Summary of Environmental Law in the United States

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25 Transboundary and International Issues

 

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25.1 Adoption of Treaties, Treaties in Domestic Law

 

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The President has "power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur." U.S. Const. art. II, sec. 2. The treaty power is thus divided between the executive branch and the legislative branch of the U.S. government. The Senate's role is to advise and consent to a treaty; the President's roles are to make and to ratify or accede to a treaty. The Senate can attach a condition to its consent requiring that the treaty be amended by the President, or that the President enter certain "reservations." The President may only ratify or accede to the treaty with the Senate's changes. See Restatement (Third) of the Foreign Relations Law of the United States, Section 303, Reporter's Note No.3 (1987).

Senate's Advice and Consent

The Senate's Committee on Foreign Relations has exclusive jurisdiction over treaties and executive agreements. The Committee prepares the resolution, which gives the Senate's consent to the ratification of the treaty. The Senate can base its approval on conditions set forth in their solution. Conditions can be amendments, reservations, understandings, declarations, and statements (or provisos) and they may be offered at any time during the Committee's deliberations, or during consideration in the full Senate prior to the vote on the resolution. A majority vote is required in the Committee and in the Senate for incorporating a condition into the resolution. Adoption of the resolution then requires a two-thirds vote in the Senate.

The Senate has several options. It can amend, make a reservation, issue a Senate "understanding" or "declaration" regarding the general issue, or make "statements regarding related issues of U.S. law."

Ratification

After the Senate consents to a treaty, the President is free to ratify it. Ratification is the formal process declaring the willingness of the state to be bound by a treaty. Ratification is usually confirmed in a formal document called an "instrument of ratification." The President must give effect to all conditions imposed by the Senate for its consent. If the President decides that under international law the treaty cannot be interpreted as the Senate has required, he has no authority to ratify the treaty, unless the instrument of ratification is accompanied by express language conforming to the Senate's understanding. The instrument of ratification includes the title of the treaty, the date of signature, the countries involved, and the languages used. The President can also attach a statement of understanding or a declaration regarding the Senate's understanding of a treaty, even if the Senate did not offer a formal reservation or understanding.

Exchange and Deposit

To be bound internationally, a state must exchange or deposit its instrument of ratification. It is this international act of exchange or deposit which allows the formal entry into force of a treaty, usually at a later specified date. Generally, bilateral treaties are exchanged, while multilateral treaties are deposited. If treaties are to be deposited, they usually state where and with whom.

Proclamation

When the necessary exchange or deposit has been completed and the treaty has entered into force, the President issues a Presidential proclamation that the agreement is in force. The proclamation of a treaty is a national act by which the text of a ratified treaty is publicized. After signing, the President returns the proclamation to the Secretary of State, which will publish it with the treaty text in U.S. Treaties and Other International Agreements, and register it with the United Nations Secretariat pursuant to Article 102 of the UN Charter. According to Article 102, no party can invoke a treaty agreement before any organ of the United Nations until it is registered with the United Nations. U.N. Charter art. 102, para.2.

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25.10 Agreements Relating to Other Transboundary and International Issues

 

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Antarctica. The United States has signed the 1959 Antarctic Treaty, Dec. 1, 1959, 12 U.S.T. 794, 402 U.N.T.S. 71, reprinted in 19 I.L.M. 860 (1980), and protocols and the Convention on the Conservation of Antarctic Marine Living Resources (May 20, 1980, 33 U.S.T. 3476, T.I.A.S. No. 10240 (1978), reprinted in 19 I.L.M. 841 (1980)). On October 4, 1991, the United States signed as a consultative party to the Final Act of the Eleventh Antarctic Treaty Special Consultative Meeting and the Protocol on Environmental Protection to the Antarctic Treaty, 30 I.L.M. 1455 (1991). This was a supplement to the Antarctic Treaty of 1959. The United States signed the Convention on the Regulation of Antarctic Mineral Resource Activities, Jun. 2, 1988, U.N. Doc. AMR/SCM/88/78 (1988), reprinted in 27 I.L.M. 868 (1988), but never ratified it. Instead, the United States enacted the Antarctic Protection Act of 1990, which banned all U.S. mineral resource activities in Antarctica. 16 U.S.C. secs. 2463-2466 seq. Penalties for violating the ban include being barred from .locating or patenting any mineral claims under federal mining laws, 16 U.S.C. sec. 2465. See also the Antarctic Marine Living Resource Conservation Act, 16 U.S.C. secs. 2431-2444.

Nuclear and Military. Since both the Bhopal and Chernobyl incidents, the United States has joined with the international community in adopting a number of treaties to address nuclear or industrial activities. These include: the 1986 Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency, Sept. 26, 1986, IAEA INFCIRC 336, U.N.T.S. Reg. No. 24643, reprinted in 25 I.L.M. 1377 (1986), which entered into force generally on February 26, 1987, and for the United States on October 20, 1988; and the 1986 Convention on Early Notification of a Nuclear Accident, Sept. 26, 1986, IAEA INFCIRC/335 (1986), reprinted in 25 I.L.M. 1370 (1986), which entered into force generally on October 27, 1986, and for the United States on October 20, 1988.

The United States has signed and ratified several treaties controlling military activities in areas of the global commons, including: the Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, Aug. 5, 1963, 14 U.S.T. 1313, 480 U.N.T.S. 43, which entered into force for the United States on October 10, 1963; the Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Seabed and the Ocean Floor and in the Subsoil, Feb. 11, 1971, 23 U.S.T. 701, 955 U.N.T.S. 115, which entered into force for the United States on May 18, 1972; and the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, May 18, 1977, 31 U.S.T. 333, 1108 U.N.T.S. 151, which entered into force for the United States on January 17, 1980 and generally on October 5, 1978.

