA. Although the LRTAP POPs Protocol includes more
chemicals than the POPs treaty, it is not a replacement. LRTAP deals
with transmission of POPs through only a single medium (air); confines
its reach to northern, largely European countries; and does not address
many of the issues involving developing countries.
To date, eight countries have ratified the LRTAP POPs Protocol out
of 15 needed for entry-into-force. WWF would welcome U.S. participation
in these regional efforts. Given POPs' global reach, however, a
realistic and comprehensive solution needs to include developing
countries as well. The United States and other donor countries must
assist the developing world in coming to grips with the POPs problem--
and the global POPs treaty is the ideal vehicle through which to do
this.
Rotterdam Convention on Prior Informed Consent
We are pleased to see that the Administration has bundled the
Rotterdam PIC Convention in its implementing legislation alongside the
POPs treaty and the LRTAP POPs Protocol. The PIC treaty alerts
governments as to what chemicals are banned or severely restricted, by
which governments, and for what reasons. The cornerstone of the treaty
is prior informed consent, a procedure that enables Parties to review
basic health and environmental data on specified chemicals and to
permit or refuse any incoming shipments of those chemicals. Each
Party's decisions are disseminated widely, allowing those countries
with less advanced regulatory systems to benefit from the assessments
of those with more sophisticated facilities. Instituting PIC is a
critical first step in the process of improving chemical management
capacity.
The PIC treaty includes provisions for:
alerting countries when there is an impending import of a
chemical which has been banned or severely restricted in the
exporting country;
labeling hazards to human health or the environment; and
exchanging information about toxicological findings and
domestic regulatory action.
Ultimately the Rotterdam Convention will replace the voluntary PIC
procedure, which has been operated by UNEP and FAO since 1989.
Governments have elected to follow the new PIC procedures during this
interim period before the Convention enters into force.
The PIC treaty makes an important contribution to global chemicals
management by drawing attention to those substances causing the
greatest harm, disseminating that information, and facilitating
national decision-making on chemical imports. To date, the Convention
has 20 Parties out of 50 required for entry into force. As with the
POPs treaty, WWF would like to see the United States ratify PIC prior
to the Johannesburg Summit, and we therefore support the Bush
Administration's decision to bundle PIC for the purpose of Senate
``advice and consent'' and implementing legislation.
Many of the POPs-, LRTAP-, and PIC-related legislative provisions
are inter-related. WWF would be happy to work with E&PW staff to help
ensure that the implementing legislation facilitates rather than
hinders the efficient working of these laws.
In closing, we wish to applaud Chairman Jeffords and Committee
staff for the hard work and initiative that went into introducing this
legislation. Full implementation of these agreements is essential to
protecting the American people from the threat of POPs and other toxic
substances.
Thank you for the opportunity to testify today. I would be happy to
answer any questions.
______
Prepared Statement of Hon. James M. Jeffords, U.S. Senator from Vermont
The dramatic growth in chemicals production and trade over the past
several decades has raised awareness about the potential risks posed by
hazardous chemicals and pesticides to human health and the environment.
While many countries have developed extensive regulatory controls,
since chemicals circulate globally through trade or naturally via air,
water, and animals, it is evident that international action is
required. The Rotterdam Convention on the Prior Informed Consent
Procedure for Certain Hazardous Chemicals and Pesticides in
International Trade (PIC Convention) and the Stockholm Convention on
Persistent Organic Pollutants (POPs Convention) provide the
international framework for the environmentally sound management of
hazardous chemicals.
The PIC Convention requires exporters trading in a list of
hazardous substances to obtain the prior informed consent of importers
before proceeding with the trade. The Convention provides importing
countries with information to identify potential hazards and exclude
chemicals they cannot manage safely. If a country agrees to import
chemicals, the Convention promotes their safe use through labeling
standards, technical assistance, and other forms of support. It also
ensures that exporters comply with the requirements.
Persistent Organic Pollutants, or POPs, are pesticides and
industrial chemicals that resist degradation in the environment,
bioaccumulate in human and animal tissue, can travel long distances
from their sites of use and release, and are toxic to humans and
wildlife. Specific health effects resulting from exposure to POPs can
include cancer, allergies and hypersensitivity, damage to the nervous
systems, reproductive disorders, and disruption of the immune system.
The POPs Convention built on the accomplishments of the PIC
Convention by targeting the phaseout of 12 of the most hazardous
pesticides and industrial chemicals, including DDT and PCBs, and
providing a process for the nomination, science-based assessment, and
addition of other POPs to the treaty. For intentionally produced POPs,
that is, pesticides and industrial chemicals, production and use will
either be eliminated or restricted and, in each case, trade will be
restricted. Releases of unintentionally produced POPs will continue to
be minimized and, where feasible, eliminated. Stockpiles must be
disposed of in an environmentally sound manner.
During negotiations on these treaties, the U.S. sought input from
both industry and public interest organizations, and these groups as
well as the Administration and Members of Congress have supported
ratification. The POPs Convention was endorsed in April 2001 by
President Bush, Secretary of State Colin Powell, and EPA Administrator
Christine Todd Whitman in a Rose Garden ceremony, and was signed by the
U.S. in May 2001.
I enthusiastically support the PIC and POPs Conventions and have
been working for over a year on implementing legislation so that the
U.S. will be in a position to ratify these treaties. On April 11, 2002,
I introduced the POPs Implementation Act of 2002 (S. 2118). The bill
sought to amend the Toxic Substances Control Act (TSCA) and the Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA) to enable the
ratification of the POPs Convention and the Protocol to the 1979
Convention on Long-Range Transboundary Air Pollution on Persistent
Organic Pollutants (LRTAP POPs Protocol), a regional agreement
targeting 16 POPs, including the 12 covered by the POPs Convention. The
same day the Administration submitted implementing legislation to
ratify and implement these treaties as well as the PIC Convention.
While the two bills were similar, the Administration's package
failed to include a mechanism for the addition of new POPs chemicals.
As a result, FIFRA and TSCA which had never been amended since its
enactment in 1976, would have to be amended each time a chemical was
added to the treaty. Such a process would be extremely cumbersome. This
is not sound legislative policy as this approach invites politicizing
of decisions that are important to the health of communities all around
the world. In addition, this would not fulfill all our commitments to
the POPs Convention.
Since last spring the Environment and Public Works Committee has
been working on a bipartisan basis on compromise legislation with
respect to TSCA, including on a science-based process consistent with
the POPs Convention for listing additional chemicals exhibiting POPs
characteristics. A similar process is underway in the Senate
Agriculture, Nutrition and Forestry Committee, which has jurisdiction
over FIFRA, and a similar adding mechanism is anticipated.
The U.S. is currently in compliance with most aspects of this
treaty. While one important amendment must provide EPA with the
authority, which it currently does not have, to prohibit the
manufacture for export of the twelve POPs and POPs that are identified
in the future, the registrations for nine of the twelve POPs covered by
the Convention have been canceled, the manufacture of PCBs has been
banned, and stringent controls have been placed on the release of other
covered chemicals.
The impetus for a global POPs treaty came from developed countries.
Many developing countries have undertaken substantial commitments with
respect to the phaseout of the initial 12 POPs and finding affordable
substitutes. The U.S., which must do so little to comply with the
treaty's current obligations, should at a minimum be prepared to
implement the treaty in its entirety--by having in place a mechanism to
address additional chemicals so that they can be eliminated in a timely
manner once international consensus has been reached on their
deleterious effects to human health and the environment.
The Convention also contains two safeguards that offer flexibility
in determining whether and how to take domestic action against future
POPs. Under Article 22(3), agreed additions become binding on all
parties, subject to the option to ``opt out'' of such obligations
within one year. Another provision under Article 25(4), which was
proposed by the U.S. during negotiations, permits a party to declare
when ratifying the Convention that it will be bound by new chemical
amendments only if it affirmatively ``opts in'' via a separate,
subsequent ratification process. The State Department has indicated
that the U.S. will avail itself of the ``opt in'' provision, enabling
the Senate to give its advice and consent to the addition of each new
POP.
I encourage the Senate Foreign Relations Committee to stipulate in
its resolution of ratification that the U.S. shall not deposit the
instruments of ratification for these treaties until the President
signs into law a bill that implements the treaties, and that shall
include clarifications to U.S. law regarding the listing of additional
POPs chemicals. This would permit the committees with jurisdiction over
the applicable domestic laws to complete their work and would enable
the U.S. to fully implement its treaty obligations with respect to the
addition of new chemicals as outlined in Articles 8 and 22 and Annexes
D, E, and F of the treaty. There is precedent for such conditions for
ratification, notably the World Intellectual Property Organization
Copyright Treaty and the World Intellectual Property Organization
Performances and Phonograms Treaty (Treaty Doc. 105-17) and the
Convention on Protection of Children and Cooperation in Respect of
Intercountry Adoption (Treaty Doc. 105-51).
I look forward to continuing to work with my colleagues, the
Administration, and other stakeholders to ratify these treaties and to
pass environmentally responsible implementing legislation that
addresses all treaty obligations. Ratification based on incomplete
legislative authority would further weaken U.S. credibility with
respect to the environment and increase resentment among the
international community over perceived U.S. unilateralism. Such
ratification would also be unnecessary and unfortunate, given the
widespread support for these treaties, a rarity in international
environmental policymaking. The U.S. must resume its leadership role on
global environmental problems by serving as a model for other
countries. We cannot expect other countries to take on new commitments
if we are unwilling to implement our most basic obligations.
______
Prepared Statement of Hon. John F. Kerry, U.S. Senator from
Massachusetts
I am pleased that the Chairman has taken up consideration of these
important treaties, in particular the Stockholm Convention on
Persistent Organic Pollutants (POPs Convention). The POPs Convention
addresses a specific group of chemicals, such as DDT, that share four
characteristics of concern: they are toxic; extremely persistent in the
environment; bioaccumulate in the food chain; and are able to travel
long distances. POPs have been linked to adverse health impacts on
humans and other living beings, including cancer and reproductive
disorders, and disruption of the immune system. Although the U.S. has
already banned many of these chemicals, their continued use by other
countries has impacted the United States. POPs are truly a global
problem that require a global solution.
The POPs Convention provides a balanced, realistic approach to
reducing the threats from these chemicals and has garnered broad
support from many different stakeholders. I understand that the
Convention has the support not only of the U.S. chemical industry, but
also of U.S. environmental groups.
One of the most important aspects of the Convention is that it
creates a mechanism to add new chemicals that share these same four
characteristics. The adding mechanism ensures that the treaty will have
relevance beyond the initial twelve chemicals that are named in the
agreement. The mechanism is science-based, with multiple criteria that
must be met before a chemical can be considered for addition to the
Convention.
While I believe the Senate should support this important instrument
in giving its advice and consent, I am concerned that the
Administration's proposed implementing legislation fails to adequately
address this most important aspect of the Convention. Without
comprehensive legislation, the U.S. will not be able to implement the
entire agreement, and will risk putting itself, its citizens, and its
industry on unequal footing with the rest of the world. Therefore, the
Senate should ensure that when the U.S. deposits its instrument of
ratification, that it does so with legislation necessary to fully
implement the provisions regarding the addition of substances.
I look forward to working with my colleagues on the Senate Foreign
Relations Committee, on the Environment and Public Works Committee, and
on the Agriculture Committee to achieve this goal.
______
Prepared Statement of Juanita M. Madole, Counsel, Law Firm of
Speiser Krause
Mr. Chairman and Members of the Committee:
My name is Juanita M. Madole and I am of counsel to the law firm of
Speiser Krause, with which I have practiced for the past 27 years,
primarily representing families of people who are killed or people who
are injured in airplane accidents. Prior to moving into the private
practice of law, I was a trial attorney with the Aviation Litigation
Unit, Civil Division, United States Department of Justice.
I am currently serving as Liaison Counsel in the litigation arising
from the crash of Singapore Airline's 747 at Taipei, Taiwan on October
31, 2000. I am also a member of the Steering Committees designated to
handle the litigation arising from the crash of Korean Air Lines B-747
at Agana, Guam in August 1997, pending in the Central District of
California, and the January 31, 2000 Alaska Airlines 261 disaster,
pending in the Northern District of California. I previously served as
a member of the Plaintiffs' Steering Committee representing the
passengers on board United Flight 811, which experienced a cargo door
failure out of Honolulu on February 24, 1989 (MDL 807), and was Liaison
Counsel on the Steering Committee representing the passengers on Korean
Air Lines Flight 007 (MDL 565), which was shot down over the Soviet
Union in September, 1983. Both United 811 and Korean Air 007 involved
issues of willful misconduct against the airlines. I also represented
numerous claimants in the United 232 disaster, the DC-10 that crashed
at Sioux City, Iowa on July 19, 1989 (MDL 817). I have acted as counsel
to Plaintiffs' Steering Committees in the following multidistrict
litigation: the Northwest MD8O crash at Detroit, Michigan, 1987 (MDL
742); Continental DC-9 accident at Denver, Colorado 1987 (MDL 751);
Arrow Air crash at Gander Newfoundland, 1985; Air Canada DC-9 fire,
1983 (MDL 569); Air Florida B-737 crash at Washington, D.C., 1982 (MDL
499); Saudia Airlines L1011 crash at Riyadh, Saudi Arabia, 1980 (MDL
458); American Airlines DC-10 crash at Chicago, Illinois litigation,
1979 (MDL 391); Southern Airways DC-9 crash, New Hope, Georgia
litigation, 1977 (MDL 320); Turkish Airlines DC-10 crash at Paris,
France, 1974 (MDL 164); and the Alaska Airlines B-727 crash at Juneau,
Alaska, 1971 (MDL 107).
