Not Saving the Whales: President Ford Refuses to Ban Fish Imports from Nations Which Have Violated International Whaling Quotas

[5 ELR 10044]

In the nineteenth century, the great advanture of whaling captured the American imagination; men in wooden ships risked and somethimes lost their lives stalking the leviathan with hand-held harpoons. Yet even then the whales generally fell easy prey to their resourceful hunters. The advent of modern, highly mechanized whaling fleets with cannon-fired explosive harpoons has reduced the contest to an efficient slaughter. Secretary of the Interior Rogers Morton, announcing a ban on the importation of whale products and the end of all United States whaling operations in December 1971, echoed growing concern for the hardpressed species:

It is clear that time is running out for the whales…. As long as man views these magnificent creatures as solely an economic product, we are in grave danger of destroying the complex web of life of which man is an inextricable part.

In this environmental decade, it would be barbarous to stand idly by while the rest of the earth's largest and — next to man — most intelligent creatures are reduced to pet food, face creams, and lubricating oils. All whale products have synthetic substitutes and are no longer essential to man's well-being. Yet the rate of killing in recent years has already dirven some species to the brink of extinction and now threatens those few remaining species whose populations are still large enough to be commercially exploitable….

Now that the U.S. no longer has any commercial interest in whales, either as harvester or consumer, we are in a position to provide leadership in the worldwide drive to preserve the whale as a vital part of the marine ecosystem.¹

Environmentalists in the United States have been particularly frustrated in their efforts to stem the depletion of whale populations, since today's whaling fleets come from foreign countries and are not readily susceptible to domestic political action. Given Secretary Morton's forcefully stated support for measures to save the whales, they were thus doubly disappointed when President Ford, on January 16, 1975,² announced his decision not to exercise his statutory power to prohibit the importation of fish products from Japan and the Soviet Union, the only countries which violated the International Whaling Commission's quotas for whale catches during the 1973-1974 season.

The United States is a party to two international agreements concerning whaling. The first, the Whaling Convention of 1931,³ provides that only government-licensed vessels may take baleen whales, which include all large species except the sperm whale. The agreement also forbids the killing of calves, immature whales, females with calves, and any right whales. The second and more important agreement is the Whaling Convention of 1946⁴, which created the International Whaling Commission (IWC) and gave it authority to establish whaling regulations and amend quotas set by the Convention on the size and number of whales which may be taken each year. Any government which objects to an amended quota is not bound by it, however.

In December 1971, about the same time that Secretary Morton expressed concern for preserving whale populations, Congress acted to prod the Executive branch toward more vigorous implementation of existing international programs for the conservation of marine resources, including whales. Under the Pelly Amendment to the Fisherman's Protective Act of 1967,⁵ [5 ELR 10045] the Secretary of Commerce, when he determines that citizens of a foreign country are conducting fishing operations which diminish the effectiveness of a conservation program of an international fishery convention to which the United States is a party, shall certify this fact to the President. The President may then direct the Secretary of the Treasury to prohibit the importation of fish products of the offending country for as long as he determines appropriate and to the extent that such a prohibition is permitted by the General Agreement on Tariffs and Trade (GATT).⁶ Within sixty days of such certification, the President must notify Congress of what action he has taken pursuant to it, or, if he either takes no action or imposes an import prohibition which does not cover all fish products of the country in question, inform Congress of his reasons.

Although the bill⁷ as introduced was aimed at protecting only the North Atlantic Salmon, the scope of the measure was substantially expanded by the House Merchant Marine and Fisheries Committee to include all marine resources covered by international fishery conservation programs.⁸ While it notes that the President has full discretion whether to exercise the bill's prohibitory authority, the legislative history also evidences a clear congressional intent that the measure's expanded scope be used by the Executive as a means of encouraging cooperation with international conservation programs:

The Committee sincerely hopes that it will not be necessary for the President to invoke the powers granted by this legislation. Yet, if any nation refuses to cooperate with sound international conservation measures, it should expect that the President will act promptly and firmly.⁹

