December 14, 1979
Page 36045
THE ROLE OF THE SENATE IN THE LAW OF THE SEA TREATY
Mr. MUSKIE. Mr. President, several of our colleagues have today discussed the grandfather provisions of S. 493, the ocean mining bill currently before the Senate.
The two reasons for Members concentrating such emphasis on the grandfather provisions contained in this legislation are clear.
First, Members are insisting that our treaty negotiators preserve in the language of the Law of the Sea Treaty text itself the authority codified in this legislation.
Second, Members are equally concerned about the fundamental constitutional principle regarding the rights and responsibilities of the Senate under the advise and consent clause. It is out of this same concern that other Members have focused on the issue of the interim nature of this legislation. Whether the legislation is in fact to be interim will be dependent upon whether the current Law of the Sea Conference negotiations will produce a treaty acceptable to this body.
The remarks made on the Senate floor today as they pertain to the contents of this legislation, its relationship to the Law of the Sea Treaty presently under negotiation, and the contents of that draft treaty text are indeed intended to be heard by the State Department as advice from the Senate.
We are well aware that during most of the lengthy negotiations which resulted in the formulation of the U.S. Constitution, it was clear that the Senate, not the President, was to negotiate treaties.
The plan presented by the Committee of Detail to the Federal Constitution Convention on August 6, 1787, provided that—
The Senate of the United States shall have power to make treaties, and to appoint Ambassadors, and Judges of the Supreme Court.
It was not until September 7, 1787, just 10 days before final adjournment of the Constitutional Convention, that the President was made a participant in these powers.
The American law division scholars at the Library of Congress who authored one of the most authoritative histories of the Constitution, "The Constitution of the United States of America: Analysis and Interpretation," concluded that the advise and consent clause "assumes that the President and Senate will be associated throughout the entire process of making a treaty."
Another authoritative source, U.S. Senator Rufus King of New York, who had earlier been a member of the Constitutional Convention, in 1818 declared on the Senate floor:
In these concerns the Senate are the Constitutional and the only responsible counsellors of the President. And in this capacity the Senate may, and ought to, look into the watch over every branch of the foreign affairs of the Nation; they may, therefore, at any time call for full and exact information respecting the foreign affairs, and express their opinion and advice to the President respecting the same, when and under whatever other circumstances they may think such advice expedient.
That Senator Rufus King's views on the meaning of the advise and consent clause were valid is borne out by State Department testimony presented before the Senate Judiciary Committee. The then-Secretary of State stated on April 6, 1953, that—
This Administration recognizes the significance of the word "advice." It will be our effort to see that the Senate gets its opportunity to advise and consent in time so that it does not have to choose between adopting treaties it does not like, or embarrassing our international position by rejecting one that has already been negotiated out with foreign governments.
That testimony was later incorporated in State Department circular 175 along with the express admonition to State Department negotiators that its incorporation was to insure that full implementation be given to the policy enunciated by the Secretary. State Department officials were also instructed in the same circular that—
Treaties are not to be used as a device for the purpose of effecting internal social changes or to try to circumvent constitutional procedures.
Because from time to time administration officials seem to lose cognizance of the intent of the advise and consent clause, it becomes the perpetual duty of this body to point out that these doctrines do in fact exist and that they must be adhered to.
Last year, for example, on September 8 the Senate adopted Senate Resolution 536. It declared the sense of the Senate that in determining whether a particular international agreement be submitted as a treaty—
The President should have the timely advice of the Committee on Foreign Relations through agreed procedures established with the Secretary of State.
As a result of the adoption of Senate Resolution 536, State Department Circular 175 was amended to broaden the basis under which that Department would affirmatively seek the advice of the Senate with respect to international negotiations.
From the preceding discussion on the meaning of the advise and consent clause, it should be very clear:
First, that the executive branch has an affirmative duty to seek advice from the Senate including advice concerning the contents of a treaty during the entire negotiating phase of the treaty;
Second, that remarks made on this Senate floor today concerning this legislation and the treaty which would succeed it if ratified by the United States are intended as such advice; and
Third, as implied by a prior Secretary of State, the executive branch has affirmative duty to listen to such advice of the Senate or else the Senate will be forced to choose between adopting treaties it does not like or embarrassing our international position by amending or rejecting what has already been negotiated out with foreign governments.
The advice this Senator intends the executive branch to heed directly pertains to the legal effect of a U.S. signature on any treaty, but in particular on a future Law of the Sea Treaty.
On October 16 of this year, 14 Senators including myself wrote to the U.S. Ambassador to the Law of the Sea Conference, Ambassador Elliot Richardson. I request unanimous consent, Mr. President, that that letter be inserted in the RECORD at this point in its entirety.
There being no objection, the letter was ordered to be printed in the RECORD, as follows:
U.S. SENATE,
Washington, D.C.,
October 16, 1979.
Hon. ELLIOT L. RICHARDSON,
Ambassador at Large,
Department of State,
New State Building,
Washington, D.C.
DEAR MR. AMBASSADOR: The recent United States Delegation Report on the resumed eighth session of the Third United Nations Conference on the Law of the Sea had a tone of optimism regarding the possibility of concluding the substantive negotiations next year. In this regard, the report notes that "the Conference decided to hold its final substantive session in two five-week sessions next year, the first in New York beginning February 27, and the second in Geneva beginning July 28."