I have prepared numerous legal briefs for the United States Supreme
Court, and was chosen to present oral argument in a case before the
Supreme Court in April 1998. I have also appeared before most of the
United States Circuit Courts of Appeal.
I am the past Chairman of the Aviation and Space Law Committee of
the Tort and Insurance Practice Section, American Bar Association, as
well as one of the five-member Advisory Board to the prestigious SMU
Journal of Air Law and Commerce. I am also on the Editorial Advisory
Board to the Aviation Litigation Reporter, and am an active member of
the D.C. Bar Association, Federal Bar Association, Texas Bar
Association, Colorado Bar Association, California Bar Association,
American Trial Lawyer's Association, and the Lawyer Pilot Bar
Association.
I am the author or co-author of Recovery for Wrongful Death (Third
Edition) (Clark Boardman Callahan, 1992); Negligence Litigation
Handbook: State and Federal (John Wiley & Sons, 1986); ``Wrongful Death
Damages'', Trial Magazine, September, 1989; ``Litigating the General
Aviation Case'', Trial Magazine, February, 1989; and am the Editor of
Litigating the Aviation Case and The Government Contractor Defense: A
Fair Defense or the Contractors' Shield.
In 1992, I was a member of a Presidential Delegation to Moscow,
which met with the Russian government to obtain previously unreleased
documents relating to the 1983 shootdown of KAL Flight 7; the only
lawyer included in the Delegation.
In the course of my practice I have frequently become involved with
litigation to which the Warsaw Convention in its original form applied.
The restrictions and constraints imposed by the original Warsaw
Convention have been burdensome and unfair to many American passengers
on both domestic and international flights. Because application of the
Warsaw Convention is dependent upon the itinerary purchased by the
passenger, passengers involved in domestic flights may be covered by
the Warsaw Convention as well as those who are clearly on international
legs if they bought their ticket overseas, even if the crash involves
one leg of their journey on an American air carrier.
When the United States adhered to the original Warsaw Convention in
1934, it did so because the airline industry was in its infancy and
there was felt the need to provide some protections so it could develop
in to a major economic resource. While that may have been a laudable
goal almost 70 years ago, it was not well considered as it was related
to American jurisdiction. The Warsaw Convention was drafted by civil
code countries rather that ones imbued with common law concepts, as is
The United States. Thus its interpretation in American courts has been
problematic. The United States did not send a delegate to the
conference discussing the terms of the Treaty, only an observer, and
this oversight resulted in the absence of consideration of common law
jurisdictions' needs. Unfortunately this has meant that its provisions
have been amongst the most litigated of any treaty, usually to the
detriment of the innocent passengers.
Much has changed since 1934. The airline industry has long ago left
its infancy. This Committee has the opportunity to examine the Montreal
Convention in the light of modern development. This Committee can and
has solicited the views of a wide variety of interested individuals and
entities, unlike the Foreign Relations Committee of 70 years ago, which
only heard testimony from the Secretary of State. This Committee should
pay heed to all those, including me, who support ratification of the
Montreal Convention which, like the airline industry, has evolved over
the past decades to a mature and well considered vehicle for
compensation.
During the years of the regime of the original Warsaw Convention,
we, as litigators in behalf of the passengers, had to prove willful
misconduct in order to break the maximum limit of $75,000 imposed by
the Warsaw Convention and the special contract known as the Montreal
Agreement. Because of the burdensome nature of having to prove willful
misconduct, many of the passengers were unable to receive full
compensation and were limited to the maximum limit of $75,000. This, of
course, was wholly inequitable be those passengers, both because of the
arbitrary monetary cap and also because we often had to incur
considerable expenses in order to try to establish willful misconduct
to try to provide full compensation for the passengers.
Not only was there the arbitrary monetary limit, but also some
American passengers were unable to sue in the United States, their home
country, because of the venue provisions for Article 28 of the Warsaw
Convention. There are thousands of Americans who work overseas, in
embassies, for American companies doing business overseas, for
charitable organizations, as part of the United Nations efforts, and
for many other reasons. If any of the thousands of Americans who worked
overseas were on international flights for which they purchased their
tickets overseas and were killed or injured on a non-American carrier,
they were unable to bring suit in the United States, even if the
carrier did considerable business here. This is true even if all of the
passengers' beneficiaries and heirs lived in the United States.
The Montreal Convention, which is before this august body for
ratification, would remedy the inequities to Americans contained in the
original Warsaw Convention. It would provide a guaranteed recovery of
100,000 SDRs and would provide for full compensation unless the airline
could prove that it had taken all necessary measures to avoid the
accident. It would also provide jurisdiction in the United States for
all Americans where the airline involved did business in the United
States.
Importantly, it would positively address the needs of the truby
innocent injured: the widowed spouses, children, and parents of persons
killed or passengers injured in accidents through no fault of their
own. It will provide compensation in a timelier manner with lower cost
and less attorneys' fees. And it would do so in a just manner to all
involved.
The Montreal Convention is a winning vehicle all around. It is
beneficial to the passengers, who of course are my main concern, but it
is also beneficial to the airlines and to the insurers. The airlines
and their insurers would know what their exposure is and would benefit
from decreased legal fees because they would not have to pay defense
lawyers to defend against protracted and expensive litigation on
willful misconduct. The Montreal Convention also permits the airline to
maintain any claims over against other third party wrongdoers or
products liability claims.
I herewith strongly urge the Senate Foreign Relations Committee to
ratify the Montreal Convention as expeditiously as possible so that it
can become the law of the land governing recoveries in international
air transportation.
I would be delighted and honored to testify personally before this
Committee should anyone wish to have further explanation of my
position.
______
Statement of Physicians for Social Responsibility, Karen L. Perry,
Deputy Director, Environment and Health Program
physicians for social responsibility oceana u.s.
public interest research group center for international
environmental law national environmental trust
friends of the earth environmental defense sierra
club natural resources defense council the ocean
conservancy national wildlife federation creenpeace
children's environmental health network pesticide
action network north america circumpolar conservation union
center for environmental health center for health,
environment and justice environmental health fund
science and environmental health network alaska community
action on toxics citizens' environmental coalition
montana environmental information center washington toxics
coalition oregon toxics alliance arizona toxics
information environmental research foundation women's
voices for the earth montana-cheer department of the
planet earth resources for sustainable communities
institute for children's environmental health basel action
network asia pacific environmental exchange ecology
center
June 20, 2003.
The Honorable Richard G. Lugar
United States Senate
Washington, DC.
The Honorable Joseph R. Biden, Jr.
United States Senate
Washington, DC.
Dear Senators Lugar and Biden,
Our organizations write in response to your Committee's hearing
this week on the Stockholm Convention on Persistent Organic Pollutants
(POPs). As organizations committed to protecting the environment and
public health from toxic substances, we staunchly support the aims of
this important environmental treaty, and have advocated domestically
and abroad for its swift ratification and entry into force. At the same
time, we believe that ratification by the United States must be coupled
with the passage of full and effective implementing legislation, and we
ask that your Committee include provisions in the resolution of
ratification that will condition the Senate's advice and consent upon
completion of such legislation.
the addition of pops is central to the treaty
As you know, the Stockholm Convention seeks to eliminate a group of
dangerous chemicals that harm human health and the environment
globally. Assistant Secretary of State Turner, in his oral statement
before your Committee, said the treaty aims to protect human health and
the environment from 12 chemicals often referred to as the ``dirty
dozen.'' This is true, but it is only the beginning.
The Stockholm Convention is a dynamic, forward-looking agreement In
addition to phasing out and eliminating the initial 12 POPs, it
includes a science-based process to identify, assess, and control other
dangerous POPs that warrant global concern. The United States has
already banned most of the dirty dozen. Addressing the small group of
additional POPs in the future will thus be among the United States key
Stockholm obligations.
POPs pose a hazard because of their toxicity to animals and people,
their persistence in the environment and in the fatty tissues of living
organisms, their ability to travel long distances on air and water
currents, and their propensity to bioaccumulate in food chains. The 12
chemicals named in the treaty and other POPs not yet listed have become
common contaminants of fish, dairy products, and other foods in the
United States and around the world. Many Americans may now carry enough
POPs in their bodies to cause serious health effects, including
reproductive and developmental problems, cancer, and disruption of the
immune system. Children in the most heavily contaminated areas,
including Alaska and the Great Lakes region, are at particular risk.
implementing legislation must include an effective ``adding mechanism''
In a Rose Garden ceremony in 2001, President Bush announced his
support for the Stockholm Convention, noting that it ``shows the
possibilities for cooperation among all parties to our environmental
debates.'' The Administration's official treaty transmittal to the
Senate in 2002, however, was unclear as to whether it would seek
domestic legislative changes related to additional POPs, and a bill
subsequently proposed by the White House failed even to recognize this
crucial element of the treaty. This omission raises significant
concerns for our organizations. In our view, a timely and effective
mechanism that enables the United States to regulate POPs chemicals as
they are added to the Convention is the most important component of the
Stockholm Convention implementing legislation.
Over the past year, public interest groups and the chemical
industry have worked closely with a bipartisan group of Senators in the
Environment and Public Works Committee (EPW), including Senators
Jeffords and Chafee, to craft legislation that includes the so-called
POPs ``adding mechanism.'' While the Bush Administration has by now
acknowledged the necessity of the adding mechanism and has participated
in some of these discussions, recent OMB proposals would create an
adding mechanism so cumbersome and regressive that it would be
extremely difficult if not impossible for EPA to take action when POPs
are added to the treaty.
A number of our organizations are continuing to work with EPW to
achieve a legislative solution. After EPW develops an adding mechanism
to govern industrial chemicals under the Toxic Substances Control Act
(TSCA), that mechanism must be adapted to address the complexities of
pesticide regulation under the Federal Insecticide, Fungicide and
Rodenticide Act (FIFRA). The mechanism must enable EPA to respond
swiftly when new POPs are identified and added to the Convention, and
to take prompt, health-protective action to address these chemicals
domestically. We appreciate the hard work and perseverance of Senators
Chafee and Jeffords in striving to address these issues. We remain
hopeful that their legislation will include a robust, protective
process to authorize the United States to regulate additional POPs
effectively and efficiently.
advice and consent should be conditioned on complete implementing
authority
The Senate has an obligation to ensure that the Stockholm
Convention can be fully implemented in the United States. To achieve
such an outcome, the Senate will need to hold the Administration firmly
to its commitment to an effective adding mechanism.
It is not uncommon for the, Senate to condition its advice and
consent to an international agreement on the completion of appropriate
legislative authority, including specific implementation issues. For
example, in its resolution of ratification for the World Intellectual
Property Organization Copyright Treaty and the World Intellectual
Property Organization Performances and Phonograms Treaty, the Senate
placed the following condition on ratification:
The United States shall not deposit the instruments of
ratification for these Treaties until such time as the
President signs into law a bill that implements the Treaties,
and that shall include clarifications to United States law
regarding infringement liability for on-line service providers,
such as contained in H.R. 2281.
A similar condition would be appropriate for the Stockholm
Convention, specifying the need for implementing legislation that
includes an effective adding mechanism:
The United States shall not deposit the instrument of
ratification for this Convention until such time as the
President signs into law a bill that implements the Convention,
and that shall include changes to United States law that fully
implement and give substantial weight to its Article 8
provisions for adding new persistent organic pollutants.
The Stockholm Convention offers a rare example of consensus in the
current international environmental policy arena. However, unless the
Foreign Relations Committee and the full Senate insist upon domestic
legislation that includes a timely and effective mechanism to enable
the United States to regulate POPs chemicals as they are added to the
Convention, the treaty will not provide the level of public health
protections it was designed for, and the United States may be seen as
skirting its most important Stockholm commitment. If this occurs,
widespread environmental and public health support for the treaty will
not be assured.
Please do not hesitate to contact us if we can be of assistance in
this important endeavor. Contact Karen Perry at Physicians for Social
Responsibility, 202-667-4260 x249 or [email protected].