Industrial Accidents. The United States signed the 1992 Convention on the Transboundary Effects of Industrial Accidents, Mar. 17, 1992, reprinted in 31 I.L.M. 1300, but has not ratified it.

Environmental Impact Assessments. The United States has signed but not yet ratified the Convention on Environmental Impact Assessment in a Transboundary Context, Feb. 25, 1991, reprinted in 21 Int'l Env't Rep. (BNA 1993), 30 I.L.M. 800 (1991).

Other. The United States signed the Convention on the Protection of the World Cultural and Natural Heritage, Nov. 16, 1972, 27 U.S.T. 37, 1037 U.N.T.S. 151, reprinted in 11 I.L.M. 1358 (1972) (the World Heritage Convention), which entered into force for the United States on December 17, 1975.

The United States has not signed the Convention on Public Participation in Environmental Decision Making, June 25, 1998, U.N. Doc. ECE/CEP/43/Add1/rev.

Regional and hemispherical agreements

The United States has not ratified the Treaty on the Prohibition of Nuclear Weapons in Latin America, Feb. 14, 1967, 22 U.S.T. 762, 634 U.N.T.S. 281 (Treaty of Tlatelolco), but it has ratified the 1967 Protocols to the treaty: Protocol I to the Treaty of Tlatelolco, Feb. 14, 1967, 33 U.S.T. 1792, 634 U.N.T.S. 362, which entered into force for the United States on November 23, 1981; and Protocol II to the Treaty of Tlatelolco, Feb. 14, 1967, 22 U.S.T. 754, 634 U.N.T.S. 364, which entered into force for the United States on May 12, 1971.

Bilateral or trilateral agreements between the parties

U.S.-Canada Agreements. Other bilateral environmental agreements between the United States and Canada include: the Agreement Relating to the Construction of a Sewage Line from nacec.Dunseith, North Dakota to Boissevain, Manitoba, Jun. 9, 1966, 17 U.S.T. 810 (entered into force June 9, 1966); Memorandum of Understanding for the Exchange of Environmental Information (1977); Baffin Island Oil Spill (BIOS) Project Arrangements (1980); Memorandum of Understanding Concerning the AES Gestionary Operational Environmental Satellite (GOES) Data Collection System Program (1980); Memorandum of Understanding Concerning the Provision of Meteorological Services to the Canadian Distant Early Warning (DEW) Line, (1980); Memorandum of Understanding Concerning Research and Development in Spill Response Technology (1982); Memorandum of Understanding Concerning Research and Development in Science and Technology (1985); Memorandum of Understanding Concerning Research and Development Cooperation in Pollution Measurement and Control, Oct. 17, 1985, T.I.A.S. No. 11192 (entered into force Oct. 17, 1985); and the Memorandum of Understanding Regarding Accidental and Unauthorized Discharges of Pollutants Along the Inland Boundary, Oct. 17, 1985, T.I.A.S. No. 11170 (entered into force Oct. 17, 1985).

U.S.-Mexico Agreements. Other bilateral environmental agreements between the United States and Mexico include the Agreement for the Exchange of Technical Information and Cooperation in Nuclear Safety Matters (Mexico-U.S.) created by exchange of letters at Mexico City, and Washington D.C., July 30 and October 15, 1980, with implementing procedures signed at Bethseda, Maryland April 8, 1981 (these were replaced by implementing procedures signed at Rockville and Mexico September 8 and October 6, 1989); and the Agreement in the area of Nuclear Reactor Safety Research (Mexico-U.S.) was signed at Bethesda, Maryland and Mexico City, May 27 and June 2, 1987.

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25.11 Extraterritorial Regulation

 

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In order for U.S. courts to apply U.S. statutory law extraterritorialy there must be an adequate basis, pursuant to international law, to do so. If this is so, U.S. courts will then apply a general presumption restricting the application of U.S. statutory law to the country's territorial limits. The presumption can be rebutted if the court finds a clear Congressional intent to apply the law extraterritorially. There is also the possibility that the presumption will not apply if the conduct in question has taken place within U.S. territory or has a significant effect upon the United States.

As a result of the general presumption against extraterritoriality, most U.S. environmental regulations are limited to domestic application. Congress has expressed its intent to apply a few environmental statutes outside the territorial borders of the U.S., including for example the ocean dumping prohibition of the Marine Protection, Research, and Sanctuaries Act.

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25.2 Membership in Global Institutions

 

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The United States is a member of all major global environment and development institutions, including the:
International Atomic Energy Agency (IAEA);
International Bank for Reconstruction and Development (IBRD);
International Development Association (IDA);
International Finance Corporation (IFC)
International Maritime Organization (IMO);
International Monetary Fund (IMF);
United Nations (UN);
United Nations Economic Commission for Europe (UN-ECE);
United Nations Environment Programme (UNEP);
United Nations Development Programme (UNDP);
World Health Organization (WHO);
World Meteorological Organization (WMO);
and the
World Trade Organization (WTO).

The United States is also a member of key regional and hemispheric institutions, including the:
Border Environment Cooperation Commission (BECC);
InterAmerican Development Bank (IDB) and the other regional multilateral development banks;
InterAmerican Commission on Human Rights.
North American Development Bank (NADBank);
Organization of American States (OAS); and the
Organization for Economic Cooperation and Development (OECD).

