99–115 PDF 

107TH CONGRESS EXEC. RPT. " SENATE ! 2d Session 107–8

PROTOCOL CONCERNING SPECIALLY PROTECTED AREAS 

AND WILDLIFE TO THE CONVENTION FOR THE PROTECTION AND DEVELOPMENT OF THE MARINE ENVIRONMENT OF THE WIDER CARIBBEAN REGION 

SEPTEMBER 3, 2002.—Ordered to be printed 

Mr. BIDEN, from the Committee on Foreign Relations,

submitted the following

REPORT

[To accompany Treaty Doc. 103–5]

The Committee on Foreign Relations, to which was referred the 

Protocol Concerning Specially Protected Areas and Wildlife to the 

Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, done at Kingston on 

January 18, 1990, including Annexes, having considered the same, 

reports favorably thereon, with the reservations, an understanding, 

and a declaration set forth in the resolution 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 

resolution of advice and consent to ratification.

CONTENTS

Page 

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

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

III. Entry Into Force and Termination ............................................................... 3

IV. Committee Action .......................................................................................... 3

V. Committee Comments; Discussion of Resolution of Advice and Consent 

to Ratification ............................................................................................. 4

VI. Resolution of Advice and Consent ................................................................ 5

I. PURPOSE

The Protocol Concerning Specially Protected Areas and Wildlife 

to the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (hereafter 

‘‘SPAW Protocol’’ or ‘‘Protocol’’) is designed to protect threatened or 

endangered species of plants and animals in the Caribbean region.


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II. BACKGROUND

A. IN GENERAL

In the early 1980s, the United States became a party to Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, also known as the Cartagena 

Convention. The United States signed it in March 1983, the Senate 

gave its advice and consent in September 1984, and the United 

States became a party in 1986. The Cartagena Convention is a regional environmental agreement ratified by 21 nations in the Caribbean Region (most of the nations of the Caribbean and Central 

America have become party, though a handful have not). Its area 

of application comprises the marine environment of the Gulf of 

Mexico, the Caribbean Sea and the adjacent areas of the Atlantic 

Ocean, within 200 nautical miles off the Atlantic Coasts of the participating States, south of 30 degrees north latitude. U.S. territory 

covered by the Convention includes the marine environment in the 

waters off Texas, Louisiana, Mississippi, Alabama, and Florida, as 

well as the United States Virgin Islands and Puerto Rico; the Convention does not apply to internal waters.

The Cartagena Convention envisaged that more detailed protocols would be developed by the parties to address specific matters. 

The SPAW Protocol is such an agreement. In effect, it implements 

Article 10 of the Cartagena Convention, which requires parties to 

‘‘take all appropriate measures to protect and preserve rare or fragile ecosystems, as well as the habitat of depleted, threatened or endangered species,’’ in the geographic area covered by the Convention.

The Protocol was signed by the United States at the negotiating 

conference in 1990. It was submitted to the Senate by President 

Clinton in April 1993. The Bush Administration has indicated, by 

letter to the Committee and in testimony, that it supports the Protocol. The Protocol entered into force on June 18, 2000, following 

the deposit of the ninth instrument of ratification. As of July 1, 

2002, ten nations were party to the Protocol.

The United States Government and U.S.-based environmental 

groups were instrumental in negotiating the SPAW Protocol and in 

supporting the region-wide Caribbean Environment Program. U.S. 

influence in the development of the Protocol has resulted in a regime largely patterned after and consistent with United States environmental law already in effect. Indeed, the Protocol will be implemented in the United States through existing statutes and will 

not require additional legislation. Existing legislation which fulfills 

the obligations of the Protocol include the Marine Protection, Research, and Sanctuaries Act, the Coastal Zone Management Act, 

the Wilderness Act, the Endangered Species Act, the Marine Mammal Protection Act and the Migratory Bird Treaty Act.

B. SUMMARY OF KEY PROVISIONS

The Letter of Submittal from the Secretary of State to the President, set forth in Treaty Doc. 103–5, provides a detailed analysis 

of the Protocol. This section briefly addresses the major provisions 

of the Protocol.


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The basic obligations of the Protocol are set forth in Article 3, 

which requires Parties to take the ‘‘necessary measures’’ to ‘‘protect, preserve, and manage’’ areas that ‘‘require protection to safeguard their special value’’ and ‘‘threatened or endangered species 

of flora and fauna.’’ Each party is required to regulate, and where 

necessary, prohibit, activities having adverse effects on these areas 

and species.

The Protocol applies to the area covered by the underlying 

Cartagena Convention, but expands on the definition in the Convention. It also covers (1) waters on the landward side of the baseline from which the breadth of the territorial sea is measured and 

extending, in the case of watercourses, up to the fresh water limit; 

and (2) such related terrestrial areas (including watersheds) as 

may be designated by a party. The United States does not intend 

to designate a terrestrial area under the Protocol unless requested 

to do so by an interested state or territory (to date, none of the parties to the Protocol has done so).

