This article discusses the various loopholes within the IWC that have rendered the Commission's regulations and imposition of quotas meaningless. The IWC's inability to impose penalties against nations has not curtailed harvesting of whales in excess of IWC quotas and, as a result, whale stocks continue to plummet throughout the world.
Copyright (c) 1996 University of Oregon
Journal of Environmental Law and Litigation
1996 (reprinted with permission)
David S. Lessoff *
* J.D. 1997 Gonzaga University School of Law; B.A. 1990 University of Missouri; M.A. 1993. The author would like to thank Fr. Robert J. Araujo, S.J. for his helpful guidance and editorial assistance in the production of this Comment.
The death of a species is profound, for it means nature has lost one of its components, which played a role in the interrelationship of life on earth. 1
Though the search for extraterrestrial intelligence may take a very long time, we could not do better than to start with a program of rehumanization by making friends with the whales and the dolphins.... They have behaved benignly and in many cases affectionately towards us. We have systematically slaughtered them. 2
Although man has manifestly believed himself to be the highest intelligence on the earth, scientists have speculated that the great whales, mammals with brains six times the size of man's, are beings with higher than human intelligence. 3 The behavioral similarities between whales and man have long been established by the scientific community, and these similarities have raised considerable concern about man's reluctance to allow these creatures to live beside us unharmed. The Federation of American Scientists has noted that, "there is a good deal to be said for empathizing with whales, as the area of the whales brain associated with the control of emotion is equally well developed to that of man." 4 Additionally, whales, like man, communicate with others of their same kind in a language which has been described as an "abstruse mathematical poetry." 5 And unlike man, whose ability to communicate with other species is rudimentary at best, whales have developed interspecies communication with other sea creatures such as dolphins. 6 Like man, whales care for their young and the young reciprocate affection after being reared and finding independence from their mothers. 7 Whales are social animals who live in large groups, and some species live monogamous lives, taking only one mate. 8 Documented evidence exists of incidents in which a whale is harpooned and taken ashore and its mate has lingered, waiting offshore for days, and sometimes weeks before departing out to sea. 9
All of the scientific evidence gathered about whales has led to serious questions regarding the morality of killing such beings. If whales are, as scientists believe, sentient, intelligent beings who, like man, can feel pain and suffering, is it just to destroy such animals? This question has been addressed repeatedly by both international and American scientists, commissions, and courts. Although both the International Whaling Commission and American scientists share in the belief that whales should be preserved, this sentiment is not shared by all developed nations. More specifically, Japan has repeatedly denied the right to life of all species of whales, including those most endangered by extinction, emphasizing their country's long history and important involvement in the whaling industry as well as the need for whale meat as a vital source of protein for the peoples of Japan. 10 As a result of Japan's stance on whaling, international and American parties have sought to influence Japan to assume a more positive stance on the preservation of whales. Although this confrontation has resulted in intense conflict between conservationists and the Japanese government, which insists on maintaining its historical position regarding whaling, it is the whales who have suffered. Each piece of legislation, and each international declaration which is enacted to preserve whales through the punishment of those who unjustly hunt these creatures has dealt a hollow blow to Japan.
This Comment will examine the failures of both the International Whaling Commission and American legislation to adequately protect the great whales. The Comment will first present a brief exposition of the historic underpinnings of the whaling industry and Japan's long-standing opposition to whale preservation. Next, the specific goals of the International Whaling Commission will be analyzed and the reasons why these goals have not been achieved will be detailed. The Comment will then look closely at the loopholes within two pieces of American legislation designed to protect whales, the Packwood-Magnuson Act and the Pelly Amendment to the Fisherman's Protection Act of 1967, and how the Supreme Court effectively harpooned any chances of the whales' continued existence with its ruling in the instrumental case, Japan Whaling Association v. American Cetacean Society. The Comment will then conclude with an analysis of possible measures which would effectively strengthen the present legislation and finally guarantee the preservation of these unique and vital animals.
I Historical Whaling Practices and the Emergence of the Preservation Movement
Whales spend the majority of their lives on the high seas, an area in which resources are openly available to all nations. 11 As a result, for hundreds of years, whales were considered a "free resource, a gift from nature available to anyone who would hunt and kill them." 12 Thus, whaling went unregulated for centuries, resulting in the enormous depletion of many whale species. It was not until 1931, when the recognized threat of the extinction of various whale species became imminent, that the international community began to initiate legislation designed to limit the taking of whales. 13
American involvement in the whaling industry was short lived in comparison to many other whaling nations. America entered the whaling industry in the late eighteenth and early nineteenth century, and whaling became a viable industry primarily on the Eastern seaboard throughout the first half of this century. 14 This industry was not to last. With the emergence of the petroleum industry, the whaling industry, long a source of oil for the American people, gradually came to an end as whale oil was replaced with the more abundant and more easily acquired petroleum. 15 Thus, the American whaling industry effectively ended at the beginning of the twentieth century. 16
In contrast, Japan, a nation which began whaling centuries before the United States, continues to practice commercial whaling to the dismay of the international community. The whale is of great cultural importance to Japan as both an economic resource and as a necessary food source. 17 Although the modern Japanese do not consume the same amount of whale meat as they did in the past, the historical underpinnings of the industry appear to support Japan's current position that this industry remains vital to both the Japanese people and economy. As Jay Hasting, a speaker on behalf of the Japan Fisheries Association has argued, "it is true most Japanese don't eat whale meat .... But for certain coastal communities, whales and whaling have been a part of the culture for 1,000 years." 18 Today, many Japanese concede that the current whaling industry is maintained not for the necessity of the meat to the Japanese diet, but rather for the profit which can be made from the selling of whale meat to wealthy restauranteurs in Tokyo for preparation for their upscale clientele. 19 Fishermen from the coastal areas of Japan have asked if they, like their industrial fishing counterparts, again returned to whaling, "would it be to preserve our whale culture, or would it be for profit motive?" 20 Still, Japan remains firmly entrenched in its historical principles and is today the single most visible and outspoken opponent to any form of environmental preservation of the whales. 21
Historically, whaling nations agreed to set harvesting quotas for whales in hopes of protecting each whaling nation's economic necessity of whales. 22 However, as the whaling industry began to see increased profitability in harvesting whales and more modern technology was developed, these quotas became ineffective in preserving and maintaining the whale stocks and severe decreases occurred in many whale populations. 23 It has been asserted that the "rapid decline of whale populations during this century is dramatic evidence of the power of human technology to affect the environment on a global scale." 24 More whales were killed in the first forty years of the twentieth century than in the previous four hundred years. 25 This enormous increase in the harvesting of whales was directly related to the rapidly advancing technology which was being implemented in the whaling industry. 26 Technology first developed by Norway, such as steam-powered catcher boats, gun-fired harpoons, compressed air pumps used to keep dead whales from sinking to the ocean floor and modern ships with the ability to process the great mammals on board, all combined to result in a modern whaling industry with unprecedented killing efficiency. 27 As a result, the whale populations of the world rapidly declined.