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25.3 General Agreements Relating to the Protection of the Environment

 

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Multilateral Agreements

The United States has signed both the U.N. Declaration on Environment and Development, June 14, 1992, U.N. Doc. A/CONF.151/5/Rev.1 (1992), reprinted in 31 I.L.M. 876 (1992), (the Rio Declaration), and the Declaration of the U.N. Conference on the Human Environment, June 16, 1972, U.N. Doc. A/CONF.48/14/Rev.1 (1973), reprinted in 11 I.L.M. 1416 (1972), (the Stockholm Declaration). Both the Rio and Stockholm declarations are non-binding guidelines and principles, and thus did not require Senate ratification. However, certain portions of the Stockholm Declaration in particular may be binding on the U.S. and other nations as customary international law. The United States also signed Agenda 21, U.N. Conference on Environment and Development, U.N. Doc. A/CONF.151/26/Rev.1 (1992), the blueprint for achieving sustainable development in the 21st century adopted at the U.N. Conference on Environment and Development in 1992 (UNCED).

On May 23, 2001, the United States signed the Stockholm Convention on Persistent Organic Pollutants. On April 11, 2002, President Bush submitted POPS to the U.S. Senate for its consideration.. The Stockholm Convention targets twelve toxic chemicals which persist in the environment for long periods of time, accumulate in the food chain, and travel great distances. The 12 POPs include certain pesticides, industrial chemicals and unintended byproducts of combustion such as DDT, PCBs and dioxin.

Bilateral or trilateral agreements between the parties

A Trilateral Memorandum of Understanding (MOU) on Environmental Education between Environment Canada, the Environmental Protection Agency (U.S.) and SEDESOL (Mexico) was signed in September 1992. Its purpose is to promote, develop and implement joint environmental education in North America.

The United States has signed and ratified the North American Free Trade Agreement (NAFTA), Dec. 17, 1992, reprinted in 32 I.L.M. 289 (1993), the North American Agreement on Environmental Cooperation (NAAEC or the NAFTA Environmental Supplemental Agreement), Sept. 13, 1993, reprinted in 32 I.L.M. 1480 (1993) 33 Int'l Env't Rep. 0101 (1994), and the North American Agreement on Labor Cooperation (NAALC or the NAFTA Labor Supplemental Agreement) Sept. 13, 1993, reprinted in 32 I.L.M. 1500 (1993). The NAAEC established a mechanism for encouraging and monitoring environmental enforcement in the three NAFTA countries and established the Commission for Environmental Cooperation (CEC). NAFTA and the supplemental agreements are implemented by the North American Free Trade Agreement Implementation Act, Dec. 8, 1993, Pub.L. No. 103-182, 102 Stat. 2057.

The Agreement between the Government of the United States of America and the Government of the United Mexican States Concerning the Establishment of a Border Environment Cooperation Commission and a North American Development Bank, signed on 18 November 1993 (entered into force January 1, 1994) establishes a bilateral U.S.-Mexico Border Environmental Cooperation Commission (BECC) and a binational North American Development Bank (NADBank). The BECC evaluates and certifies proposed infrastructure projects along the U.S.-Mexico border that may then be financed by the NADBank or by other public and/or private funding. Both of these institutions have boards, staff and advisory committees.

The Agreement on Cooperation for the Protection and Improvement of the Environment in the Border Area, also known as the La Paz agreement, Aug. 14, 1983, U.S.-Mexico, T.I.A.S. No. 10827, reprinted in 22 I.L.M. 1025, entered into force February 16, 1984. The scope of the agreement and its annexes is limited to the area within 100 kilometers of each side of the U.S.- Mexico border. The annexes include: Annex I: Agreement of Cooperation for Solution of the Border Sanitation Problem at San Diego, California-Tijuana, and Bafa-California, Jul. 18, 1985, U.S.-Mexico, T.I.A.S. No. 11269, reprinted in 26 I.L.M. 18 (1987) (entered into force July 18, 1985); Annex II: Agreement of Cooperation Regarding Pollution of the Environment along the Inland International Boundary by Discharges of Hazardous Substances, Jul. 18, 1985, U.S.-Mexico, T.I.A.S. No. 11269, reprinted in 26 I.L.M. 19 (1987) (entered into force Nov. 29, 1985); Annex III: Agreement of Cooperation Regarding the Transboundary Shipment of Hazardous Wastes and Hazardous Substances, Nov. 12, 1986, U.S.-Mexico, T.I.A.S. No. 11269, reprinted in 26 I.L.M. 25 (1987) (entered into force Jan. 29, 1987); Annex IV: Agreement of Cooperation Regarding Transboundary Air Pollution Caused by Copper Smelters along their Common Border, Jan. 29, 1987, U.S.-Mexico, T.I.A.S. No. 11269, reprinted in 6 I.L.M. 33 (1987) (entered into force Jan. 29, 1987); and Annex V: Agreement of Cooperation Regarding International Transport of Urban Air Pollution, Oct. 3, 1989, U.S.-Mexico, T.I.A.S. No. 11269, reprinted in 29 I.L.M. 29 (1990) (entered into force Aug. 22, 1990).

The Agreement on Cooperation for the Protection and Improvement of the Environment in the Metropolitan Area of Mexico City (Mexico-U.S.) was signed at Washington, October 3, 1989 and it entered into force on August 22, 1990.

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25.4 Agreements Relating to International Rivers and Lakes

 

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Multilateral Agreements

The United States is not a party to the United Nations Convention on the Protection and Use of Transboundary Watercourses and International Lakes, reprinted in March 17, 1992, 31 I.L.M. 1312 (1992).

