79–115

106TH CONGRESS EXEC. REPT.

2d Session " ! SENATE 106–18

INTER-AMERICAN CONVENTION ON SEA TURTLES

SEPTEMBER 5, 2000.—Ordered to be printed

Mr. HELMS, from the Committee on Foreign Relations,

submitted the following

REPORT

[To accompany Treaty Doc. 105–48]

The Committee on Foreign Relations, to which was referred the

Inter-American Convention for the Protection and Conservation of

Sea Turtles, with Annexes, done at Caracas, Venezuela, on December 1, 1996, which was signed by the United States, subject to ratification, on December 13, 1996, having considered the same, reports favorably thereon with three understandings, five declarations and two provisos, and recommends that the Senate give its

advice and consent to the ratification thereof as set forth in this report and the accompanying resolution of ratification.

CONTENTS

Page

I. Purpose ........................................................................................................... 1

II. Background .................................................................................................... 2

III. Summary ........................................................................................................ 2

IV. Entry Into Force and Termination ............................................................... 4

V. Committee Action .......................................................................................... 5

VI. Committee Recommendation and Comments .............................................. 5

VII. Explanation of Proposed Convention ........................................................... 5

VIII. Text of the Resolution of Ratification .......................................................... 5

I. PURPOSE

The purpose of the Inter-American Convention for the Protection

and Conservation of Sea Turtles (‘‘the Convention’’) is to require

Parties to the Convention to promote the protection and conservation of sea turtle populations and their habitats; to reduce the incidental capture, injury and mortality of sea turtles associated with

commercial fisheries; to prohibit the intentional taking of, and domestic and international trade in, sea turtles, their eggs, parts and

products; and to foster international cooperation in the research

and management of sea turtles. The Convention specifically obligates Parties to require the use of turtle excluder devices (‘‘TEDs’’)

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by commercial shrimp trawl vessels in a manner comparable to the

requirements in effect in the United States. The Convention also

includes provisions on monitoring and compliance.

II. BACKGROUND

Congress called for the negotiation of multilateral agreements for

the protection and conservation of sea turtles in Section 609 of the

Departments of Commerce, Justice and State, the Judiciary and

Related Agencies Appropriations Act of 1990 (P.L. 101–162). Substantive negotiations on the Convention concluded on September 5,

1996, at a meeting in Salvador da Bahia, Brazil. The Convention

was opened for signature on December 1, 1996. The United States

signed the Convention, subject to ratification, on December 13,

1996. The President submitted the Convention to the Senate for

advice and consent on May 22, 1998. As of the date of this report,

twelve countries (Belize, Brazil, Costa Rica, Ecuador, Honduras,

Mexico, The Netherlands, for its American possessions, Nicaragua,

Peru, Uruguay, Venezuela and the United States) had signed the

Convention, and four (Venezuela, Peru, Brazil and Costa Rica) had

deposited instruments of ratification. The Convention will enter

into force with the eighth ratification.

III. SUMMARY

A. GENERAL

The protection of sea turtles has been addressed in both national

and international law. In 1973, Congress enacted the ‘‘Endangered

Species Act’’ (ESA) to protect certain fish, wildlife, and plants from

extinction. Under the ESA the Secretary of Commerce has determined that five species of sea turtles within the jurisdiction of the

United States are endangered, and that an additional species is

threatened. Consequently, such turtles may not be taken within

U.S. jurisdiction.

In 1973 the U.S. took the lead in negotiating the ‘‘Convention on

International Trade in Endangered Species of Wild Fauna and

Flora’’ (CITES), and in 1975 became the first nation to ratify that

agreement. All six species of Western Hemisphere sea turtles have

been designated under CITES as endangered, and trading in any

of these species is prohibited. Other international agreements and

guidelines have also promoted the conservation of sea turtles.