In response to the international community's awareness of the increasingly endangered status of the world's whale populations, a Convention for the Regulation of Whaling was convened in 1931 to attempt to put a halt to the unregulated harvesting of whales. 28 Subsequently, in 1946, the International Convention for the Regulation of Whaling (ICRW), created the International Whaling Commission (IWC) with the dual goal of assisting in the orderly practices of the whaling industry and in preventing any species of whale from becoming endangered due to over fishing. 29 Additionally, the IWC has the power to set harvest quotas and determine in which seasons whaling will be allowed, as well as to conduct research and monitor the compliance of member nations with the IWC's regulations. 30
However, the IWC lacks the power necessary to properly enforce its regulations. Within the IWC's structure is an "opt-out" provision which enables any member nation that believes the set quotas and regulations are improper to elect not to abide by the IWC's rules. 31 In response to the IWC's inability to enforce its own regulations and quotas, conservation groups lobbied Congress to enact legislation which would put teeth in the IWC's regulations and truly protect the whales by giving the IWC the power to police members. 32 In 1971, Congress passed the first instrumental piece of legislation which sought to preserve whales. This protective legislation, known as the Pelly Amendment to the Fisherman's Protection Act of 1967, authorizes the Secretary of Commerce to certify a country as being in violation of the Act if the Commerce Secretary investigates and discovers that the country is diminishing the effectiveness of the conservation program. 33 Once a foreign country is certified, the President may then, at his discretion, take action. The President shall notify Congress of any action taken pursuant to the certification. 34 However, even though the Secretary of Commerce had, by 1978, certified countries on four occasions, not one of these certifications resulted in the President imposing sanctions on the violating country. 35 Rather than impose sanctions, the President used the threat of sanctions as a bargaining chip to gain promises of future compliance by violating nations. 36
Congress became frustrated with the delays in imposing sanctions and with promises of future compliance which were not kept. As a result, in 1982, Congress passed supplemental legislation designed to compliment the Pelly Amendment. This legislation, known as the Packwood-Magnuson Amendment, removed the President's discretion to impose sanctions following a country's certification by the Secretary of Commerce. 37 Thus, Congress sought to strengthen the certification process by stating that certification under the amendment automatically resulted in sanctions being handed down to the offending nation. Therefore, by removing the President's discretion to sanction an offending nation, the certification process was expedited. Consequently, it was hoped that this newer, more effective process of certification would successfully curtail illegal whale harvesting. 38
Nevertheless, the recognized results and impact of this amendment have been less than favorable. Congress's goal in enacting the Amendment, the quick response to violations of IWC regulations with the imposition of sanctions, did not come to pass. This is most evident in the recent Supreme Court ruling in Japanese Whaling Association v. American Cetacean Society, in which the Court found that a taking of whales in violation of the quotas set forth by the IWC was not, in effect, a clear "diminishing of the effectiveness" of the IWC. 39 Much to the dismay of environmentalists, the Court, in reversing both the district court and the court of appeals, interpreted the language of the Amendment, which directed that certification would result if an offending nation was determined to have "diminished the effectiveness," to not mean that the mere taking of whales in excess of IWC quotas would result in such certification. 40 Thus, because the Supreme Court determined the Secretary still had discretion in terms of certification, exceeding the quotas and regulations of the IWC did not clearly and decisively result in a certification by the Secretary. This decision effectively removed any hope in using economic threats to assist in gaining the compliance of Japan and other whaling nations with the IWC quotas.
Although many believe that current figures overestimate how many whales remain, the estimated numbers speak to the unprecedented damage that was imposed upon the world's whale populations. Prior to the whaling industry, more than 3.9 million whales swam in the world's oceans. 41 By 1975, the population was estimated at approximately 2.1 million animals. 42 Moreover, recent evidence suggests a drastic underestimation of the current numbers of existing animals. For example, a stunning revelation occurred in 1994 when a former scientist for the Soviet Fisheries Ministry revealed long-hidden documents which detailed enormous discrepancies between the number of whales claimed to have been killed in comparison to the actual numbers taken. 43 "For example, from 1948 until 1973, the Soviet Union killed 48,477 humpback whales rather than the 2,710 it officially reported to the IWC." 44 As Ray Gambell, President of the International Whaling Commission, stated, "we knew there was a black hole in our calculations which did not make sense. Now we know that thousands of whales we thought were protected have been systematically slaughtered." 45 Similarly, the finger has been pointed at Japan, a recipient of some of the Soviet's illegally harvested whale meat, and some speculate that Japan is also not abiding by IWC quotas. 46
Current evidence appears to support that past international and American efforts have been ineffective in stopping the over harvest of all species of whales. These international and American legislative failures must be re-examined if the world community truly seeks to protect these animals. Accordingly, this note will examine in detail the IWC, the Pelly Amendment, and the Packwood-Magnuson Amendment and analyze the Supreme Court ruling which rendered the Packwood-Magnuson Amendment ineffective in carrying out the goals of Congress to preserve and protect the whales.
II Theoretically Sound, Structurally Flawed: The Ineffectiveness of the IWC
Established by Article III(1) of the International Convention for the Regulation of Whaling on December 2, 1946, the IWC has a conflicting dual role of both regulating the whaling industry and preserving the whales regardless of economic demands. 47 Consequently, these conflicting roles can often be seen as the cause for much of the ineffectiveness of the Commission itself, resulting in a body whose decisions are based on sound scientific principles, but which fulfill neither objective effectively.
Although the IWC has played an important role in the international effort to protect whales from extinction, many of its rules have left it without the weapons to enforce its own regulations. Violators of IWC regulations and quotas have little to fear. 48 Throughout the IWC's forty-seven year history it has consistently received unfavorable reviews, primarily because of its inability to fully enforce its own rules. 49 As a result, nations may, by threatening to object to the IWC's restrictive amendments, coerce the IWC into adopting a weaker position by leading the Commission to believe that some conservation is better than no conservation at all. 50
First, any country that disagrees with the IWC's quotas may, by filing a timely objection, exempt itself from following these set quotas, and the country is then not bound by any restrictions on the number of whales it harvests. 51 Therefore, as a typical international regulatory body, the Commission has extremely limited power in terms of actual regulation. 52 For example, in 1983, the Commission set a five-year moratorium on all commercial whaling beginning in 1985 in an effort to facilitate the regeneration of the depleted whale stocks and to allow the scientific community adequate time to accurately assess the whale populations. 53 Japan, along with the Soviet Union and Norway, objected to the moratorium and filed timely objections. 54 As a result, the IWC was powerless to enforce its moratorium against these nations.
Second, although many nations demanded more research be performed prior to the imposition of a moratorium or quotas limiting the harvesting of specific types of whales, this research was rarely accomplished. 55 To exacerbate the problem, current scientific methods used to determine the viability of the whale stocks were imprecise and often inaccurate, and thus, there was little in the way of scientific support for the imposition of such restrictions. 56 As Dr. L. Talbot, former Senior Scientist with the Council for Environmental Quality, stated: "'What data exists [sic] are questionable in many aspects, fragmentary, and at best, highly speculative. Information on the marine ecosystem necessary for any real understanding of living whales is almost totally lacking.'" 57
Because then-current scientific methods were unable to assess the current whale stocks with any real precision, many nations either objected to the moratoriums or threatened to leave the IWC. 58 Consequently, these problems with scientific data impaired the IWC's ability to effectively regulate whaling through the imposition of moratoriums or quotas. Viewing the scientific data as less than accurate, the Commission was reluctant to impose restrictions upon whaling nations such as Japan. The Commission believed that the scientific data did not accurately reflect the current status of whale stocks and thus any restriction was scientifically unfounded. 59 As a result, whaling nations exploited the differences of opinion which existed in the scientific community to justify continued whaling practices.
Lastly, the rules of the IWC only allow restrictions on the harvesting of whales for "commercial purposes." 60 While the IWC can examine each request for research whaling to determine whether or not the request meets the minimum requirements for such harvesting, and the Commission may approve or disapprove of these takings, the legality of harvesting whales under the guise of "scientific research" is not affected by the International Whaling Convention. 61 Accordingly, one of the largest issues regarding the IWC is the harvesting of whales for so called research purposes.
While both Japan and Iceland continue to exploit this loophole in the name of "scientific research," it is Japan which is drawing the most international attention. 62 Japan has made repeated requests to kill enormous numbers of whales for what it claims are scientific purposes. 63 For example, although Japan agreed to end its commercial whaling under the moratorium guidelines, in 1987 alone, Japan proposed to the IWC that it be allowed to kill almost 900 whales for the purpose of research. 64 This would allow Japan to side-step the U.S.-Japan executive agreement under the guise of scientific research. 65 The IWC immediately rejected this figure, and when Japan countered with a proposal of 300, the Committee likewise rejected this request. 66 Although the requests were immediately rejected, they have drawn wide criticism. Critics have pointed out that a single whale, by its sheer size, would "overwhelm any modern scientific research laboratory, providing enough material to keep a team of scientists busy for months." 67 Nonetheless, it is estimated that more than 600 great whales were slaughtered in 1990 under the guise of various "scientific research" programs. 68
In conclusion, the various loopholes within the IWC render the Commission's regulations and imposition of quotas meaningless. Without enforcement provisions, the IWC has little control over the most damaging practices of the most active whaling nations. The IWC's inability to impose penalties against nations has not curtailed harvesting of whales in excess of IWC quotas and, as a result, whale stocks continue to plummet throughout the world. 69 As it currently stands, the IWC has had little impact on the protection of the great whales and the failure of the Commission to affectively preserve these animals can be traced to flaws within the IWC itself. As one author pointed out:
The whole story is a sad one. The body set up to protect whale stocks failed to do so ... although actions it took certainly retarded the slaughter. But it is difficult to see what other course of action the IWC could have taken .... Unpopular proposals were received with threats to withdraw from the Convention and these threats were put into effect on more than one occasion. Compromise was the price paid for whaling to continue.... 70
Thus, without additional support through the passage of legislation by countries opposed to the needless slaughter of the whales, the IWC remains wholly ineffective. Like a sheriff without a gun, the IWC is unable to enforce what it views as the lawless and unnecessary slaughter of whales because its hands are tied by its own rules and regulations.