Bilateral or trilateral agreements between the parties

Great Lakes. Canada and the United States have a bilateral agreement on Great Lakes water quality. Canada-U.S. Agreement on Great Lakes Water Quality, Nov. 22, 1988; 30 U.S.T. 1383; T.I.A.S. No. 9257; 1153 UNTS 187; as amended Oct. 16, 1983, T.I.A.S. No. 10798, and Nov. 18, 1987, (when it entered into force) with T.I.A.S. No. 11551.

Other agreements relating to shared Canadian-U.S. waters include: Treaty Relating to the Boundary Waters and Questions Arising Along the Boundary Between the United States and Canada, Jan. 9, 1909, U.S.-Canada, 36 Stat. 2448 (entered into force May 5, 1910); Agreement Relating to the Establishment of a Canada-United States Committee on Water Quality in the St. John River and Its Tributary Rivers and Streams Which Cross the Canada-United States Boundary, Sept. 21, 1972, 23 U.S.T. 2813, as amended Feb. 2, 1984, T.I.A.S. No. 10947 (entered into force Sept. 21, 1972); Agreement Relating to the Establishment of Joint Pollution Contingency Plans for Spills of Oil and Other Noxious Substances, Jun. 19, 1974, U.S.-Canada, 25 U.S.T. 1280, T.I.A.S. No. 7861 (entered into force June 19, 1974); and Memorandum of Understanding Between the Environmental Protection Agency of the United States of America and the Department of the Environment of the Government of Canada Regarding Accidental and Unauthorized Discharges of Pollutants Along the Inland Boundary, Oct. 17, 1985, U.S.-Canada, T.I.A.S. No. 11170 (entered into force Oct. 17, 1985).

Colorado/Rio Grande. Issues between the United States and Mexico relating to use of the Colorado and Rio Grande river systems are primarily governed by the Treaty Relating to the Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande, Feb. 3, 1944, U.S-Mexico, 59 Stat. 1219 (entered into force Nov. 8, 1945), which is popularly known as the 1944 Water Utilization Treaty.

This Convention established the International Boundary and Water Commission (IBWC). Pursuant to this Treaty, the IBWC has subsequently issued a series of Minutes settling different boundary issues. See, e.g., Agreement Approving Minute 242 of the IBWC: Setting Forth a Permanent and Definitive Solution to the International Problem of the Salinity of the Colorado River, U.S.-Mexico, Aug. 30, 1973, 24 U.S.T. 1968 (entered into force Aug. 30, 1973); Minute 261 of the IBWC: Recommendations for the Solution to the Border Sanitation Problems, Sept. 24, 1979, U.S.- Mexico, 31 U.S.T. 5099 (entered into force Oct. 2, 1979); Minute 264 of the IBWC: Recommendations for the Solution to the Border Sanitation Problems at Calexico, California-Mexicali, Baja California Norte, Aug. 26, 1980, U.S.-Mexico, 32 U.S.T. 3764 (entered into force Dec. 4, 1980); Minute 270 of the IBWC: Recommendations concerning Border Sanitation Problems at San Diego, California-Tijuana, Baja California, Apr. 30, 1985, U.S.-Mexico, T.I.A.S. No. 11267 (entered into force Jul. 16, 1985); - Minute 273 of the IBWC: Recommendations for the Solution of the Border Sanitation Problem at Naco, Arizona-Naco, Sonora, Mar. 19, 1987, T.I.A.S. No. 11292 (entered into force Apr. 15, 1987); Minute 274 of the IBWC: Joint Project for Improvement of the Quality of Waters of the New River at Calexico, California-Mexicali, Baja California, Apr. 15, 1987, U.S-Mexico, T.I.A.S. No. 11316 (entered into force May 13, 1987), with joint report; Minute 276 of the IBWC: Conveyance, Treatment and Disposal of Sewage from nacec.Nogales, Arizona and Nogales, Sonora Exceeding the Capacities Allocated to the United States and Mexico at the Nogales International Sewage Treatment Plant Under Minute 227, Jul. 26, 1988, U.S.-Mexico, T.I.A.S. (entered into force Aug. 19, 1988); Minute 283 of the IBWC: Conceptual Plan for the International Solution to the Border Sanitation Problem in San Diego, California/Tijuana, Baja California, July 2, 1990, U.S.-Mexico, T.I.A.S. No. 11735 (entered into force Aug. 8, 1990).

See also the 1890 Convention to Avoid the Difficulties Occasioned by Reason of the Changes which take place in the beds of the Rio Grande and Colorado River, Mar. 1, 1889, 26 Stat. 1512 (entered into force Dec. 24, 1890).

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25.5 Agreements Relating to Atmospheric or Air Pollution

 

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Multilateral Agreements

Climate Change. The United States signed the U.N. Framework Convention on Climate Change, May 9, 1992, U.N. Doc. A/AC.273/18 (Part II)/Add.1 and Corr.1 (1992), reprinted in 31 I.L.M. 849 (1992), at UNCED in 1992, and it was subsequently ratified by the Senate on October 15, 1992. The Convention entered into force generally, including for the United States, on March 21, 1994. The Kyoto Protocol to the U.N. Framework Convention on Climate Change, Dec. 11, 1997, U.N. Doc. FCCC/CP/1997/L.7/Add.1, reprinted in 37 I.L.M. 22 (1998), opened for signatures on March 16, 1998. Related statutes include the National Climate Program Act, 15 U.S.C. secs. 2901-2908, which established a national climate program to increase our understanding of the impact of natural and human-induced activities on global climate; and the Global Climate Protection Act of 1987, Pub. L. 100-204, 101 Stat. 1407, which called for a National Policy on Global Climate Change. Provisions of the Clean Air Act, 42 U.S.C. secs. 7401- 7671q, also apply to the reduction of carbon dioxide and other greenhouse gases.

