January 28, 1976
Page 1296
Mr. GRAVEL. I yield myself 5 minutes.
Mr. President, there is no doubt that between 1.5 and 2 billion people on this Earth go to bed hungry and live under the shadow of starvation. There is no question that we in the United States of America have been richly blessed, not only by the abundance of our natural resources on land but also by having 25 percent of the world's fishery resources off our shores.
Mr. President, there is no question, and it has been brought out in debate, that we Americans have no reason to hold ourselves above all others. When we took the chart put forth by the Senator from Washington and we looked at the species that are overfished, after the colloquy in this Chamber, we agreed that there were 16 species of fish that were overfished, that were endangered and something should be done about it.
When we began to assess the blame as to who brought this problem about, we came to the conclusion that of these 16 species 6 were depleted by foreign fisheries, 6 were depleted by United States fisheries, and 4 were depleted by United States and foreign fisheries.
So now we can stand here — and it is very convenient to stand here and point a finger at the foreigners and say it is all their problem — and give ourselves total jurisdiction, and we will solve the problem.
Where does the blame come here? If a goodly number of the problems of fisheries that are in trouble today are caused by ourselves, will giving ourselves great jurisdiction solve the problem? I say not.
To those proponents of this bill who have said repeatedly that this is a conservation bill, let me simply say that this article 7 amendment, the Cranston-Griffin amendment, does exactly that to this legislation. It makes it a conservation piece of legislation.
The reason why the proponents of this legislation are disturbed is that, with the adoption of this amendment, they will no longer be able to go out and get physical jurisdiction of the 200 miles. If they only wished to have conservation, if they really believe their argument, and if they seek to conserve the species, they can do it through this amendment. But no, that is not what they want.
What really is sought is what was stated by the Senator from Washington in this Chamber, and that is: "We want to drive out every single foreign fisherman within 200 miles off our shores."
Well, that is fine. We can do that unilaterally. We can do it. We are the strongest nation on Earth. It is going to take billions of dollars of defense moneys to do it. We are going to have to put a destroyer beside every fishing vessel.
I submit the American people will not tolerate it because, first, it is not moral; it is not moral in this sense: As the distinguished Senator from Massachusetts stated, there are 1.5 billion people on Earth who are hungry. We are the wealthiest nation in the world. We have 25 percent of the fisheries off our coast. Now we are going to take that 25 percent to the exclusion of all other foreign fishing.
That kind of arrogance and that kind of chauvinism I do not think can be tolerated by American morality sensitivity.
So, if those proponents say they really want to do something about the conservation of fish and the resources that are in jeopardy, they have the vehicle to do it and to do it through this amendment.
Why do some of us oppose the legislation without this amendment? It is for the very simple reason that we take 200 miles unilaterally, saying we seek to conserve our fish, when there are other ways of doing it. If we do that unilaterally, then why cannot Spain take the Straits of Gibraltar or Indonesia take the Straits of Malacca and present the same argument? If supertankers were to go through those straits, run afoul, break up, pollute those shores, and ruin their fishery, why would they not have the same logical argument, as we have in protecting our fishery, by taking 200 miles and then wishing to control those straits?
We pooh-pooh that argument. We say that is not going to happen. Canada did it. Canada did it, and we did not as much as blink an eyelash.
When we were trying to figure out ways of getting the oil out of Alaska, one of the major oil companies sent a tanker through the Northwest Passage to make a determination whether or not that route was feasible to bring oil to Massachusetts, Rhode Island, and New York. Do Senators know something? While that experimentation was going on, Canada went out and took a 200-mile pollution zone unilaterally. Do Senators know something else? There is no vessel plying the Northwest Passage today, because of that unilateral action.
So I say that if Senators wish to set in motion a chain reaction around the world which will bring anarchy to our fisheries and thwart the only real way we can get 200 miles, then this bill will do it. Let us not misunderstand on that score. I am for a 200-mile zone—
The PRESIDING OFFICER. The Senator's 5 minutes have expired.
Mr. GRAVEL. I yield myself 1 additional minute.
The PRESIDING OFFICER: The Senator from Alaska is recognized for 1 additional minute..
Mr. GRAVEL. I am for the 200-mile zone that will not cost billions of dollars in the defense budget to enforce. I am for a 200-mile zone that will be a consensus agreement in the world, where it will cost but a pittance to enforce, because it will be agreed to by consensus.
I am for a program that will protect Alaska's anadromous fish throughout their range, which this legislation does not do.
Mr. President, I hope Senators will see that, if the proponents of the bill are true and wish conservation, they can get it through article 7 of the 1958 Geneva Convention. But I submit that is not what they want. They want unilateral, total control of the 200-mile ribbon around this Nation so that they can exclude all foreign fishing.
I submit that will not be morally tolerated by this great Nation of ours, nor will it be tolerated in the world today.
The PRESIDING OFFICER. The Senator's time has expired.
Who yields time?
Mr. MUSKIE addressed the Chair.
Mr. MAGNUSON. Mr. President, I yield the Senator from Maine such time as he requires.
