[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.
____________________