[Congressional Record Volume 140, Number 140 (Friday, September 30, 1994)]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]

[Congressional Record: September 30, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]


  Mrs. HUTCHISON. Mr. President, on August 5, 35 Senators signed a 
letter to the majority leader regarding consideration by the Senate of 
the Convention on Bio-Diversity. The letter requested that the Senate 
delay consideration of the treaty until our concerns were addressed. 
These concerns remain, but it appears that the majority leader intends 
to bring up the treaty before adjournment.
  Under the treaty, a conference of parties will meet after the treaty 
is in force to negotiate the details of the treaty. We need to know how 
the Senate, in fulfilling its constitutional responsibilities to concur 
in treaties, can review the provisions of a treaty that will not be 
written until the meeting of the conference of parties. As Senators 
Helms, Pressler, and Coverdell stated in the committee report on this 
Bio-Diversity Treaty.

       The financing mechanism, the degree to which intellectual 
     property is protected, the definitions of developed and 
     developing states, the voting weights and procedures for 
     member states: all of these and other important matters are 
     left undecided.

  Moreover, the convention and resolution of ratification do not 
require that protocols or amendments developed by the conference of 
parties that are signed by the President be submitted to the Senate for 
ratification. Protocols are being drafted for the November conference 
that we have not had a chance to review and will not have the 
opportunity to approve. We are sworn to uphold the Constitution. We 
cannot delegate that duty with a blank check to an international body, 
or to the President.
  We need to know why the treaty prohibits countries from making 
reservations from agreeing to any of its provisions. Because the treaty 
is not subject to reservation, any congressional or Executive 
statements saying we do not agree to be bound by a provision of the 
treaty will be ineffective after the treaty is in force. We will 
instead be bound by the conference's interpretations of the treaty.
  I am especially concerned about the effect of the treaty on private 
property rights in my State and throughout America. Private property is 
constitutionally protected, yet one of the draft protocols to this 
treaty proposes ``an increase in the area and connectivity of 
habitat.'' It envisions buffer zones and corridors connecting habitat 
areas where human use will be severely limited. Are we going to agree 
to a treaty that will require the U.S. Government to condemn property 
for wildlife highways? Are we planning to pay for this property? One 
group, the Maine Conservation Rights Institute, has prepared maps of 
what this would mean--I do not know if they are accurate yet, but that 
is my point. Neither do the proponents of this treaty.
  Article 10 of the treaty states that we must ``protect and encourage 
customary use of biological resources * * * that are compatible with 
conservation or sustainable use requirements''--as set by the treaty. 
Whether our ranchers could continue to use public and private land for 
grazing could depend not just on the Secretary of the Interior's latest 
grazing rulemaking, but on whether grazing is considered a compatible 
use for conservation under the treaty. This bio-diversity treaty could 
preempt the decisions of local, State, and Federal lawmakers for use of 
our natural resources. The details that are left for negotiation could 
subject every wetlands permit, building permit, waste disposal permit, 
and incidental taking permit to international review.
  We would be subjecting property owners to international review, which 
would be yet another step in the already egregious bureaucratic 
processes, just to have the very basic permits necessary for the use of 
their own private property.
  I believe that arguments that the treaty should have been approved by 
August 30, 1994, in order to have a vote at the conference of parties 
in November 1994, are without merit. The administration is fully aware 
of the Senate's authority to approve treaties and the time necessary 
for approval. The administration should have left more time for 
consideration by the full Senate.
  Here we are, in the last 10 days of scheduled session, and we are 
being asked to consider a very important international treaty that is 
not very well known, and the consequences of which are even less well 
  I am well aware of some Senators' concerns about approving the treaty 
before the November conference of parties so that we can be a 
participant. But we will qualify as an observer to the negotiations. 
The United States would be the largest donor to the Global Environment 
Facility--the proposed financing mechanism--and certainly can expect 
the parties to pay close attention to our suggestions if they want us 
to contribute money.
  Mr. President, I think the responsible approach here would be to let 
the November conference of parties come together before we have passed 
this treaty. Let us review what other parties propose at the 
negotiations. I think it would be better to pass the treaty later, 
after we know the details.
  I do not feel comfortable, Mr. President, giving a blank check, 
passing a treaty which is a very important constitutional 
responsibility of this Senate, before we have fully negotiated the 
treaty and know what will be in it.
  I think it is very, very important that we wait and get more 
information. We can ratify the treaty later. The important thing, Mr. 
President, is that we do not pass something that will bind this 
Congress and our Nation when we do not have enough information about 
what is going to be in the treaty.
  We cannot approve a treaty on someone else's timetable. Unless we are 
given adequate time to fully debate the treaty and make reservations 
and understandings as are absolutely necessary, we should not act. We 
should have full and open debate on these issues. We should not rush 
this treaty at the last moment before the end of Congress.
  Several of my colleagues and I have statements for the Record in 
opposition to consideration of the treaty at this time, and about the 
concerns that we would like to have addressed before or during the 
November meeting. The five of us, and many others of our colleagues, 
will oppose a motion to proceed to consideration of the treaty.