Shrimp trawling has been an activity of particular concern to sea

turtle conservationists and governments. Because the Department

of Commerce concluded that a significant number of sea turtles

were perishing in the nets of shrimp trawlers, in 1987 the Department adopted regulations pursuant to the ESA requiring large domestic shrimp trawlers to use ‘‘Turtle Excluder Devices’’ (TEDs) in

their nets. The regulations also required smaller domestic trawlers

to limit their ‘‘tow times’’—i.e., the period during which their nets

are actually deployed in the sea—to a maximum of 90 minutes. In

1989 Congress amended the ESA to extend those requirements to

foreign shrimp trawlers.

Section 609 of P.L. 101–162 bars the importation into the United

States of shrimp harvested by methods harmful to sea turtles unless the President certifies that the harvesting nation requires its

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trawling vessels to use TEDs or tow-time restrictions, that trawling

occurs in waters uninhabited by sea turtles, or that the incidental

taking of sea turtles—called ‘‘by-catch’’—is comparable to that of

U.S. vessels using TEDs and restricted tow times.

Section 609 also mandated that the Secretary of State negotiate

bilateral or multilateral agreements with other nations to protect

and conserve endangered sea turtles. Subsequently the United

States Court of Appeals for the Ninth Circuit held in Earth Island

Institute v. Christopher, 6 F.3d 648 (9th Cir. 1993) that this mandate was an unconstitutional invasion of the President’s treatymaking authority. Nevertheless, the Secretary of State initiated

treaty negotiations with several Latin American nations. Four negotiating sessions produced the proposed Inter-American Convention in 1996.

In submitting the Convention to the Senate, the Executive

Branch stated that the Convention will not require implementing

legislation for the United States.

B. KEY PROVISIONS

The Convention has a preamble, twenty-seven articles and four

annexes. Key provisions are summarized below.

The Convention is based on the premise that ‘‘sea turtles migrate

widely throughout marine areas and that their protection and conservation require cooperation and coordination among States within the range of such species’’ (Preamble). Stating its objective to be

‘‘the protection, conservation and recovery of sea turtle populations

and of the habitats on which they depend’’ (Article II), the Convention would obligate its Parties to take ‘‘appropriate and necessary

measures’’ in service of that objective.

Article IV is the heart of the Convention. It obligates parties to

prohibit the intentional capture, retention, and killing of sea turtles, as well as domestic trade in sea turtles, their eggs, parts or

products. It obligates parties to observe the CITES ban on international trade in sea turtles, their eggs, parts or products. Article

IV obligates parties, ‘‘to the extent practicable,’’ to restrict human

activities that could have a serious adverse impact on sea turtles.

It also calls for the protection, conservation, and restoration of sea

turtle habitats and nesting areas, including the designation of protected areas. Parties also would be obligated to promote scientific

research relating to sea turtles and their habitats, and to promote

efforts to enhance sea turtle populations.

Article IV would also obligate parties to promote environmental

education and dissemination of information as a means of promoting participation in conservation efforts. In addition, parties

would be obligated to reduce, ‘‘to the greatest extent practicable,’’

incidental capture, retention, harm or mortality of sea turtles in

the course of fishing activities through, inter alia, the use of turtle

excluder devices (TEDs).

Each Party would also be obligated to establish a program to

monitor the application of the measures it adopts for the protection

and conservation of sea turtles and their habitats (Article IX) and

to ‘‘ensure compliance’’ with such measures (Articles X and XVIII).

The measures would have to be in accordance with the provisions

of the WTO (Article XV), and exceptions to the ban on the intenVerDate 11-MAY-2000 08:49 Sep 06, 2000 Jkt 000000 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 106-18 SFRELA1 PsN: SFRELA1
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tional capture and killing of sea turtles would be allowed ‘‘to satisfy

economic subsistence needs of traditional communities’’ (Article

IV(3)). The Parties would be encouraged to coordinate their activities with relevant international organizations (Article XIV).