III American Legislation: A Failed Attempt to Put Teeth in the IWC
The United States has taken a position of leadership in efforts to protect the great whales. Accordingly, the U.S. Congress has passed several key pieces of legislation designed to protect marine mammals and ensure compliance with the IWC's regulations. 71 Because the IWC has no enforcement power, the primary legal provisions which regulate international whaling are contained in U.S. domestic law. 72 Consequently, the effectiveness of the IWC can be directly linked, in large part, to the United States' willingness to support the IWC unilaterally through domestic legislation. 73
The United States has enacted two primary pieces of legislation which are designed to put teeth in the IWC by providing enforcement power through the use of import and fishing sanctions if a whaling nation violates the regulations and quotas set forth by the Commission. Specifically, the United States, in an effort to promote the enforcement of fishing quotas of international fishery programs, enacted both the Pelly Amendment to the Fisherman's Protective Act of 1967 and the Packwood-Magnuson Amendment to Magnuson Fishery Conservation & Management Act of 1976 (Packwood-Magnuson Amendment). 74
Despite the passage of the Pelly Amendment, the President, who has the discretion to sanction violating nations, has not sanctioned a single nation for quota violations since the Act's passage in 1971. 75 Additionally, the United States Supreme Court has interpreted the Packwood-Magnuson Amendment in a manner which has done little to strengthen the United States' and IWC's goal of preserving and protecting the great whales. For example, although legislative intent appeared to be clearly focused on the mandatory certification of a nation that killed whales in excess of the IWC's limits, the Supreme Court interpreted the Packwood-Magnuson Amendment as not clearly imposing such a requirement. 76 Thus, although the United States has for the past ten years sought to establish a global moratorium on commercial whaling, the pursuit of this goal has been difficult and often fraught with failure. An analysis of these two pieces of legislation and the Supreme Court's interpretation of the language in these acts is necessary to have a clear understanding of the intentions of the United States' legislature and the subsequent failures of these pieces of legislation in regards to strengthening the IWC's purpose in protecting the whales from the threat of extinction.
A. The Pelly Amendment
Although the Pelly Amendment was originally designed to stop nations from taking Atlantic Salmon on the high seas, 77 the scope of this legislation now encompasses the protection of all species of fish, including threatened or endangered species such as whales. 78 Under the Pelly Amendment, if the Secretary of Commerce determines after investigation that a foreign country is conducting fishing operations in a manner which "diminishes the effectiveness" of the international conservation program, the Secretary must certify this fact to the President. 79 Following certification, the President may then direct the Secretary of Treasury to prohibit the importation of fish from the violating nation. 80 The key word in this section of the Amendment is "may." 81 The use of the word "may" implies that any decision by the President is discretionary. Thus, the President may decline to impose any restrictions and merely use the threat of sanctions to gain the compliance of the offending nation. 82
As a result, despite the certification in November 1974 of both Japan and the Soviet Union regarding whale harvesting activities, and the fact that the United States was outraged at these countries' taking of whales in excess of the IWC's quota, President Ford declined to take action and did not impose trade sanctions. 83 Similarly, in 1978, the United States certified Chile, Peru and the Republic of Korea for violating the quotas set by the IWC. 84 Nonetheless, President Carter, who received the certification demonstrating that these countries were diminishing the effectiveness of the IWC and the International Whaling Convention, declined to impose any sanctions. 85
These examples serve to illustrate the inadequate impact the Pelly Amendment had in preventing whaling nations from exceeding the IWC's quotas. As a result, in 1979, Congress, dissatisfied with the President's apparent reluctance to impose sanctions against violating nations, enacted the Packwood-Magnuson Amendment to the Fishery Conservation and Management Act of 1976. 86
B. The Packwood-Magnuson Amendment to the Fishery Conservation and Management Act of 1976 87
The failure of the President to impose import restrictions in each of the above situations, when these countries were clearly diminishing the effectiveness of the IWC, led to the passage, of the Packwood-Magnuson Amendment. 88 Following a review of the Pelly Amendment's perceived failures in preventing whaling countries from killing whales in excess of IWC quotas, Congress determined that too much discretion existed in the Pelly Amendment process and advocated instead that these deficiencies could be corrected by providing for mandatory sanctions upon certification. 89 The Packwood-Magnuson Amendment was specifically passed to remedy these past problems and "provide automatic and more severe economic sanctions by the United States against countries that do not abide by IWC whaling quotas." 90
Unlike the discretionary measures imposed under the Pelly Amendment, the Packwood-Magnuson Amendment requires that upon certification, the Secretary of State must immediately reduce fishing allocations in U.S. waters. 91 Under the Pelly Amendment, the Secretary of Commerce determines if a country is conducting fishing practices, such as whaling, in a manner which diminishes the effectiveness of the IWC. 92 If the Secretary makes such a finding, the country is deemed to be certified under the Pelly Amendment, and subsequently, the Secretary of State must then reduce fishery allocation by the required fifty percent or more. 93
Although the passage of the Packwood-Magnuson Amendment was designed to support and strengthen the IWC's enforcement of its imposed quotas, the U.S. States Supreme Court, in its interpretation of this Amendment, determined that the legislature did not intend to certify countries which merely exceeded IWC quotas. 94 In Japan Whaling Ass'n v. American Cetacean Society, the Supreme Court determined that the Secretary of Commerce was not required to certify those countries who harvested whales in excess of the quotas set by the IWC. 95 Thus, the Supreme Court's determination effectively removed any bite that the Amendment had with regard to punishing those nations who chose to kill whales in excess of IWC imposed limits. Once again, those nations who chose to violate whale conservation programs were free to do so without fear of impunity from the United States and once again the whales were swimming the world's oceans without the adequate protections hoped for by the United States and the IWC. The Supreme Court's decision in Japan Whaling drew criticism from many environmentalists as well as legislators who felt that the Court went against the clear intent of the Congress in rendering its decision. 96 This argument stems largely from the enormous amount of legislative history surrounding the Amendment's enactment and the concern legislators had in passing this legislation. Thus, an analysis of the Supreme Court's decision is necessary to clearly understand the Supreme Court's decision, not only in terms of the Court's rendering of a decision which was clearly contrary to the will of Congress, but also its effect on the IWC's goals of preservation and protection of the great whales.
IV JAPAN WHALING ASSOCIATION V. AMERICAN CETACEAN SOCIETY: Congressional Intent or Faulty Reasoning?