Sincerely,
Karen L. Perry, Deputy Director
Environnent and Health Program
Physicians for Social Resonsibility Sylvia Liu
Acting Senior Director of Law and
Policy
Oceana
Julie Wolk
Environmental Health Advocate
U.S. Public Interest Research Group Glenn Wiser
Senior Staff Attorney
Center for International
Environmental Law
Kevin S. Curtis
Vice President
National Environmental Trust Sara Zdeb
Legislative Director
Friends of the Earth
Elizabeth Thompson
Legislative Director
Environmental Defense Debbie Sease
Legislative Director
Sierra Club
Jacob Scherr
Director, International Programs
Natural Resources Defense Council Julia Hathaway
Legislative Director
The Ocean Conservancy
Jim Lyon
Senior Director of Congressional &
Federal Affairs
National Wildlife Federation Rick Hind
Legislative Director, Toxics
Campaign
Greenpeace
Daniel Swartz
Executive Director
Children's Environmental Health
Network Kristin S. Schafer
Program Coordinator
Pesticide Action Network North
America
Evelyn M. Hurwich
Executive Director
Circumpolar Conservation Union Katherine R. Silberman. JD
Associate Director
Center for Enviromnental Health
Michele L. Roberts
Organizing and Campaigu Director
Center for Health, Envirorment and
Justice Gary Cohen
Executive Director
Environmental Health Fund
Ted Schettler, MD, MPH
Science Director
Science and Environmental Health
Network Pamela K. Miller
Director
Alaska Community Action on Toxics
Kathleen A. Curtis
Executive Director
Citizens' Environmental Coalition Anne Hedges
Program Director
Montana Environmental Information
Center
Gregg Small
Executive Director
Washington Toxics Coalition David Monk
Executive Director
Oregon Toxics Alliance
Michael Gregory
Executive Director
Arizona Toxics Information Peter Montague
Director
Environmental Research Foundation
Aimee Boulanger
Executive Director
Women's Voices for the Earth Tony Tweedale
Montana-CHEER (Coalition for
Health,
Environmental & Economic Rights)
Erik Jansson
Executive Director
Department of the Planet Earth Wendy Steffensen
North Sound Baykeeper
RE Sources for SustainabIe
Communities
Elise Miller, M.Ed.
Executive Director
Institute for Children's
Environmental Health
Freeland, WA Jim Puckett
Coordinator
Easel Action Network
Dave Batker
Director
Asia Pacific Environmental Exchange Tracey Easthope, MPH
Director, Environmental Health
Project
Ecology Center
----------
Additional Questions Submitted for the Record
------
Responses of Hon. Jeffrey N. Shane, Under Secretary for Policy,
Department of Transportation and John R. Byerly, Deputy Assistant
Secretary of State for Transportation Affairs, to Additional Questions
for the Record Submitted by Senator Richard G. Lugar
the montreal convention and the hague protocol
Question 1. There is a great deal of practice and judicial
precedent interpreting the Warsaw Convention and the various protocols
to it. While the Montreal Convention is designed to replace these prior
agreements, is it intended that this body of practice and judicial
precedent will remain applicable to similar interpretive questions that
may arise under the Montreal Convention?
Answer. While the Montreal Convention provides essential
improvements upon the Warsaw Convention and its related protocols,
efforts were made in the negotiation and drafting to retain existing
language and substance of other provisions to preserve judicial
precedent relating to other aspects of the Warsaw Convention, in order
to avoid unnecessary litigation over issues already decided by the
courts under the Warsaw Convention and its related protocols.
To this end, the Reference Text, which constituted the basic text
utilized by the Diplomatic Conference, set forth for each article
references to the articles of the earlier instrument from which the
article was derived, with red-lined additions or deletions showing the
changes to the earlier articles adopted by the Legal Committee and the
Special Group in preparing the draft text submitted to the Diplomatic
Conference. The language of the prior convention and protocols was
tracked specifically for the purpose of preserving, to the greatest
extent possible, the validity of judicial precedents that apply to the
provisions of the previous convention and protocols.
This intention was also confirmed by the Rapporteur, who
acknowledged that the new Convention ``would modernize the liability
regime, while incorporating as far as possible the existing instruments
of the `Warsaw System.' '' Report of the 30th Session of the Legal
Committee at para. 4:5, ICAO Doc. 9693-LC/190 (May 9, 1997), reprinted
in ICAO Doc. 9775-DC/2, International Conference on Air Law, Vol. III
(Preparatory Materials), 151, 159. The Chairman of the Legal Committee
underscored this approach in his comments to the Drafting Group. (The
Chairman of the Legal Committee ``reminded the Drafting Group of the
working method that had been used for the Legal Committee which was not
to change the wording of provisions of existing instruments,
particularly the Warsaw Convention, unless there was a need to do so
for purposes of modernization and consolidation.'' Id. at para. 4:83.)
See also Report of the 30th Session of the Legal Committee at para.
4:231 (the Chairman of the Drafting Group reporting to the Legal
Committee that ``it had been the understanding of the Drafting Group
that, where appropriate, the Secretariat would provide linguistic
embellishments to the text, without touching its substance'')
Question 2. In submitting this convention to the Senate, the prior
Administration recommended that the United States should make a
declaration pursuant to Article 57(a) of the convention that the
convention shall not apply to the operations of State aircraft. Does
the current administration also recommend this declaration? If so,
please explain the effect of the declaration and the reason for
recommending it.
Answer. Yes, we recommend that the Senate give its advice and
consent to ratification of the Montreal Convention subject to the
condition that a declaration be made on behalf of the United States
that the Convention shall not apply to international carriage by air
performed and operated directly by the United States for non-commercial
purposes in respect to its functions and duties as a sovereign State.
This declaration would be consistent with the declaration made by
the United States under the Warsaw Convention and is specifically
permitted by Article 57(a) of the Montreal Convention. We recommend
making this declaration in order to continue the existing law in the
United States, under which U.S. Government liability relative to
transportation provided on aircraft owned and operated by the U.S.
Government, including by the U.S. military, is determined under U.S.
law, with no application of the Warsaw Convention or its protocols.
______
Responses of Hon. Jeffrey N. Shane, Under Secretary for Policy,
Department of Transportation and John R. Byerly, Deputy Assistant
Secretary of State for Transportation Affairs, to Additional Questions
for the Record Submitted by Senator Joseph R Biden, Jr.
the montreal convention and the hague protocol
Question 1. Are there any related exchange of notes, official
communications, or statements of the U.S. negotiating delegation not
submitted to the Senate with regard to the Convention which would
provide additional clarification of the meaning of terms of the
Convention?
Answer. The Administration has supplied the Senate Foreign
Relations Committee staff with the Record of Proceedings of the 1999
Montreal Diplomatic Conference at which the 1999 Montreal Convention
was adopted. That Record consisted of three Volumes: I Minutes; II
Documents; and III Preparatory Materials. All U.S. communications which
might clarify the meaning of terms of the Convention are contained in
those proceedings.
We note that the United States Delegation submitted a paper to the
Diplomatic Conference (DCW Doc. No. 51, May 5, 1999), proposing a
clarification of what is now Article 41 of the Montreal Convention that
a carrier that participates in a code share with the actual carrier,
but is not the marketing carrier with respect to a particular
passenger, is not liable for claims brought by or on behalf of that
passenger. Furthermore, the paper proposed clarifying that Article 41
would not apply to successive carriage within the meaning of what is
now Article 36. The proposal was withdrawn when there was a general
consensus that this clearly would be the case, and that no
clarification was needed.
Question 2. The transmittal letter from the President to the
Senate, and the letter from Secretary of State to the President, both
discuss the recommendation that the Senate enter a reservation related
to international carriage by air performed and operated directly by the
United States for non-commercial purposes. Does the State Department
recommend any particular language that the Committee should adopt?
Answer. We recommend that the Senate give its advice and consent to
ratification of the Montreal Convention subject to the condition that a
declaration be made on behalf of the United States pursuant to Article
57(a) that: ``This Convention shall not apply to international carriage
by air performed and operated directly by the United States for non-
commercial purposes in respect to the functions and duties of the
United States as a sovereign State.''
Question 3. In the article-by-article analysis, it is stated that
``[m]uch of the Convention derives from provisions in the Warsaw
Convention and its related instruments negotiated over the span of
several decades'' (T.Doc. 106-45, at 1)
With regard to articles drawn from a prior provision in the
Warsaw Convention, as amended by the Hague Protocol and
Montreal Protocol No. 4, and such article is not materially
different in the Montreal Convention, did the signatories
intend that the meaning of the provision of the Warsaw
Convention, as amended by the Hague Protocol and Montreal
Protocol No. 4 (and the applicable decisional law) should
continue without change?
The only authentic language of the Warsaw Convention is
French. There are several authentic languages in the Montreal
Convention. Are you aware of any provisions in the original
Warsaw Convention which are contained in the Montreal
Convention which have a materially different meaning in
English?
Answer. It is clear from the negotiating record that the drafters
of the Montreal Convention, while providing essential improvements upon
the Warsaw Convention and its related protocols, made efforts in the
negotiation and drafting of the Convention to retain existing language
and substance of other provisions to preserve judicial precedent
relating to other aspects of the Warsaw Convention, in order to avoid
unnecessary litigation over issues already decided by the courts under
the Warsaw Convention and its related protocols.
To this end, the Reference Text, which constituted the basic text
utilized by the Diplomatic Conference, set forth for each article
references to the articles of the earlier instrument from which the
article was derived, with red-lined additions or deletions showing the
changes to the earlier articles adopted by the Legal Committee and the
Special Group in preparing the draft text submitted to the Diplomatic
Conference. The language of the prior convention and protocols was
tracked specifically for the purpose of preserving, to the greatest
extent possible, the validity of judicial precedents that apply to the
provisions of the previous convention and protocols.
This intention was also confirmed by the Rapporteur, who
acknowledged that the new Convention ``would modernize the liability
regime, while incorporating as far as possible the existing instruments
of the `Warsaw System.' '' Report of the 30th Session of the Legal
Committee at para. 4:5, ICAO Doc. 9693-LC/190 (May 9, 1997), reprinted
in ICAO Doc. 9775-DC/2, International Conference on Air Law, Vol. III
(Preparatory Materials), 151, 159. The Chairman of the Legal Committee
underscored this approach in his comments to the Drafting Group. (The
Chairman of the Legal Committee ``reminded the Drafting Group of the
working method that had been used for the Legal Committee which was not
to change the wording of provisions of existing instruments,
particularly the Warsaw Convention, unless there was a need to do so
for purposes of modernization and consolidation.'' Id. at para. 4:83.)
See also Report of the 30th Session of the Legal Committee at para.
4:231 (the Chairman of the Drafting Group reporting to the Legal
Committee that ``it had been the understanding of the Drafting Group
that, where appropriate, the Secretariat would provide linguistic
embellishments to the text, without touching its substance'').
With regard to the second part of this question, we are not aware
of any provisions in the original Warsaw Convention, for which French
was the official language, that are contained in the Montreal
Convention and would have a materially different meaning in English. We
note that the courts have looked to the French language text of Article
25 of the Warsaw Convention in connection with the interpretation of
``dol ou d'une faute qui, d'apres la loi du tribunal saisi, est
consideree comrne equivalente au dol,'' translated in the U.S. English-
language text as ``wilful misconduct or by such default on his part as,
in accordance with the law of the court to which the case is submitted,
is considered to be equivalent to wilful misconduct.'' This French
phrase was not uniformly translated and interpreted around the world,
resulting in confusion for lawyers and judges attempting to apply the
Convention. This confusion was largely resolved in the amendment to
Article 25 included in The Hague Protocol, and later adopted in
Montreal Protocol No. 4 and the 1999 Montreal Convention. The
amendment, in all substantive respects, adopts the language of the New
York trial court's instructions to the jury in Froman v. Pan American
Airways, Supreme Court of New York County, March 9, 1953. The Hague
Protocol language, ``done with intent to cause damage or recklessly and
with knowledge that damage would probably result,'' was intended to
replace the standard of wilful misconduct with a common law definition
of wilful misconduct, and was not intended to modify the scope of the
standard.
Question 4. Article 1(2) of the Montreal Convention uses the phrase
``according to the agreement between the parties;'' the same paragraph
in the Warsaw Convention uses the phrase ``according to the contract
made by the parties.'' Does Article 1(2) of the Montreal Convention
mean the same thing--that is, the contract of carriage between the
passenger and the air carrier?
Answer. The term ``agreement between the parties'' in Article 1(2)
of the Montreal Convention was taken from Article 1(2) of the 1955
Hague Protocol. Our understanding is that this term was not intended to
change materially the meaning of ``contract made by the parties'' in
the Warsaw Convention.
Question 5. Article 1(3) provides that a carriage by several
successive carriers is deemed to be one undivided carriage ``if it has
been regarded by the parties a single operation.'' How is such intent
of the parties that carriage is a ``single operation'' to be discerned?
What does the decisional law in the United States reflect?
Answer. The intent of the parties would be a matter of proof,
specifically whether the passenger intended to book a through journey
(perhaps with a stopover) to the ultimate destination. This is
reflected in the decisional law. Compare, Haldimann v. Delta Airlines,
Inc., 168 F. 3d 1324 (D.C. Cir. 1999) and Egan v. Kollsrnan Instrument
Corp., 263 N.Y.S.2d 398 (Sup. Ct. NY 1965) with Karfunkel v. Compagnie
Nationale Air France, 427 F. Supp. 971 (S.D.N.Y. 1977), and Khan v.
Deutsche Lufthansa German Airlines, 2000 U.S. Dist. Lexis 15408
(S.D.N.Y. Oct. 18, 2000)
Question 6. The Article-by-Article analysis indicates that Article
7 is derived from the new Article 7 inserted in the Warsaw Convention
by Article III of Montreal Protocol No. 4. This appears to be
erroneous. The provisions of Montreal Article 7 appear to be derived
from the new Article 6 added to the Warsaw Convention by Article III of
Montreal Protocol No. 4. Do you agree that the Article-by-Article
analysis is incorrect in this regard?