                        the biodiversity treaty

  Mr. BURNS. Mr. President, the Biological Diversity Treaty may come 
before the Senate for ratification. I strongly oppose this treaty. I am 
fearful of how this treaty will effect Montana's agriculture and our 
other natural resource industries. This is yet another example of the 
Clinton administration's war on the West.
  The Convention on Biological Diversity was reached at the Rio De 
Janeiro meeting in 1992. At the time the treaty was drafted, the United 
States was cautious about embracing such a sweeping plan. Since that 
time the Clinton administration has asked the Senate to ratify the 
  This treaty makes me nervous. U.S. environmental laws are currently 
encroaching on our private property rights. Provisions like the 
Endangered Species Act and wetlands laws are dictating what private 
land owners can and cannot do with their own land. This treaty could 
give a panel outside the United States the right to dictate what our 
environmental laws should say. That is wrong.
  I have long believed that the best land management decisions are 
those made at the local level. Instead of moving our decisions from 
Washington to the local level, this treaty moves these decisions 
  Each Senator should have received a letter from 293 groups from 
around the Nation who oppose this treaty--14 Montanan groups, including 
the Montana Farm Bureau Federation, Putting People First, and 
Grassroots for Multiple Use have joined in this impressive letter. 
These folks are right, the treaty is vague and leaves too many 
questions unanswered.
  Just as the intent of the Endangered Species Act has been twisted, I 
am fearful of how this treaty could be twisted to push legitimate, job 
creating activities, off not only public, but private lands. Montanans 
do not want that.
  I urge my Senate colleagues to join me in opposing this treaty.

                   convention on biological diversity

  Mr. CRAIG. Mr. President, on August 5, 1994, I was one of 35 Senators 
who wrote to the majority leader raising a number of questions about 
the Convention on Biological Diversity. The concerns I had then remain, 
despite attempts of the administration to explain away apparent flaws 
in the document.
  If anything, I have become even more concerned about the convention 
after reading the analysis titled Technical Review of the Convention on 
Biological Diversity written by Mark Pollot and Allan Fitzsimmons. This 
new report raises very serious questions about the purpose of the 
convention and the impact it may have on domestic policy. My reading is 
that States' rights and private property rights could be severely 
  I am not at all inclined to take the position that it will all work 
out for the best, and accept the premise that the convention will not 
be used to inflict added regulation on property owners and public land 
uses. I have seen too much of that in recent years. I have no doubt 
that environmental interest groups are waiting in the wings to attack 
the Western public lands States with legal actions stemming from new 
authorities they find in the convention. Article 8, for instance, calls 
for the eradication of alien species which threaten ecosystems. I 
envision that provision being used as leverage to eliminate cattle and 
sheep grazing from public lands. Article 8 also calls for added 
regulations outside protected areas. That sounds exactly like the calls 
I have heard, so far unsuccessful, from opponents of multiple use who 
wish to create artificial buffer zones for millions of acres outside 
Yellowstone National Park and Hell's Canyon National Recreation Area.
  The Federal Government controls 63 percent of the land in the State 
of Idaho. Our economy and our lifestyle are sensitive to the pull and 
tug of environmental laws and their interpretation by Federal 
agencies--particularly so when it comes to the Endangered Species Act. 
The majority of the State's land area is encumbered by one or another 
species listed under the ESA. Unfortunately, the ESA has become a tool 
for those groups attempting to stop logging, mining, and irrigation, 
and to remove cattle from the public range. They have used every nuance 
offered by the ESA and its interpretation in the courts to raise 
challenges and pursue litigation at an alarming rate. At this very 
moment, a Federal judge is considering a request for injunction which 
would shut down all activities on six national forests in Idaho. 
Environmentalists will stop at nothing in their zeal to extend the 
power of the ESA, regardless of the disruption and damage which 
  Though the ESA is well beyond its time for reauthorization, the 
Environment and Public Works Committee has delayed markup and rebuffed 
amendments. I believe the convention would lend even more strength to 
the ESA and offer further opportunity for those who oppose traditional 
Western public land uses. I am not about to let that happen. There are 
many other examples I could quote from the convention which appear to 
open public land management to a new barrage of legal initiatives from 
those who would close these lands to public use.
  The convention simply is not ready for ratification by the Senate. 
Terms are too vague and definitions are lacking. The convention needs 
much more thorough review by committees with jurisdiction before any 
action is taken. One hearing was held in the Foreign Relations 
Committee. I believe the Committee on Energy and Natural Resources, and 
perhaps others, have an interest and shoud have time to hold hearings 
and develop the record in terms of public land and agricultural 
  As I understand it, there is no advantage to the United States to 
ratify the treaty at this time. The United States will be in attendance 
at the conference of parties which is scheduled for late November. Our 
status there will not change if the treaty is ratified now. The 
conference will begin to add details and understandings to the 
convention. Even today, a 300 page draft of protocols to be considered 
at the conference is just arriving for review. We will know much more 
after the convention about how the terms of the convention will be 
interpreted. An argument has been made that our negotiating position at 
the conference is stronger if the Senate has not ratified the treaty. 
Other countries will be aware that the United States is withholding 
approval until after definition is added and we have had a chance to 
review and analyze it.
  Mr. President, there are simply too many unanswered questions about 
the convention. The Senate needs more time to examine all aspects. I 
strongly urge that we not act on the resolution for ratification at 
this time.