A. Background of the Dispute
Beginning in 1981, the IWC, realizing that the North American Sperm Whale had been dangerously over-fished, provided a zero quota for this species of whale. 97 With twenty-six member countries casting votes in this decision, only Japan objected to this quota. 98 Subsequently, in 1982, Japan, who had filed a timely objection to the quota set in 1981, was successful in petitioning the IWC to revise the zero quota limit for both the 1982 and 1983 seasons. 99 However, in 1982, the IWC, after conceding to lift the zero quota limit, decided to implement a five-year moratorium on all whaling beginning with the 1985-1986 season. 100 Japan, realizing that although it could object to such a proposal and not be legally bound by this decision, recognized that the United States would sanction Japan under either the Pelly or Packwood-Magnuson Amendments if Japan decided to hunt whales in objection to the moratorium. 101 Such sanctions would have cost Japan approximately $ 230 million in fishing revenues. 102 In 1984, Japan initiated an exchange of letters between then Secretary of Commerce, Malcolm Baldridge and Yasushi Murazumi, Charge d'Affaires ad interim of Japan. 103 Following intense negotiations, Japan agreed to limit its catch of sperm whales and other whale species and cease all commercial whaling by 1988. 104 In return, Secretary Baldridge agreed not to certify Japan under either amendment as long as this promise was kept. 105 Therefore, under this agreement, Japan was allowed to violate quotas until 1988 and to retain full fishing rights within the United States' 200 mile fishing zone. 106
1. The District Court Opinion
Secretary Baldridge's decision did not go unnoticed by environmental groups. They were watching closely to see if the United States would finally and for the first time, impose sanctions upon Japan for flagrantly violating the quotas set by the IWC. When Baldridge entered his decision a consortium of conservation groups who had long been opposed to whaling filed suit in the district court seeking a writ of mandamus which would compel Secretary Baldridge to certify Japan. 107
The plaintiffs argued that the whaling accord entered into between Japan and Secretary Baldridge disabled the IWC as an effective organization for protecting the whale. 108 Additionally, the plaintiffs cited language in the Packwood-Magnuson Amendment itself which is significantly stricter than the Pelly Amendment. This language in the Packwood-Magnuson Amendment supports the interpretation that a quota violation should equate to a certification for diminishing the effectiveness of the IWC. 109
Additionally, the plaintiffs cited Adams v. Vance, 110 a case in which Alaskans protested an IWC decision to allow a small allocation of endangered bowhead whales to be killed by Alaskan natives pursuant to a subsistence quota. Following the protest, the subsistence quota was revoked. 111 The United States did not file an objection to the IWC quota, although it had a right to do so. It realized such an objection would result in the taking of a small number of bowheads, and even the smallest of takings would weaken the IWC's and the United States' role in the IWC's efforts to save the whales. 112 Thus, the United States realized that even a small taking of these whales would diminish the effectiveness of the IWC's goal of whale conservation and have a devastating impact on the Commission as a whole. 113
Judge Charles Richey of the District Court of the District of Columbia granted the plaintiffs' requested relief and ordered Secretary Baldridge to certify Japan. 114 Judge Richey reasoned that a failure to certify would be a direct contradiction of Congress's intent regarding this issue, as Japan's whaling in excess of IWC quotas necessarily diminished the effectiveness of the fishery conservation programs. 115 The Secretary lacked the discretion to negotiate this matter and avoid certification through arrival of a separate agreement. 116 Thus, the writ of mandamus was proper in this circumstance. 117 Following this determination, the defendants appealed.
2. The Circuit Court of Appeals Decision
On appeal, the Court of Appeals for the District of Columbia, in a two-to-one decision, affirmed the District Court's decision. 118 Conducting a de novo review, the court recognized that any violation of an IWC quota would automatically trigger sanctions. 119 Such a finding was, as the court pointed out, clearly as Congress had designed. 120 Congress's intent was clear, according to the court, given the abundance of legislative history which supported such a finding. 121 The court conducted an examination of two principal issues: first, whether a violation of an IWC quota necessarily diminished the effectiveness of the fishing conservation program, 122 and second, whether certification following a violation was a discretionary matter which could be decided by the Secretary of Commerce. 123
Following an examination of the legislative history of both the Pelly and Packwood-Magnuson Amendments, the United States Court of Appeals for the District of Columbia Circuit determined that, although the Secretary may have discretion in certifying under other circumstances, certification for violations of IWC quotas is mandatory. 124 As the court stated, "we see no indication that Congress was either aware of or acquiesced in such a practice" of the Secretary "determining when actions 'diminish the effectiveness' of the international programs." 125 In making such a decision, the majority rejected what would become the central focus of the subsequent Supreme Court decision, whether or not mere harvesting in excess of IWC quotas was sufficient to be found as "diminishing the effectiveness" 126 of the fishery conservation program, or as the dissent advocated, that Congress only intended to require certification when a country "flagrantly" violated an international conservation program. 127 Thus, on appeal, this issue was to become the main subject of a sharply divided Supreme Court.
3. The Supreme Court Decision
(a) The Majority Decision
Writing for the majority of a divided Court, Justice White, in a much criticized decision, reversed the lower courts. 128 The central question in this case was again, "whether in the circumstances of these cases, either the Pelly or Packwood Amendment required the Secretary to certify Japan for refusing to abide by the IWC whaling quotas." 129 The statutes do not define the words "diminish the effectiveness" and the Secretary is left without specific factors to consider in making a determination on whether a specific action does "diminish the effectiveness" of fishing conservation programs such as the IWC. Thus, Justice White found that "the courts below and the respondents concede, the statutory language itself contains no direction to the Secretary automatically and regardless of the circumstances to certify a nation that fails to conform to the IWC whaling schedule." 130
In reaching this decision, the Court, in addition to looking at relevant statutory language, reviewed the legislative history of both the Pelly and Packwood Amendments and determined that there may be scattered statements hinting at the per se rule advocated by the respondents, but read as a whole, we are quite unconvinced that this history clearly indicates, contrary to what we and the Secretary have concluded is a permissible reading of the statute, that all departures from IWC schedules, regardless of the circumstances, call for immediate certification. 131
The Court focused primarily on a single statement made by Rep. Pelly in his testimony before the Senate. It also considered a statement made by Rep. Breaux on the floor of the House of Representatives. Rep. Pelly stated sanctions were to be applied "in the case of flagrant violation of any international fishery conservation program to which the United States had committed itself." 132 Additionally, Rep. Breaux stated that:
I understand that under the Pelly Amendment ... there are really two areas in which there are optional actions that can be taken by the administration. First, in certifying that a country is in violation of some international agreement, ... and second, after the nation is certified, there is still discretion in determining whether a ban on imports of that country's products will in fact be imposed against that country. 133
These statements operated as vital factors in the Court's determination that, absent clear statutory language, certification was only mandatory when the violating nation committed a flagrant violation. In reaching this conclusion, the Court acknowledged that the language of both the Pelly and Packwood Amendments could reasonably be construed to mean that those countries who exceeded IWC quotas would automatically be sanctioned, but the Secretary's construction that there are circumstances in which certification may be withheld despite exceeding IWC quotas is also a reasonable construction of both of the statutes. 134
(b) The Dissent
Justice Thurgood Marshall, joined by Justices Brennan, Blackmun and Rhenquist, resolutely dissented from the majority opinion. Justice Marshall found that "the Court has misunderstood the question posed by the case before us, and has reached an erroneous conclusion on a matter of intense worldwide concern." 135 Justice Marshall further determined that the majority "now renders illusory the mandatory language of the statutory scheme, and finds permissible exactly the result that Congress sought to prevent in the Packwood Amendment: executive compromise of a national policy of whale conservation." 136
To support his conclusion, Justice Marshall cited the lengthy legislative history which discussed the mandatory application of certification if a nation chose to continue commercial whaling after the IWC moratorium takes effect. 137 This same legislative history, Justice Marshall stressed, was also cited in the appellate court's decision. The appellate court found, as did Justice Marshall, that the sole statement of Rep. Pelly that flagrant violations would lead to certification, only provided an example of mandatory certification. This statement did not mean, Justice Marshall reasoned, that continued commercial whaling after the moratorium was, in effect, an action which would allow the Secretary discretion on whether certification was proper. 138 Moreover, although Justice Marshall conceded that the House Report statement that "'an isolated, individual violation of a convention provision will not ordinarily warrant certification under this section,'" is respectable authority granting the Secretary some discretion to ignore de minimis violations, he further found that this argument had no bearing on the cases in which Japan's taking of whales was clearly "flagrant, consistent, and substantial." 139
Additionally, that the Secretary had negotiated future compliance, was, as Justice Marshall found, irrelevant to the certification scheme under the Packwood Amendment. 140 As Marshall stated:
But the regulation of future conduct is irrelevant to the certification scheme, which affects future violations only by punishing past ones. The Secretary's manipulation of the certification process to affect punishment is thus an attempt to evade the statutory sanctions rather than a genuine judgment that the effectiveness of the quota has not been diminished.... Indeed, the Secretary's compromise in these cases is precisely the type of action, previously taken by the President, that led Congress to enact the mandatory sanctions of the Packwood Amendment. 141
Thus, Justice Marshall, finding that "there can be no question but that the Secretary has flouted the express will of Congress," chose to affirm the judgment of the court of appeals. 142
V Legislative History of the Pelly and Packwood-Magnuson Amendments
In both the appellate court decision and the Supreme Court's judgment, much of the analysis focused on the House and Senate committee reports regarding the intent of Congress with respect to the critical language of the statutes. Primarily, the courts sought to determine exactly what Congress intended when it considered the terms "diminish the effectiveness" in both the Pelly and Packwood Amendments.