Answer. Yes, we agree that the reference should be to the new
Article 6 added to the Warsaw Convention by Article III of Montreal
Protocol No.4.
Question 7. Please provide background to, and the effect of, the
exclusion of the word ``solely'' from paragraph 2 of Article 18 (the
word ``solely'' was in the analogous provision of Montreal Protocol No.
4 (Article 18, paragraph 3 of the Warsaw Convention as amended by the
Hague Protocol and Montreal Protocol No. 4).
Answer. Montreal Protocol No. 4, in effect, made the carrier an
insurer of goods in its custody, with certain defenses which wholly
absolved the carrier from liability, but only if the damage was solely
due to one or more of the listed defenses. The 1999 Montreal Convention
adopts the comparative contributory negligence concept found in Article
21 of the 1971 Guatemala City Protocol; Article 21(2) of Montreal
Protocol No. 4; and Article 20 of the 1999 Montreal Convention.
Accordingly, under Article 18 of the Montreal Convention, if one of the
defenses applies, the carrier is relieved of liability only ``to the
extent'' that the listed defense contributed to the damage.
Question 8. Article 20 provides for a form of comparative
negligence which applies to ``all the liability provisions in the
Convention, including paragraph 1 of Article 21.'' This contrasts with
Warsaw Convention 21, which provides for comparative negligence ``in
accordance with the provisions'' of the law of the forum. Aside from
applying the comparative negligence standard in all cases in the United
States, are there any substantive changes to the law as applied in the
United States which would result under Article 20?
Answer. At the time the Warsaw Convention was drafted in 1929, the
doctrine of contributory negligence in many States in the United States
denied recovery if the claimant was even partially at fault. The 1971
Guatemala Protocol adopted the standard of comparative contributory
negligence, whereby a claimant is denied recovery only to the extent
that his or her negligence contributed to the damage. We believe that
the comparative contributory negligence concept is applied in a large
majority of, if not all, U.S. States today. The last sentence of
Article 20 of the 1999 Montreal Convention clarifies that,
notwithstanding the ``strict liability'' (liability without fault)
provided in Article 21(1), a carrier retains the defense of comparative
contributory negligence in Article 20. See Commission of the Whole,
Minutes of the Thirteenth Meeting (Tuesday, 25 May 1999, at 1545
hours), International Conference on Air Law, Volume I (Minutes), 199,
202, para. 10, ICAO Doc. 9775-DC/2 (1999), (containing the statement of
the Chairman of the Diplomatic Conference that ``it was necessary for
the avoidance of doubt to specify in that Article that it would equally
apply to paragraph 1 of Article 20 [now Article 21] and thus to all the
liability provisions of the Convention'').
Question 9. Is there not a contradiction between the last sentence
of Article 20 and paragraph 1 of Article 21? If not, why not?
Answer. We see no contradiction between the last sentence of
Article 20 and paragraph 1 of Article 21, as the following example
illustrates. In the case of sabotage of an aircraft, the carrier would
be liable without fault to all passengers for damages up to 100,000
SDRs. However, if the saboteur were a passenger or a claimant, it would
not be appropriate for the saboteur, or those claiming on his or her
behalf, to recover anything, even under the ``strict liability''
provision. The last sentence of Article 20 provides exoneration for a
carrier from liability to such a passenger or claimant, including from
the compensation not exceeding 100,000 SDRs provided in paragraph 1 of
Article 21.
Question 10. Article 21(2)(a) of the Montreal Convention provides
that the carrier shall not be liable for damages exceeding 100,000 SDRs
per passenger if the carrier proves that ``such damage was not due to
the negligence or other wrongful act or omission of the carrier or its
servants or agents.'' This contrasts with Article 20(1) of the Warsaw
Convention, which allows the carrier to escape liability if he proves
that he and his agents have taken ``all necessary measures to avoid the
damage or that it was impossible for him or them to take such
measures.''
Did the signatories intend a different standard as a result
of this change? Please elaborate.
Answer. The language of Article 21(2)(a) is new, but it was not, in
our view, intended by the signatories to change the standard of proof
of non-negligence applicable under the Warsaw Convention.
Question 11. Article 21(2)(b) of the Montreal Convention provides
that the carrier shall not be liable for damages exceeding 100,000 SDRs
per passenger if the carrier proves that ``such damage was solely due
to the negligence or other wrongful act or omission of a third party.''
In the United States, terrorist attacks have been found to be
``accidents'' within the meaning of Article 17, e.g., Day v. Trans
World Airlines, Inc., 528 F.2d 31 (2d Cir. 1975), a finding which the
Supreme Court noted without disapproval in Air France v. Saks, 470 U.S.
392, 405(1985). Is it possible that some terrorist attacks would
constitute a ``wrongful act or omission of a third party'' within the
meaning of this provision?
Answer. Yes, depending on the facts in a particular case, courts
could well find a terrorist attack to be ``a wrongful act or omission
of a third party'' under Article 21(2)(b) of the Montreal Convention.
If a court finds that the damage at issue in a particular case was
caused solely by the ``negligence or other wrongful act or omission of
a third party,'' the carrier would be liable only for damages up to
100,000 SDRs per passenger. This is consistent with the Convention's
overall framework that a carrier must be at fault in order to be liable
to the passenger for damages over 100,000 SDRs, with the burden of
proof on the carrier to show that it was not at fault.
Question 12. Under Article 24(3), is there a common understanding
among the signatories about how the States Parties are to ``express a
desire'' that the limits of liability shall be revised. Under the
procedure in paragraph 2, how will the new limits be determined? Simply
by using the applicable inflation factor? Or will there be some other
method?
Answer. There is no prescribed means for States Parties to
``express a desire'' that the limits shall be increased under Article
24(3). Official notification to the International Civil Aviation
Organization (ICAO), the depositary, would be one such means and could
take the form of individual notifications or a collective notification
initiated by one or more States.
The new limits under paragraph 2 would normally be a simple
mechanical determination by ICAO as the depositary, using the formula
specified in Article 24(1). This was done to avoid future objections
that States may be subjected to limits that they never agreed to; they
have agreed in advance to the formula that is to be applied, and thus
to the increase. In the unusual event that the increase so calculated
were rejected by a majority of the Parties to the Convention, the
question would then be referred to a meeting of the Parties as provided
in Article 24(2).
Question 13. Article 30(1) provides that a servant or agent of the
carrier acting within the scope of their employment shall be entitled
``to avail themselves of the conditions and limits of liability which
the carrier itself is entitled to invoke under this Convention.''
(emphasis added). Paragraph 3 of the same article provides that, in
cases not involving cargo, paragraphs 1 and 2 ``shall not apply if it
is proved that the damage resulted from an act or omission of the
servant or agent done with intent to cause damage or recklessly and
with knowledge that damage would probably result.'' The term
``conditions'' (italicized) was not in the predecessor provision
(Article 25A of the Warsaw Convention, as amended by the Hague Protocol
and Montreal Protocol No. 4). What is intended by the addition of this
term to this provision and what is the practical result?
Answer. The Montreal Convention preserves the status quo relative
to legal actions against airline employees. Consistent with existing
law in the United States under Montreal Protocol No. 4, the new
Convention extends to a carrier's employees acting within the scope of
their employment all of the ``conditions and limits of liability''
available to the carrier under the Convention. The phrase ``conditions
and limits of liability'' in this context refers to the monetary limits
set out in Articles 21 and 22 of the Convention and the conditions
under which those monetary limits may be exceeded.
Question 14. Article 43 contains this phrase at the end: ``. . .
unless it is proved that they acted in a manner that prevents the
limits of liability from being invoked in accordance with this
Convention.'' The provision relates to servants or agents of the
carrier acting within the scope of employment. The Article-by-Article
analysis for the same article says as follows: ``An exception is made
where the servant or agent acts in a manner that prevents the
protections of the Convention from applying.'' (emphasis added). The
Article-by-Article analysis is inconsistent with the text of Article
43. Do you agree that it is incorrect?
Answer. The language used in the Article-by-Article analysis for
Article 43 of the Montreal Convention (``the protections of the
Convention'') paraphrases, rather than quotes, that contained in the
Convention. To the extent that it raises any question, however, we wish
to clarify that the term ``the protections of the Convention'' was
intended as a reference to ``the conditions and limits of liability
which are applicable under this Convention,'' as used in Article 43--
referring to the monetary limits set out in Articles 21 and 22 of the
Convention and the conditions under which those monetary limits may be
exceeded.
Question 15. Under Secretary Shane's testimony states as follows:
``Currently, absent a voluntary waiver of the Warsaw liability limits
by a carrier, recoveries for deaths or injuries arising as the result
of an accident that occurs during an international flight to or from
the United States are subject to a limit of $75,000, and can be limited
to as little as $10,000 for flights in other markets, unless the
passenger or the passenger's estate is able to prove `willful
misconduct' on the part of the airline.'' Are there any foreign
carriers flying to the United States which have not waived the Warsaw
limits under the 1996 inter-carrier agreements? Please specify which
carriers, if any, have not done so.
Answer. There are currently 123 carriers that are parties to the
IATA Intercarrier Agreement on Passenger Liability (IIA) that requires,
at a minimum, the waiver of the Warsaw, or Warsaw/Hague, liability
limits in their entirety. There are, however, a number of foreign
scheduled passenger carriers licensed to fly to the United States which
have not signed any of the 1996 inter-carrier agreements. Those
carriers are listed below:
Major Foreign Scheduled Passenger Airlines Licensed to Fly to the
United States That Are Not Signatories of the 1996 Inter-carrier
Agreements
Aero California Ghana Airways Limited
Aero Continente Dominicana S.A. Gulf Air Company, G.S.C.
Aero Continente, S.A. Haiti Ambassador Airlines, S.A.
Aero Honduras, S.A. de C.V. Haiti Aviation, S.A.
Aeroejecutivo, S.A. de C.V. Haiti Caribbean Airlines, S.A.
Aerolane, Lineas Aereas Nacionales Helijet International Inc.
del Ecuador S.A.
Aerolineas Centrales de Colombia, Hispaniola Airways C. por A.
S.A.
Aerolineas Dominicana, S.A. Hong Kong Dragon Airlines, Limited
Aerolitoral, S.A. de C.V. I.M.P. Group Limited
Aeromar C. por A. Iran National Airlines Corporation
Aeropostal Alas de Venezuela, C.A. Jetsgo Corporation
AeroSvit Airlines Kuwait Airways Corporation
Aerotours Dominicanas, S.A. Laker Airways (Bahamas) Limited
Aerovias Caribe, S.A. de C.V. Lan Peru, S.A.
Aerovias Venezolanas S.A. LIAT (1974) Limited
(``AVENSA'')
Afinat (Gambia) International Linea Aerea de Navegacion
Airlines Limited Dominicana, S.A. Lan
Air Canada Regional, Inc. Dominicana
Air Comet, S.A. Linea Aerea Nacional Hondurena,
S.A. de C.V.
Air Europa Lineas Aereas, S.A. Lineas Aereas Allegro, S.A. de C.V.
Air Georgian Ltd. Lineas Aereas Azteca, S.A. de C.V.
Air Haiti, S.A. Lineas Aereas Costarricenses, S.A.
Air India Limited Lineas Aereas Privadas Argentinas,
S.A.
Air Japan Co., Ltd. LLoyd Aereo Boliviano, S.A.
Air Liberte AOM LTU Lufttransport-Unternehmen GmbH.
Air Malta Plc. Magadan Airlines
Air Marshall Islands, Inc. Nicaraguense de Aviacion, S.A.
Air Nauru Nigeria Airways, Ltd.
Air Nippon Co., Ltd. Northwest Territorial Airways Ltd.
Air Tahiti Nui Olympic Airways, S.A.
Air Transat A.T. Inc. Philippine Airlines, Inc.
Air Tungaru Limited Polynesian Limited
Air Ukraine Queen Air, Aeronaves Queen, S.A.
Alia-The Royal Jordanian Airline Royal Aviation Express, Inc.
Ansett New Zealand Limited Royal Aviation Group
Antigua & Barbuda Airways Royal Tongan Airlines
International, Ltd.
APA International Air, S.A. Santa Barbara Airlines, C.A.
Aviacion del Noroeste, S.A. de C.V. Servicios Aereos de Nicaragua S.A.
Aviateca, S.A. Skyservice Airlines Inc.
Bahamasair Holdings Limited Southern Winds, S.A.
Balkan Bulgarian Airlines Spanair, S.A.
Bearskin Lake Air Service, Ltd. Surinaamse Luchtvaart Maatschappij,
N.y.
Belair Airlines Ltd. Swiss International Air Lines Ltd.
Biman Bangladesh Airlines TACA de Honduras, S.A. de C.V.
Bradley Air Services Limited TACA Ecuador, S.A.
BWIA West Indies Airways Limited TAM-Linhas Aereas S.A.
Canada 3000 Airlines Limited Trans American Airlines, S.A.
Cayman Airways Limited Trans North Turbo Air Limited
China Airlines, Ltd. Transaero Airlines
City Bird, S.A. Translifi Airways Limited
Compagnie Nationale de Transports Transportes Aereos de Cabo Verde
Aeriens
Compania de Transporturi Aeriene Transportes Aereos del Mercosur
Romane (Tarom) Sociedad Anonima
Compania Mexicana de Aviacion, S.A. Transportes Aeromar, S.A. de C.V.
de C.V.