Mr. MUSKIE. Mr. President, I think the issues have been laid out yesterday and this morning by the distinguished Senator from Massachusetts (Mr. KENNEDY). As I listened to the closing remarks of the Senator from Alaska I have not heard a more serious mis-description of the purpose of the pending bill and the purposes of the sponsors of this bill than the Senator from Alaska has just stated.
What we are trying to establish is the protection of the fisheries resources off our continental shelves, not only for our benefit, but for the benefit of all mankind.
Coastal States, on the record, are the only States which have demonstrated any responsibility for the conservation and management of those resources: We have tried the diplomatic route, over and over again, including the one which is covered by the Cranston amendment.
This one has been floating around here since 1958. It has not worked. It has been specifically rejected by committees in both Houses within the last 3 years.
Mr. GRAVEL. Mr. President, will the Senator yield on that point?
Mr. MUSKIE. I am afraid I have only 4 minutes, and the Senator has had his time.
Mr. CRANSTON. On our time.
Mr. GRAVEL. Will the Senator yield for a question on my time?
Mr. MUSKIE. All right.
Mr. GRAVEL. The first question is: Can the Senator tell us when this article 7 effort was tried and, second, can he explain the fact that the House bill has an article 7 in it for anadromous fish?
Mr. MUSKIE. With respect to the first point, my argument is not that it has been used and failed but that it has not been used. Notwithstanding the fact that it was ratified by several nations, not including the major fishing nations of the world, it has not been used because obviously it was not an effective protective device.
That is the answer to the Senator.
With respect to the provision on anadromous fish, anadromous fish are a special problem. Everyone recognizes that, including the Law of the Sea Conference.
Let me return to my theme in the limited time which I have.
Mr. President, what we are trying to do is to establish some interim protections while the Law of the Sea Conference continues its negotiations, in the hope that it will achieve an international agreement.
The indications are that, if other issues can be resolved, the 200-mile fishing zone is a viable idea in the Law of the Sea Conference. So we say, if that is a fact, let us in the meantime put it in place, prepare ourselves hopefully for a successful resolution of the Law of the Sea Conference, but enable us in the meantime to protect those species which are now under threat of depletion and deterioration.
What this amendment proposes to do is to divert us from that course and to put our reliance upon a treaty that was negotiated and ratified by a few nations but not the major fishing nations of the world. It would involve time-consuming negotiations, which would eliminate the protections from 3 to 12 miles we have now given to our fishermen under international agreements as well as the law, which have been in effect some 18 years. Why? Because the proponents of the proposed legislation will resort to any parliamentary device to defeat our purpose.
Mr. President, I cannot offer an amendment between now and 11 o'clock, but at 11 o'clock, on behalf of the principal sponsors of the pending bill, I shall offer an amendment to the Cranston amendment to strike out everything except the findings. I shall indicate then, as I indicate now, that so far as we are concerned, we will also accept the Thurmond amendment, which would add another 6 months to the negotiating period available to the Law of the Sea Conference — in other words, until July 1, 1977.
I say to the sponsors of the Cranston amendment and to the distinguished Senator from Alaska that if they really are interested in pursuing international negotiations as a way to resolve this problem, that is the way to do it.
We have been told over and over in the last 2 or 3 or 5 years that the Law of the Sea Conference is the international vehicle to pursue for an international resolution, but instead the sponsors of the Cranston amendment say to us, "No, we would prefer to rely on the Geneva Convention that was negotiated in 1958," which was not ratified by enough nations to implement until the mid-1960's and which never has been used, never resorted to, by any nation because it was conceded to be an ineffective protective device.
So I shall offer this amendment between 11 and 11:15, which I understand parliamentarily is the only time it may be offered. When we offer that amendment, I will move to strike everything in the Cranston amendment except the findings. Second, I indicate, on behalf of all the principal sponsors of the pending legislation, that we will accept the Thurmond amendment, which would set July 1, 1977, as the date to which we can move in negotiations before the pending legislation would be enforced.
With that, I yield for the time being.
Mr. GRAVEL: Mr. President, I wish to address a few brief points. I yield myself 3 minutes to do that.
If the Senator from Maine really wants to protect the species, he can do it through the Cranston amendment, and he can do it on the basis of a treaty. What he is proposing is to do it on the basis of force of arms, to go out and grab 200 miles, kick everybody out, and think he can make that work. No way in this world can it be made to work. We are all interdependent in the world.
We are saying that if one really wants to conserve fish, this is the vehicle to do it.
Second, the Senator suggests that this is a time-consuming method, and in the same breath he says he is prepared to put back the effective date of implementation of this hill until July 1, 1977.
They make the argument that these resources are going to be depleted. They may well be gone by then. We have heard that argument made by the proponents of this legislation over and over.
I suggest to the Senator from Maine that he join us on this amendment, because this amendment would set in motion immediate conservation, and negotiations would begin. If those negotiations were not fruitful in 6 months, a conservation plan would be put into motion. It would be laid right on the line unilaterally. Regardless of what happened at the Law of the Sea Conference, regardless of any nation, there would be a plan of conservation unilaterally.
The difference — and this is why it is legal under this proposal and not legal under the proposal of the Senator from Maine — is that this makes it apply fairly to domestic and foreigner alike, and that is the essence of its legality under international law.
