[Congressional Record Volume 142, Number 137 (Saturday, September 28, 1996)]
[Senate]
[Pages S11700-S11702]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  UNANIMOUS-CONSENT REQUEST--H.R. 2823

  Mr. LOTT. Mr. President, I ask unanimous consent that H.R. 2823, the 
International Dolphin Conservation Program Act, which has been 
laboriously negotiated and supported by, for instance, a call I 
received from the Ambassador to Mexico, former Congressman Jim Jones, 
and supported by the administration actively, I believe, by Vice 
President Al Gore.
  I, therefore, ask unanimous consent that it be discharged from the 
Commerce Committee; that the Senate proceed to its immediate 
consideration; that the bill be read a third time and passed; and that 
the motion to reconsider be laid upon the table.
  Mrs. BOXER. Mr. President, reserving the right to object, I do plan 
to object to this, and I would like to take some time to explain it.
  Mr. President, today, the Majority Leader asked unanimous consent to 
take up a bill--the Stevens/Breaux/Gilchrest bill--that would 
significantly weaken protections for dolphins in the eastern tropical 
Pacific Ocean by rewriting--gutting--the ``dolphin safe'' tuna labeling 
law that Senator Biden and I wrote and pushed into law in 1990.
  Today, the $1 billion U.S. canned tuna market is a ``dolphin safe'' 
market. Consumers know that the ``dolphin safe'' label means that 
dolphins were not harassed or killed.
  Our definition of dolphin safe became law for all the right reasons. 
Those reasons are still valid today:
  First, for the consumers, who were opposed to the encirclement of 
dolphins with purse seine nets and wanted guarantees that the tuna they 
consume did not result in harassment, capture and killing of dolphins;
  Second, for the U.S. tuna companies, who wanted a uniform definition 
that would not undercut their voluntary efforts to remain dolphin safe;
  Third, for the dolphins, to avoid harassment, injury and deaths by 
encirclement; and
  Fourth, for truth in labelling.
  Our law has been a huge success. Annual dolphin deaths have declined 
from 60,000 in 1990 to under 3,000 in 1995. Why mess with success?
  The Stevens/Breaux/Gilchrest bill would permit more dolphins to be 
killed than are killed now.
  The bill promotes the chasing and encirclement of dolphins, a tuna 
fishing practice that is very dangerous to dolphins. It does so by 
gutting the meaning of ``dolphin safe'', the label which must appear on 
all tuna sold in the United States. The ``dolphin safe'' label has 
worked: it doesn't need to be ``updated'', as the bill's sponsors 
claim.
  A number of arguments have been made in support of the Stevens/
Breaux/Gilchrest bill which I would like to refute at this time.
  Bill supporters claim that it is supported by the environmental 
community. In fact, only a few environmental groups support the 
Stevens/Breaux/Gilchrest bill, while over 85 environmental, consumer, 
animal protection, labor and trade groups oppose the Stevens/Breaux/
Gilchrest bill. I ask unanimous consent that a list of these groups be 
printed in the Record at this point. The fact is that the vast majority 
of environmental organizations in this country and around the world 
oppose the Stevens/Breaux bill.
  There being no objection, the list was ordered to be printed in the 
Record, as follows:

     Action for Animals, California
     Americans for Democratic Action
     American Society for the Prevention of Cruelty to animals
     American Oceans Campaign
     American Humane Association
     Americans for Democratic Action
     Animal Protection Institute
     Ark Trust
     Australians for Animals
     Bellerive Foundation, Italy & Switzerland
     Born Free Foundation
     Brigantine New Jersey Marine Mammal Stranding Center
     Cetacea Defence
     Chicago Animal Rights Coalition
     Clean Water Action
     Coalition for No Whales in Captivity
     Coalition Against the United States Exporting Dolphins, Fl.
     Coalition for Humane Legislation
     Colorado Plateau Ecology Alliance
     Committee for Humane Legislation
     Community Nutrition Institute
     Defenders of Wildlife
     Dolphin Project Interlock International
     Dolphin Connection, California
     Dolphin Freedom Foundation
     Dolphin Defenders, Florida
     Dolphin Data Base

[[Page S11701]]