Condor Flugdienst GmbH. Tropical International Airways,
Ltd.
Consorcio Aviaxsa, S.A. de C.V. Universal Airlines, Incorporated
Dalavia Far East Airways-Khabarovsk Uzbekistan Airways
Dutch Caribbean Airline N.y. Virgin Atlantic Airways Limited
El Al Israel Airlines, Ltd. Voyageur Airways Limited
Empresa Consolidada Cubana de WestJet
Aviacion
Ethiopian Airlines Enterprise Windward Islands Airways
International, N.y.
EVA Airways Corporation
Far Eastern Air Transport
Corporation
Question 16. The brief for the United States as amicus curiae in
the petition for a writ of certiorari in the case of Chubb & Son, Inc.
v. Asiana Airlines states, in footnote 11, that a 1991 letter from the
Assistant Legal Adviser for Treaty Affairs opined that Singapore was a
party to the Warsaw Convention by reason of its adherence to the Hague
Protocol. Please provide a copy of the letter.
Answer. Attached is a copy of the letter.
United States Department of State,
Washington, DC, October 10, 1991.
Mr. David M. Salentine
Hong Kong Bank Building
11th Floor
160 Sansome Street
San Francisco, California 94104
Dear Mr. Salentine
This is in response to your letter of September 27, 1991, to Ms.
Brandt of this office, in which you requested confirmation of certain
states party to the Convention for the Unification of Certain Rules
Relating to International Transportation by Air (Warsaw Convention).
According to the records maintained in this office, Australia deposited
an instrument of ratification to the Warsaw Convention on August 1,
1935, and to the 1955 Hague Protocol on June 23, 1959. Singapore is a
party to the Warsaw Convention by reason of its adherence on November
6, 1967 to the Hague Protocol of 1955, which amends the Convention.
Article XXI of the Hague Protocol states that ratification of the
Protocol by any state which is not a party to the Convention shall have
the effect of adherence to the Convention, as amended by the Protocol.
Our records indicate that neither state has ratified Montreal Protocol
No. 4, and that Montreal Protocol No. 4 has not yet received the
sufficient number of ratifications to bring it into force. It should be
noted that U.S. records on this Convention, and the Protocols that
amend it, may not be current because the Government of Poland, and not
the United States, is the depositary for the Warsaw Convention and its
Protocols.
I hope that this information will be of assistance to you.
Sincerely,
Robert E. Dalton
Assistant Legal Adviser for Treaty Affairs
Question 17. In the same amicus brief, in footnote 13, there is a
reference to a letter of the Director of the Legal Bureau of ICAO to
the Alternate U.S. Representative on the Council of ICAO. Please
provide a copy of the letter.
Answer. Attached is a copy of the letter.
Responses of Hon. John F. Turner, Assistant Secretary of State for
Oceans and International Environmental and Scientific Affairs, to
Additional Questions for the Record Submitted by Senator Joseph R.
Biden, Jr.
agreement with russian federation concerning polar bear population
Question 1. Has your testimony today been coordinated with the
Department of the Interior?
Answer. Yes.
Question 2. How will members of the U.S. section of the U.S.-Russia
Polar Bear Commission contemplated by Article 8 be appointed?
Answer. The Administration is now preparing implementing
legislation that will establish the membership of the U.S. Section of
the U.S.-Russia Polar Bear Commission. It is envisioned that members of
the U.S. Section would be appointed by, and serve at the pleasure of,
the President.
Question 3. The letter from the Secretary of State in the submittal
package indicates that ``some legislative amendments and new
authorities will be necessary'' to ensure implementation of the
Agreement.
a. Please describe the amendments that are necessary to
implement the treaty.
b. Has the necessary legislation been submitted to Congress
by the Executive Branch? If not, why not? If not, when do you
expect to submit it?
Answer. Much legal authority already exists to meet the Agreement's
obligations (e.g., the Marine Mammal Protection Act and other domestic
legislation already provide sufficient authority to meet the
obligations of Article 2 with respect to conserving polar bear
habitats) . However, there are a few places where additional
legislation will be required. For example, legislation will be needed
to:
Authorize implementation of restrictions on subsistence
hunting introduced through the U.S.-Russia Polar Bear
Agreement;
Establish the U.S. Section of the U.S.-Russia Polar Bear
Commission; and
Authorize appropriation of funds to carry out provisions of
the Agreement.
The Administration has been coordinating this legislation among the
various interested agencies. It will propose such legislation to
Congress once this process is complete.
Question 4. What are the anticipated U.S. budgetary resources
necessary to implement the treaty and for what purposes? Please provide
details by function (in particular, with regard to funding for the U.S.
section, collection of scientific data on the polar bear population,
and management and enforcement measures) and by agency.
Answer. The Administration is currently considering draft
implementing legislation and estimating the costs of implementing the
Treaty. The Administration has been coordinating this legislation among
the various interested agencies. It will propose such legislation to
Congress once this process is complete.
Funds appropriated to the Department of the Interior would be used
for the U.S. portion of the proposed Joint Commission operations and to
fund studies needed to develop sustainable harvest quotas estimates. As
contemplated in Article 8 of the Agreement, Commission operations could
include, for example, the actual meetings and associated preparation
work for the Commission and work to identify polar bear habitats and to
develop recommendations for habitat conservation measures. Studies
necessary to develop quotas and track population status could include
the following: aerial surveys and/or mark-recapture studies to develop
population estimates; den surveys and collection of demographic
information to monitor population status and trends; development of
models to predict and evaluate sustainable harvest levels; monitoring
of harvest levels and collection of biological samples. Appropriated
funds would also be used to support the Alaska Nanuuq Commission in its
role representing Alaska Native subsistence polar bear hunters and
participation at the Joint Commission.
Question 5. If the treaty is ratified in the coming months, are
there funds in the fiscal year 2004 budget requests of the Departments
of State and Interior to implement the treaty?
Answer. Activities related to establishing and starting the Joint
Commission may be initiated using currently available and FY 2004
President's Request funds. Studies to determine population status and
trends, comprehensive harvest monitoring in both countries and full
administrative support for the Commission will, however, require
further dedicated funding.
Question 6. How do anticipated budgetary resources for collection
of scientific data on the polar bear population compare to the budgets
for that purpose in the current fiscal year and fiscal year 2002?
Answer. Current budget levels support ongoing collection of harvest
levels and patterns in the United States, as harvest reporting is a
regulatory requirement. In addition, efforts to develop appropriate
techniques for assessing population status and trends are ongoing. In
Russia, studies based on Traditional Ecological Knowledge provide some
insights into harvest levels and habitat use patterns. Current budget
levels, however, do not include funding to fully implement
comprehensive status and trends studies and gather other information
needed to fully implement the agreement. For example, there were no
funds programmed in the Fiscal Year 2002 or 2003 budgets to collect
comprehensive information on the Alaska-Chukotka polar bear population
itself.
Question 7. Which agencies in the government of the Russian
Federation will be responsible for implementing Russia's obligations
under the treaty? Do we have confidence in the ability of the relevant
agency or ministry to fully implement Russia's obligations? Does such
agency or ministry have adequate resources to fulfill Russia's
obligations?
Answer. Article 8, Paragraph 4 of the Agreement stipulates: ``The
Contracting Parties shall be responsible for organizing and supporting
the activities of their respective national sections as well as the
joint activities of the Commission.'' Under the Agreement the Russian
Federation made a commitment to ``take such steps as are necessary to
ensure implementation of this Agreement.'' (Article 10, Paragraph 1).
The specific steps planned by the Russian government to implement
its obligations under the Agreement are detailed in their ``normative''
act, which is an administrative action. Our understanding is that their
act will be signed upon completion of U.S. domestic procedures to bring
the Agreement into force.
The Russian entity with primary responsibility for polar bears, and
the implementation of this Agreement, is the Ministry of Natural
Resources. Within the Ministry, the Federal Environmental Protection
Agency/Department of Protected Areas and Biodiversity Conservation and
the Russian Academy of Sciences have been involved in development of
the Agreement and will continue to be involved in its subsequent
implementation. On a regional level, the Wrangell Island Nature Area,
regional government of Chukotka and the Association of Traditional
Marine Mammal Hunters will all be involved.
We do not know the precise funding arrangements Russia will make to
implement this Agreement. We do, however, understand that some level of
financial support has already been given to the Chukotka branch of the
Pacific Ocean Institute for Fisheries and Oceanography (TINRO) to plan
and design a harvest monitoring and enforcement program.
Question 8. Please summarize the consultative process that was
undertaken with stakeholders during negotiation of the treaty.
Answer. U.S. government negotiators held close and continuing
consultations with the involved Native groups and with State of Alaska
officials during the negotiation of the Agreement, and their
representatives were included in the U.S. delegation. U.S. government
negotiators also held regular consultations with environmental groups
interested in polar bear conservation, and an environmental group
representative was included in the U.S. delegation. These consultations
revealed broad support for the Agreement. We have received extensive
correspondence from various nongovernmental organizations supporting
the Agreement and would be glad to share copies and specifics with
anyone interested.
Question 9. Does the Executive Branch expect that any amendments to
the treaty would be submitted to the Senate for advice and consent?
Answer. We would expect to send amendments to the Agreement to the
Senate for advice and consent. However, we note that Article 3 provides
that the Parties may, by mutual agreement, modify the geographical area
to which the Agreement applies.
Question 10. Under Article 1, when read together with Article 8,
decisions on the annual sustainable harvest level must be based on
``reliable scientific information.'' The Article-by-Article analysis
states that the ``Commission will not take management decisions in the
absence of reliable data'' (internal quotes omitted).
a. Does the government of the Russian Federation agree with
the statement expressed in the Article-by-Article analysis?
b. Does the Executive Branch believe that it currently has
access to ``reliable scientific information'' regarding the
polar bear population? If not, what measures will be necessary
in order to obtain such information and what would be the
anticipated time period for doing so?
Answer. We believe the text is clear on this point. Under Article
VIII (7)(b), any determination of the annual sustainable harvest level
for the Alaska-Chukotka polar bear population must be made ``on the
basis of reliable scientific data.'' We have no indication that the
Russian Federation does not share our interpretation that the
``Commission will not take management decisions in the absence of
reliable data.''
Based on the negotiations and subsequent meetings with our Russian
counterparts, we expect the Commission to recommend harvest limits and
support their decision based on reliable data, some of which will be
retrospective.
Sufficient reliable information exists to propose initial harvest
restrictions. Additional information will be necessary to refine and
track the efficacy of the initial parameters. The word ``reliable'' was
used consciously to motivate collection of good quality, current
information for decision-making, while also satisfying the requirement
of the 1973 Agreement on the Conservation of Polar Bears to use the
``best available'' information.
Question 11. Please provide a map or facsimile thereof denoting the
geographic area covered by the Agreement under Article 3.
Answer. Please see attached map.
Question 12. Are the habitats of the Alaska-Chukotka polar bear
population found only in the area covered by Article 3, or do they
extend beyond that area?
a. If so, what are the outer boundaries of such habitats?
b. If so, what obligations are there under the treaty to
conserve polar bear habitats outside of the area covered by
Article 3?
Answer. The Agreement's geographic area (Article 3) covers those
areas subject to the national jurisdiction of the United States and the
Russian Federation in which the Alaska-Chukotka polar bear population
is currently found. As demonstrated in the attached map outlining the
different polar bear stocks, the Alaska-Chukotka polar bear population
also is found in areas of the high seas outside the jurisdiction of
either party.
Due to the wide range in movements and natural annual fluctuations,
a small fraction of the population may occasionally move outside the
zone of the Agreement. (See attached map of point locations for radio-
collared bears from this population and for the outer boundaries of
these habitats.)
To take into account the possibility that polar bear migratory
patterns may change within the areas subject to each Party's national
jurisdiction, the Agreement allows for modification of the Agreement's
geographic scope by mutual agreement of the Parties. If the Parties
later agree to modify the geographic scope of the Agreement, the
obligations of the Agreement would extend to the new geographic
boundaries.
With respect to those areas outside either Party's jurisdiction, it
should be noted that both Russia and the United States remain bound by
the obligations of the 1973 agreement on the conservation of polar
bears, which does apply in areas outside the national jurisdiction of
the parties.
Responses of Hon. John F. Turner to Follow-up Questions from Senator
Joseph R. Biden, Jr.
agreement with russian federation concerning polar bear population
Question 1. The treaty was submitted to the Senate in July 2002.
Please provide an estimate of when the implementing legislation will be
submitted to Congress.
Answer. The Administration anticipates submitting implementing
legislation to Congress in September.
Question 2. There was no response to the second part of question 7
(previously submitted). Please answer the question.
Answer. Question 7 reads: ``Which agencies in the government of the
Russian Federation will be responsible for implementing Russia's
obligatiions under the treaty? Do we have confidence in the ability of
the relevant agency or ministry to fully implement Russia's
obligations? Does such agency or ministry have adequate resources to
fulfill Russia's obligations?''