When my colleague says that this amendment will set back fisheries 17 years, all I can say is that a distinguished bevy of individuals differ. I refer to people such as Professor Henkin, Professor Sohn, Professor Baxter, and an international jurist, Mr. Jessup, who said that the statement that this would impair our existing fisheries was utterly specious.
I can explain it from a lay point of view, without going into the semantics of law. The proponents of this bill say that it is legal to grab 200 miles and do what they want. Under this amendment, you do it through a treaty; and if you do anything, you must do it fairly to foreigner and domestic alike. I leave it to any reasonable person to judge what is the more legal course of action in international law.
I should like to add one more point with respect to the Senator from Maine's comment.
The PRESIDING OFFICER. The Senator's 3 minutes have expired.
Mr. GRAVEL. I yield myself 1 additional minute.
The Senator from Maine really underscored something that should be discussed a little more — that this bill does nothing for anadromous fish. There are a few political statements in the bill, a little political cosmetics, but it does not do anything for the anadromous fish.
The House was considerably more honest, because they at least tried to implement article 7 to get to anadromous fish. But there is no way you can touch anadromous fish, unless you are prepared to go to war with every nation in the world that might covet these fish, hundreds of miles from our shores.
Mr. PASTORE. Mr. President, we are not trying to grab anything from anybody. Let us have an understanding on that. This is no grab legislation. This is conservation legislation.
As I had occasion to say the other day, you have to get hurt to understand the hurt. In my State, we are hurt.
I do not care about statistics. Let us leave out all this hocus-pocus strategy — how we are going to emasculate and kill this bill. Let us understand the bill. Let us understand the motivation behind this bill. Let us understand the purpose of this bill.
We want an international agreement. We have been trying to get an international agreement. But the trouble is that those who are invading our waters, destroying our pots, cleaning up our fish, do not want an agreement. That is what this thing is all about.
We are not saying that this becomes effective the minute it is enacted. We are saying that it becomes effective in July of 1977. Why? Because we want the parties to work out an international agreement. If they come back and say it is 50 miles, that is it. That is how badly we want it.
As to all these crocodile tears about what we are doing to navigation, sometimes I have to go upstairs and get my rubbers, because those tears really flood this floor. We are not impeding navigation in the least. It has nothing to do with navigation. If they want to sail their ships within the 200-mile limit and not destroy our fisheries, they can do so. Nobody is going to stop them. We are not putting them out. We are just saying, "If you come in, let's have some rules to go by."
The haddock is all gone. Our lobster pots are being destroyed so badly that I had to appeal to Mr. Wilmer Mizell, the Administrator of EDA, to come up with a loan of $250,000. Why? Because they crucified our fishermen in Rhode Island. They destroyed all their pots.
They are little people — one man with one helper out there. Do Senators know what happened? These enormous trawlers came along and plowed right through and said: "This is our right. This is our right under international law." When was plunder anybody's right under any law? That is what has been happening and that is what this is all about.
If the Senator is against a 200-mile limit, why does he not vote against the bill? Why all this strategy in the cloakroom, in somebody's office, to see what someone can come up with in order to emasculate the bill? That is what this is all about.
As to the idea of going back to 1958, if there was a binding treaty in 1958, those pots in Rhode Island would not have been destroyed. But they were. We have pictures of the foreign boats that did that, and then their governments denied it.
They said, "You go fish." There was no place else for us to go and fish, because these countries were cleaning it out. That is what they have been doing.
Let me tell you, if we allow this, we are up against what Teddy Roosevelt was up against when they began to plow down our forests, when they began to ruin all our natural resources. They come in here with these big, big, factory ships. They have their canneries on board. Did the Senator know that? They have facilities on there to can, right on the ship. Then they take it back home. Then they try to sell it to us.
Here we are, we have our own fishermen going around begging.
If the Senator wants to do something to help Americans, this is his chance. We are not precluding an international agreement. We want one. If they come back and say 15 miles, that is the end of this bill. That is how fair we are. But unless we prod, unless we act unilaterally in this matter now, we will never get a multilateral agreement. That is what we want.
We go to these conferences and we get the razzmatazz: Everybody is for this, everybody is for that. But when we put the paper in front of them and ask them to sign, they say, "I cannot write my name." They will not sign it. They will not make anything of it.
They will give a lot of talk. They will talk us deaf, dumb, and blind. They will get up there and beat their breasts about how holy they are. Then the next thing we know, they have their ships over here, destroying everything that is precious to us.
We want them to come in. We want to give them a fair share. But we want our fisheries to come under some management, some kind of orderly control. That is the reason we brought out this bill — not to hurt anybody, but, for once in our lifetime, to help Americans.
What is so bad about that? We bleed for the Russians, we bleed for the Chinese, we bleed for the Japanese. We bleed for everybody under the sun. Down there in the State Department, they have an Asian desk, they have an African desk, they have a European desk, but they do not have an American desk.
Is it not about time we had an American desk? This is what this is all about. All I am saying is, give us a chance. Do not give us the hocus-pocus of this strategy, this treaty, that treaty. We have been trying that for years. And every time we try, we end up behind the eight-ball.