                   convention on biological diversity

  Mr. HELMS. Mr. President, I have a number of concerns about this 
treaty--concerns that I have expressed before, and which I will repeat 
for the record.
  The many nations represented at the negotiation of this treaty at the 
so-called Earth summit had widely varying national agendas--agendas 
that had little to do with environmental protection. Further, I believe 
that many of the clauses and statements in this treaty reflect a rather 
common view among so-called developing nations that this treaty is some 
sort of an international cash cow to be milked by transferring, with no 
strings attached, wealth and technology from developed nations to 
promote the economic growth of developing nations. I give them credit 
for recognizing their own national interests and pursuing them--a 
matter in which I believe our own State Department could learn a thing 
or two.
  In particular, I find the convention's treatment of intellectual 
property rights, finances, voting procedures, technology transfer and 
biotechnology dangerously muddled, vague and disturbing.
  But there is an even more fundamental concern: The treaty before us 
will commit the United States to certain obligations, but the Senate, 
which is being urged to ratify this treaty now, has no way of knowing 
the nature and extent of those obligations. The treaty spells out no 
details, nor does it refer directly to any existing mechanism or 
  For example, articles 20 and 21 of this treaty commit the developed 
country parties to provide new and additional financial resources to 
developing country parties. Who are the developed countries and who are 
the developing countries? That will not be known until after the treaty 
enters into force. At its first meeting, the so-called conference of 
parties will establish a list.
  What about these new and additional financial resources? How much 
money will the Senate be committing the United States to paying by 
ratifying this treaty? Is that not a reasonable and straightforward 
question, one which we are obliged to ask before ratifying?
  Yet we don't know. Once again, we learn that there shall be a 
mechanism for the provision of financial resources to developing 
countries and the operation of that mechanism shall be carried out by 
such institutional structure as may be decided upon by the conference 
of parties at its first meeting.
  Tim Wirth came before this committee and assured us that our 
financial obligations are known, that the financial mechanism is in 
fact established. I challenge him to specify where that is stated in 
the treaty. The treaty itself is silent on these matters, and, 
according to the Vienna Convention on the Law of Treaties, matters or 
disputes requiring interpretation shall refer to the text of the treaty 
  The administration assures us that it will guard U.S. interests at 
the conference of parties. It assures us that it will not allow any 
surprise developments that we would not support. I am gratified to hear 
that, but I cannot accept this abdication of the Senate's 
constitutional privilege to advise and consent to a treaty before 
  This so-called treaty is scarcely more than a mere preamble, not a 
treaty. The real treaty--the essential nuts and bolts--is yet to be 
created at the conference of parties. If the Senate precipitously 
ratifies this preamble falsely described as a treaty, it will have 
given away one of its major constitutional authorities and will have 
betrayed the trust of the American people.
  There is a simple solution: Article 23, paragraph 5 of the treaty 
provides that any state not party to this convention may be represented 
as observers at meetings of the conference of parties. Even if the 
United States ratified the convention now, it could participate in this 
first conference of parties only as observers. But that is just fine: 
the United States' voice will be heard loud and clear. The United 
States is the single largest contributor to this convention; it plans 
to fund it to the tune of $420 million over 5 years. If that does not 
count for something, then we are crazy to even consider ratification. 
When some of the vagueness of this convention is cured--the voting 
rules, financial procedures, definitions of developed and developing 
States, definition of terms like ``alien species'' and ``biosystem,'' 
technology transfer arrangements, biotechnology issues, et cetera then 
bring it back to the Senate for hearings and consideration. The more 
this administration tries to push this through at the eleventh hour of 
the 103d Congress, the more suspicious I get.