Our understanding of the Russian Government's ability to implement
the Polar Bear Agreement is based on a series of meetings and
correspondence with officials from the Ministry of Natural Resources,
regional government of Chukotka and the Association of Traditional
Marine Mammal Hunters. All parties attended a key meeting in June 2002,
hosted by the Russian Government, to discuss progress on implementation
of the Agreement with officials from the United States. The U.S.
delegation was led by the Department of the Interior and included
representatives from Alaska Native organizations. The purpose of the
meeting was to review relative progress towards implementation and
identify joint tasks necessary prior to formal implementation. Both
sides expressed their continued support for the Agreement and the
importance placed on this agreement. In reviewing relative progress
towards implementation, Russia has completed ratification of the
Agreement but needs to prepare implementing acts; our understanding is
that these have now been drafted and will be signed when the U.S.
ratification process is completed. With these implementing acts, we
would expect Russia to have in place adequate legislative authority
resources to implement its obligations under the Agreement.
Participation by Alaskan and Chukotkan Natives is addressed in a
companion Native-to-Native agreement, which is in final draft form and
signature and is also awaiting completion of the U.S. ratification
process.
______
Responses of Hon. John F. Turner, Assistant Secretary of State for
Oceans and International Environmental and Scientific Affairs, to
Additional Questions for the Record Submitted by Senator Joseph R.
Biden, Jr.
agreement amending treaty with canada concerning pacific coast albacore
tuna vessels and port privileges
Question 1. Has your testimony today been coordinated with the
Department of Commerce?
Answer. Yes.
Question 2. The President's letter accompanying the submittal of
the treaty indicates that legislation necessary to implement the treaty
will be submitted to Congress.
Please describe the amendments necessary.
Has the necessary legislation been submitted to Congress by
the Executive Branch? If not, why not? If not, when do you
expect to submit it?
Answer. The amendments to the 1981 Treaty will, for the first time,
impose limits on the amount of fishing by Canadian vessels in the U.S.
EEZ and by U.S. vessels in the Canadian EEZ. Even though it is unlikely
that U.S. vessels fishing in the Canadian EEZ will reach these new
limits, legislation is needed to give the Federal Government a
statutory basis on which to ensure that U.S. fishing in Canadian waters
does not exceed these limits.
The Administration also believes that legislation is desirable to
provide a sound basis for implementing certain other aspects of the
Treaty. For example, the Treaty envisions that Canadian vessels fishing
in the U.S. EEZ should ``hail in'' and ``hail out''--i.e., provide
notice of their entry to and exit from U.S. waters. There has never
been express statutory authority for implementing this feature of the
original Treaty. With the advent of the new limitations on fishing
under the Treaty, the ``hail in/hail out'' mechanism takes on new
importance as a way to monitor the level of fishing by Canadian vessels
in the U.S. EEZ.
The necessary legislation was included in a proposed bill submitted
to Congress to reauthorize the Magnuson-Stevens Fishery Conservation
and Management Act.
Question 3. How were the limits set forth in Annex C derived?
Answer. These limits were derived as a phased-in transition to
return Canadian fishing effort to circa 1998 fishing levels.
Question 4. The Secretary's letter to the President in the
submittal package states that the amendments to the Treaty are
``noncontroversial and are widely supported by U.S. domestic
constituent interests.'' On what is this assertion based? Please submit
any relevant letters of support from domestic constituent interests.
Please summarize the consultative process that was undertaken
with stakeholders during negotiation of the treaty.
Answer. The assertion that the amendments to the Treaty are non-
controversial and widely supported is based upon the views expressed by
attendees at numerous constituent meetings. Stakeholders were active
participants during all phases of the negotiations. These stakeholders
included representatives from industry, fishers, NGOs, state
governments and U.S. government agencies. Many were present during
negotiations and participated fully in decision-making.
______
Response of Hon. John F. Turner to a Follow-up Question by Senator
Joseph R. Biden, Jr.
agreement amending treaty with canada concerning pacific coast albacore
tuna vessels and port privileges
Question 1. Question 4 (previously submitted) requests any relevant
letters of support received from domestic constituent interests. Are
there such letters in the possession of the Department? Please provide
them.
Answer. The Department is not in possession of specific letters of
support from domestic constitutent interests. However, as we have
previously stated, these interests were well represented on the U.S.
delegation throughout the negotiating process and informed us in that
context of their support for the negotiated amendments to the treaty
and its annexes.
______
Responses of Hon. John F. Turner, Assistant Secretary of State for
Oceans and International Environmental and Scientific Affairs, to
Additional Questions for the Record Submitted by Senator Richard G.
Lugar
amendments to the treaty on fisheries between the united states and the
government of certain pacific island states
Question 1. The Amendments to the Treaty on Fisheries Between the
United States and the Governments of Certain Pacific Island States
contain a number of references to the Convention on the Conservation
and Management of Highly Migratory Fish Stocks in the Western and
Central Pacific Ocean (the ``WCPFC Convention''), which the United
States has signed but which has not yet been submitted to the Senate
for advice and consent. Does the administration expect to submit the
WCPFC Convention to the Senate for advice and consent?
Answer. Yes. The United States is satisfied with the Convention
because it establishes an effective system for ensuring the
conservation and long-term sustainability of the highly migratory fish
stocks of the region throughout their range and ensures that the system
accommodates the basic interests of the states fishing in the region,
as well as those of the coastal states of the region, in a fair and
balanced way. The WCPFC Convention is strongly supported by the U.S
domestic fishery managers, the U.S. tuna industry, and the
environmental community. The Department of State intends to submit the
Convention to the Senate for advice and consent to ratification in
2004.
Question 2. By ratifying this agreement, would the United States be
assuming any obligations with respect to the WCPFC Convention?
Answer. No. The two substantive amendments to Article 7 of the
Treaty that relate to the WCPFC Convention pertain to linkages between
the Treaty and the WCPFC Convention, once the latter enters into force.
The first of these amendments, a new paragraph 2, provides that parties
to the Treaty shall, where appropriate, consider the extent to which
adjustments to the provisions of the Treaty or measures adopted
thereunder may be necessary to promote consistency with measures
adopted under the WCPFC Convention. The second, a new paragraph 3,
provides that parties to the Treaty may cooperate to address matters of
common concern under the WCPFC Convention. These amendments provide for
cooperation and the promotion of consistency between the two treaties,
without binding the United States to the WCPFC Convention or any future
measures adopted under it prior to its entry into force for the United
States.
______
Responses of Hon. John F. Turner, Assistant Secretary of State for
Oceans and International Environmental and Scientific Affairs, to
Additional Questions for the Record Submitted by Senator Joseph R.
Biden, Jr.
amendments to the treaty on fisheries between the united states and the
government of certain pacific island states
Question 1. Had your testimony today been coordinated with the
Department of Commerce?
Answer. Yes.
Question 2. Your testimony states that the ``original regime of the
Treaty lasted for five years,'' and that it was extended in 1993 and
2003. The Treaty does not have an expiration date. Please clarify your
statement.
Answer. The 1987 Treaty on Fisheries itself is of unlimited
duration, unless it is terminated in accordance with the provisions of
Article 12. However, associated with the Treaty is the Economic
Assistance Agreement between the United States and the South Pacific
Forum Fisheries Agency (FFA), which does have an expiration date. The
Treaty and the associated Economic Assistance Agreement together
constitute the ``regime'' referred to in the testimony. Under the
Agreement, the United States provides funds to the Pacific Island
Parties, through the FFA, to be used solely for economic development.
Following the entry into force of the Treaty in 1988, the associated
Agreement had a term of 5 years. In 1993, the United States and the
Pacific Island Parties extended the Agreement for an additional ten
years. The term of that Agreement expired on June 14, 2003. To serve
U.S. interests and to maintain the stability of this successful regime,
in conjunction with the amendments to the Treaty and Annexes, in March
2002 the United States and the Pacific Island parties agreed to extend
the Agreement for another term of 10 years. The United States and the
South Pacific Forum Fisheries Agency signed the new Economic Assistance
Agreement in March 2003.
Question 3. The Secretary of State's letter in the submittal
package indicates that amendments to Section 6 of the South Pacific
Tuna Act of 1988 will be necessary to take account of the amendment to
paragraph 2 of Article 3. Have such amendments been submitted to
Congress? If not, when do you expect to submit them?
Answer. The Amendment to Section 6 of the South Pacific Tuna Act
will entail a very minor adjustment in its wording. We look forward to
working with the relevant committees to develop the appropriate
language in the near future.
______
Responses of Hon. John F. Turner, Assistant Secretary of State for
Oceans and International Environmental and Scientific Affairs, to
Additional Questions for the Record Submitted by Senator Joseph R.
Biden, Jr.
stockholm convention on persistent organic pollutants
Question 1. Has your testimony today been coordinated with the
Environmental Protection Agency?
Answer. Yes.
Question 2. Were any statements made by the U.S. delegation that
relate to the meaning of treaty terms which are not referenced or
described in the submittal to the Senate of which the committee should
be aware?
Answer. I am not aware of any formal recorded statements made by
the U.S. delegation during the negotiations that relate to the meaning
of treaty terms that are not encapsulated in the Administration's
understanding of the Treaty reflected in the package of materials sent
by the President to the Senate and my own testimony before the
Committee. If, however, there are particular treaty terms where you
wish further clarification of the Administration's interpretation, we
would be happy to provide it to you.
Question 3. In the Secretary of State's letter to the President, at
page xx of Treaty Doc. 107-5, the Executive Branch indicates that the
United States expects to make use of the exemption permitted under note
(ii) of Annex A ``with respect to a number of articles, such as treated
wood'' (emphasis added). Please provide information on the other use
exemptions that the Executive Branch intends to notify to the
Secretariat.
Answer. Annex A contains a list of nine chemicals that each Party
shall prohibit and/or take necessary measures to eliminate their
production and use. The third column of Annex A, like the third column
in Annex B, contains a list of the specific exemptions that parties may
take with respect to those chemicals. If a party wishes to avail itself
of one of these specific exemptions, pursuant to Article 4, it shall on
becoming party notify the Secretariat of the Convention, so that this
exemption will be recorded in a Register. As noted on page ix of the
Secretary's Letter of Submittal, ``[T]he United States does not
anticipate the need to submit any registrations for specific exemptions
for the substances currently in the POPs Convention.''
The category of chemicals referred to in footnote (ii) of Annexes A
and B are quantities of POPs occurring as constituents of articles
manufactured or already in use before the Convention's entry into force
for a Party. By the terms of the footnote, this is not a production and
use specific exemption. The U.S. would notify the Secretariat as needed
to comply with this exemption.
The U.S. anticipates that it will make use of the exemption for
closed-system site limited intermediates pursuant to footnote (iii) in
Annexes A and B for the POPs chemical hexachlorobenzene. By the terms
of the footnote, this is not a production and use specific exemption.
The U.S. would notify the Secretariat as needed to comply with this
exemption.
Question 4. Article 3(5) provides that paragraphs 1 and 2 of the
same article do not apply to ``quantities of a chemical to be used for
laboratory-scale research or as a reference standard.''
a. Is there a common understanding among the states present
at the negotiations about the scope of this exemption?
b. What is a ``reference standard?''
Answer. Article 3(5) was drafted to ensure that the Convention's
restrictions on production, import and export would not have the
unintended effect of restricting scientific research involving these
chemicals.
Reference standards, or reference materials, are specially prepared
samples of chemicals or other materials that have precisely measured
and documented properties, and are used by analytical chemistry (and
other) laboratories to ensure that the labs are properly identifying
chemical compounds, and for quantitative calibration of laboratory
instruments. Reference materials are considered to be authoritative
standard references for labs, and are a critical part of any
laboratory's quality control/quality assurance program. The National
Institute of Standards and Technology (NIST) conducts an extensive
program for preparing reference materials and making them available for
sale.
With respect to chemicals used in lab-scale research or as a
reference standard, the quantities of the chemical to which this
paragraph would apply would only be those necessary to conduct the
laboratory research in question or for use as a reference standard.
There is a common understanding among states about this exemption.
Question 5. The phrase ``Parties with economies in transition'' is
used in several places in the Convention, such as the preamble, and
Articles 4(7), 12(2), and 13(2).
a. Is there a common understanding among the States present
at the negotiation about which nations would be considered
``Parties with economies in transition'' for the purpose of
these provisions?
b. What are the criteria for this category of states?
Answer a. There is a common understanding among the Parties as to
which countries this designation applies. Specifically, it is those
countries in Eastern Europe and the former Soviet Republics that have
been moving over the past 13 years or so from a communist economy to a
free market economy. This designation has been used in many other
multilateral environmental agreements.
Answer b. There are no specific criteria established for this
category of states.
Question 6. Article 5(a) requires development of an action plan
designed to ``identify, characterize, and address the release of the
chemicals listed in Annex C and to facilitate implementation of
subparagraphs (b) to (e).'' The letter of the Secretary of State
indicates that the United States has existing authority under the Clean
Air Act and Clean Water Act to develop inventories and release
estimates.
a. To what extent has such authority already been exercised
with respect to the chemicals listed in Annex C?
b. What would be the scope of work remaining to fulfill the
obligations of this provision?
Answer. The United States has more than twenty years of experience
in dealing with the principal Annex C chemicals (dioxins and furans).
The U.S. EPA maintains and routinely updates a national inventory of
emissions and has successfully regulated most of the source categories
listed in Annex C. EPA is currently working to expand the inventory to
include the unintentionally released polychlorinated biphenyls (PCBs)
and hexachlorobenzene (HCB).