Ozone Depletion. The United States ratified the Vienna Convention on Protection of the Ozone Layer, Mar. 22, 1985, T.I.A.S. No. 11097, U.K.T.S. 1 (1990), reprinted in 26 I.L.M. 1529 (1987), on April 21, 1988. It entered into force generally on September 22, 1988 and for the United States on November 22, 1988. The United States has ratified the Montreal Protocol on Substances that Deplete the Ozone Layer, Sept. 16, 1987, U.K.T.S. 19 (1990), reprinted in 26 I.L.M. 1550 (1987), and all subsequent revisions. The treaty entered into force for the United States and generally on January 1, 1989. The Montreal Protocol and subsequent revisions are implemented by EPA regulations issued pursuant to the Clean Air Act. 40 C.F.R. pt. 82. The 1990 Clean Air Act Amendments went beyond the Montreal Protocol in phasing out production and consumption of ozone destroying substances (ODSs), regulating their use and disposal, banning certain nonessential products, requiring labels on certain products, and regulating substitutes for ODSs. 42 U.S.C. secs. 7671a-n. The United States, United Kingdom, and France signed and ratified an Agreement Regarding Monitoring of the Stratosphere, May 5, 1976, 27 U.S.T. 1437, 1037 U.N.T.S. 3, in Paris in 1976. The EPA is the lead agency regarding the implementation of the agreement while the World Meteorological Organization, (WMO), United Nations Environment Programme (UNEP), U.S. Department of Commerce (through the NOAA), and NASA act as the monitoring mechanism under this agreement.

Transboundary Air Pollution. The Convention on Long-Range Transboundary Air Pollution, Nov. 13, 1979, 34 U.S.T. 3041, 1302 U.N.T.S. 217, reprinted in 18 I.L.M. 1442 (1979), entered into force for the United States on March 16, 1983. The EPA is the lead agency for implementation, monitoring and consultation. The United States has also ratified the Geneva Protocol on Long-Term Financing of the Cooperative Programme for Monitoring and Evaluation of the Long-Range Transmission of Air Pollutants in Europe, Sept. 28, 1984, U.N. Doc. EB.AIR/AC.1/4 (1984), which entered into force on January 28, 1988, and the Sofia Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution Concerning the Control of Emissions of Nitrogen Oxides or Their Transboundary Fluxes, Oct. 31, 1988, U.N. Doc. EB.AIR/21 (1988), reprinted in 28 I.L.M. 212 (1989) (NOx Protocol). The NOx Protocol entered into force for the United States on June 13, 1989, and generally on February 14, 1991. On June 24, 1998, Environmental Ministers from nacec.Europe and North America, including the United States, signed two additional protocols: The Protocol to the Convention on Long-Range Transboundary Air Pollution on Persistent Organic Pollutants, U.N. Doc. EB.AIR/1998/1, and The Protocol to the Convention on Long-Range Transboundary Air Pollution on Heavy Metals, U.N. Doc. EB.AIR/1998/2. The United States has not ratified two other protocols to the Long-Range Transboundary Air Pollution Convention of 1979: the 1985 Helsinki Protocol to the Long-Range Transboundary Air Pollution Convention of 1979 on the reduction of Sulphur Emissions or Their Transboundary Fluxes by at Least 30 Percent, July 8, 1985, U.N. Doc. EB.AIR/12 (1985), reprinted in 27 I.L.M. 707 (1988), which entered into force generally on September 2, 1987; or the The Oslo Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on Further Reduction of Sulfur Emissions, June 14, 1994, U.N. Doc. EB.AIR/R.84, reprinted in 33 I.L.M. 1540 (1994), which entered into force on August 11, 1998.

Regional and hemispherical agreements

The United States has not signed the Agreement Establishing the Inter-American Institute for Global Change Research, Montevideo, 1992.

Bilateral or trilateral agreements between the parties

The U.S.-Canada Memorandum of Intent Concerning Transboundary Air Pollution, Aug. 5, 1980, U.S.-Canada, 32 U.S.T. 2521 with annex, entered into force August 5, 1980. The United States and Canada also signed an Agreement on Air Quality in 1991 in Ottawa, Mar. 13, 1991, U.S.-Canada, reprinted in 30 I.L.M. (1991).

Canada and the United States created the International Great Lakes-St. Lawrence Ice Information Work Group in 1972. The Work Group provides information to the governments on the current research and development activities concerning ice, weather, fisheries and other activities needed to deal with water resources and to effectively manage water resources in the watershed.

In 1975, the United States and Canada signed a treaty relating to the exchange of information involving weather modification activities, the Weather Modification Treaty, Mar. 26, 1975, 26 U.S.T. 540; T.I.A.S. 8056; reprinted in 14 I.L.M. 589.

A Memorandum of Understanding for the Exchange of Technical Information and for Cooperation in the Field of Air Quality Research Between the Department of Energy of the United States of America and the Mexican Petroleum Institute of the United Mexican States, Jul. 19, 1990, U.S.-Mexico, T.I.A.S. No. 11756, was also signed in 1990.