                 the convention on biological diversity

  Mr. NICKLES. Mr. President, along with several of my colleagues, I 
continue to have serious concerns regarding the Convention on 
Biological Diversity, treaty document 103-20. I understand that the 
distinguished majority leader may bring the convention before the 
Senate prior to adjournment. One of several major issues that has not 
been adequately addressed by the Clinton administration relates to the 
effect of the convention on State, local, and tribal laws and rules.
  Prior to Senate consideration, it is imperative that we are sure 
about the extent to which this convention will impact Federal agency 
regulations and actions taken by the Federal Government, its agencies, 
or its agents in pursuit of or in furtherance of the convention. Will 
the convention be construed by courts to preempt, supersede, or limit 
any existing or future State, local, or tribal laws or regulations, 
including those laws or regulations that apply to private lands, such 
as those lands that may lie adjacent to Federal wildlife refuges or 
wilderness? At this point, we do not know.
  The Clinton administration has frequently assured us that they will 
take care of these problems. They have sent up supporting statements 
about the convention, but they have given little information on the 
likely effect on State, local and tribal law.
  I point out that the memorandum of record signed by the Secretaries 
of State, Agriculture, and Interior on August 16, 1994, states that the 
convention does not provide for a private right of action. This is 
small comfort, and may not even be true. Many Federal environmental and 
administrative procedure laws generously provide third parties with 
standing to bring enforcement actions or challenges into Federal 
courts. Frivolous suits brought by groups against individuals and small 
businesses have been devastating to the defendants named in those 
suits, even if the plaintiffs' suits are ultimately dismissed for lack 
of standing. But standing may be granted simply because this is a 
treaty, irrespective of the absence of specific language in the 
convention providing a private right of action. As discussed by 
constitutional lawyer Mark Pollot in ``Technical Review of the 
Convention on Biological Diversity:''

       Indeed, the very existence of the convention itself may be 
     used by opponents of the state-based action to move actions 
     into federal court on the theory that the convention makes 
     local and State land use and zoning questions inevitably 
     Federal questions based on a claim of preemption. It is not 
     the treaty itself which gives rise to the question, but the 
     supremacy clause [of the U.S. Constitution].

  I am very concerned about the potential reach of this convention into 
the realm of constitutionally protected property rights of individuals 
and the rights of State, local, and tribal governments to control uses 
of land within their jurisdictions. I am also highly concerned about 
the effect of the convention and actions taken under it on the 
financial and other resources of the individuals and State, local, and 
tribal governments who will be forced to expend those resources to 
defend against the infringement of their constitutionally protected 
rights when actions taken in pursuance of the convention affect those 
  This is only one of the many issues left unanswered about the 
convention's possible impact. It is clear that the Senate should not 
try to rush through its advice and consent to the convention's 
ratification until we have more information. In particular, the 
conference of the parties provided for in the convention will meet in 
November, and is expected color in many of the blank areas in the 
convention text. Also, hundreds of pages of protocol language is 
currently being drafted for the November meeting, none of which will be 
subject to Senate advice and consent if the Senate rushes to take 
action now. The Senate must be allowed to review the convention with 
these details attached before deciding whether this is in the interest 
of the United States. We should at least wait until next year before 
committing our country to unknown obligations we may have reason later 
to regret.

