Richard J. McLaughlin
This paper will put forward for purposes of discussion several legal options that may be available to Japan to help end the stalemate that currently exists as a result of the recent activities of the International Whaling Commission (IWC). Before addressing these options, I will briefly examine the legality of the Southern Ocean Sanctuary (SOS).
Professor William T. Burke's legal opinion provides a convincing argument that the IWC violated its basic charter when it adopted the SOS in 1994.1 There is no question that the IWC has clear authority to create marine sanctuaries such as the one in the Southern Ocean.2 However, Burke asserts that the SOS proposal as adopted should be viewed as ultra vires because it does not comport with the basic purposes of a sanctuary as set forward in the International Convention for the Regulation of Whaling (ICRW).
Burke provides a wealth of evidence supporting his contention that the SOS is not "necessary to carry out the objectives and purposes" of the Convention in light of the continued existence of the IWC moratorium on commercial whaling.3 He also documents the lack of supporting scientific findings by anybody within the IWC that would justify the creation of the SOS.4 Finally, he rejects the argument that the meaning of the ICRW has evolved over the years and that its terms should be interpreted differently than when it was adopted in 1946. Burke believes this approach turns the treaty upside down and defeats the major purpose of the original agreement. The primary purpose of the initial treaty was to conserve whales in order to permit a sustainable harvest not to protect whales against any harvest. According to Burke, "reinterpretation of an agreement which defeats the major purpose of the parties, and substitutes a purpose not shared by all parties and actively rejected by some, is not a permissible means of interpretation under contemporary international law."5
I personally find Professor Burke's analysis persuasive and agree with his conclusions on the narrow ground that the IWC had no legal authority to create the SOS in the absence of reasonable scientific findings that a sanctuary was necessary for conservation purposes. However, I doubt that legal opinions from an army of experts will be of much value in getting the IWC to alter its position regarding the SOS in the absence of a binding adjudicatory decision. It is clear that anti-whaling nations will have little trouble finding legal experts who will support the legality of the SOS based upon an interpretation of the precautionary principle, some erga omnes obligation to protect the international environment, or some other theory. Moreover, the IWC vote on the sanctuary proposal of 23 yeas, 1 nay (Japan), and 5 abstentions provides strong evidence that Japan is without allies on this issue.6
Given these political realities, Friedheim has suggested that Japan has the following choices at the next (47th) meeting of the IWC: ( 1 ) attempt to alter the outcome within the organization by continuing to negotiate; (2) take extreme measures and try to restore her whaling rights outside of the IWC; or (3) accept defeat.7 I would like to add an additional option to this list: (4) continue to negotiate within the organization while simultaneously challenging the legality of the SOS in a judicial forum. This option is probably not available currently, but may be available in the future if certain events occur as I will explain below.
In the past, there was little point in considering this last option because opportunities for bringing the issue before a judicial tribunal were either unavailable or provided little chance of remedy. The ICRW itself provided no assistance because it contains no dispute settlement provisions. Similarly, a challenge before the International Court of Justice was not a viable option. Although theoretically possible, jurisdiction of the International Court is subject to the willingness or consent of the contending parties. Finally, there was the possibility of bringing a challenge under the dispute settlement provisions of the General Agreement on Tariffs and Trade (GATT) provided that trade sanctions were imposed or threatened. However, under the GATT dispute settlement process, a single GATT party (even the losing party) could block another party's request to establish a dispute settlement panel, to adopt a panel report, or to impose retaliatory measures. Consequently, even if a nation had a strong legal case, it would probably not risk alienating a trading partner in return for such a tenuous remedy.
This situation has significantly changed as a result of the creation on January 1, 1995 of the World Trade Organization (WTO)8 and the entry into force on November 16, 1994 of the Third United Nations Convention on the Law of the Sea (UNCLOS).9 Both of these international agreements provide for compulsory and binding dispute settlement. Consequently, Japan may be able to look to these bodies to adjudicate its on going dispute with the IWC.
Certain conditions, most notably the threat or actual imposition of trade sanctions, need to occur before Japan can seek compulsory dispute settlement under either of these agreements. However, it is relatively easy to foresee future scenarios in which trade sanctions will be threatened or imposed. After all, the United States has in the past used the threat of sanctions under the Pelly Amendment10 and Packwood-Magnuson Amendment11 against Japan on several occasions.12 Most recently, the United States certified that Japan violated the Pelly Amendment after Japan announced that it would increase its scientific whaling level to 440 for the 1995-96 season.13 On February 9, 1996, President Clinton announced that he would not impose trade sanctions, but would continue to pursue high-level efforts to persuade Japan to reduce its scientific whaling program.14
Pelly certification is not predicated on the violation of a treaty. Consequently, even if Japan is fully within its treaty rights by objecting to the SOS, its actions may still be viewed as diminishing the effectiveness of an international fishery conservation program and subject to trade sanctions.