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25.6 Agreements Relating to Marine Pollution and Conservat

 

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Multilateral Agreements

Law of the Sea. The United States recognized most of the U.N. Convention on the Law of the Sea (UNCLOS), Dec. 10, 1982, U.N. Doc. A/Conf.62/122, reprinted in 21 I.L.M. 1261 (1982), as customary law with the exception of the provision relating to deep sea mining. In 1994, the United States executive branch recommended ratification of the 1994 Resolution and Agreement on Deep Seabed and Mining, U.N. Doc. A/Res.48/263 (1994). However, the Senate has not consented to and the U.S. has not ratified the Law of the Sea Convention. The United States remains a party to the four Geneva Conventions on the Law of the Sea of April 29, 1958, currently in force for the United States: Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, 15 U.S.T. 1606, T.I.A.S. No. 5639, 516 U.N.T.S. 205 (entered into force Sept. 10, 1964); Convention on the High Seas, Apr. 29, 1958, 13 U.S.T. 2312, T.I.A.S. No. 5200, 450 U.N.T.S. 82 (entered into force Sept. 30, 1962); Convention on the Continental Shelf, Apr. 29, 1958, 15 U.S.T. 471, T.I.A.S. No. 5578, 499 U.N.T.S. 311 (entered into force June 10, 1964); and Convention on Fishing and Conservation of Living Resources of the High Seas, Apr. 29, 1958, 17 U.S.T. 138, T.I.A.S. No. 5969, 559 U.N.T.S. 285 (entered into force Mar. 20, 1966). These Geneva conventions are superseded for parties to the UNCLOS.

Marine Pollution. The United States is a party to the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, Nov. 29, 1969, 26 U.S.T. 765, T.I.A.S. No. 8068, 970 U.N.T.S. 211 (entered into force on May 6, 1975); and the 1969 Amendments to the 1954 Convention for the Prevention of Pollution of the Sea by Oil, Oct. 21, 1969, 28 U.S.T. 1205, T.I.A.S. No. 8505.

The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, Dec. 29, 1972, 26 U.S.T. 2403, 1046 U.N.T.S. 120, reprinted in 11 I.L.M. 1294 (1972) (the London Dumping Convention), with annexes, entered into force for the United States on August 30, 1975. The Convention bans the dumping of most hazardous wastes and sets up a permitting system for most other wastes. In March, 1998, the United States signed a protocol to the 1972 Convention. The protocol bans incineration and prohibits treaty parties from nacec.exporting wastes to other countries for incineration or dumping at sea. The protocol is a free-standing agreement to which both contracting and non-contracting parties to the 1972 Convention may become party. Once ratified, the protocol will replace the original 1972 Convention. While the original Convention specified a list of materials that cannot be dumped, the new protocol uses a reverse listing approach and specifies a list of materials that can be dumped. The list includes dredge materials, sewage sludge, certain man-made structures, and fish processing wastes. The protocol will enter into force 30 days after it has been ratified by 26 states, 15 of which must be parties to the London Convention. Because ocean dumping was banned in the United States in 1988, the protocol will not greatly affect U.S. policy. EPA is the lead agency for implementation of the London Convention. The Marine Protection, Research, and Sanctuaries Act of 1972 (MPRSA), as amended, 33 U.S.C. secs. 1401-1445, implements the treaty. Under the MPRSA, EPA may issue permits for dumping that will "not unreasonably degrade or endanger human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities." Permits are not allowed for radiological, chemical, or biological warfare agents, medical wastes or high-level radioactive wastes. 33 U.S.C. sec. 1412.

The United States has signed but not ratified the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage,, Dec. 18, 1971, 1110 U.N.T.S. 57, reprinted in 11 I.L.M. 284 (1972); the International Convention on Civil Liability for Oil Pollution Damage, Nov. 29, 1969, 973 U.N.T.S. 3, reprinted in 9 I.L.M. 45 (1970); or the 1984 Protocol to Amend the Convention on Civil Liability for Oil Pollution Damage of 1969, May 25, 1984, IMO Doc. 21 LEG/CONF6/66 (1984), reprinted in Int'l Env't Rep. 1531 (BNA 1993). The United States is not a party to the 1976 Protocol to the Convention on the Civil Liability for Oil Pollution Damage, Nov. 19, 1976, reprinted in 21 Int'l Env't Rep. 1521 (BNA 1993), 16 I.L.M. 617 (1977).

The United States has signed but not ratified the International Convention for the Prevention of Pollution from Ships, Nov. 2, 1973, IMO Doc. MP/CONF/WP.35 (1973), reprinted in 12 I.L.M. 1319 (1973), but has ratified the Annexes and the Protocol of 1978, Feb. 17, 1978, 1341 U.N.T.S. 3, reprinted in 21 Int'l Env't Rep. 2381 (BNA 1994), 17 I.L.M. 546 (1978) (the MARPOL Protocol), which entered into force on October 2, 1983 for the United States. The MARPOL Protocol superseded the International Convention for the Prevention of Pollution of the Sea by Oil, May 12, 1954, 12 U.S.T. 2989, T.I.A.S. No. 4900, 327 U.N.T.S. 3, which had entered into force for the United States in 1961. The Coast Guard is the lead agency for implementation of the MARPOL protocol and annexes under the Act to Prevent Pollution from Ships, 33 U.S.C. secs. 1901-1912, which implements Annexes I, II and V, and the MARPOL Protocol. Under the Act, the Coast Guard is responsible for inspecting and certifying U.S. vessels and waste reception facilities. 33 U.S.C. secs. 1904, 1905.

The United States signed the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, Mar. 24, 1983, T.I.A.S. No. 11085, reprinted in 22 I.L.M. 221 (1983),which entered into force on October 11, 1986 (the "Cartagena Convention") (with Annex and the Protocol Concerning Cooperation in Combating Oil Spills in the Wider Caribbean Region, Mar. 24, 1983, T.I.A.S. No. 11085, reprinted in 22 I.L.M. 240 (1983), which entered into force on October 11, 1986). In addition, there is a second protocol known as the SPAW Protocol.