Because of the possibility that the Law of the Sea negotiations may be nearing a point of conclusion, concerns have been re-expressed recently over the legal consequences and implications of the signature of a treaty by the United States. Specifically, some have suggested that signature of a treaty imposes certain legal obligations upon the signing party. We would like to know if you share that view, and if so, what is the nature of such obligations. We are sure you can appreciate the Senate's interest in any implications that signature of the treaty might have before the Constitutional requirement of Senate advice and consent and Presidential ratification has taken place.
We therefore request the Administration's view on the question of whether signature of a Law of the Sea Treaty imposes any legal or other obligations upon a signing party as a matter of customary international law or for any other reason. If it is the Administration's view that legal or other obligations do attach on signature of the treaty, we would appreciate your defining the nature, extent, and consequences of such obligations. In this regard, we would appreciate the Administration's specific analysis of what existing and pending legislation would be impacted by the existence of such an obligation and how such legislation would be impacted. For example, what implications would result from signature of a Law of the Sea Treaty with respect to the domestic implementation of seabed mining legislation and to U.S. companies engaged in the pursuit of deep seabed mining pursuant to U.S. legislation; and would there be any restriction on the applicability of the Fishermen's Protective Act if U.S. vessels were to be seized by nations asserting fishery jurisdiction that is not recognized at the present time by the United States.
Your prompt attention to these issues will be most appreciated.
Sincerely yours,
Warren G. Magnuson, Frank Church, Claiborne Pell, Ernest F. Hollings, Bob Packwood, James A. McClure, Spark M. Matsunaga, Henry M. Jackson, Edmund S. Muskie, Edward M. Kennedy, Ted Stevens, J. Bennett Johnston, Wendell H. Ford, John Melcher.
Mr. MUSKIE. As most of us are aware, Mr. President, the Vienna Convention was adopted by U.N. negotiators on May 22, 1969, and opened for signature on May 23, 1969. The U.S. signed that Treaty on April 24, 1970, and it was submitted to the Senate for advice and consent on November 22, 1971. It has not received the advice and consent of the Senate.
Mr. President, the Senate has not approved the Vienna Convention on Treaties and therefore cannot be bound, solely as a result of the signature of an executive branch official, to refrain from taking legislative action because that act "would defeat the object and purpose of a treaty" signed but not approved.
One purpose behind our forefathers writing the advise and consent clause into the Constitution was to prevent the United States from becoming obligated either to take action or not to take action under any treaty without the prior concurrence of two-thirds of the Senate.
Not only should we insist that the executive branch not be allowed to preempt us by declining to heed our advice conveyed to it during the negotiating phase of treaties, we should also insist that the executive branch not be permitted to preempt us by asserting that we must refrain from taking any action which would defeat the object and purpose of a treaty one of its officials has signed. For here the State Department, if permitted, would assert that a treaty is binding on the United States prior to the Senate granting advice and consent.
The Law of the Sea Treaty presents us with an opportunity to underscore the role of the Senate.
Next year, the Law of the Sea Treaty will be signed by the United States. Upon a requisite number of signatures, an international body sanctioned by the Law of the Sea Conference or by the U.N. General Assembly would begin to draft rules and regulations similar in concept to the manner in which an administrative agency promulgates regulations to implement a U.S. statute.
Either prior to completion of such drafting of regulations to implement the Law of the Sea Treaty, or after such formulation of regulations has been completed, the Senate will be asked to approve provisional entry into force of the treaty either by the advise and consent process or by submission of separate legislation or by seeking to amend S. 493 — this legislation — if the latter is not already enacted into law. The provisional entry into force would apply for an interim period after which time the Senate would be asked to grant advice and consent to permanent entry into force of the Law of the Sea Treaty and its then completed implementing rules and regulations.
Thus, as a result of signature and signature only, the Congress would be expected to take no action which would defeat the object and purpose of the treaty. In other words, until the Senate would vote to refuse to grant advice and consent to the treaty or even be given the opportunity to do so, it would be expected to act as though the treaty were already ratified.
The issue then becomes what is this body's ability to grant or to refuse to grant advice and consent to the Law of the Sea Treaty either provisionally or permanently? As earlier indicated, once the United States signs the treaty, under customary international law neither the Senate nor House may take any action which would defeat the object and purpose of the Law of the Sea Treaty.
Mr. President, it is the advice of at least this Senator that the affixing of the mere signature of any executive branch official on a Law of the Sea Treaty or any other treaty will not bind this body from taking any action which anyone claims would defeat the object or purpose of the treaty. This advice, Mr. President, is consistent with the intent of the drafters of the U.S. Constitution with respect to the advise and consent clause.
As is obvious from the letter, our underlying concern is predicated on the possible legal consequences which might flow from the act of signing the Law of the Sea Treaty. Specifically, we requested the administration’s views as to the legal effect on the United States resulting from a U.S. Government official affixing his signature to a treaty. We have not yet received an answer.
Many of us who signed the letter were aware of the statement made by Ambassador Richardson in response to a question, similar to that asked in our letter, by Congressman JOHN BREAUX and contained in the hearing record compiled by the House Oceanography Subcommittee. In response to the question, Ambassador Richardson stated:
Signature only serves as a preliminary indication of intent to become a party and, under customary international law, imposes no obligation other than refraining from acts which would defeat the object and purpose of the treaty.
The words "refrain(ing) from acts which would defeat the object and purpose of the (a) treaty" are a quotation from article 18 of the Vienna Convention on the Law of Treaties.