So I say to my friend, give us a chance.Give us a chance. We have been hurt. We understand the hurt. We have been hurt badly. And the fish are not there any longer.
If we kill off propagation, that sea will be barren, and that is what we are trying to avoid.
We want something there for everybody. But we do not want the greedy ones to come in and take it all, not when it belongs to us.
I thank the Chair.
Mr. GRAVEL. Mr. President, I yield myself 3 minutes to respond to the distinguished Senator from Rhode Island.
I wish to tell the Senator from Rhode Island that everything he said, I subscribe to. The only thing I would add, to correct a slight misunderstanding or misrepresentation of fact, is that the Russians have paid for damages by vessels that have run over pots. So the statement made that "these foreigners have never paid for any damage they have done" is not entirely accurate.
Second, I have seen charts, when I was in Rhode Island, I have had people show me charts of how the Russian fleet would move around precisely to avoid those pots.
Mr. PASTORE. Will the Senator yield?
Mr. GRAVEL. If I may just finish one point.
Mr. PASTORE. All right, I shall let the Senator finish.
Mr. GRAVEL. We do make statements,when carried away by enthusiasm, that may not be entirely accurate. The facts are that a check has been written and given to our people, and it has been done by foreigners.
Mr. PASTORE. Will the Senator yield at that point?
Mr. GRAVEL. I am happy to yield.
Mr. PASTORE. The Senator tells me he went to Rhode Island. Is that correct?
Mr. GRAVEL. Yes.
Mr. PASTORE. He went to Newport, is that correct?
Mr. GRAVEL. Right.
Mr. PASTORE. Did the Senator talk to the fishermen?
Mr. GRAVEL. Yes, I talked to the fishermen.
Mr. PASTORE. What sort of reception did they give him?
Mr. GRAVEL. They were opposed to my position.
Mr. PASTORE. They ran him out of the hall, did they not?
Mr. GRAVEL. They did not run me out of the hall. His people are fine citizens. His fishermen treated me with courtesy.
Mr. PASTORE. That is not the way it read in the newspaper, my friend. [Laughter.]
Mr. GRAVEL. Sometimes we see exaggerations occur, not only on the floor of the Senate, but also occasionally in the press.
But let me ask my colleague: He makes the statement that it is "those foreigners." Certainly, there are no votes for me in defending foreigners. What I am trying to do is defend the truth.
We had a list. My colleague from Rhode Island was not on the floor when I made the statement earlier. We had a list put forth here by the Senator from Washington as to what the depleted stocks were. We arrived at an agreement in colloquy that there were two more than shown on his chart. There were 16 stocks altogether.
The Senator talks about the haddock being gone. The haddock is gone because of foreign fishing and U.S. fishing. Of the 16 stocks endangered, 6 of them have been overfished by Americans. We are not without sin. When the Senator stand here and says we have to take this action to protect the stocks, he would be entitled to make that statement if we were without sin. But we have sinned like anybody else.
The tally is very simple. Of the 16 stocks depleted, 6 were depleted by Americans, 6 by foreigners, and 4 by Americans and foreigners. All this amendment does is say, if we want to protect the stocks, we can do it under the treaty.
The problem is, the Senator wants more than just conservation: he wants to be able to have a monopoly. When he does that, he sets in motion a reaction around the world that will bring anarchy to the seas and destroy the Law of the Sea Conference.
If the Senator's goal is just conservation, he has it here. If he wants to protect his fishpots, he has it in this amendment. He has it under article 7. The problem is, though the argument has always been made that this is a conservation bill, it is not a conservation bill. That is only one facet of it.
The Senator wants more than that. He wants to drive all the foreigners out of that 200-mile area. Fine. That is good politics. He can get a lot of votes, a lot of applause. But that is not good policy in today's world of interdependence. It is not moral.
We are the wealthiest nation in the world. Now we want to get 25 percent of the world's protein in our own little hands. That will not work in this world of nuclear proliferation. If the Senator wants endless fish stocks for his people, he can vote for this amendment. That is the only way we can get conservation, because I submit that if we place in motion a chain reaction where other nations can act unilaterally, as we act unilaterally, they will follow our suit like a brush fire with the wind behind it, and everybody will act unilaterally in an interest that they perceive to be their own. That will produce anarchy in the seas and will produce a run on the fisheries of Alaska and a run on the fisheries of the east coast of the United States.
Then the Senator's fishermen will come back to him and say, "Well, Senator, how is it that it did not happen the way you said it was going to happen? How is it we cannot pay for the gasoline for our boats now, after we got this supposed 200 miles?" Then he will come back to the Senate for appropriations to send the gunboats out to drive the foreigners out.
If we want to do that, then we can exempt this legislation, have the honesty and integrity to exempt this legislation from the War Powers Act. Because we are saying. "Mr. President, we are taking 200 miles; now you go defend it and you go take it."
If the President does not do that, then the Senator has not given anything to his fishermen and has not brought about conservation.
This amendment will permit conservation to take place. If that is all the proponents want, they have it in this amendment.
Mr. PACKWOOD. Mr. President, will the Senator from Washington yield me some time?
Mr. MAGNUSON. I yield a minute to the Senator from Oregon.
