ELR Citation: ELR 20742
No(s). s. 85-954, -955 (U.S. Jun 30, 1986)

The Court holds that neither the Pelly Amendment nor the Packwood Amendment requires the Secretary of Commerce to certify Japan for refusing to abide by the whaling quotas imposed by the International Whaling Commission (IWC). The Secretary acted pursuant to an executive agreement between Japan and the United States under which Japan agreed to adhere to certain sperm whale harvest limits for several years and to withdraw its objection to the IWC's moratorium on commercial whaling by 1988, if the Secretary would decline to certify to the president under the Pelly and Packwood Amendments that Japan was diminishing the effectiveness of the International Convention for the Regulation of Whaling (ICRW). The Court first holds that the Secretary's refusal to certify Japan's noncompliance with the quotas does not fall within the political question doctrine barring judicial review. Even under the political question doctrine, courts still have the authority to construe international treaties and executive agreements, and, in any case, the question here is purely a legal one of statutory interpretation of the Secretary's duties under the Amendments. The Court then rules that the Amendments do not require the Secretary to certify a foreign country whenever that country exceeds its allowable harvest under the ICRW quotas. The Court holds that the question of what actions "diminish the effectiveness of" the Convention is within the Secretary's discretion. Although the Amendments taken together require that sanctions be imposed once certification is made, there is nothing within the language of the statutory provisions or the legislative history to indicate that Congress intended for the certification itself to be mandatory in every instance of noncompliance with the ICRW or other international conservation agreements. The Court rejects the court of appeals' conclusion that the Secretary has discretion only with respect to the 1978 expansion of the Pelly Amendment which was intended to enforce the Convention on International Trade in Endangered Species of Wild Fauna and Flora. The conventions are similar, and there is no evidence that Congress intended for certification to be applied inflexibly with respect to violations of fishing quotas but not to violations of endangered species quotas. The Packwood Amendment similarly does not limit the Secretary's discretion. Although it mandates the imposition of sanctions upon certification, it contains the same certification standard as the Pelly Amendment.

The dissent would hold that certification is mandatory whenever a foreign country violates the IWC quotas, at least if the violation is more than de minimis. Observing that not even the Secretary of Commerce claims that Japan's substantial harvest does not diminish the effectiveness of the ICRW and that the Secretary had stated at one point that any nation that continued whaling after the moratorium took effect would be certified, the dissent concludes that the Secretary's action was taken to avoid the congressionally mandated penalty that would have been imposed if certification had been made. Moreover, the legislative history indicates that Congress expected that substantial violations of whaling quotas would always result in certification.

[The lower court opinions in this case appear at 15 ELR 20328 and 20877.]

Counsel for Petitioner
Steven Perles
1320 19th St. NW, Washington DC 20036
(202) 833-2170

Counsel for Respondent
Charles Fried, Solicitor General
Department of Justice
Tenth and Constitution Ave. NW, Washington DC 20530
(202) 633-2201