The United States also signed the Agreement for the Cooperation in Dealing with Pollution of the North Sea by Oil and Other Harmful Substances, Sept. 13, 1983, U.N. Doc. UNEP/GC.16/Inf. 4 at 204 (1991), reprinted in 35 Int'l Env't Rep. 0701 (BNA 1995); the Accord of Cooperation for the Protection of the Coasts and Waters of the Northeast Atlantic Against Pollution Due to Hydrocarbons or Other harmful Substances, Oct. 17, 1990, reprinted in 35 Int'l Env't. Rep. 0141 (BNA 1994).

The United States is not a party to the Agreement for the Cooperation in Dealing with Pollution of the North Sea by Oil, Jun. 9, 1969, 704 U.N.T.S. 3, reprinted in 9 I.L.M. 359 (1970).

Regional and hemispherical agreements

Marine Resources. The United States has signed a number of treaties intended to protect marine mammals, including the following:

Convention for the Preservation and Protection of Fur Seals, July 7, 1911, 37 Stat. 1542, T.S. No. 564; and the Interim Convention on Conservation of North Pacific Fur Seals, Feb. 9, 1957, 8 U.S.T. 2283, 314 U.N.T.S. 105, and protocols and amendments, which entered into force for the United States on October 14, 1957.

The United States has signed the following international treaties relating to the protection of sea fishing :

International Convention for the Regulation of Whaling, Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S. 72, which entered into force for the United States on November 10, 1948;

International Convention for the Northwest Atlantic Fisheries, Feb. 8, 1949, 1 U.S.T. 477, 157 U.N.T.S. 157;

Convention for the Establishment of an Inter-American Tropical Tuna Commission, May 31, 1949, 1 U.S.T. 230, 80 U.N.T.S. 3, which entered in force on March 3, 1950;

International Convention for the High Seas Fisheries of the North Pacific Ocean, May 9, 1952, 4 U.S.T. 380, 205 U.N.T.S. 65; the Seattle Amending Protocol, Apr. 25, 1978, 30 U.S.T. 1095, superseded that Convention and the Seattle Amendments of 1960 and 1963;

Convention on the Conservation of Antarctic Seals, London, June 1, 1972; 29 U.S.T. 441, U.K.T.S. No. 45 (1978), reprinted in 11 I.L.M. 251 (1972) entered into force on March 11, 1978, T.I.A.S. No. 8826;

Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean, Moscow 1992;

Agreement to Reduce Dolphin Mortality in the Eastern Tropical Pacific Tuna Fishery, La Jolla, 1992; and the

Convention for a North Pacific Marine Science Organization (PICES), Dec. 12, 1990, S. Treaty Doc. No. 102-9, 102d Cong., 1st Sess. (1991), which entered into force on March 24, 1992.

The United States has not signed the Convention for the Protection of the Marine Environment of the North-East Atlantic, Sept. 22, 1992, reprinted in 35 Int'l Env't Rep. 0151 (BNA 1993), 32 I.L.M. 1069 (1993).

Bilateral or trilateral agreements between the parties

Canada and the United States signed the Canada - U.S. Joint Marine Pollution Contingency Plan in 1974. This document was completed in 1988 by the signing of the Agreement on Arctic Cooperation.

The 1980 Agreement of Cooperation Regarding Pollution of the Marine Environment By Discharges of Hydrocarbons and Other Hazardous Substances (Mexico-U.S.), with annexes, Jul. 24, 1980, Mexico-U.S., 32 U.S.T. 5899, entered into force March 30, 1981.

The United States has joined in a number of bilateral agreements designed to protect and conserve fisheries, including: Convention Respecting Fisheries, Boundary, and Restoration of Slaves, Oct. 20, 1818, U.S.-U.K., 8 Stat. 248; Agreement Adopting, with Certain Modifications, the Rules and Method of Procedure Recommended in the Award of September 7, 1981, of the North Atlantic Coast Fisheries Arbitration, Jul. 20, 1982, US.-Canada, 37 Stat. 1634; Convention for the Extension of Port Privileges to Halibut Fishing Vessels on the Pacific Coasts of the United States of America and Canada, Mar. 24, 1950, U.S.-Canada, 1 U.S.T. 536; Convention for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea, Mar. 2, 1953, 5 U.S.T. 5, T.I.A.S. 2900, 222 U.N.T.S. 77 (entered into force Oct. 28, 1953), and a Protocol in 1979; Convention on Great Lakes Fisheries, Sept. 10, 1954, U.S.-Canada, 6 U.S.T. 2836, as amended April 5, 1966 and May 19, 1967, U.S.T. 1402, T.I.A.S. 6297; Treaty on Pacific Coast Albacore Tuna Vessels and Port Privileges, May 26, 1981, U.S.-Canada, 33 U.S.T. 615 (entered into force Mar. 18, 1985); Treaty Concerning Pacific Salmon, Jan. 28, 1985, U.S.-Canada, T.I.A.S. No. 11091; and the Agreement on Fisheries Enforcement, Sept. 26, 1990, U.S.-Canada, T.I.A.S. No. 11753.

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25.7 Agreements Relating to the Arctic

 

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Multilateral Agreements

The United States is not a party to any multilateral agreements protecting the general environment of the Arctic, although some treaties addressing wildlife or the oceans relate to the Arctic. The United States did sign the non-binding Declaration on the Protection of the Arctic Environment and Arctic Environmental Protection Strategy, reprinted in 30 I.L.M. 1624 (1991).