The other key provisions of the Protocol are Articles 4, 10 and 

11.

Under Article 4, a Party is required, ‘‘when necessary’’ to establish protected areas within its jurisdiction in order to ‘‘conserve, 

maintain and restore’’ important habitats and ecosystem. The 

United States does not anticipate designating any protected areas 

under Article 4 at this time.

Under Article 10, Parties are required to adopt national measures for actions within the Protocol areas to protect endangered or 

threatened wild flora and fauna. Under Article 11, Parties are required to adopt co-operative measures to ensure protection and recovery of specific species listed in three Annexes, which are an integral part of the Protocol. Annexes I and II comprise plant and animal species, respectively, requiring the most protection. Annex III 

comprises both plant and animal species requiring some protection, 

but not the extensive protection required by the first two Annexes.

III. ENTRY INTO FORCE AND TERMINATION

Pursuant to Article 27, the Protocol entered into force on June 

18, 2000, thirty days after the deposit of the ninth instrument of 

ratification. If the United States ratifies the Protocol, it will enter 

into force for the United States on the thirtieth day after the deposit of the U.S. instrument of ratification.

Under Article 29 of the Cartagena Convention, a Party may denounce the Protocol at any time after two years from the date of 

entry into force of the Protocol for that Party. The denunciation 

takes effect on the ninetieth day after it is received by the depositary (the Government of Colombia).

IV. COMMITTEE ACTION

The Committee held hearings to review the Protocol on October 

26, 1993 (S. Hrg. 103–379), and on May 7, 2002 (S. Hrg. 107–594). 

On July 30, 2002, the Committee considered the Treaty, and ordered it favorably reported by voice vote, with the recommendation 

that the Senate give its advice and consent to the ratification of the 


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Protocol, subject to the reservations, an understanding, and a declaration set forth in the resolution of advice and consent to ratification.

V. COMMITTEE COMMENTS; DISCUSSION OF RESOLUTION OF ADVICE

AND CONSENT TO RATIFICATION

The Committee recommends that the Senate advise and consent 

to ratification of the SPAW Protocol. The Protocol will advance an 

important U.S. objective of promoting marine conservation in the 

waters of the Caribbean area by fostering cooperation among the 

nations of the region in protecting critical habitats and species. In 

addition to the endorsement from the Bush Administration, the 

Protocol is supported by several non- governmental organizations, 

including the International Association of Fish and Wildlife Agencies (representing the fish and wildlife agencies of the 50 states 

and Puerto Rico) and several environmental organizations.

The Committee notes that, in submitting the Protocol to the Senate in 1993, the President did not submit the Annexes to the Protocol for the advice and consent of the Senate. This decision was 

made, the Executive Branch submission indicates, because the 

State Department ‘‘after consultations with the staff of the Foreign 

Relations Committee, believes that they are best treated as an Executive Agreement.’’ (Treaty Doc. 103–5, at v)

The Committee recommends, instead, that the Annexes also be 

given advice and consent, for this simple reason: the Protocol itself 

treats them as ‘‘an integral part’’ of the Protocol (Article 26). The 

Committee agrees, however, with the Executive Branch view that 

amendments to the Annexes may be made without the advice and 

consent of the Senate, provided there is adequate consultation with 

the Senate prior to adoption of the amendments by the Parties, and 

provided there is adequate time for public comment on proposed 

amendments. In its initial submission and in its testimony, the Executive Branch has committed to soliciting public comment, 

through notice in the Federal Register, on proposed amendments. 

In a written exchange following the May 7, 2002 hearing, the Executive Branch agreed to the suggestion made by Chairman Biden 

that the Annexes be given the advice and consent of the Senate.

In submitting the Protocol to the Senate, the Clinton Administration proposed two reservations and one understanding to the Protocol. Following the hearing held in 1993, the Administration submitted an amended version of the first proposed reservation. The 

Bush Administration reviewed these proposals anew, and has indicated to the Committee that it supports the reservations and understandings proposed by the Clinton Administration, as amended. 

The Committee has made minor modifications to the first two reservations proposed by the Executive Branch.

The first reservation clarifies that the United States does not 

consider itself bound by Article 11(1) to the extent that current 

U.S. law, such as the Marine Mammal Protection Act (see, e.g., 16 

U.S.C. 1371) or the Endangered Species Act, allows the limited taking of fauna and flora for the purpose of public display, scientific 

research, photography for educational or commercial purposes, rescue and rehabilitation or as incidental catch.


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The second reservation relates to the requirement, set forth in 

Article 13, for environmental impact assessments. Such assessments are required under the National Environmental Policy Act 

for proposals for legislation and other major Federal actions significantly affecting the quality of the human environment. But such 

assessments are not required in all cases. The reservation states, 

therefore, that the United States will not be bound by Article 13 

to the extent that the obligations therein differ from the obligations 

of Article 12 of the Cartagena Convention.