Although the majority of the Supreme Court determined that some discretion existed regarding the Secretary's choice to certify nations who exceeded IWC quotas, an analysis of the legislative history reveals the contrary. Throughout the discussions surrounding the enactments of these two pieces of legislation, members of both the Senate and House repeatedly stated that fishing in excess of internationally set quotas would per se "diminish the effectiveness" of a conservation program, and thus certification was required if such an act occurred. Such a determination is clearly correct when the very statements of Secretary Baldridge himself in discussing the Packwood Amendment with Senator Packwood are considered. This discussion, among others, clearly illuminates Congress's intent that any nation who exceeds such IWC quotas would indeed be subject to mandatory certification and subsequently, sanctions. Additionally, these House and Senate reports counter and contradict the faulty reasoning of the majority of the Supreme Court. Simply put, the Court arrives at a result which is clearly contrary to the intention of Congress.
For example, although Secretary Baldridge argued that Congress intended that he have broad discretion regarding certification of violating nations, 143 several statements made by Sen. Packwood to Secretary Baldridge and Secretary Baldridge's subsequent responses to Sen. Packwood support automatic certification for harvesting in excess of the IWC's quotas. As Sen. Packwood stated:
It has been assumed by everyone involved in this issue, including the whaling nations, that a nation which continues commercial whaling after the IWC moratorium takes effect would definitely be certified. I share this assumption since I see no way around the logical conclusion that a nation which ignores the moratorium is diminishing the effectiveness of the IWC.... What I am asking Mac, is that you provide me with an assurance that it is the position of the Commerce Department that any nation which continues whaling after the moratorium takes effect will be certified under Packwood-Magnuson. 144
In response, Secretary Baldridge expressed his agreement with Sen. Packwood's assessment of the Amendment and its intended purpose:
You noted in your letter the widespread view that any continued commercial whaling after the International Whaling Committee (IWC) moratorium decision takes effect would be subject to certification. I agree, since any such whaling attributable to the policies of a foreign government would clearly diminish the effectiveness of the IWC. 145
Thus, as Justice Marshall pointed out, the Secretary's argument that he should have broad discretion regarding the certification process is clearly inconsistent with these statements. Moreover, and more critically, "the secretary, [in this case,] would rewrite the law." 146
Sen. Packwood's summary of the projected operation of the proposed amendment illustrates that certification was mandatory if the IWC's conservation program was to be at all effective:
The core of the Packwood-Magnuson Amendment is simply that any foreign nation which directly or indirectly conducts whaling operations or allows its nationals to conduct whaling operations or engage in trade in whale products in disregard of the conservation regulations of the International Whaling Commission shall be denied access to the rich fishery resources of our two hundred-mile zone....
....
The reason that this amendment will be so effective is because it is going to force Japan and Russia, which are the two principal violators of the International Whaling Commission regulations, to choose between the continued taking and/or buying of illegal whale meat, to choose between that privilege and the privilege of fishing in our 200-mile zone. The privilege of fishing in our 200-mile zone is an infinitely superior economic privilege and any country in its right mind when forced to the decision between fishing in the 200-mile zone and giving up illegal whaling is going to give up illegal whaling. This amendment would have the effect of forcing that decision, and it is probably the most significant step this country can take toward protecting the remaining whales of the world. 147
Furthermore, several additional statements made during the discussions of the meaning of the Pelly Amendment when considering the Packwood Amendment contribute to the conclusion that mandatory certification was intended by the Congress for violations of the IWC's quotas:
Mr. McCloskey [House of Representatives] ... I do not see where you have any discretion to politely say to the Japanese you are violating our rules, but we will withhold certifying if you will change.... The certification is a mandatory act under the law. It is not a discretionary act. 148
Mr. Frank [Administrator of the National Oceanic and Atmospheric Administration] ... That is correct. 149
In contrast to his earlier statements before the House of Representatives, Rep. Breaux summarized the Administration's representations to Congress by stating, "apparently Dick Frank is saying that the taking of whales in violation of IWC quotas is something that automatically would require the Department of Commerce to certify that nation as being in violation of the taking provision." 150
Therefore, although the Supreme Court found discretion to exist by looking at a statement made regarding flagrant and willful violations of the IWC quotas, such a violation was not the sole form of violation which would require mandatory certification by the Secretary. Such a conclusion is clear when taking into account the abundance of other statements which demonstrate that Congress's intention in passing this legislation was to remove the discretion of the Secretary and make sanctions a real threat to those nations who chose to violate IWC conservation quotas. As the appellate court and Justice Marshall pointed out, the statements made by Representatives Pelly and Breaux do not, when taken in context of the voluminous statements made by both Senator Packwood and Secretary Baldridge, rebut the fact that Congress's intent was to provide for automatic certification when a country violated the IWC quotas.
As a result, the Supreme Court's decision, which finds that the Secretary has discretion whether to sanction a violating country, allows countries such as Japan to continue to kill whales in total disregard for any conservation measures. Had the Court looked closely at the abundance of legislative history which clearly illustrated Congress's intent, such a flawed conclusion would not have been reached. Thus, contrary to Congress's intent "to remedy all perceived avenues of discretion and to 'put real economic teeth' into whale conservation efforts," 151 the IWC is again left without the intended adequate enforcement measures necessary to assist in the whale's survival.
VI Putting the Teeth Back Into Whale Conservation: Suggestions to Strengthen Current Whale Conservation Measures
A. Reform of Scientific Assessment of Current
Whale Populations
Although "it goes without saying that unregulated whaling is undesirable," 152 the problem is how to rationally and effectively improve existing shortcomings of the present conservation measures. Frequently one of the strongest arguments against the current measures to protect the whales is the lack of accurate scientific evidence to support measures taken by the IWC which are necessary to preserve the whales. Both scientists and supporters of whaling are in agreement that the current state of whale stocks are not being adequately monitored; therefore, decisions to conserve the whales are often based on less than adequate scientific information. Both parties cite the lack of funding by member nations of the IWC as being a major cause of the lack of accurate whale stock assessments. 153 More accurate scientific measures are necessary not only to accurately access the current status of the whales, but to gain compliance of those whaling nations who doubt the necessity of IWC measures. Critics of the current moratorium on whaling have stated that:
The continuation of commercial whaling can also be threatened by management measures that are too restrictive. The most extreme example is a moratorium on all whaling. This is a completely unselective measure. Given the differing status of the various [whale] stocks, and the fact that virtually all those species or stocks that are seriously depleted are already receiving complete protection, there seems to be no scientific justification for a global moratorium. A justification for a complete cessation of whaling can be put forward on aesthetic or moral grounds, but these seem outside the terms of reference of the Commission. 154
As a consequence, "the Japanese view the [current] anti-whaling crusade as lacking scientific support and its crusaders as hypocrites." 155 In complaining about the lack of scientific basis for such a moratorium, Tatsuo Saito, the Japanese Commissioner to the IWC, stated, "There is a constant vote against Japan, even including members who have never attended the commission's scientific committee." 156
The basis for such complaints stems in large part from the inadequate funding for scientific research received by the IWC from its member nations. For example, in 1986, scientific research was only funded by approximately $ 225,000. 157 To further complicate obtaining adequate funding for research, the United Nations Environment Programme (UNEP) has declared that increased international research efforts on whales are needed if UNEP is to support the recommended ten year moratorium. 158 Although this plan of action is endorsed by the Scientific Committee of the IWC, research projects on the whales have not been implemented due to lack of financial commitment by member governments. 159 As has been stressed, "there can be no reasonable solution to management problems as long as disregard for scientific evidence continues. Scientific research is of vital importance and an essential prerequisite to the IWC's Comprehensive Assessment ...." 160
A clear example of disregard for scientific findings occurred in 1991. At the annual meeting, the IWC accepted the findings of the Scientific Committee that approximately 761,000 Minke whales existed in Arctic waters, 87,000 existed in the northeast Atlantic ocean, and that 25,000 Minke whales existed in the north Pacific. 161 Despite the fact that the Scientific Committee determined that 2,000 Minke whales could be harvested yearly without endangering the population, 162 the IWC voted to "maintain the blanket moratorium on whaling, noting that formulas for determining allowable catches had not yet been adequately evaluated." 163 Japan, perhaps correctly, "berated the IWC for 'ignoring the finding of its own Scientific Committee [sic].'" 164
To ensure the compliance of whaling nations such as Japan, the IWC must accurately access the status of whale stocks and make justifiable determinations regarding future whaling based on these findings. To do so, the IWC would require increased funding from its member nations since the IWC is desperately under funded. Without more accurate assessments of the status of the whales, whaling nations such as Japan have little respect for the IWC's decisions and view its actions as arbitrary. Japan's lack of respect for the IWC stems primarily in part from Japan's view that any suggestions made by the IWC with regards to moratoriums on whaling is founded on inaccurate assessments of current whale species populations. 165 Consequently, they charge the United States and other anti-whaling countries with turning the opposition to whaling into a religion.