Mr. PACKWOOD. We talk about immorality. The situation is that the immorality is not on our side. Before I came to this body. I can remember someone in Oregon telling me not to be hasty, if we wait, we can get satisfaction. Those doubledealing, double-crossing, pinstriped diplomats have been selling us down the river. They have done everything but advise the fishermen to cast their nets on the other side of the boat, and I think some of them think they have the right to tell them to do that.
It will not work. We have waited 10 years. All we are asking in this bill, and we do not want it gutted with this amendment, is give us a chance to protect our own fishing industry. There is going to be a problem. Once we get this limitation, we are going to have a conservation problem and we are going to have to set some standards so our fishermen do not overfish. We understand that. But, at least, give us a chance to have some jurisdiction over the very resource that is now being fished dry. Wecannot wait any longer.
As far as morality is concerned, the most moral people in the world are the fishermen, who have waited and waited, on the coasts of our shores. Unpaid fishermen, I say, with claims for nets that Russian trawlers have run over unpaid that they are entitled to have paid. We have never gotten a cent in Oregon out of the Russians.
I yield back my time.
The PRESIDING OFFICER. Who yields time?
Mr. GRAVEL. Mr. President, I yield myself 2 minutes.
If you want jurisdiction to save the fish, this will permit it, and will give it to you in a very legal fashion under a treaty. If we pass it, it will require unilateral action, but it will do so legally.
We want to conserve the fish; we want to do something about these stocks. We want to do something on an interim basis until the Law of the Sea comes into being, but we want to see the Law of the Sea come into being and not see that negotiation destroyed.
So if it is the stocks you want to protect, the Cranston-Griffin amendment does exactly that. It does not do more. It is the "more" that is the dangerous part of the action, because then we take unilateral action, and other nations will exercise the same right.
If we, the most powerful nation on Earth, can do something unilaterally, why cannot other nations do it? And, of course, they will. The difference is they will exercise a unilateralism as they perceive it, and they may not perceive it the way we perceive it. This, of course, will be the beginning of the end.
The PRESIDING OFFICER. Who yields time?
Mr. KENNEDY. Mr. President, just one additional point. As we have listened to the debate and discussion—
The PRESIDING OFFICER. Who yields time?
Mr. MAGNUSON. I yield time to the Senator from Massachusetts.
The PRESIDING OFFICER. One minute.
Mr. KENNEDY. Mr. President, as we have listened to the debate and discussion about the proposal of the extension of the 200-mile limit, it is said that it is a unilateral proposal, and that the article 7 proposal is not unilateral. Well, that argument, I think, has been addressed by the distinguished Senator from Rhode Island. We all understand the commitment and the interest of those who are supporters of this proposal to the operation of international law and a willingness to abide by the Conference on the Law of the Sea.
But the interesting point of the matter that the Senator from Alaska has left out is when this proposal of article 7 was submitted to the various countries, what was the response of the Soviet Union? They said, "nyet," no, and they turned it down.
What was the response of the eastern bloc countries? They said, "No." They turned it down.
Poland, Bulgaria, East Germany, and the Soviet Union have all turned it down. So, sure, some countries have approved it, Tobago has approved it, Cambodia has approved it, Switzerland has approved it. But that does not happen to be the problem we are facing today; they are not fishing off our shores.
So I fail to understand the logic of the reasoning of the Senator from Alaska (Mr: GRAVEL) and the Senator from California (Mr. CRANSTON) when they say the extension of the 200-mile limit is unilateral. Quite obviously it is not, because those who are supporting it are committed to the process of international law. You and I know what is going to happen. Any time any proposal is going to be made on the issue of conservation, and we ask the Soviet Union or the East bloc countries to abide by it, they are going to give us the same answer that was given to the United States when they were asked to be signatories. The answer is going to be "No," make no mistake about it.
Mr. MAGNUSON. Mr. President, I yield a half-minute or 1 minute to the Senator from Maine.
The PRESIDING OFFICER (Mr. EAGLETON). The Senator from Maine is recognized.
Mr. HATHAWAY. I thank the Senator for yielding.
Most of the points made yesterday or today in debate have been discussed, and I will not impose upon the Senate by reiterating those points, but I just wanted to say, in answer to this argument made by the Senator from Alaska (Mr. GRAVEL) that this will set up a chain reaction where we are going to get other countries unilaterally imposing limits such as this, I say if that does happen, that will be a good thing; that will hasten a Law of the Sea agreement because our own strong bargaining position, which will start this chain reaction, will force all of the countries involved to come to an agreement much more quickly than if we adopt the amendment of the Senator from California and the Senator from Alaska which puts us in a very poor bargaining position which will not be any inducement whatsoever to enter into a Law of the Sea Conference and then come to some agreement on this matter.
So I would like to say simply, in conclusion, if we are going to bargain in this matter, we have got to bargain from strength, and if we should bargain from strength, we should retain the 200-mile limit, and if it does set up a chain reaction in the world, it is in our favor, and it is going to hasten the time when we can enter into an agreement that will be acceptable to all of us.