                   convention on biological diversity

  Mr. WALLOP. Mr. President, I rise today to express my concern on the 
haste with which we are being asked to act on the Convention on 
Biological Diversity. When reviewing international treaties, it is the 
role of the Senate to provide advice and consent to the President. This 
process is meant to protect the interests of the U.S. treaties define 
the United States relations in the international community and, as 
such, can have a tremendous effect on domestic law.
  The so-called biodiversity treaty attempts to globalize the 
enforcement of restrictive environmental laws. These laws, as contained 
in the treaty, remain consistent with this administration's current 
environmental policies. At the agency level and in Federal courts 
across this Nation, the administration has fought to subordinate 
private property rights to the newly proclaimed rights of various plant 
and animal species. It has sought to define ponds and lawns wet from 
leaky sprinkler systems as navigable waterways under the Clean Water 
Act, simply to transfer more property from private ownership to the 
Government. The biodiversity treaty, as written, would give the Clinton 
administration even greater authority to accomplish suspect 
environmental goals.
  Furthermore, article 8 of this treaty mandates that parties to the 
treaty take appropriate action and special measures to conserve 
biological diversity in protected areas. What is a protected area? By 
the treaty's definition, it is a geographically defined area which is 
regulated to achieve specific conservation objectives. In other words, 
a protected area is whatever an anonymous Federal bureaucrat says it 
  Under this treaty, the Federal Government would be required to manage 
biological resources important for the conservation of biological 
diversity whether within or outside these protected areas. Yet, nowhere 
in this treaty, or in any literature about the treaty, is there an 
explanation of the substantive qualities of protected areas, threatened 
species, or alien species, which necessitate their regulation or, in 
the case of alien species, their eradication.
  Many of us have taken long lists of concerns to the State Department. 
In return we have received the weakest of verbal assurances that our 
concerns will be taken care of. We have been told that unseen, 
forthcoming protocols will rectify and clarify any and all problems. 
The State Department has even gone so far to say that we can safely 
agree to the treaty without ever seeing these 300 pages of protocols.
  We know that this treaty is not complete, and we know it will not be 
complete until after the conference of parties has completed its work. 
I ask you, can the United States Senate, in good faith, give its 
consent to this treaty without having had an opportunity to scrutinize 
the completed convention? The best advice we can give President Clinton 
right now is to wait until the Convention on Biological Diversity has 
been completed before asking for our consent.

                           amendment no. 2601

  Mr. CHAFEE. Mr. President, I am relieved Senators Metzenbaum and 
Hatch have agreed to withdraw their amendment to limit the antitrust 
exemption conferred upon major league baseball by a 1922 Supreme Court 
  First, this is no way to legislate. We are in the 11th hour of the 
session, on the last appropriation conference report pending in the 
Congress. The Judiciary Committee is the place to consider, debate and 
refine an authorization such as this--not the Senate floor.
  The real issue is whether or not the Federal Government should inject 
itself into a private labor-management dispute--plain and simple. It is 
my steadfast view that the Congress has no business interfering in a 
collective bargaining dispute, except under the most extraordinary of 
  Second, and finally, I am opposed to this amendment because it would 
have a detrimental impact on minor league baseball, which draws 
substantial financial support from the major league franchises. This is 
the farm team system, the fresh blood for the major leagues, and thus, 
crucial to the future of baseball.
  The salaries of all minor league players are covered by major league 
baseball--a cost to the clubs of about $8 million per year. This 
subsidy enable minor league baseball to sell affordable tickets, and to 
provide maximum benefit to the fans.
  Rhode Island is a minor league State, and we are extremely proud of 
our own Pawtucket Red Sox, a club within the International League. And 
let me tell you, they have had a great season, with a packed stadium 
almost every night. That team has been the training ground for some 
great players including Jim Rice, Fred Lynn, Wade Boggs, and Roger 
Clemens. Rhode Island has had a long tradition of minor league 
baseball, dating back to the founding of the Providence Grays in the 
1890's. Our own Pawtucket Red Sox began their great tradition in 1968. 
They are a valued asset in our State, with a passionate and loyal 
following. Their future would be threatened if this legislation were 
enacted, and thus, I will continue to oppose legislation along these 
  Mr. WOFFORD. Mr. President, here it is the end of September--and 
there are no pennant races. Obviously, baseball has serious problems. 
We are at a major impasse.
  The owners and the players could not sit down at a table and work out 
a compromise to save the season, and we are all the losers for it.
  The amendment offered by my colleague from Ohio, Senator Metzenbaum 
however well-intentioned, is not the best way to go forward. I'm 
concerned that it would hurt small market teams.
  While I agree that it is proper for Congress to review the state of 
the game, I will vote against Senator Metzenbaum's amendment.
  The PRESIDING OFFICER. The Senator from North Dakota is recognized.
  Mr. DORGAN. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.