(from "ISANA" No. 11, 1994)

Stephen S. Boynton
Vice President/General Counsel, Henke & Associates, Ltd.

Through a myriad of laws, regulations and international treaties, conservation laws have developed based upon scientific principles that recognize consumptive use of renewable wildlife and marine resources as an integral part of management. The U.S. is party to a number of bilateral and multilateral agreements regarding fish and wildlife resources. Almost all of these agreements recognize consumptive use in management to achieve some variation of maximum sustainable yield.

One of the most significant of such agreements is the 128-nation Convention on International Trade in Endangered Species of Wildlife Fauna and Flora (CITES). Recognizing varying degrees of vulnerability of wildlife (and plants) through commercial exploitation that requires regulation, CITES is a trade treaty implicitly recognizing consumptive use.

The common thread found in these agreements is the recognition that scientific management is necessary and the concept that these resources can be consumptively utilized for food and other products by humankind.

In 1946, the International Convention for the Regulation of Whaling was concluded with the U.S. as a Party. Pertinently, the goal of the Convention is "to provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry." Indeed, the draft of the Convention submitted by the U.S. called for "the orderly conservation and development of whale fisheries."

In most international agreements to which the U.S. is a party these is generally a direct interest with the species involved being under its jurisdiction or products being imported into the country. The U.S. had a "golden age" of whaling from approximately 1835 to 1865, though some American whaling persisted for pet food until the 1970's. "Whaling" as such, however, has not had a supportive constituency for many years.

The U.S. has taken an active leadership role in the IWC and, initially, that participation included developing a balance between exploitation and conservation where consumptive use of whale products was recognized. That position, however, changed markedly in 1970's.

Throughout the development of U.S. policy on conservation, the protectionist community - that opposes all consumptive use - has attempted to supplant scientific management with emotion. Many attempts have been made to influence administrative and legislative policy, but because wildlife has a strong constituency through conservation and sportsmen's groups, the protectionists have not had success in advancing their non-consumptive use philosophy. As to whaling, however, since there has not been a direct constituency to influence policy that recognizes consumptive use, the protectionist position policy has been, until recently, unopposed.

In 1972, the Congress passed the Marine Mammal Protection Act (MMPA) that established a moratorium on the taking and importation of marine mammal products unless a waiver was issued. The protectionist lobby was also successful in having Resolutions passed in Congress expressing "unanimous opposition to the resumption of commercial whaling." (Resolutions, however, have no effect in law and, as a practical matter, do not have a significant impact on substantive matters.)

Congress also expanded the Pelly Amendment to the Fisherman's Protective Act to include the banning of non-fisheries imports from nations acting contrary to certain wildlife guidelines. The Pelly Amendment supports the authority of the MMPA. Under the Pelly Amendment, the Secretary of Commerce is authorized to certify to the President whenever nationals of a foreign country are conducting operations that allegedly diminish the effectiveness of international wildlife conservation programs. The president may prohibit imports from the offending nation to the extent that such prohibition is sanctioned by the General Agreement on Tariffs and Trade (GATT). As a consequence of intense lobbying by the protectionists, in 1980, the U.S. introduced a proposal at the IWC for a moratorium on commercial whaling but it failed. In the 1982 meeting, the Parties did adopt a proposal to cease all commercial whaling over a phase-out period until 1986. The proposal was, however, "subject to early review" acknowledging that whaling could be resumed if reassessment of the stocks indicated sustained catches by 1990.

As permitted by the Convention, four Parties timely entered a Reservation not to be bound by the provision - Japan, Norway, Peru, and the former U.S.S.R. Japan subsequently withdrew its Reservation.

Annual IWC meetings in the 1990's attempted to craft an acceptable management procedure and review the status of key whale populations. However, to date, nothing substantive has been achieved. Consequently, at the 1992 meeting, Norway announced that it would take a small quota of Minke whales (Balaenoptera acutorostrata) in 1993. Norway had taken a Reservation and could legally harvest. The U.S. and 16 other Party nations joined in a statement that "expressed concern and regret for Norway's position."

Of critical importance at the 1993 meeting, the Scientific Committee issued a report that included the Revised Management Procedure (RMP) and the observation that a limited harvest of non-endangered Minke whales could take place without any adverse impact. Even with the unanimous recommendation of the Committee, the majority of the Parties, including the U.S., rejected the recommendation. In a note to Norway in May 1993, the following statement was made:

There is presently no support in the U.S. Congress or among the American public for commercial whaling. Therefore, the U.S. has decided not to support the resumption of commercial whaling.

The protectionist lobby then became most active in insisting that U.S. impose trade sanctions on Norway. It is estimated that the protectionists spent well over $ 1 million on this effort.

In July 1993, the first concerned action was taken to counteract the unchallenged assumptions that Congress and public opinion were opposed to limited commercial whaling. A letter authorized by the leadership of the Congressional Sportsmen's Caucus in the House of Representatives and the Senate dated July 12, 1993, was sent to the Secretary of Commerce questioning a policy that was "based upon perceived public opinion or, in this case, supposed Congressional opinion."

Clearly when moratorium on the harvesting of wildlife are scientifically justified, they should be rigidly enforced. However, when that same standard supports limited and controlled harvest, it should be supported and those nations who choose to do so be permitted without fear of criticism or trade sanctions.

The Secretary responded:

Other factors (than science), such as cultural traditions, are also important. Science only tells us whether an activity can proceed without harming a resource. It provides no information on whether the activity SHOULD proceed. (Emphasis in original)

In reply, the Caucus referenced the long tradition of the U.S. in supporting wildlife and marine resource management that included consumptive use.

The limited harvest of marine resource based upon scientific principles is internationally recognized as an appropriate standard upon which to base decisions of taking. The united States has domestically and internationally adhered to a policy of consumptive use of those renewable stocks. To depart from that historically correct position would be to send a most inappropriate message to the other nations of the world...

Thus, for the first time, the protectionist position on whaling was taken to task by members of Congress citing scientific management of marine resources.

On August 5, 1993, the Secretary recommended that trade sanctions be imposed on Norway. The President, however, did not impose sanctions.

At the 1994 IWC meeting, the U.S. continued to maintain its anti-whaling philosophy cloaked in language designed to passively acknowledge science-based management but patently adhering to the protectionist line. However, a Resolution was passed to move forward on an RMP.

At this point in time, positive steps have been taken to bring the U.S. policy back to science-based management. Firstly, in 1994, the Congress did not pass any Resolution opposing the resumption of limited commercial whaling as was done in 1992 and 1993. There has also been organized support for the resumption of limited commercial whaling by large grass-roots organizations. Also, at the 1994 IWC meeting there were many Non-Government Observers who support the consumptive use concept - a fact that was not lost on the Delegates, particularly, those from the U.S.

At the time of this writing, the U.S. has taken a tentative position to oppose an amendment to the CITES Appendices offered by Norway that would transfer from Appendix I (endangered) to Appendix II (threatened) the Northeast Atlantic and the North Atlantic central stocks of Minke whales. Vigorous opposition to the U.S. position is being currently mounted by grass-roots organizations, associations as well as certain members of the Congress. Thus, a significant constituency is now being developed to support science-based management for whales.

In sum, there is a positive move within the public and the Congress to seriously challenge the current position of the U.S. to block limited commercial whaling. The position asserted is based upon sound management principles traditionally found throughout domestic laws and international commitments. The U.S. cannot afford to take a step backward in the development of policy on international wildlife and marine resources issues by adhering to a protectionist philosophy. Although it will take time, the change can, should, and will be made.

_