     Dolphin Alliance, Inc.
     Doris Day Animal League
     Earth Island Institute
     Earth Trust
     Education and Action for Animals
     Endangered Species Project, Inc.
     European Network for Dolphins
     Federation for Industrial Retention and Renewal
     Foundation Brigitte Bardot, France
     Friends of the Earth
     Friends of Animals
     Friends for the Protection of Marine Life
     Friends of the Dolphins, California
     Fund for Animals
     Fundacion Fauna Argentina
     Hoosier Environmental Council
     Humane Society of Canada
     Humane Society of the Midlands
     Humane Society International
     Humane Society of the United States
     In Defense of Animals
     Institute for Agriculture and Trade Policy
     Interhemispheric Resource Center
     International Brotherhood of Teamsters
     International Dolphin Project
     International Wildlife Coalition
     International Union of Electronic Workers
     Irish Whale and Dolphin Society
     Lifeforce Foundation
     Marine Green Party
     Marine Mammal Laboratory
     Marine Mammal Fund
     Massachussetts Audubon Society
     Midwest Center for Labor Research
     National Consumers League
     National Family Farm Coalition
     Oil Chemical and Atomic Workers International Union
     Pacific Orca Society, Canada
     People for the Ethical Treatment of Animals
     Performing Animal Welfare Society
     Progressive Animal Welfare Society
     Public Citizen's Global Trade Watch
     Pure Food Campaign
     Reearth
     Reseau-Cetaces, France
     San Diego Animal Advocates
     Sierra Club
     Society for Animal Protective Legislation
     South Carolina Association for Marine Mammal Protection
     South Carolina Humane Society of Columbia
     The Free Corky Project
     UNITE!
     Vier Pfoten, Austria and Germany
     Whale Tales Press
     Whale Rescue Team
     Whale and Dolphin Welfare Committee of Ireland
     Whale and Dolphin Society of Canada
     Working Group for the Protection of Marine Mammals, 
         Switzerland
     Zoocheck, Canada
                                                                    ____



                                     U.S. Department of State,

                               Washington, DC, September 11, 1996.
     Hon. Barbara Boxer,
     U.S. Senate.
       Dear Senator Boxer: Thank you for your letter of August 8 
     regarding the Declaration of Panama.
       As you are aware, representatives of the United States and 
     11 other nations signed the Declaration of Panama on October 
     4, 1995. In our judgment, the Declaration represents a 
     significant step forward in the efforts of nations whose 
     vessels fish for tuna in the Eastern Tropical Pacific Ocean 
     to protect dolphins and the marine environment as a whole.
       By signing the Declaration of Panama, these nations have 
     formally announced their intention to conclude a binding 
     legal instrument incorporating the provisions of the 1992 La 
     Jolla Agreement on dolphin protection in this fishery, as 
     supplemented and strengthened by additional measures to 
     protect dolphins as set forth in the Panama Declaration.
       Thus, the Panama Declaration itself is not a legally 
     binding international agreement, but rather a commitment to 
     conclude such an agreement. Fulfillment of that commitment is 
     expressly contingent upon--and only upon--certain changes in 
     U.S. law. Those changes would occur with enactment of S. 1420 
     or its companion bill, H.R. 2823, which recently passed the 
     House of Representatives with strong bipartisan support.
       Once such an agreement is concluded, the Department would 
     transmit it to Congress, as required by the Case-Zablocki 
     Act.
       I hope this responds to your inquiry. We would be happy to 
     provide you with any additional information, or to discuss 
     with you or your staff the Administration's support for the 
     Panama Declaration and the enactment of H.R. 2823/S. 1420.
           Sincerely,
                                                   Barbara Larkin,
     Assistant Secretary, Legislative Affairs.
                                                                    ____