Under the Convention the Parties would establish a Scientific

Committee to conduct research and formulate recommendations for

the protection and conservation of sea turtles and their habitats

(Article VIII), a Consultative Committee of Experts to review the

annual reports required to be submitted by each Party on the

measures they have undertaken and to evaluate the efficiency of

various measures to reduce the capture and incidental mortality of

sea turtles, including TEDs (Article VII), and, optionally, a Secretariat (Article VI). The Parties would also meet periodically to

evaluate compliance with the Convention, to adopt additional conservation and management measures, to propose amendments to

the Convention, and to modify the annexes (Article IV). All such

decisions by the Parties would be by consensus (Article V).

Financing of Convention implementation is not provided for in

the text. Rather, this issue will be discussed at the first meeting

of the Parties (Article XIII) following entry into force. Voluntary

dispute settlement measures are discussed in Article XVI.

The Convention would apply to the land territory in the Americas of the Parties and to maritime areas over which they exercise

sovereignty (Article III). The Convention is open to signature or accession by the countries of North, Central, and South America and

the Caribbean, and other countries with territories in the region

(Article I). The Parties would also be encouraged to negotiate a

complementary protocol opening the Convention to other interested

countries (Article XX).

The Convention and any future amendments to the Convention

are subject to ratification by those that signed it by December 31,

1998, and to accession by other States (Article XXI). No reservations to the Convention may be made in doing so (Article XXIII).

The Convention will enter into effect 90 days after the deposit of

the eighth instrument of ratification (Article XXII). Withdrawal

from the Convention is permitted six months after the submission

of a written notice to the Depositary to that effect (Article XXV).

The Depositary is Venezuela (Article XXVII).

Four Annexes are attached to the Convention, all of which are

deemed to be ‘‘integral parts’’ of the Convention and each of which

can be amended by consensus at any meeting of the Parties (Article

XXVI). Annex I lists the sea turtles to be protected under the Convention. Annex II sets forth possible measures that can be taken

to protect and conserve sea turtle habitats. Annex III mandates

that, with certain exceptions, each Party require its shrimp trawl

vessels to use TEDs. Annex IV requires that annual reports on implementation be prepared by each party.

IV. ENTRY INTO FORCE AND TERMINATION

A. ENTRY INTO FORCE

The Convention will enter into force ninety days after deposit of

the eighth instrument of ratification. For each State acceding to

the Convention after its entry into force, the Convention shall enter

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1On the day the Committee was scheduled to conduct a hearing on the treaty, permission to

do so pursuant to Senate Rule 26(5)(a) had not been granted. Therefore, the Committee proceeded in informal session. A transcript is appended to Executive Report 106–16.

into force on the day such State deposits its instrument of accession with the Depositary, namely, the Venezuelan Foreign Ministry.

B. WITHDRAWAL

The Convention shall remain in force indefinitely, but any of the

Parties may withdraw from it at any time after 12 months from the

date on which it enters into force with respect to that Party. To

withdraw, the Party must give written notice of withdrawal to the

Depositary. The Depositary shall inform the other Parties of the

withdrawal within 30 days of receipt of such notice. The withdrawal shall become effective six months after receipt of such notice.

V. COMMITTEE ACTION

The Committee on Foreign Relations held an informal public

meeting on the Convention on July 20, 2000 (a transcript of the

session and questions for the record can be found in the appendix

to Executive Report 106–16, Convention (No. 176) Concerning Safety and Health in Mines, also filed this day).1 The Committee considered the Convention on July 26, 2000, and ordered it favorably

reported by voice vote, with the recommendation that the Senate

give its advice and consent to the ratification of the proposed Convention subject to three understandings, five declarations and two

provisos.

VI. COMMITTEE RECOMMENDATION AND COMMENTS

The Committee on Foreign Relations recommends favorably the

proposed Convention. On balance, the Committee believes that the

proposed Convention is in the interest of the United States and

urges the Senate to act promptly to give its advice and consent to

ratification.

VII. EXPLANATION OF PROPOSED CONVENTION

For analysis of the proposed Convention, see the corresponding

Letter of Submittal from the Secretary of State, which is set forth

at pages V–IX of Senate Treaty Document 105–48.