In order to justify the IWC's decision making, more accurate scientific research is needed. Funding for such research could be gained by imposing additional membership fees upon member nations of the IWC as it is in the interest of both whaling and non-whaling countries that accurate assessments of the whales be obtained. Accurate assessments would provide the necessary support for the imposition of quotas. Moreover, whaling nations such as Japan and Norway would benefit most from improved research, as accurate assessments of the whale stocks may lead to a lifting of the moratorium and new management practices regarding whale harvesting.
B. Economic Sanctions
Although the United States has not sanctioned Japan in the past, the Packwood-Magnuson Amendment may finally have a real impact upon Japan. Under the Packwood-Magnuson Amendment, Japan was certified by the late Commerce Secretary Ronald H. Brown for Japan's taking of Minke whales on December 11, 1995. Such certification could lead to some form of sanctions against Japan for violating the IWC quotas. 166 Specifically, a minimum level of fifty percent of the offending nation's import quota would be imposed as a sanction against Japan under the Packwood-Magnuson Amendment. Now that sanctions are likely to become a reality and directly affect the United States relationship with Japan in regards to both future whaling and economic relations, the question arises as to how effective sanctions are in ensuring a whaling nation complies with IWC quotas and what negative effects may result from the imposition of such sanctions.
First, it should be noted that the use of economic force with Japan is a precarious situation with regard to economic relations. In 1987, when Japan decided to conduct research whaling in violation of the IWC's moratorium, the United States sanctioned Japan, but because Japan had a zero quota within the zone, these sanctions were merely symbolic. 167 Today however, the current threat of sanctions may have significant political repercussions.
In the middle of the 1980's, the estimated value of Japan's catch in United States waters was approximately $ 500 million, an estimated fifteen times the value of the whaling industry to Japan. 168 One might believe that sanctions would affect Japan's decision to comply with the IWC moratorium. However, Japan's economic loss must be measured against any loss the United States would incur should the Japanese decide to impose retaliatory sanctions against the United States. It is important to consider that the United States exports approximately $ 1.5 billion worth of fish annually to Japan, an amount Japan has twice threatened to curtail in the past and may do so again if the United States imposes sanctions. 169 Additionally, with heightened tension existing among citizens of Japan and the United States regarding the United States' on-going attempts to secure a long-term extension of U.S. military presence on Japanese soil, any imposition of heavy economic sanctions may lead to a breakdown of our countries shared military and strategic interests. 170
Second, although whaling is a minor industry to Japan, employing only about 1000 workers, Japanese interest in maintaining this industry is strong based primarily on the cultural importance of whales to the Japanese people. As a result, the Japanese have repeatedly chosen to exercise their individual interests in whaling in disregard for any IWC imposed quotas. For example, even though the Japanese have stated that they are abiding by the IWC quotas, scientific evidence appears to suggest otherwise. In 1994, tests conducted on whale tissue samples taken from whales harvested by the Japanese revealed that the Japanese were harvesting protected whales such as the Pacific Humpback and the North Atlantic Fin whale, in violation of IWC quotas. 171 This demonstrates that the Japanese interest in whaling is of greater importance than the numbers of Japanese operating in the business appear to suggest. Although the industry employs few Japanese, this belies the fact that Japan is still, after over 1000 years, deeply committed to whaling as a cultural practice.
Therefore, although sanctions may have some negative effect on Japan, the retaliatory effect on the United States could be much worse. Additionally, as has already been observed over the past three decades, Japan is deeply committed to maintaining some level of commercial whaling regardless of the anti-whaling sentiment which currently prevails. Although it has yet to be seen just how the current sanctions will unfold, unless they have more than a minor economic impact on Japan, it appears that the imposition of sanctions may not be the clearest solution to preventing the whales from being harmed.
If these current sanctions actually affect Japan's trade with the United States, and if the United States could elicit the support of other anti-whaling nations such as New Zealand and Australia, then sanctions may coerce Japan into an agreement of future compliance. Only time will tell whether such success may be achieved.
Conclusion
Since its inception in 1946, the IWC has experienced numerous failures in its attempts to protect the great whales. The passage of U.S. legislation has done little to put a bite in the IWC's enforcement process. Both the Pelly and Packwood-Magnuson Amendments provided little in the way of mandatory sanctions if a nation violated IWC quotas. Only recently has Congress's intention in passing these pieces of legislation been realized with the certification of Japan on December 15, 1995. Although it is optimistic to assume that these sanctions will have a dramatic effect on Japan's future whaling practices, such optimism is not warranted when we look closely at the repeated past failures of the IWC and U.S. legislation designed to support the fishery conservation programs.
The United States has and remains the major force in preventing the extinction of the great whales. The United States has both the political as well as economic leverage to protect the whales. Nonetheless, the IWC and the United States still make too many concessions to commercial whaling nations. It is now time, if the United States is serious about saving these animals, to exert increased political and economic leverage on nations who choose not to abide by the IWC's quotas.
The United States should lead the other member states into a commitment of increased funding for research to improve the scientific assessment of the current whale stocks. Only through such measures can whale stocks be maintained and the application of long term policies regarding whale conservation be achieved.
Additionally, the United States and other anti-whaling nations such as New Zealand and Australia should commit themselves to imposing heavy sanctions upon offending nations in hopes of curtailing the illegal takings of whales. Although the United States has been reluctant to certify nations, such as Japan, who clearly diminish the effectiveness of the IWC's fishery programs, it is now time to fulfill the intentions of the Congress when it passed both the Pelly and Packwood-Magnuson Amendments and certify and sanction those nations who violate the IWC's quotas.
Through a combination of such measures, the whales may finally have a chance to recover and survive into the twenty-first century. Although we are just now starting to understand these animals, it would benefit all of us, as creatures of what scientists believe are of lesser intelligence, to respect and protect these animals. The loss of these creatures would mean more than the mere loss of another species for the next generation, it would mean the loss of one of the fundamental components in the interrelationship of life on earth, and to allow such a creature to pass from the earth may have a more profound impact than we have yet to truly understand.