                                                  U.S. Senate,

                                   Washington, DC, August 8, 1996.
     Mr. Michael J. Matheson,
     Acting Legal Adviser, Department of State, Washington, DC.
       Dear Mr. Matheson: We write regarding the ``Declaration of 
     Panama,'' a document signed on October 4, 1995 by several 
     countries, including the United States. This declaration 
     addresses measures regarding the protection of dolphins in 
     the Eastern Pacific Ocean. In this declaration, signed for 
     the United States by Brian Hallman of the Office of Marine 
     Conservation, the United States and 11 other nations 
     announced their intention to formalize another agreement (the 
     ``La Jolla Agreement'') as a ``binding legal instrument.''
       So that we may understand the legal significane of this 
     document, as interpreted by your office, we request answers 
     to the following questions:
       1. Does the Department regard the Declaration of Panama as 
     a binding international agreement?
       2. If so, please provide a legal analysis discussing the 
     factors pertinent to determining whether a document is a 
     binding international agreement. Such analysis should 
     include, at a minimum, an assessment of the factors set forth 
     in 22 C.F.R. Sec. 181.2 (State Department regulations 
     regarding the coordination and reporting of international 
     agreements).
       3. If the Declaration of Panama is a binding international 
     agreement, when did this agreement enter into force, and by 
     what means?
       4. If the Declaration of Panama is a binding international 
     agreement, has the agreement been transmitted to Congress 
     pursuant to the Case-Zablocki Act, 1 U.S.C.Sec. 112b? If it 
     has not been so transmitted, why has it not been?
       Thank you for your attention to this matter. We would 
     appreciate a reply prior to the reconvening of Congress in 
     early September.
           Sincerely,
     Barbara Boxer,
       U.S. Senator.
     Joseph R. Biden, Jr.,
       U.S. Senator.

  Mrs. BOXER. The bill's supporters say that it is unreasonable for the 
United States to continue to impose a unilateral embargo on other 
fishing nations that wish to sell tuna in our country. I agree. It is 
time to lift the embargo. That is why Senator Biden and I, and a number 
of our colleagues, introduced legislation last year that would lift the 
country by country embargo against tuna that is caught by dolphin safe 
methods. Our bill would give all tuna fishermen the opportunity to 
export to the U.S. market as long as they use dolphin safe practices. 
In other words, we would open the U.S. market and comply with 
international trade agreements without gutting U.S. dolphin protection 
laws.
  We have offered repeatedly over the past year to sit down and 
negotiate a compromise with the administration. We have stated 
repeatedly that we agree it is appropriate to lift the embargo. We want 
to reach a compromise that is in the best interest of the American 
consumer, dolphins, and our U.S. tuna processing industry.
  The bills supporters believe that we should return to chasing and 
setting nets on dolphins because bycatch of other marine species is 
minimized. I believe that in order to sustain our renewable marine 
resources, we need to take a comprehensive ecosystem approach. I also 
recognize that management of a single species does not always produce 
benefits for the entire ecosystem. The bycatch of juvenile tuna and 
other marine species including endangered turtles, is an issue of 
concern that must be addressed. However, the bycatch arguments used by 
supporters of this bill are not based on solid science. We need more 
research before we can establish that bycatch is a problem.
  Under the scheme supported by this bill, only one observer would be 
required on each tuna fishing boat. Now that may sound reasonable, but 
what you may not know is that the nets that are used to catch tuna are 
huge: a mile-and-a-half long. How can we expect one single observer to 
make sure that no dolphins die?
  I was very surprised to hear the Senator from Louisiana earlier today 
repeatedly say how shameful it was that the Senate could not take up 
the tuna-dolphin treaty. The Senator suggested that unless the Senate 
passes the bill the majority leader tried to bring up, the United 
States will somehow be reneging on binding international agreements. 
This is simply untrue. It is a completely inaccurate characterization 
of the issue.

  I know the Senator from Louisiana to be an honorable man and I would 
never accuse him of making a false statement knowingly. In this case, 
therefore, he must have been seriously misled and misinformed by those 
who wish to change the law, because, Mr. President, there is no tuna-
dolphin treaty.
  No treaty was signed by the United States or any other nation on the 
subject of tuna fishing and the killing of dolphins.
  No treaty was submitted to the Senate for ratification, as required 
by the Case-Zablocki Act.
  No treaty was referred to the Senate Foreign Relations Committee.
  None of these things happened because there is no treaty.

[[Page S11702]]

  What in fact the majority leader tried to bring before the Senate 
today is a bill which was introduced in the Senate by the Senator from 
Louisiana and the Senator from Alaska, and in the House by Congressman 
Gilchrest. This bill would amend, I would say gut, the existing law 
that defines the term ``dolphin safe'' for purposes of the sale of tuna 
in this country.
  The agreement that the bill relates to is neither a treaty nor an 
international agreement. The so-called Panama Declaration is only a 
political statement--an agreement to agree in the future on a binding 
international agreement.
  How do we know the Panama Declaration is not a treaty? A treaty is a 
binding commitment in international law which requires the parties to 
abide by its provisions. It is a legal instrument imposing legal 
obligations.
  In our system of law, a treaty has the same standing as a statute 
passed by Congress--they are both the law of the land. This principle 
is embodied in article VI of the United States Constitution, which 
states:

       This Constitution, and the Laws of the United States which 
     shall be made in pursuance thereof; and all Treaties made, or 
     which shall be made, under the authority of the United 
     States, shall be the supreme law of the land . . .