Mr. MAGNUSON. Mr. President, I yield to the Senator from Maine and, as I understand , the parliamentary situation — and I make this inquiry — the Senator from Maine has an amendment, which is cosponsored by several of us, to the Cranston-Griffin amendment, and he cannot present it, under the unanimous-consent request, until 11 o'clock, but I want to yield such time—
The PRESIDING OFFICER. The Senator is correct.
Mr. MAGNUSON. To the Senator from Maine to explain it ahead of time before he presents it at such time as he wishes.
The PRESIDING OFFICER. The Senator from Washington has 1 minute remaining on his time. He yields that 1 minute to the Senator from Maine.
Mr. MUSKIE. Mr. President, as I indicated earlier, after 11 o'clock, the time to which I am restricted, I will offer an amendment which, in effect, will strike everything from the Cranston amendment except the findings. That is a rough description, but I think it is accurate. I think, in addition, in behalf of the cosponsors, who include Senators MAGNUSON, STEVENS, KENNEDY, HATHAWAY, PASTORE, PACKWOOD, BROOKE, HOLLINGS, MCINTYRE, WILLIAMS, JACKSON, and myself, we have agreed that we would accept the Thurmond amendment which would postpone enforcement of the coming legislation until July 1, 1977, in order to stretch out the negotiating time available on the Law of the Sea Conference.
I shall offer this amendment, Mr. President, when I am ordered to do so after 11 o'clock.
Mr. CRANSTON. Mr. President, I would like briefly to summarize the situation in two ways:
First, the amendment I have offered with Senator GRIFFIN is a compromise, not a device to kill the purposes of the bill of the distinguished Senator from Washington.
The fishing conservation measures are the same in the amendment and in the bill.
The objective of the 200-mile conservation zone is the same.
There is agreement that unilateral action by the United States is or may be necessary to protect fish stocks.
The difference is that the amendment offered is a method recognized by international law.
The amendment provides a way to achieve management conservation controls more swiftly than the original bill.
Second, I would now like to touch on the arguments made against the amendment.
The statement has been made against it that by relying on article 7 of the 1958 Geneva Convention on Fishing, it would force the United States to surrender its exclusive fishing rights in the 9-mile zone beyond our territorial limit of 3 miles.
Answer: The amendment applies article 7 only to "the high seas adjacent to the fisheries zone.
"Fisheries zone" is defined in the amendment to mean the 12-mile exclusive fishing zone established in 1966 by Congress. Nothing in article '7 forces the United States to open its 12-mile exclusive fishing zone to foreigners. That is confirmed by the State Department Legal Adviser.
Article 7 does require that U.S. conservation measures be applied outside the exclusive zone in a non-discriminatory way.
Charge against the amendment: The Cranston-Griffin amendment denies preferential fishing rights to U.S. fishermen.
Answer: Preferential fishing rights, according to the World Court, cannot be asserted unilaterally without negotiations. Preferential fishing rights, which the World Court has recognized, are an issue to be considered in applying the non-discriminatory standards as required under article 7. It would not be non-discriminatory to accord greater weight to American preferential rights in fishing on high seas beyond our 12-mile contiguous zone.
The final charge: The major foreign nations fishing off our shores, the Soviet Union, Japan, and Poland, are not parties to the Convention on Fishing and Conservation of the Living Resources of the High Seas. Therefore, it is argued, these nations would not be subject to any enforcement procedures.
The answer: The most authoritative response on this question is the letter from the Legal Adviser of the State Department to me which appears in yesterday's RECORD. It is a full answer to that charge.
In addition, the Convention on the Continental Shelf has been applied successfully to limit lobstering by non-party or non-signatory nations.
Mr. President, I am prepared to yield back time — no, I yield 1 minute to the Senator from Alaska.
Mr. GRAVEL. Mr. President, just to respond as to the amendment, the amendment the Senator from Maine will pose, there will not be a distinction made by the foreigners as they view the legislative action of the Senate. So if we push back again another 6 months to supposedly accommodate the Law of the Sea, it will not be perceived as having any effect at all from the foreign point of view.
Example: All the House did was pass a bill, and the Mexican Government initiated their whole 200-mile patrimonial seas situation as a constitutional amendment.
So the mere fact we act unilaterally, regardless of the enforcement date — that will be perceived as a unilateral vote by the world, and will set in motion a chain reaction.
I hope our colleagues will not vote for the Muskie gutting of the Cranston amendment.
I hope we will proceed with the Cranston amendment using article 7 so that it can initiate the proper legal conservation programs that are necessary to save our fish stocks pending enactment of a Law of the Sea Agreement, which is somewhat imminent in the world today.
Mr. TUNNEY. Mr. President, I am a cosponsor of Senator CRANSTON's amendment, and with its inclusion I would be very pleased to join my distinguished chairman, Senator MAGNUSON, in support of this legislation which I know is so important to him.
Mr. President, from the time of its introduction I strongly opposed S. 961 because it unilaterally extended the U.S. territorial waters. I have repeatedly asked my colleagues to reject this legislation and instead instruct the President to push for prompt and appropriate action by the participants in the Third Law of the Sea Conference. The United States must lead the other nations of the world to the realization that efficient allocation of scarce resources and materials can only be achieved by international accord.