The core of the United States national action plan, due two years
from the entry into force of the Convention, will focus on dioxin and
an accompanying strategy. Some expansion of this effort will be
necessary to cover the other pollutants (unintentional PCBs and HCB).
Question 7. The Executive Branch recommends an understanding with
regard to Article 6(d)(ii) and the meaning of ``low'' persistent
organic pollutant content.
a. Why is this understanding necessary? Is it not self-
evident that the recommendations of the Conference would not be
binding, given the various qualifications set forth in
paragraph (d) and (d)(ii)?
b. Was there a statement made by other delegations at the
negotiating session that necessitates this understanding? If
so, please elaborate.
Answer a. The understanding is required to avoid any ambiguity
created by the language in Article 6(2) authorizing the Conference of
the Parties ``to define'' low POPs content. While the Administration
agrees with the conclusion in the question that the work of the
Conference of the Parties would not be legally binding, an
understanding clarifying and memorializing this position is a prudent
way to put on record the U.S. position and to help avoid future
misunderstandings among the Parties on this important issue.
Answer b. The text in Article 6 was one of the final elements of
the Convention to be negotiated. We are not aware of statements made by
other delegations arguing that the definitions provided by the
Conference of the Parties would be legally binding on the Parties.
Question 8. Are there any existing ``international rules, standards
and guidelines'' with regard to what constitutes low persistent organic
pollutant content within the meaning of Article 6(d)(ii)?
Answer. We are not aware of any existing international rules,
standards and guidelines on what constitutes low POPs content. However,
the Conference of the Parties to the Basel Convention is in the process
of drafting technical guidelines on the environmentally sound
management of persistent organic pollutant wastes, with a view to
finalizing them by the end of 2004. The Intergovernmental Negotiating
Conference for the POPs Convention has been monitoring this exercise
and the POPs Secretariat is working with the Easel Secretariat and the
U.N. Environment Program Division of Technology, Industry and Economics
to try and ensure that any such guidelines meet the needs of the POPs
Convention.
Question 9. Does the United States have a position with regard to
what constitutes low persistent organic pollutant content within the
meaning of Article 6(d)(ii)?
Answer. Article 6.1(d)(ii) must be read in context with Article
6.2, which directs cooperation between the Stockholm Conference of
Parties and the appropriate bodies of the Basel Convention. Development
of ``low content'' values was one of a number of agenda items discussed
at the Basel Convention Open Ended Working Group meeting April 28-May
2, 2003. No set of consensus values was developed at that meeting, and
discussion will be ongoing. Values that are eventually determined to be
``low content'' will in all likelihood vary by chemical because the
POPs chemicals have different toxic potencies, and can be effectively
treated to different levels.
Regarding U.S. ability to implement any values that are eventually
adopted, it is useful to note that current U.S. hazardous waste
regulations regulate all the POPs chemicals except Mirex either as
waste constitutents \1\ or when product chemicals are designated as
waste. Because they are regulated as hazardous waste constituents, we
understand the Environmental Protection Agency has already established
treatment levels for all of the POPs chemicals except Mirex. The Agency
will bring its information on treatment methods and treatability levels
for POPs chemicals to the Basel Convention discussion of what
constitutes ``low content'' under the Stockholm Convention.
---------------------------------------------------------------------------
\1\ This is not to say that all POPs Chemicals are regulated in all
wastes in which they occur. Some are regulated as waste constituents of
specific listed waste streams, regardless of concentration, while
others are regulated based on their concentration in a waste, under the
Toxicity Characteristic, and still others are only regulated as of
specification product designated as waste. However, regulation as
hazardous waste by any of these methods provides the Agency the
opportunity to establish required treatment levels.
Question 10. How will the membership of the Persistent Organic
Pollutants Review Committee be determined? Is it expected that the
---------------------------------------------------------------------------
United States will always be a member? Why?
Answer. The membership of the Persistent Organic Pollutants Review
Committee will be set out in its terms of reference. These terms are
still the subject of negotiations and will be adopted at the first
meeting of the Conference of Parties (COP) after the Convention has
entered into force. This underlines the importance of ensuring that the
U.S. is among the first 50 governments to ratify the Convention and
among the Parties at the first COP. Consistent with our experience with
other technical bodies of this type, we expect that the United States
will be a member of the Committee once we become a Party. Besides the
fact that the United States is a major chemicals producer and user,
other countries value U.S. technical and regulatory expertise in this
field and desire our input on technical issues of this kind.
Question 11. The Secretary of State's letter states that Article 9
does not ``require the exchange of any information'' (emphasis in
original). What then, is the meaning of Article 9(1)? Why is the phrase
``shall facilitate or undertake the exchange of information''
considered non-binding? Please provide a brief legal analysis.
Answer. Article 9(1) requires parties to facilitate or undertake
the exchange of information relevant to the reduction or elimination of
production, use, and release of POPs and on alternatives to POPs. The
Article thus affords the United States two alternative paths to
satisfying its obligations. It could comply with Article 9 by
undertaking the exchange of information. In some instances, however,
this approach might give rise to potential conflicts with U.S. laws
regarding the protection of confidential business information (CBI) .
Article 9(1), however, in the alternative, would be satisfied by the
facilitation of the exchange of information, without actually requiring
any such exchange. This could be done, for example, by encouraging
industry to waive any CEI protection that might attach to information
and disclose it where it goes to the economic and socials costs of
alternatives or other relevant information regarding POPs.
Question 12. Article 9(5) provides that for the ``purposes of the
Convention, information on health and safety of humans and the
environment shall not be regarded as confidential'' but the ``other
information'' exchanged by the Parties under the Convention shall be
protected as mutually agreed by the Parties.
a. How does the Executive Branch intend to implement this
provision?
b. What does the Executive Branch understand to be the scope
of ``information on the health and safety of humans and the
environment?'' Is the term ``environment'' as used in this
paragraph modified by ``health and safety''?
Answer a. The United States would intend to implement this
provision by facilitating the exchange of relevant information,
including information on health and safety of humans and the
environment. Since the United States is not required to exchange any
information under Article 9 (see Question 11), the fact that the
Convention treats information on health and safety of humans and the
environment as non-confidential will not conflict with U.S. laws
regarding the protection of confidential business information. To the
extent that there is a desire to exchange other information that is
confidential with other Parties, the U.S. would need to work out
mutually agreed procedures.
Answer b. In the first sentence of this paragraph, we understand
the scope of the phrase ``information on health and safety of humans
and the environment'' to cover two separate categories of information:
(a) information on the health and safety of humans; and (b) information
on the environment.
Question 13. Under the Pollution Prevention Act of 1990 (42 U.S.C.
13101 et seq.), certain firms are required to submit on an annual basis
a ``toxic chemicals source reduction and recycling report,'' including
information on source reduction practices (42 U.S.C. 13106). Does
information that is withheld from public release under the authority of
42 U.S.C. 13106(e) relate, in any respect, to health and safety of
humans or the environment?
Answer. EPA has informed us that the only type of information that
can be withheld under 42 U.S.C. section 13106(e) is chemical identity
information. In the place of such information, the reporter must
provide the generic class or category of the chemical. The reporter,
moreover, may only withhold the chemical identity if it is a trade
secret. To do this, the reporter must demonstrate that ``disclosure of
the chemical identity] is likely to cause substantial harm to the
competitive position of the reporter.'' Given this statutory regime,
EPA does not believe that information withheld from public release
under 42 USC Sec. 13106(e) would relate to the health and safety of
humans or the environment. In any event, the United States does not
interpret the POPs Convention to require the United States to undertake
to disclose or exchange such information as it relates to reporting
under the Pollution Prevention Act.
Question 14. Does the United States expect to be present and voting
at every meeting of the Conference of the Parties?
Answer. After becoming a party to the Convention, the United States
expects to be present at every meeting of the Conference of the Parties
and to actively participate in decisions taken by the Conference of the
Parties.
Question 15. What are the anticipated U.S. budgetary resources
necessary to implement the treaty and for what purposes?
Answer. The State Department supports the operation of the
Secretariat of the Stockholm Convention through the International
Organization and Programs (IO&P) account. We expect that as the
agreement matures, the cost of the Secretariat will be approximately
$4-5 million annually; the United States typically aims to pay, on a
voluntary basis, approximately 22% of budgets of multilateral
environmental agreements to which we are party.
Separately, the Convention has provisions to provide financial
assistance to developing countries through the Global Environment
Facility (GEF) as the agreement's interim funding mechanism. The United
States has pledged a total of $500 million to the GEF for 2003-2006 to
cover all GEF-related projects, including those pertaining to Stockholm
Convention. The GEF has set a nominal program allocation of over $200
million from 2003-2006 to support POPs projects.
Question 16. Please summarize the consultative process that was
undertaken with stakeholders during negotiation of the treaty.
Answer. The Executive Branch engaged in extensive discussions with
industry, environmental, tribal, and State interests throughout the
negotiations. Meetings were typically held with these groups before,
during, and sometimes after each of the negotiating sessions. This
stakeholder outreach will continue for current and future meetings of
the Stockholm Convention.
Question 17. Does the Executive Branch intend to make a declaration
under Article 25(4) upon deposit of the instrument of ratification?
Answer. Yes. The U.S. delegation was instrumental in ensuring that
the Convention contained this language, known as the ``opt-in''
approach, which will bind parties making a declaration to the
provisions regarding a new chemical added to the Convention's first
three annexes (or any other amendments to those annexes) only upon
affirmative ratification, acceptance, approval or accession by the
declaring party.
Question 18. Will the Executive Branch await the enactment of the
necessary implementing legislation prior to depositing the instrument
of ratification?
Answer. As is customary in U.S. treaty practice, the United States
does not consent to be bound by treaties until it has in place the
necessary domestic legal authorities to comply with the treaty's
obligations. Thus, in the POPs case, the United States will not deposit
its instrument of ratification until such time as the necessary
implementing legislation has been enacted.
Question 19. In the Secretary of State's letter in the submittal
package, the Secretary indicates that certain amendments to Toxic
Substances Control Act and the Federal Insecticide, Fungicide, and
Rodenticide Act are needed to ``ensure the United States' ability to
implement provisions of the Convention.'' The Secretary also states
that ``[o]ther targeted changes may also be sought to ensure our
ability to participate effectively in negotiations regarding proposed
amendments to add chemicals, and to ensure that the United States is
able to ratify such amendments in a timely manner, if it so chooses''
(emphasis added).
What is the Executive Branch's current position on the need
for the type of amendments referenced in the second sentence
above?
Answer. For the reasons stated in the Secretary of State's letter,
the Administration supports implementing legislation that includes
legislative provisions authorizing domestic regulations in light of
proposed amendments to add chemicals under the Convention. At the same
time, however, these provisions are not necessary for the United States
to become party to the Convention since, for example, the United States
would plan to invoke the ``opt-in'' provision in Article 25(4) (See
Response to Question 17).
An example of a targeted change to ensure the ability of the United
States to participate effectively in negotiations to add new chemicals
to Convention's annexes is a proposal in the Administration bill
introduced during the last Congress, which sought authority to collect
information on existing manufacturing, processing, distribution in
commerce for export, use and disposal of substances proposed for
addition. We believe that such information will be crucial ensuring
that the United States can protect its interests during the process of
negotiating proposed amendments to add chemicals to Convention annexes.
______
Responses of Hon. John F. Turner to Follow-up Questions from Senator
Joseph R. Biden, Jr.
stockholm convention on persistent organic pollutants
Question 1. The answer to Question 3 (previously submitted) is
unresponsive. The Secretary's letter, at page xx of Treaty Doc. 107-5,
states that the ``United States expects to make use of this exemption
(in note ii to Annex A) with respect to a number of articles, such as
treated wood'' (emphasis added). The response to question 3 states the
``U.S. would notify the Secretariat as needed to comply with this
exemption.''
a. Does the United States know today what other articles will
need to be notified to the Secretariat under note ii to Annex
A? If so, what are they?
b. Please answer the same two questions set forth in part (a)
of this question with regard to articles that may be notified
under note iii to Annex A.
Answer a. Although we have not completed a final examination of
this issue at this time, we intend to do so before making a
notification to the Secretariat. We have reviewed the matter and
believe there are a number of uses that may be the subject of such a
notification as described in the following paragraph.
A number of the POPS termaticides were used to treat structures
before their registrations were cancelled.
Specifically, aldrin, dieldrin, chlordane, and heptachlor may
remain in use in structures that had previously been treated with these
chemicals. Heptachlor has also been used for fire ant control in
electrical cable boxes and some heptachlor may remain in such cable
boxes. Endrin was used as an avicide on bird perches and there may
still be perches with endrin residue. Mirex was historically used as an
industrial fire retardant and there may still be in use certain
articles containing mirex.
Answer b. As noted previously, the United States anticipates it
will make use of the closed-system site-limited intermediate provision
of Annex A note iii in the case of hexachlorobenzene. This is the only
notification for note iii that we are aware of at this time; however,
we intend to review this issue further before making a notification to
the Secretariat.
Question 2. Question 15 (previously submitted) asks for information
about anticipated U.S. budgetary resources necessary to implement the
treaty and for what purpose. It was not limited to the Department of
State budget or contributions for the Secretariat. Are there any budget
implications for the Environmental Protection Agency? Please provide
relevant estimates.