Should trade sanctions be imposed, Japan should have a viable dispute settlement claim in the WTO. The WTO dispute settlement regime is considerably more legalistic and less prone to political manipulation than was the regime under GATT.15 Most significantly, parties to a dispute no longer have the ability to veto dispute settlement decisions. For example, under the new rules, should a negotiated settlement fail, a dispute settlement panel will be established unless the Dispute Settlement Board (DSB) decides by consensus not to establish a panel.16 In addition, when a dispute settlement panel issues its report, it must be adopted by the DSB within 60 days unless one of the parties to the dispute appeals the decision or the DSB decides by consensus not to adopt the report.17
In response to the continued threat of U.S. unilateralism, negotiators incorporated a special provision that requires governments to give three specific pledges - (1) to submit substantive issues as well as issues that cause the objectives of an agreement to be nullified, impaired, or impeded to WTO adjudication, (2) to submit the "reasonable time" of compliance to multilateral adjudication, and (3) to submit the exact level of retaliation to multilateral adjudication.18 According to Robert Hudec, the effect of this provision is "to trap the United States inside a multilateral proceeding for all - or nearly all - of its grievances against others."19
A dispute settlement challenge by Japan as a consequence of a Pelly trade sanction would bring into question many of the same substantive WTO provisions as were adjudicated in the well-known tuna/dolphin decisions brought under GATT.20 Both of these challenges were filled in reaction to U.S. embargoes of tuna triggered by fishing vessels on the high seas not complying with U.S. mandated dolphin protection standards. A detailed examination of these decisions is not possible here, but a few comments may be helpful.
Both the Tuna/Dolphin I and Tuna/Dolphin II panels ruled that the United States' trade embargoes violated GATT. Each panel found that the embargoes were inconsistent with Article XI of GATT which states that no contracting party may impose: "prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licenses or other measures...on the importation of any product...or any other contracting party...2l Both also found that the U.S. could not apply the health and conservation exceptions to the general prohibitions against trade restrictions in Articles XX(b) and XX(g) outside of its own jurisdiction. The Tuna/Dolphin I panel was categorical and reasoned that if countries were allowed to apply measures to protect resources outside their jurisdiction, then any GATT contracting party could unilaterally determine the life of health protection policies from which other contracting parties could not deviate without jeopardizing their rights under GATT. The Tuna/Dolphin II panel was less categorical and rules that Article XX's exceptions could theoretically be applied to protect resources outside of a countries own jurisdiction. However, it found that the U.S. embargoes did not qualify for an exception because the embargo "could not, by itself, further the united States' conservation objectives."22 Instead, the panel noted that both the primary and secondary embargoes "were taken so as to force other countries to change their policies with respect to persons and things within their own jurisdiction, since the embargoes required such changes in order to have any effect on the conservation of dolphins."23
In the context of whaling, it seems likely that a U.S. embargo of a non whale-related product under the Pelly Amendment would be viewed by a future panel as primarily intended to force a change in policy and not "primarily aimed at" the conservation of an exhaustible resource. Moreover, unlike the facts in the Tuna/Dolphin disputes where no international dolphin conservation treaty obligations were involved, the panel would have to examine Japan's legal rights under the ICRW. Because Japan's actions would likely be in compliance with its obligations under an existing conservation treaty, it would be difficult for the United States to argue that its unilateral embargo is necessary, especially in light of the fact that the U.S. is also a party to that treaty.
It may also be possible in the future for Japan to bring a claim under the dispute settlement provisions of UNCLOS. Of course, the most obvious obstacle to this option is the fact that neither Japan nor the United States is currently a party to the Convention. However, I am optimistic that both states will accede in the relatively near future and I will proceed on that basis.
UNCLOS contains a very sophisticated dispute settlement system. To take advantage of the procedures, one of the parties need only show that there is a "dispute between them concerning the interpretation or application"24 of the convention and that the claim is neither an abuse of process nor prima facie unfounded.25 If negotiation or voluntary conciliation fail, either of the parties to the dispute can request compulsory and binding settlement. The Convention emphasizes the binding nature of decisions by stating that "any decision rendered by a court or tribunal having jurisdiction under this section shall be final and shall be complied with by all the parties to the dispute."26
Several substantive provisions may come into play should the United States threaten or actually impose trade sanctions against Japan for whaling in the SOS. First, the Convention reasserts the freedom to fish on the high seas subject to the limitations imposed by articles 116-120.27 In establishing conservation measures for the living resources of the high seas, states have a duty to cooperate.28 Legislation such as the Pelly and Packwood-Magnuson Amendments that impose unilateral trade sanctions unless the other party agrees to adopt U.S. conservation measures may violate both the letter and spirit of this requirement.
Second, article 119 sets stringent requirements for establishing conservation measures. States must use the best scientific evidence available, taking into consideration relevant environmental and economic factors. They must also consider any "generally recommended international minimum standards, whether subregional, regional, or global..."29 While the best scientific evidence standard does not require international scientific consensus as a prerequisite for states to develop conservation measures on the high seas, article 119 would seem to prevent States Parties from prescribing protection measures for high seas living resources in the absence of both reasonable scientific evidence and internationally agreed minimum standards.