Senator CRANSTON's amendment retains the fisheries management provisions of S. 961, while striking the assertions of unilateral 200-mile jurisdiction from the bill. In lieu of unilateral expansion the amendment invokes article 7 of the 1958 Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas as a proper way to establish emergency conservation procedures.
This amendment is very important because it addresses international resource management problems through established international channels. Furthermore, Senator NELSON's perfecting amendment implements the concern for speedy promulgation of conservation measures by directing the Secretaries of State and Commerce to institute negotiations under article 7 within 30 days of enactment.
Mr. President, I share the view that if Congress enacts legislation unilaterally claiming a 200 mile jurisdiction off our shores, that the Law of the Sea Conference will be adversely impacted to a critical degree.
However, if the Congress and the President were to initiate an action under article 7 of the 1958 Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas, I believe that the fishery conservation goals sought by the advocates of unilateral 200 mile legislation would be legally and more efficiently secured.
I call on my colleagues to vote in favor of Senator CRANSTON's amendment to S. 961.
Mr. GRIFFIN. Mr. President, in the past 2 months I have written and spoken at great length about the dangers inherent in S. 961, and the many advantages of relying instead on true conservation measures following the principles set forth in article 7 of the 1958 Geneva Convention on Fishing.
Now we have come to the final day of debate. Although both sides have been argued ably during this long and tiring dialog, I find myself this morning more convinced than ever that this amendment sets forth the best procedure for protecting our endangered fishery resources.
Before we vote, I want to respond briefly to a major objection that has been raised by opponents of this amendment.
The critics of this amendment have contended that it would be doomed to failure because many of the nations presently fishing off our shores have not formally ratified the 1958 convention on fishing. It is argued that states like Japan and the Soviet Union, which have not ratified the convention, would not recognize such conservation measures if unilaterally imposed.
To begin with, I find a certain irony in this new found concern that other nations might not accept our unilateral claims. The claims inserted by S. 961, as it now stands, are many times more objectionable from the standpoint of foreign nations and foreign fishermen, than the steps proposed in accordance with article 7. Those who now argue that we would have difficulty enforcing conservation measures under article 7 should give more thought to the infinitely greater problems that will confront us in trying to enforce S. 961 if this amendment is rejected.
Furthermore, there is reason to believe that other nations — including both Japan and the Soviet Union — would be much more willing to cooperate by recognizing conservation measures based on article 7. For example:
Arthur H. Dean, who was America's chief negotiator at both the 1958 and 1960 U.N. Conferences on the Law of the Sea in Geneva, has observed that "while Japan and Russia did not sign (the) treaty, it is my understanding that they have agreed to it in practice."
Donald McKernan — former Special Assistant to the Secretary of State for Fisheries and Wildlife — has testified before a subcommittee of the House Merchant Marine and Fisheries Committee concerning article 7 that—
[M]y own judgment is that all nations fishing off our coasts would make certain that negotiations were successful and with respect to the major fishermen — that is, the Soviets, West Germany, and the Poles — I feel confident after my discussions with people from those countries that we could reach agreement and we would, in fact, not be obliged to apply any unilateral action against these fishermen.
Ambassador John Norton Moore — currently the Deputy U.S. Special Representative to the Third U.N. Law of the Sea Conference — is of the view that both the Russians and the Japanese would be more receptive to conservation measures along the lines set forth in article 7 — whereas they would strongly oppose the approach taken by S. 961.
Finally, Mr. President, there is significant legal opinion that non-discriminatory conservation measures, based on appropriate scientific findings, and implemented following 6 months of negotiations in the manner set forth in article 7 of the Geneva Convention on Fishing, would be recognized under international law, even as against states which are not parties to the convention.
Pursuing this question, my staff has been in contact by telephone with a number of this Nation's foremost legal scholars — people like Professors Louis Sohn and Richard Baxter, of Harvard Law School, and Prof. Myers McDougal of Yale.
The majority of those we were able to reach expressed the view that for the United States to implement conservation measures in accordance with the procedures set forth in article 7 would be consistent with our obligations under international law. Further, they indicated that such measures could be applicable under international law, even as against states which are not parties of the convention.
Perhaps typical were the comments of Professor Sohn, who provided me with a detailed letter responding to these questions. Among his conclusions were: There can be no question that the United States is entitled to adopt unilateral measures of conservation in accordance with article 7 of the 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas.
The Convention was in some respects declaratory of international law and, in particular, its provisions relating to conservation were considered by the 1958 Conference as declaratory of the basic requirements of international law. Consequently, any conservation measures enacted by the United States in good faith under article 7 would be applicable to states which are not party to the Convention, including the Soviet Union and Japan.
Professor Sohn concludes by contrasting the article 7 procedure with "the original S. 961 which goes beyond conservation needs — violating various rules of international law." Mr. President, I shall ask unanimous consent that the complete text of Professor Sohn's letter be printed in the RECORD at the conclusion of my remarks.
Of course, I do recognize that not all legal scholars agree that the article 7 approach can be validly enforced as against states which are not parties to the Convention. The law is complex.