Answer. We understand from EPA that there would likely be a
marginal increase in the staff and related costs associated with
implementing the POPs treaty's provisions. This would include costs
associated with, in particular: (1) preparing Federal Register notices
related to the possible addition of new chemicals and following
through, as appropriate, on necessary regulatory actions, (2) preparing
a national implementation plan and a national action plan as called for
under the Convention, (3) compiling the necessary information related
to reporting provisions under the convention, and (4) providing or
facilitating technical assistance to developing countries and countries
with economies in transition independent of our efforts through the
GEF. A more precise response to this question is not possible until the
Convention finalizes discussions on issues such as guidance for
national implementation plans and reporting formats, and the precise
nature of the U.S. procedural approach is defined with regard to new
chemicals proposed for addition to the Convention in the future.
______
Responses of Hon. John F. Turner, Assistant Secretary of State for
Oceans and International Environmental and Scientific Affairs, to
Additional Questions for the Record Submitted by Senator Russell D.
Feingold
stockholm convention on persistent organic pollutants
Question 1. As a Senator from the Great Lakes Region, I support the
POPs Convention, and believe international efforts to restrict
persistent organic pollutants stemmed, in part, from our longstanding
efforts with the Canadian government to reduce toxics loading into the
Great Lakes. I want, therefore, to make certain that the Stockholm
Convention can be fully and effectively implemented domestically.
Assistant Secretary Turner, you are certainly aware that, in order
to meet our commitments under the Convention we will need to pass
domestic legislation that addresses how EPA will regulate additional
POPs. Will you review for me the administration's commitment to such
legislation, and your progress in working with the Senate to develop
legislation that will allow for the addition of new chemicals that is
consistent with the provisions of the convention? Does the
administration presently have a time frame for concluding these
discussions?
Answer. The Administration is firmly committed to the Stockholm
Convention on POPs, and to working with Congress to ensure that
legislation is passed that will allow the United States to ratify this
important agreement. Significant progress has been made over the past
year on the implementing legislation. The Administration has been
working over this time with the Congress to prepare a legislative
package that will allow the United States to implement the treaty
provisions, including the provisions on new chemicals (however, as
discussed in question #2, such provisions are not in a strict sense
required by the Convention) We are committed to continuing our work
with the Congress to ensure a successful outcome is achieved from these
discussions. We do not have a specific timeline for completion of
negotiations, but we believe it is important that implementing
legislation is completed and the United States ratify the agreement by
the time important decisions are taken at the first Conference of the
Parties, expected to be in early 2005.
Question 2. Do you agree that U.S. implementing legislation must
include a mechanism for adding future chemicals that are found to be a
concern under the Convention?
Answer. The Administration is currently working with the Congress
to develop an adding mechanism to be included in implementing
legislation. There are several options on this subject that are the
subject of ongoing discussions on the implementing legislation between
the Administration and the Congress.
However, it should be noted that the legislative provisions on
future chemicals referred to in the question are not strictly necessary
to allow the United States to ratify the Convention since, for example,
the United States would plan to invoke the ``opt-in'' provision in
Article 25(4), allowing it to become bound by amendments adding new
chemicals only where it affirmatively consents to be bound by such
amendments. Moreover, all states have the right under Article 22(3)(b)
to decline to consent to amendments adding new chemicals, which, even
in the absence of Article 25(4), could be invoked if such an amendment
would require additional legislation or regulatory action.
Question 3. Many countries have already ratified this agreement,
and international implementation discussions are ongoing. Have any
second rounds of particular substances yet been discussed, or will the
Convention need to be fully in force before such determinations are
made?
Answer. When the Stockholm Convention was adopted, the negotiating
States agreed that before the Convention entered into force they would
focus on issues directly related to implementing existing obligations
under the treaty for the 12 persistent organic pollutants (POPs) in the
Annexes. Therefore, there has not been a ``second round'' of proposed
substances under discussion within the Convention. The Convention has
to enter into force before the formal body that reviews proposals on
potential additions, the POPs Review Committee, convenes to consider
proposals.
______
Responses of Hon. John F. Turner, Assistant Secretary of State for
Oceans and International Environmental and Scientific Affairs, to
Additional Questions for the Record Submitted by Senator Barbara Boxer
on Behalf of Herself and Senators Jeffords, Kerry and Sarbanes
stockholm convention on persistent organic pollutants
Question 1. On Page XXII of the Message from the President,
Secretary of State Powell lays out certain amendments to FIFPA and TSCA
that will be sought, then states that ``other targeted changes may also
be sought to ensure our ability to participate effectively in
negotiations regarding proposed amendments to add chemicals, and to
ensure that the United States is able to ratify such amendments in a
timely manner, if it so chooses'' (emphasis added). Does the
administration continue to seek such targeted changes? And, if so, what
are these ``targeted'' changes?
Answer. For the reasons stated in the Secretary of State's letter,
the Administration supports implementing legislation that includes
legislative provisions authorizing domestic regulations in light of
proposed amendments to add chemicals under the Convention. At the same
time, however, these provisions are not necessary for the United States
to become party to the Convention since, for example, the United States
would plan to invoke the ``opt-in'' provision in Article 25(4),
ensuring that it would become bound by amendments adding new chemicals
only where it affirmatively consents to be bound by such amendments.
In terms of implementing legislation, there are several options on
this subject that have been proposed, which are the subject of
discussions between the Administration and the Congress.
Question 2. As I understand the position of the administration, it
is that the United States will not deposit its Instrument of
Ratification until and unless implementing legislation is enacted that
will enable the United States to implement all the Convention
obligations. Is this understanding correct?
Answer. As is customary in U.S. treaty practice, the United States
does not consent to be bound by treaties until it has in place the
necessary domestic legal authorities to comply with the treaty's
obligations. Thus, in the POPs case, the United States will not deposit
its instrument of ratification until such time as the necessary
implementing legislation has been enacted.
Question 3. Please clarify the administration's position as to
whether it is seeking changes to ensure the ability of the United
States to participate effectively in negotiations to add new chemicals
to the POPs list and, if not, how you fully plan to implement the POPs
convention without such changes?
Answer. See response to Question 1.
Question 4. The President, in the Letter of Transmittal of May 6,
2002, notes that the POPs Convention ``includes obligations on . . . a
science-based procedure to add new chemicals that meet defined
criteria.'' Is this still the view of the administration?
Answer. This is still the view of the Administration. The United
States was heavily involved in the negotiations of these provisions and
ensured that a science-based approach was the framework for the review
process under the Convention. However, many key details in the process
for adding new chemicals must still be worked out. This underlines the
importance of ensuring that the U.S. is among the first 50 governments
to ratify the Convention and among the parties at the first COP.
Question 5. Do you consider this Convention to be a static
agreement or a dynamic one? Would you agree that an essential component
to ensure that it remains dynamic is the science-based procedure built
into the Convention to nominate, assess, and add additional chemicals
with POPs characteristics beyond the initial dirty dozen?
Answer. We consider the agreement to be a dynamic one that will
evolve over time to include other chemicals that are not currently
listed. One of the major U.S. negotiating objectives, which we believe
was successful, was to ensure that the framework for assessing
proposals for new chemicals was a science-based process. However, there
are also many key details in this process that must be worked out among
the members of the COP. At the same time, however, the United States
also negotiated the ``opt-in'' provision in Article 25(4) to ensure its
ability to weigh the results of this process on a case-by-case basis
and to reserve its right to decide whether to become bound by changes
adding new chemicals to the Convention.
Question 6. The Secretary of State's Letter of Transmittal, which
forms an integral part of the President's Letter of Transmittal of May
6, 2002, states that the United States has ``already taken substantial
action to address the risks associated with those POPs chemicals
currently covered by the Convention,'' but that other countries still
use these substances. Is it correct that this means that most of the
work to cease production and use of the original twelve intentionally-
produced POPs will be in countries other than the United States?
Answer. Much of the work to be done is in other countries, but the
United States and many other developed countries are assisting others
by sharing our experiences and by providing technical and financial
assistance.
Question 7. Is it correct that the real work for the United States
regarding banning production and use of POPs chemicals will come if
additional substances with POPs characteristics are added to the
Convention through an open and transparent science-based procedure? Is
it not correct that this means that the United States must be ready,
willing, and able to work with other nations of the world on proposals
to add chemicals beyond the original twelve POPs chemicals in a timely
manner if it is going to be able to convince other nations that we take
this Convention seriously?
Answer. There is a considerable amount of work to do globally to
work with other countries to ensure they are able to phase out or
reduce the production, use and/or release of these substances. We
provide considerable technical and financial assistance to help
countries with this often-difficult task. There will be additional
challenges for the United States and others as more chemicals are added
to the Convention.
One important aspect of the Convention is that it will evolve over
time as chemicals are added to the Annexes in the future. We intend to
be a constructive part of that science-based, evolutionary process. The
most important factor in convincing other countries that we take the
Convention seriously is for the United States to act now to ratify it.
Once we become a party to the Convention, we would expect other
countries to seriously and thoughtfully consider the considerable
technical and scientific resources that the United States can bring to
the discussion of possible additional chemicals.
______
Responses of Hon. John F. Turner, Assistant Secretary of State for
Oceans and International Environmental and Scientific Affairs, to
Additional Questions for the Record Submitted by Senator Joseph R.
Biden, Jr.
rotterdam convention on the prior informed consent procedure for
certain hazardous chemicals and pesticides in international trade
Question 1. Has your testimony today been coordinated with the
Environmental Protection Agency?
Answer. Yes.
Question 2. President Clinton submitted the treaty to the Senate.
In so doing, he recommended that ratification be subject to an
understanding regarding Article 12. Does the Bush Administration
support the proposed understanding without modification?
Answer. Yes.
Question 3. Will the Executive Branch await the enactment of the
necessary implementing legislation prior to depositing the instrument
of ratification?
Answer. As is customary in U.S. treaty practice, the United States
does not consent to be bound by treaties until it has in place the
necessary domestic legal authorities to comply with all treaty
obligations. Thus, in the case of the Rotterdam Convention, the United
States will not deposit its instrument of ratification until such time
as the necessary implementing legislation has been enacted.
Question 4. How will the membership of the Chemical Review
Committee provided for under Article 18(6) be determined? Is it
expected that the United States will always be a member? Why?
Answer. The membership of the Chemical Review Committee will be set
out in its terms of reference to be adopted by the first meeting of the
Conference of the Parties (COP). We expect that the United States would
be a member of the Committee once we become a Party as we have the
world's most advanced chemicals regulatory system as well as a large
share of the global chemicals industry, and can provide substantial
technical expertise. Furthermore, Article 18(6)(a) requires that the
Committee membership be based on ``equitable geographic distribution.''
Should the COP adopt the same geographic structure that has been used
in the voluntary interim PIC procedure as expected, the U.S. would have
one of the two seats in the North America region which consists of only
two countries (Canada and the United States).
Question 5. What are the anticipated U.S. budgetary resources
necessary to implement the treaty and for what purposes?
Answer. The State Department supports the operation of the
Secretariat of the Rotterdam Convention through the International
Organizations and Programs (IO&P) account. We expect that as the
agreement matures, the cost of the Secretariat will be approximately
$3.5-$5 million annually; the United States typically aims to pay, on a
voluntary basis, approximately 22% of budgets of multilateral
environmental agreements to which we are party. Operational costs are
for the Convention's Secretariat and technical assistance/capacity
building.
Question 6. Does the United States expect to be present and voting
at every meeting of the Conference of the Parties?
Answer. After becoming a party to the Convention, the United States
expects to be present at every meeting of the Conference of the Parties
and to actively participate in decisions taken by the Conference of the
Parties.
Question 7. Please summarize the consultative process that was
undertaken with stakeholders during negotiation of the treaty.
Answer. The Executive Branch engaged in extensive discussions with
industry and environmental interests during the negotiations of the
treaty. Meetings were typically held with these groups before, during,
and sometimes after each of the treaty negotiating sessions. We expect
stakeholder outreach to continue as necessary in connection with
Conferences of the Parties and other meetings of the Rotterdam
Convention.
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Response of Hon. John F. Turner to a Follow-up Question from Senator
Joseph R. Biden, Jr.
rotterdam convention concerning hazardous chemicals and pesticides in
international trade
Question 1. Question 5 (previously submitted) asks for information
about anticipated U.S. budgetary resources necessary to implement the
treaty and for what purpose. It was not limited to the Department of
State budget or contributions for the Secretariat. Are there any budget
implications for the Environmental Protection Agency? Please provide
relevant estimates.
Answer. We understand from EPA that there would likely be a
marginal increase in the staff and related costs associated with
implementing the Rotterdam Convention's provisions. This would include
costs associated with, in particular: (1) preparing Federal Register
notices related to the possible addition of new chemicals and following
through, as appropriate, on necessary regulatory actions, (2) preparing
notifications of final regulatory actions pursuant to Article 5, (3)
preparing import responses pursuant to Article 10, (4) processing
export notifications pursuant to Article 12, (5) implementing the
information exchange provisions of Article 14, and (G) providing
technical assistance to developing countries and countries with
economies in transition pursuant to Article 16.
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