  The principle that treaties are the law of the land was confirmed by 
the Supreme Court in 1920 in the case of Missouri versus Holland, in 
which Justice Oliver Wendell Holmes wrote:

       By Article VI, treaties made under the authority of the 
     United States . . . are declared the supreme law of the land.
  Another fundamental constitutional doctrine relates to how the law of 
the land principle operates--the last in time doctrine, which means 
that if a treaty and a statute are in conflict, then the last one to be 
put into effect governs. So clearly--if the Panama Declaration were a 
binding international agreement, there would be no need for the bill 
the majority leader tried to take up.
  In fact, the very wording of the Panama Declaration itself reveals 
that it is not a binding international agreement. In the second 
paragraph of the document, it reads:

       The governments . . . announce their intention to formalize 
     . . . The La Jolla Agreement . . . as a binding legal 
     instrument.

  In addition, the declation sets forth a series of principles which 
will ultimately be contained in this yet-to-be-drafted international 
agreement. But these principles are so vague and largely hortatory that 
they cannot possible be read as imposing legal obligations.
  If there were any doubt that the United States did not intend to be 
bound by this ``declaration'', we need only turn to the statement 
issued by the U.S. representative to the meeting in Panama.

       The U.S. Administration supports this initiative which is 
     an important step on the road to a permanent, binding 
     instrument . . . The initiative . . . is contingent upon 
     changes in U.S. legislation . . . The U.S. Administration 
     needs to work with our Congress on this . . . We do not want 
     to mislead anyone here as to what the final outcome of that 
     process might be.

  It is clear that the administration was not binding the United States 
to anything, other than to work with the Congress to enact this 
legislation.
  That is the commitment of the United States that the Senator from 
Louisiana talked about. It is nothing more. If we don't pass this bill, 
no binding agreement will have been broken, no international treaty 
obligation will have been violated.
  The other nations present during the discussions in Panama surely 
understood this. They are fully aware that we have a government with 
co-equal branches, and that any changes in the tuna labelling laws, as 
envisioned by the Panama Declaration, require the consent of Congress.
  The argument that rejection of this bill amounts to a violation of an 
international agreement is a red herring. There is no treaty and no 
international agreement in force for us to break.
  Finally, on this point, Mr. President, let me ask unanimous consent 
to insert in the Record two letters: a letter sent by Senator Biden and 
myself to the State Department on the question of whether the Panama 
Declaration is a binding international agreement, and the State 
Department's response to us on that question. The State Department 
letter reads, in part:

       Thus, the Panama Declaration itself is not a legally 
     binding international agreement, but rather a commitment to 
     conclude such an agreement. . . . Fulfillment of that 
     commitment is expressly contingent upon--and only upon--
     certain changes in U.S. law.

  So, Mr. President--This declaration may be a political commitment, 
but it is most definitely NOT a legal obligation.
  In summary, the arguments made by the supporters of the Stevens-
Breaux-Gilchrest legislation--arguments of fact as well as arguments of 
law--are unsupportable. The bill is not needed for any convincing 
scientific or environmental purpose, and is not needed to meet any 
binding obligation of the United States.
  In summary, Mr. President, in 1990, Senator Biden and I wrote a law 
called the Dolphin Protection Act. What happens is that when the tuna 
fishermen go out, they follow the dolphin because the dolphin follow 
the tuna. They cast a purse seine net, and they kill the dolphin along 
with the tuna.
  We have taken the dolphin kill since 1990 down from 60,000 a year to 
3,000 a year. We do not think there is any need at all to now allow 
this purse seining on dolphin. What this negotiation with Mexico would 
do is allow the Mexican fishermen to bring in their tuna. It is not 
dolphin-safe and the dolphin-safe label on the tuna can would lose all 
its meaning.
  I very, very strongly object, not only in my behalf, but on behalf of 
Senator Biden, and I will also say, 85 environmental organizations, 
including the Humane Society, the Sierra Club and a host of others.
  I appreciate the majority leader giving me this opportunity to 
explain why I object strongly, and I will do everything I can to make 
sure this bill never does become the law of the land.
  I do object.
  The PRESIDING OFFICER. Objection is heard.

                          ____________________