Article 120 qualifies the requirements of article 119 for marine mammals by allowing states the right to regulate the exploitation of marine mammals more stringently than the Convention, provided that they do so cooperatively through an appropriate international organization."30 Article 120 should be interpreted to provide that conservation and management of marine mammals of the high seas may only take place pursuant to the "competence of an international organization" such as the IWC.3l
As long as Japan complies with its legal obligations under the ICRW, the United States should be prevented from relying on unilateral sanctions rather than multilateral cooperative measures to protect whales on the high seas. This is especially true when there is reasonable scientific evidence regarding the health of the stock in question as well as evidence that all international minimum standards have been met.
Third, the Convention requires that a state's conservation measures in the high seas must not "discriminate in form or in fact against fishermen of any State."32 While the importance of this provision is unclear, a strong argument can be made that the United States cannot discriminate against the fishermen of Japan by singling them out for sanctions. Because other nations such as Norway and Iceland have refused to comply with the ICRW Schedule and thereby diminish the effectiveness of the IWC, it appears that Pelly sanctions against Japan could be considered discriminatory.
Although I believe that Japan should be able to bring a future dispute settlement challenge in either the WTO or UNCLOS, more research on this issue is warranted. There is still considerable skepticism in some quarters concerning the fundamental question of whether or not UNCLOS controls the use of unilateral trade measures as a method of conserving marine living resources. For example, the U.S. State Department has understandably chosen to assert that the negotiating history of UNCLOS does not support the view that unilateral trade measures may be challenged under the Convention.33 In response, I would point out that trade sanctions were not an active part of U.S. marine conservation policy during the late 1970s when most of the substantive negotiations of UNCLOS were conducted. In my view, unilateral trade measures should be treated no differently than any other coercive measures that are intended to pressure other States Parties into relinquishing specific rights granted under the Convention. If presented the issue, a UNCLOS dispute settlement tribunal may very likely adopt the reasoning of the Tuna/Dolphin II panel which rejected trade measures "taken so as to force other countries to change their policies with respect to persons or things within their own jurisdiction."34 Given the history, comprehensive nature, and binding quality of UNCLOS dispute settlement procedures, it would be very difficult for the United States to support an argument that protecting marine animals through unilateral trade embargoes is somehow immune from scrutiny under the Convention's dispute settlement system.35
There is also a question regarding the meaning of UNCLOS article 282. This provision defers to the dispute settlement procedures in other agreements conditioned upon a showing that they will provide a binding decision and that both disputants are parties to the chosen agreement and therefore obliged to take part in the alternative procedures. It may be argued that the effect of article 282 is to require that all trade-related disputes be brought before the WTO rather than UNCLOS. I personally reject argument based on both the specificity of UNCLOS as the so-called "Constitution for the Oceans," and because the WTO dispute settlement process, although markedly improved from its GATT predecessor, is still subject to political manipulation and is therefore not truly binding.36
Of course, just because third-party dispute settlement may be available does
not necessarily mean that Japan should exercise this option.
There are obvious political and economic costs associated with bringing a
formal legal challenge that must be carefully weighed.
However, despite the risks and the unsettled nature of this area of
international law, there is no question that WTO and UNCLOS offer nations that
may be targets of unilateral trade.
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... Upon receipt of any certification... the President may direct the Secretary of the Treasury to prohibit the bringing or the importation into the United States of any products from the offending country for any duration as the President determines appropriate and to the extent that such prohibition is sanctioned by the General Agreement on Tariffs and Trade (emphasis added). Id. at 1978(a).
In 1992, Congress expanded the range of products that are subject to embargo from fishery products to any products. This gives the United States more flexibility to target the strategic products of other countries. Obviously, this provides the U.S. with more negotiating leverage.
All States have the right for their nationals to engage in fishing on the high seas subject to:
(a) their treaty obligations;
(b) the rights and duties as well as the interests of coastal States provided for, inter alia, in article 63, paragraph 2, and articles 63 to 67; and
(c) the provisions in this section.
In determining the allowable catch and establishing other conservation measures for the living resources in the high seas, states shall:
(a) take measures which are designed, on the best scientific evidence available to the States concerned, to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environment and economic factors, including the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global;
(b) take into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened.
Nothing in this Part restricts the right of a coastal State or the competence of an international organization, as appropriate, to prohibit, limit or regulate the exploitation of marine mammals more strictly than provided for in this Part. States shall co-operate with a view to the conservation of marine mammals and in the case of cetaceans shall in particular work through the appropriate international organizations for their conservation, management and study.
Neither the Convention's dispute settlement provisions nor any of its other provisions, however, limit the ability of the United States to use other means, including trade measures, provided under U.S. law to promote compliance with environmental and conservation norms and objectives.
The letter of transmittal from the President to the Senate along with extensive commentary from the Secretary of State has been reproduced in Special Supplement: Messages from the President of the United States and Commentary Accompanying the United Nations Convention on the Law of the Sea and the Agreement Relating to the Implementation of the Part XI Upon Their Transmittal to the United States for its Advice and Consent, 7 Georgetown International Environmental Law Review 77,143 (1994).
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