Bilateral or trilateral agreements between the parties

The U.S.-Canada Agreement on the Arctic Cooperation ( Jan.11, 1988, U.S.-Canada T.I.A.S. No. 11565), was signed in 1988 in Ottawa. This Agreement includes an affirmation that Arctic navigation and resource development should not adversely affect the unique environment of the region.

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25.8 Agreements Relating to the Protection of Flora and Fauna

 

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Multilateral Agreements

A critical treaty for the international protection of flora and fauna is the Convention of Wetlands of International Importance Especially as Waterfowl Habitat, Feb. 2, 1971, T.I.A.S. No. 11084, 996 U.N.T.S. 245, reprinted in 11 I.L.M. 969 (1972) (the Ramsar Convention), which entered into force for the United States on December 18, 1986.

The United States has signed and ratified the Convention on the International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 27 U.S.T. 1087, 993 U.N.T.S. 243 (1973), U.K.T.S. 101 (1976), reprinted in 12 I.L.M. 1088 (1973) (CITES). The treaty entered into force for the United States on July 1, 1975. CITES is implemented through the Endangered Species Act, 16 U.S.C. secs. 1531-1544. The Secretary of the Interior is primarily responsible for implementing CITES.

The United States also signed the Convention on Biological Diversity, May 22, 1992, U.N. Doc. UNEP Bio.Div/CONF/L.2 (1992), reprinted in 31 I.L.M. 818 (1992), in 1993, but has not yet ratified it. In addition, the United States is a party to a variety of other multilateral treaties aimed at protecting specific types of animals, including whales, other marine mammals, tuna, and migratory birds.

Regional and hemispherical agreements

The primary convention for protection of wildlife in the Western Hemisphere is the Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere, Oct. 12, 1940, 56 Stat. 1354, 161 U.N.T.S. 193 (also known as the Western Hemisphere Convention), which entered into force for the United States on April 30, 1942.

The United States has signed and ratified the Agreement on the Conservation of Polar Bears, Nov. 15, 1973, 27 U.S.T. 3918, T.I.A.S. No. 8409, which entered into force for the United States on November 1, 1976.

Bilateral or trilateral agreements between the parties

In 1976, the United States signed the North American Agreement for Plant Protection, which established the North American Organization for Plant Protection in 1984.

The United States and United Kingdom signed the Convention for the Protection of Migratory Birds in the United States and Canada, Aug. 16, 1916, 39 Stat. 1702, in 1916 and a U.S.-Canadian protocol to that convention was signed in 1979. The United States and Mexico signed a similar Convention for the Protection of Migratory Birds and Game Animals in 1936, Feb. 7, 1936, U.S.-Mexico, 50 Stat. 1311 (entered into force Mar. 15, 1937), as well as a supplemental agreement in 1972, Agreement Supplementing the Convention of 1936, Mar. 10, 1972, 23 U.S.T. 260. The Migratory Bird Treaty Act, 16 U.S.C. sec. 703, implements both the U.S.-Canada and U.S.-Mexico treaties, as well as similar agreements with Russia and Japan.

A trilateral Canada-US-Mexico agency-to-agency sub-agreement, the Trilateral Memorandum of Understanding for the Conservation of Migratory Birds and their Habitats (1988, Canada, US, Mexico), was created to complement the Migratory Birds Convention of 1916 which was signed by Mexico.

The North American Waterfowl Management Plan (NAWMP) was signed between Canada and the United States in 1986, and was endorsed by Mexico in 1989. NAWMP identifies 34 areas of concern for habitat throughout North American, and also identifies the financial resources and actions that are to be taken by governments, the private sector and agricultural interests to resolve land use problems.

The Mexico, Canada, U.S. Trinational Committee, represented by SEDESOL now SEMARNAP, the U.S. Fish and Wildlife Service and the Canadian Wildlife Service, was created to develop strategies for the conservation, protection, and management of aquatic migratory birds and their habitats. Between 1989 and 1994 the Committee supported 29 wetlands conservation projects in Mexico totaling US$1,328,178. The United States and Canada have also signed the Agreement on the Conservation of the Porcupine Caribou Herd July 17, 1987, T.I.A.S. 11259 (entered into force July 17, 1987).

In addition, the United States and Mexico signed the Memorandum of Understanding on Cooperation in Management and Protection of National Parks and Other Protected Natural and Cultural Heritage Sites, Nov. 30, 1988 and Jan. 24, 1989, U.S.-Mexico, T.I.A.S. No. 11599, between the National Park Service of the Department of the Interior of the United States of America and the Secretariat of Urban Development and Ecology City.

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25.9 Agreements Relating to the Management of Wastes

 

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Multilateral Agreements

The United States has signed, but not ratified, the Basel Convention on Control of Transboundary Movement of Hazardous Wastes and Their Disposal, Mar. 22, 1989, U.N. Doc. UNEP/WG.190/4 (1989), reprinted in 28 I.L.M. 657 (1989). The Basel Convention entered into force on May 5, 1992. The United States regulates the export and import of hazardous wastes through the Resource Conservation and Recovery Act, 42 U.S.C. secs. 6901-6992k. Although not a partner, the U.S. conforms to the import/export procedures set out in the Basel Convention regarding regulated hazardous wastes subject to manifest requirements.

Bilateral or trilateral agreements between the parties

The United States and Canada signed the Agreement Concerning the Transboundary Movement of Hazardous Waste, Oct. 28, 1986, U.S.-Canada, T.I.A.S. No. 11099, which entered into force November 8, 1986. There is also the U.S. EPA-Canadian Department of the Environment-Alaska-Idaho-Washington-British Colombia Memorandum of Understanding on Continued Regional Coordination on Hazardous Waste Management (1991).

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