But I have been unable to find a single international legal scholar who does not agree that the approach set forth in this amendment is much more likely to be found consistent with international law than the alternative proposed in S. 961 as it now stands.
Mr. President, the third U.N. Conference on the Law of the Sea will reconvene in New York City just 2 months from tomorrow.
The action we take today on this amendment and this bill will send a message to the delegates to that Conference.
Rejection of this amendment and passage of S. 961 will speak for unilateral claims, for disregard of international law, and for survival of the strongest.
Passage of this amendment will send a different message — a message of responsible respect for the resources of the oceans; a message of international cooperation through international law; and a message of peaceful settlement of international disputes.
I urge my colleagues to join with me in supporting and passing this amendment.
I ask unanimous consent to have printed in the RECORD a letter from Professor Sohn.
There being no objection, the letter was ordered to be printed in the RECORD, as follows:
HARVARD LAW SCHOOL
Cambridge, Mass.,
January 27, 1976.
Hon. ROBERT P. GRIFFIN,
U.S. Senate,
Washington, D.C.
DEAR SENATOR GRIFFIN: As requested, here are the answers to your questions.
There can be no question that the United States is entitled to adopt unilateral measures of conservation in accordance with Article 7 of the 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas. The only condition is a requirement for negotiations in good faith for a period of six months. If the amended S. 961 is enacted in the near future and if negotiations start immediately, the relevant six-month period will expire long before 1 January 1977 (the proposed operative date for S. 961).
The right of the United States to take such action has been expressly recognized by the more than thirty parties to the 1958 Convention. In addition, that Convention was in some respects declaratory of international law and, in particular, its provisions relating to conservation were considered by the 1958 Conference as declaratory of a basic requirement of international law. For instance, Article 1(2) speaks of the duty of all States to adopt such measures "as may be necessary for the conservation of the living resources of the sea." According to Article 4(1) when nationals of two or more States are engaged in fishing the same stock, these States shall, at the request of any of them, enter into negotiations with a view of prescribing by agreement "the necessary measures for the conservation of the living resources affected." As was pointed out by Judge Dillard in the Icelandic Fisheries Case (I.C.J. Reports, 1974, p. 3, at 69), "in the light of the practice of States and the widespread and insistent recognition of the need for conservation measures" this principle "may qualify as a norm of customary international law."
The 1958 and 1960 Conferences disagreed on the extent of the jurisdiction of the coastal State, but there was no real disagreement on the adoption, by one means or another, of all the necessary conservation measures. While the 1958 Convention expressed a preference for achieving a solution in each instance by negotiation, it authorized also unilateral action. In case of a dispute whether a particular action was necessary for conservation purposes, the Convention provides for settlement of this question by a special commission, thus ensuring against any arbitrary action.
Consequently, any conservation measures enacted by the United States in good faith under Article 7 of the 1958 Convention would be applicable to States which are not parties to that Convention, including the Soviet Union and Japan. Like the parties to the Convention, they can contest the necessity of any particular measures but not the right of the United States to take them. To equalize the rights of non-parties with those of parties, the United States should be willing to accept the jurisdiction of the international commission under Article 9 of the Convention with respect to non-parties as well.
The use of the procedure provided for under Article 7 has thus the advantage of enforcing a generally accepted rule of international law, unlike the original S. 961 which goes beyond conservation needs and tries to establish a unilateral claim to broad fisheries jurisdiction in a 200-mile zone, violating various rules of international law which for years were the basis of strong United States complaints against unilateral actions by other States. Action under Article 7 is completely different in character and its basic legality from the action proposed by S. 961.
Sincerely yours,
Louis B. Sohn,
Bemis Professor of International Law.
Mr. MUSKIE addressed the Chair.
The PRESIDING OFFICER (Mr. HATHAWAY) . All time has expired.
The Senator from Maine.
Mr. MUSKIE. Mr. President, I call up my amendment.
The PRESIDING OFFICER. The clerk will state the amendment.
The assistant legislative clerk proceeded to read the amendment.
Mr. MUSKIE. Mr. President, I ask unanimous consent that further reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
Page 2, line 12, strike the comma and insert a period and strike the words after the period through line 19.
Page 2, line 20, delete "(11) " and insert "(10)".
Page 2, strike line 25 through line 13, page 12.
Mr. MUSKIE. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. MUSKIE. Mr. President, it is interesting that the distinguished Senator from Alaska refers to my amendment as a gutting amendment.
If that is an accurate description, then I say it can be made more accurate by describing it as a gutting amendment to a gutting amendment because that is exactly what the Cranston amendment is designed to do.
This restores—
Mr. CRANSTON. I would like to say that I am not in the gutter.
Mr. GRAVEL. I second the motion.
Mr. MUSKIE. The amendment makes it possible for Senators to focus on the bill itself and that, I think, is what we should do.
In effect, it is an up and down vote on the bill with one modification. Unfortunately, the Parliamentarian advises me we could not include in this amendment the extension of the enforcement date to July 1977, or I would have included it. But the managers of the bill and the cosponsors of this amendment have indicated their support for the Thurmond amendment which would extend the enforcement date to July 1, 1977. That is our commitment, and I would want the Senate to understand it.
I yield to my good friend from Alaska.