[DOCID: f:er008.108]
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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.
---------------------------------------------------------------------------
    \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

                              ----------                              


            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

                              ----------                              


                         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:

  <bullet> 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.

  <bullet> 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.

  <bullet> 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.

  <bullet> An escalation clause provides that monetary limits and 
        thresholds that survive in the Convention will be adjusted for 
        inflation.

  <bullet> 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.

  <bullet> 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.

  <bullet> 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.

  <bullet> 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.

  <bullet> 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.

  <bullet> 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.

  <bullet> 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