VIII. TEXT OF THE RESOLUTION OF RATIFICATION

Resolved, (two thirds of the Senators present concurring therein),

that the Senate advise and consent to the ratification of the InterAmerican Convention for the Protection and Conservation of Sea

Turtles, With Annexes, done at Caracas, Venezuela, on December

1, 1996 (Treaty Doc. 105–48), which was signed by the United

States, subject to ratification, on December 13, 1996, referred to in

this resolution of ratification as ‘‘The Convention,’’ subject to the

understandings of subsection (a), the declarations of subsection (b)

and the provisos of subsection (c).

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(a) UNDERSTANDINGS.—The advice and consent of the Senate is

subject to the following understandings, which shall be included in

the instrument of ratification of the Convention and shall be binding on the President:

(1) ARTICLE VI (‘‘SECRETARIAT’’).—The United States understands that no permanent secretariat is established by this

Convention, and that nothing in the Convention obligates the

United States to appropriate funds for the purpose of establishing a permanent secretariat now or in the future.

(2) ARTICLE XII (‘‘INTERNATIONAL COOPERATION’’).—The

United States understands that, upon entry into force of this

Convention for the United States, the United States will have

no binding obligation under the Convention to provide additional funding or technical assistance for any of the measures

listed in Article XII.

(3) ARTICLE XIII (‘‘FINANCIAL RESOURCES’’).—Bearing in mind

the provisions of paragraph (7), the United States understands

that establishment of a ‘‘special fund,’’ as described in this Article, imposes no obligation on Parties to participate or contribute to the fund.

(b) DECLARATIONS.—The advice and consent of the Senate is subject to the following declarations:

(1) ‘‘NO RESERVATIONS’’ CLAUSE.—Concerning Article XXIII,

it is the sense of the Senate that this ‘‘no reservations’’ provision has the effect of inhibiting the Senate in its exercise of its

constitutional duty to give advice and consent to ratification of

a treaty, and the Senate’s approval of these treaties should not

be construed as a precedent for acquiescence to future treaties

containing such provisions.

(2) TREATY INTERPRETATION.—The Senate affirms the applicability to all treaties of the constitutionally based principles

of treaty interpretation set forth in Condition (1) of the resolution of ratification of the INF Treaty, approved by the Senate

on May 27, 1988, and Condition (8) of the resolution of ratification of the Document Agreed Among the State Parties to the

Treaty on Conventional Armed Forces in Europe, approved by

the Senate on May 14, 1997.

(3) NEW LEGISLATION.—Existing federal legislation provides

sufficient legislative authority to implement United States obligations under the Convention. Accordingly, no new legislation

is necessary in order for the United States to implement the

Convention. Because all species of sea turtles occurring in the

Western Hemisphere are listed as endangered or threatened

under the Endangered Species Act of 1973, as amended (Title

16, United States Code, Section 1536 et seq.), said Act will

serve as the basic authority for implementation of United

States obligations under the Convention.

(4) ARTICLES IX AND X (‘‘MONITORING PROGRAMS,’’ ‘‘COMPLIANCE’’).—The United States understands that nothing in the

Convention precludes the boarding, inspection or arrest by

United States authorities of any vessel which is found within

United States territory or maritime areas with respect to

which it exercises sovereignty, sovereign rights or jurisdiction,

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for purposes consistent with Articles IX and X of this Convention.

(5) It is the sense of the Senate that the entry into force and

implementation of this Convention in the United States should

not interfere with the right of waterfront property owners, public or private, to use or alienate their property as they see fit

consistent with pre-existing domestic law.

(c) PROVISOS.—The advice and consent of the Senate is subject to

the following provisos:

(1) REPORT TO CONGRESS.—The Secretary of State shall provide to the Committee on Foreign Relations of the Senate a

copy of each annual report prepared by the United States in

accordance with Article XI of the Convention. The Secretary

shall include for the Committee’s information a list of ‘‘traditional communities’’ exceptions which may have been declared

by any party to the Convention.

(2) SUPREMACY OF THE CONSTITUTION.—Nothing in the Convention requires or authorizes legislation or other action by the

United States of America that is prohibited by the Constitution

of the United States as interpreted by the United States.

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