The third reservation clarifies that the United States does not 

consider six species listed on the Annexes to require protection in 

the United States, because they are not currently listed under the 

Endangered Species Act.

The proposed understanding reflects a common understanding 

expressed at the Diplomatic Conference that adopted the Annexes 

to the Protocol, and which is set forth in the Final Act of that Conference. It states the understanding of the United States that the 

provisions of the Protocol do not apply to non-native species (defined as species found outside of their natural geographic distribution) as a result of deliberate or incidental human intervention. It 

should be noted that Article 12 of the Protocol requires parties to 

take all appropriate measures to ‘‘regulate or prohibit’’ intentional 

or accidental introduction of non-native species that may cause 

harm to the natural flora and fauna of the region. The understanding indicates that the parties are not required, however, to 

take measures under the Protocol to protect such non-native species. In sum, a party must take appropriate steps to keep out nonnative species, but if such species are introduced into the area covered by the Protocol, there is no obligation to protect such species.

Finally, the proposed declaration states that existing Federal legislation provides sufficient legal authority to implement United 

States obligations under the Protocol, and that no new legislation 

is necessary in order for the United States to implement the Protocol. A similar declaration was included in the resolution of advice 

and consent to the Inter-American Convention for the Protection 

and Conservation of Sea Turtles (Treaty Doc. 105–48), approved by 

the Senate in 2000. 

VI. RESOLUTION OF ADVICE AND CONSENT

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

SECTION 1. ADVICE AND CONSENT TO RATIFICATION OF THE PROTOCOL CONCERNING SPECIALLY PROTECTED AREAS AND 

WILDLIFE TO THE CONVENTION FOR THE PROTECTION AND 

DEVELOPMENT OF THE MARINE ENVIRONMENT OF THE 

WIDER CARIBBEAN REGION, SUBJECT TO RESERVATIONS, AN 

UNDERSTANDING, AND A DECLARATION.

The Senate advises and consents to the ratification of the Protocol Concerning Specially Protected Areas and Wildlife to the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, including Annexes, done at 

Kingston on January 18, 1990 (Treaty Doc. 103–5), subject to the 

reservations in section 2, the understanding in section 3, and the 

declaration in section 4.


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SECTION 2. RESERVATIONS.

The advice and consent of the Senate under section 1 is subject 

to the following reservations, which shall be included in the instrument of ratification.

(1) The United States does not consider itself bound by Article 11(1) of the Protocol to the extent that United States law 

permits the limited taking of flora and fauna listed in Annexes 

I and II—

(A) which is incidental, or

(B) for the purpose of public display, scientific research, 

photography for educational or commercial purposes, or 

rescue and rehabilitation.

(2) The United States has long supported environmental impact assessment procedures, and has actively sought to promote the adoption of such procedures throughout the world. 

U.S. law and policy require environmental impact assessments 

for major Federal actions significantly affecting the quality of 

the human environment. Accordingly, although the United 

States expects that it will, for the most part, be in compliance 

with Article 13, the United States does not accept an obligation 

under Article 13 of the Protocol to the extent that the obligations contained therein differ from the obligations of Article 12 

of the Convention for the Protection and Development of the 

Marine Environment of the Wider Caribbean Region.

(3) The United States does not consider the Protocol to apply 

to six species of fauna and flora that do not require the protection provided by the Protocol in U.S. territory. These species 

are the Alabama, Florida and Georgia populations of least tern 

(Sterna antilllarum), the Audubon’s shearwater (Puffinus 

lherminieri), the Mississippi, Louisiana and Texas population 

of the wood stork (Mycteria americana) and the Florida and 

Alabama populations of the brown pelican (Pelicanus 

occidentalis), which are listed on Annex II, as well as the 

fulvous whistling duck (Dendrocygna bicolor), and the populations of widgeon or ditch grass (Rupia maritima) located in 

the continental United States, which are listed on Annex III.

SECTION 3. UNDERSTANDING.

The advice and consent of the Senate under section 1 is subject 

to the following understanding, which shall be included in the instrument of ratification:

The United States understands that the Protocol does not apply 

to non-native species, defined as species found outside of their natural geographic distribution, as a result of deliberate or incidental 

human intervention. Therefore, in the United States, certain exotic 

species, such as the muscovy duck (Carina moschata) and the common iguana (Iguana iguana), are not covered by the obligations of 

the Protocol.

SECTION 4. DECLARATION.

The advice and consent of the Senate under section 1 is subject 

to the following declaration:

Existing federal legislation provides sufficient legal authority to 

implement United States obligations under the Protocol. AccordVerDate Mar 21 2002 00:49 Sep 06, 2002 Jkt 010199 PO 00000 Frm 00006 Fmt 6659 Sfmt 6602 E:\HR\OC\ER008.107 txed01 PsN: PFRM67

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ingly, no new legislation is necessary in order for the United States 

to implement the Protocol.

Æ


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