FOOTNOTES:
n1. 116 Cong. Rec. 17,198 (1970) (remarks of Sen. Alan Cranston, expressing his concern and understanding of the importance in protecting endangered species, such as the whale, from extinction).
n2. Carl Sagan, The Cosmic Connection 178-80 (1973), cited in Anthony D'Amato & Sudhir Chopra, Whales: Their Emerging Right To Life, 85 Am. J. Int'l L. 21, 22 (1991).
n3. D'Amato & Chopra, supra note 2.
n4. Tom Regan, All That Dwell Therein: Essays on Animal Rights and Environmental Ethics (1982) (citing a Federation of American Scientists 1977 Public Interest Report).
n5. D'Amato & Chopra, supra note 2.
n6. D'Amato & Chopra, supra note 2.
n7. Regan, supra note 4, at 104.
n8. Regan, supra note 4, at 104.
n9. Regan, supra note 4, at 104.
n10. Lawrence A. Friedman, Legal Aspects of the International Whaling Controversy: Will Jonah Swallow the Whales?, 8 N.Y.U. J. Int'l L. & Pol. 211, 213 (1975).
n11. Id.
n12. D'Amato & Chopra, supra note 2, at 28.
n13. Ronald J. Haskell, Jr., Abandoning Whale Conservation Initiatives in Japan Whaling Association v. American Cetacean Society, 11 Harv. Envtl. L. Rev. 551, 553 (1987).
n14. D'Amato & Chopra, supra note 2, at 29.
n15. D'Amato & Chopra, supra note 2, at 29.
n16. D'Amato & Chopra, supra note 2, at 29.
n17. Friedman, supra note 10, at 213.
n18. David D. Caron, Current Development - The International Whaling Commission and the North Atlantic Marine Mammal Commission: The Institutional Risks of Coercion in Consensual Structures, 89 Am. J. Int'l. L. 154, 161 n.45 (1995) (citing Jay Hastings statement as published in The Seattle Times, May 14, 1993, at A8).
n19. Caron, supra note 18.
n20. Caron, supra note 18.
n21. Andrew J. Siegel, The U.S. - Japanese Whaling Accord: A Result of the Discretionary Loophole in the Packwood-Magnuson Amendment, 19 Geo. Wash. J. Int'l. L. & Econ. 577, 585 (1985).
n22. Haskell, supra note 13, at 554.
n23. Haskell, supra note 13, at 554.
n24. Virginia Curry, Japan Whaling v. American Cetacean Society: The Great Whales Become Casualties Of The Trade Wars, 4 Pace Envtl. L. Rev. 277, 279 (1986).
n25. Id.
n26. Id.
n27. Id.
n28. Benjamin Van Drimmelen, The International Mismanagement of Whaling, 10 U.C.L.A. Pac. Basin L.J. 240 (1991); see also Haskell, supra note 13, at 553.
n29. Haskell, supra note 13, at 555.
n30. Haskell, supra note 13, at 556.
n31. Haskell, supra note 13, at 557 (citing International Convention For the Regulation of Whaling, 62 Stat. 1719 (1946)).
n32. Curry, supra note 24, at 281-82.
n33. 22 U.S.C. 1978(a)(1) (1994).
n34. 22 U.S.C. 1978(b).
n35. Curry, supra note 24, at 283-84.
n36. Haskell, supra note 13, at 560; see also Curry, supra note 24, at 284.
n37. Haskell, supra note 13, at 561.
n38. Haskell, supra note 13, at 561.
n39. Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221 (1986).
n40. Id. at 222-23.
n41. Curry, supra note 24, at 279.
n42. Curry, supra note 24, at 279.
n43. Caron, supra note 18, at 171.
n44. Caron, supra note 18, at 171.
n45. Caron, supra note 18, at 172.
n46. Caron, supra note 18, at 172-73.
n47. Siegel, supra note 21, at 581; Van Drimmelen, supra note 28, at 241.
n48. Van Drimmelen, supra note 28, at 242.
n49. Seigel, supra note 21, at 582 n.30.
n50. Friedman, supra note 10, at 218-19.
n51. Curry, supra note 24, at 281 (the Commission was opened for signature by the International Convention for the Regulation of Whaling on Dec. 2, 1946, 62 Stat. 1716, T.I.A.S. No. 1849 [hereinafter ICRW]).
n52. See generally Van Drimmelen, supra note 28.
n53. Curry, supra note 24 at 281.
n54. Curry, supra note 24, at 281; see also Siegel, supra note 21, at 579 (discussing the loopholes which exist in the Commission's rules which allow easy avoidance of IWC regulations and quotas).
n55. Van Drimmelen, supra note 28, at 243.
n56. Van Drimmelen, supra note 28, at 243.
n57. Friedman, supra note 10, at 219 (citing a paper by Dr. L. Talbot delivered at the Annual Meeting of the American Association for Advancement of Science, Feb. 28, 1974. Dr. Talbot was a senior scientist with the Council on Environmental Quality and served as a U.S. Delegate to the IWC. She was also a member of the IWC Scientific Committee).
n58. Friedman, supra note 10, at 217-19.
n59. Friedman, supra note 10, at 216-21.
n60. Ted L. McDorman, The GATT Consistency of U.S. Fish Import Embargoes to Stop Driftnet Fishing and Save Whales, Dolphins and Turtles, 24 Geo. Wash. J. Int'l L. & Econ. 477 (1991).
n61. Id. at 489.
n62. Id.
n63. Id.
n64. D'Amato & Chopra, supra note 2, at 48.
n65. David D. Caron, International Sanctions, Ocean Management, and the Law of the Sea: A Study of Denial of Access to Fisheries, 16 Ecology L.Q. 311 (1989).
n66. McDorman, supra note 60, at 490 (although the Secretary of Commerce certified Japan under both the Pelly and Packwood-Magnuson Amendments, these sanctions were ineffective because Japan no longer had a fishing allocation in U.S. waters. Certification was a moot point. McDorman points out that the United States did not intend to sanction Japan due to its fear of economic retaliation. Japan imported more U.S. fish than the United States imported from Japan. Japan could thus threaten the United States by disallowing our imports into its country); see Charles L. Johnson, Environmental Law: Certification of Japanese Violations of International Whaling Agreements, 29 Harv. Int'l L.J. 541, 546 (1988).
n67. D'Amato & Chopra, supra note 2, at 48 n.192.
n68. D'Amato & Chopra, supra note 2 at 48 n.192.
n69. See Van Drimmelen, supra note 28, at 241.
n70. Van Drimmelen, supra note 28 at 245 (citing W.N. Bonner, Whales 247 (1980)).
n71. Barry E. Carter & Phillip R. Trimble, International Law 1276 (1995).
n72. Id.
n73. Caron, supra note 19, at 156.
n74. See 22 U.S.C. 1978 (1944); 16 U.S.C 1821 (1994).
n75. McDorman, supra note 60, at 488 (although the Pelly Amendment was enacted principally to protect the whales, language within the Amendment makes such sanctioning discretionary. Under the Amendment, the President "may" sanction an offending nation following certification. This discretion has allowed the President to avoid a conflict with offending nations by bargaining with them over future compliance rather than sanctioning them. This fear of retalitory sanctions being leveled against the United States by the offending nation has led the President to use the threat of sanctions to coerce the offending nation into abiding by the IWC's quotas in the future. As a result, the Amendment has been used as a bargaining chip rather than a tool for handing down sanctions against a violating nation).
n76. Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221, 239 (1986).
n77. Siegal, supra note 21, at 583 (in 1969, the International Commission for the Northwest Atlantic Fisheries, concerned about dwindling salmon stocks, decided to ban salmon fishing on the high seas. Three countries, Denmark, Norway, and the Federal Republic of Germany, disagreed with the complete ban and filed a timely objection, thereby absolving them from being bound by the Commission's decision. Rep. Thomas Pelly argued that the United States should enforce the Commission's decision by prohibiting the importation of any fish from these offending countries into the United States).
n78. McDorman, supra note 60, at 483.
n79. McDorman, supra note 60, at 483; 22 U.S.C. 1978(a)(1),(4). The Act states, "When the Secretary of Commerce determines that nationals of a foreign country, directly or indirectly, are conducting fishing operations in a manner or under circumstances which diminish the effectiveness of an international fishery conservation program, the Secretary of Commerce shall certify such fact to the President." Additionally, "upon receipt of any certification ... the President may direct the Secretary of Treasury to prohibit the bringing or importation into the United States of fish products ... from the offending country for such duration as the President determines appropriate and to the extent such prohibition is sanctioned by the General Agreement on Tariffs and Trade." Thus, it should be noted that any import embargo which may be placed in effect under this legislation must also comply with GATT. Although this topic is separate from the main objectives of this Comment, a discussion of GATT is worthy of some discussion at this point. Of primary importance is GATT Article XI(1), which is directly applicable to U.S. fish embargoes. This section prohibits a country from imposing quantitative restrictions (quotas) or quantitative prohibitions on imports because they improperly restrict the free flow of goods, the operation of comparative advantage, and an efficient allocation of the world's resources, all of which are primary objectives of GATT. Several exceptions to GATT allow the imposition of import restrictions should a country violate the Pelly Amendment: (1) The measure on importation must constitute an import restriction and not a prohibition; (2) the import restriction must be on an agricultural or fisheries product; and (3) the import restriction and the domestic marketing or production restriction must apply to "like" products in any form. It has been argued that although the Pelly Amendment also uses the term "prohibition," the President has discretion in regards to the extent of the prohibition. Therefore, this may satisfy the GATT exception. It would be the imposition of an import "restriction" rather than an outright prohibition. Additionally, the GATT panel has concluded that to meet GATT requirements, the final condition under Article XX(g), which require restrictive trade measures to have a correlative function and to primarily target conservation, must also be met. Under this article, to satisfy the "primarily aimed at" test, the trade restrictive measure must be adopted for conservation reasons alone. This test is seen as relatively stringent and some have speculated that if the United States were to certify a country and impose an import ban on fish products other than whale products under the Pelly Amendment it would be difficult to argue that the ban was "primarily aimed at" the conservation of the fish being banned. However, others have countered that Article XX(g) requires only that the restrictive measure be primarily aimed at the conservation of the whales, and that if such a restriction accomplishes this goal, it does not matter that the animal being conserved is not the animal being embargoed. Because the President of the United States has chosen not to sanction a nation under the Pelly Amendment, the effect of GATT on such import restrictions has yet to materialize. However, the question remains: Will GATT accommodate a fully developed international environmental and conservation program? For an excellent discussion of GATT and its possible effects on emerging environmental legislation, see McDorman, supra note 60.
n80. Siegel, supra note 21, at 585.
n81. See 22 U.S.C. 1978(a)(4).
n82. Id.
n83. McDorman, supra note 60, at 484.
n84. McDorman, supra note 60, at 485.
n85. McDorman, supra note 60, at 485.
n86. Mary Feinstein, American Cetacean Society v. Baldridge: Executive Agreements and the Constitutional Limits of Executive Branch Discretion in American Foreign Policy, 12 Brook. J. Int'l. L. 209, 217 (1986).
n87. 16 U.S.C. 1821.
n88. McDorman, supra note 60, at 484.
n89. McDorman, supra note 60, at 484.
n90. Feinstein, supra note 86, at 215.
n91. Feinstein, supra note 86, at 215.
n92. Feinstein, supra note 86, at 215.
n93. 16 U.S.C. 1821(e)(1)(D)(ii).
n94. Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221 (1986).
n95. Id.
n96. McDorman, supra note 60, at 487.
n97. American Cetacean Soc'y v. Baldridge, 768 F.2d 426 (D.C. Cir. 1985) [hereinafter Baldridge II]; Curry, supra note 24, at 285.
n98. Curry, supra note 24, at 285.
n99. Curry, supra note 24, at 285.
n100. Curry, supra note 24, at 285.
n101. Curry, supra note 24, at 285.
n102. Curry, supra note 24.
n103. Curry, supra note 24, at 285.
n104. Curry, supra note 24, at 285-88.
n105. Baldridge II, 768 F.2d 426.
n106. Id.
n107. American Cetacean Soc'y v. Baldridge, 604 F. Supp. 1398, 1411 (D.D.C. 1985) [hereinafter Baldridge I].
n108. Siegel, supra note 21, at 589.
n109. Baldridge I, 604 F. Supp. at 1411.
n110. Adams v. Vance, 570 F.2d 950 (D.C. Cir. 1978).
n111. Id. at 952.
n112. Seigel, supra note 21, at 589-90 (citing Adams, 570 F.2d at 956 n.13).
n113. Seigel, supra note 21, at 589-90.
n114. Baldridge I, 604 F. Supp. at 1411.
n115. Id.
n116. Id.
n117. Id.
n118. Baldridge II, 768 F.2d 426.
n119. Id. at 436-37.
n120. Id.
n121. Id.
n122. Id. at 435-36.
n123. Id. at 443.
n124. Id.
n125. Id.
n126. Id. (citing 22 U.S.C. 1978(a)(1)).
n127. Id. at 448.
n128. Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221 (1986).
n129. Id. at 231.
n130. Id. at 232.
n131. Id. at 239.
n132. Senate Committee on Commerce: Hearings on S. 1242 Before the Subcomm. On Oceans and Atmosphere, 92d Cong., 1st Sess. 47 (1971).
n133. H.R. Rep. No. 95-1029, 95th Cong., 2d Sess. 15 (1978).
n134. Japan Whaling Ass'n, 478 U.S. at 233.
n135. Id. at 242.
n136. Id. at 243-44.
n137. Id. at 244-46.
n138. See id. at 248 (emphasis added).
n139. Japan Whaling Ass'n, 478 U.S. at 249 (quoting H.R. Rep. No. 95-1029, 95th Cong., 2d Sess., at 15 (1978)).
n140. Id. at 245.
n141. Id. at 245-46.
n142. Id. at 246.
n143. Baldridge II, 768 F.2d at 432 (statements made in appellant's opening brief).
n144. Japan Whaling Ass'n, 478 U.S. at 244-45 (1986) (Marshall, J., dissenting) (citing letter from Sen. Packwood to Secretary Baldridge, June 28, 1984).
n145. Japan Whaling Ass'n, 478 U.S. at 245 (letter from Secretary Baldridge to Sen. Packwood, July 24, 1984) (emphasis added).
n146. Id. at 246.
n147. Baldridge II, 768 F.2d at 440-41 (1985) (citing Sen. Packwood's statements made in 125 Cong. Rec. 21,742-21,743 (1979)).
n148. Id. (citing 96th Cong., 1st Sess. 301, 322-23 (1979)).
n149. Id.
n150. Id. (96th Cong., 1st Sess., at 359).
n151. Haskell, supra note 13, at 580 (statement of Sen. Packwood); see 125 Cong. Rec. 21,742 (1979)).
n152. Kazuo Sumi, The "Whale War" Between Japan and the United States: Problems and Prospects, 17 Den. J. Int'l. L. & Pol'y 317, 368 (1989).
n153. Id. at 369.
n154. Id. at 368 (citing the statement of the FAO observer during the 34th annual meeting of the IWC in 1982).
n155. David D. Caron, International Sanctions, Ocean Management, and the Law of the Sea: A Study of Denial of Access to Fisheries, 16 Ecology L.Q. 311, 341 (1989).
n156. Id.
n157. Sumi, supra note 152, at 369.
n158. Sumi, supra note 152, at 370.
n159. Sumi, supra note 152, at 370.
n160. Sumi, supra note 152, at 371.
n161. Caron, supra note 18, at 160 (citing Japan Will Not Leave Whaling Commission, Reuter Eur. Bus. Rep., May 24, 1993).
n162. Caron, supra note 18, at 160 (citing Keep Whaling Commission Intact, Christian Science Monitor, May 14, 1993, at 20) (editorial).
n163. Scientists Clash Over Whaling, Christian Science Monitor, Feb. 27, 1992, at 10.
n164. Caron, supra note 18, at 160 (citing Whaling Ban Panned, Atlanta J. & Const., Apr. 22, 1993, at A7).
n165. Scientists Clash Over Whaling, supra note 163, at 10.
n166. Bruce Fein, Whalewash Across the Bow of Trade, Wash. Times, Feb. 13, 1996, at A14.
n167. Van Drimmelen, supra note 28, at 253.
n168. Caron, supra note 18, at 339.
n169. Van Drimmelen, supra note 28.
n170. Van Drimmelen, supra note 28.
n171. Caron, supra note 18, at 171.