For the 1973-1974 season, the IWC set a quota of 5,000 minke whales to be taken in the Antarctic. The minke is a small whale, and relatively few of this species had previously been taken in whaling operations. The figure of 5,000 was thus admittedly only an informed estimate as to the maximum sustainable yield of the stock, since precise figures on existing populations were not available. Both Japan and the Soviet Union objected to this number, however, and announced that they each intended to take 4,000 minke whales during 1973-1974. In fact the Soviets took 4,000 and the Japanese 3,713, the combined total of which exceeded the quota by approximately 50 percent. Reportedly, the Soviet and Japanese behavior is based on a decision that it makes more economic sense to fish the whale to extinction and then convert the whaling fleets to other use than to operate the fleets at low catch levels for the foreseeable future.

These two countries were not legally bound by the figure of 5,000 since they had objected to it, but their disregard of the quota nonetheless clearly diminishes the effectiveness of the international conservation program under the 1946 Whaling Convention. The Secretary of Commerce, through the National Oceanic and Atmospheric Administration (NOAA), therefore made certification to the President that the minke whale catches of the Soviet Union and Japan during the 1973-1974 season presented a prima facie case for application of the Pelly Amendment.

However, President Ford, in his January 16 message¹⁰ to Congress submitting a Report on International Whaling Operations and Conservation Programs, announced that no prohibition of Soviet and Japanese fish product imports would be imposed under the terms of the Amendment. The President gave two reasons for his decision. The first was that significant progress had been made during the June 1974 meeting of the IWC toward stricter adherence to the quotas by whaling nations. Mr. Ford observed that both the Soviets and the Japanese voted for the 1974-1975 quotas, which incorporate some conservation improvements not included in the 1973-1974 quotas. The President also pointed to a resolution, which is to be implemented in the 1975-1976 conservation measures which will be adopted by the IWC next year, establishing the principle that a selective moratorium will be applied to the taking of any stocks of whales which fall below their maximum sustainable yield levels or optimum population levels. According to Mr. Ford, this resolution, if fully complied [5 ELR 10046] with by all member nations, would prevent any whale stock from becoming endangered.

The second reason given by the President was the serious economic impact of trade sanctions. The message to Congress asserts that Japan shipped $235 million in fish products to the United States in 1973, amounting to about 11 percent of our supplies, and that a cut-off of this trade would result in higher domestic prices for fish products. In addition to these economic consequences, the message contends that such sanctions would have substantial political ramifications, and should be imposed only after all reasonable alternatives for the achievement of the conservation objective have proven ineffective. According to Mr. Ford, in view of the progress made at the 1974 IWC meeting, the current situation does not warrant such stringent measures. The President noted in conclusion that NOAA, which prepared the certification, recommended that no import prohibition be imposed. This is coupled with a veiled threat that "subsequent action by Japan or the USSR may require a reassessment."

While Japan and the Soviet Union seemingly softened their antipathy to whaling quotas at last year's IWC meeting, their consistent pattern of excessively depleting whale populations remains unbroken. And despite President Ford's assurances that all will be well with the whales if only we wait until next year, the prognosis is not uniformly rosy. Japan recently announced that it will oppose the recommendation of the IWC's Scientific Committee that severe restrictions be placed on the taking of fin and sei whales in the North Pacific and Antarctic.¹¹ The Committee based its recommendation on data suggesting that populations of these species are below maximum sustainable yield levels and should thus be protected under the tems of the 1974 IWC resolution referred to in the President's message. The reason given by the Japanese for opposing this position is that there is no scientific basis for taking such drastic measures, a stance which hardly indicates a new "conservation first" attitude among the Japanese and which belies Mr. Ford's assertion that the offending nations have seen the light.

As for the President's second justification for not imposing import sanctions, that such action entails substantial economic and political ramifications, the Congress, by enacting the Pelly Amendment, made a legislative judgment that the economic and political costs were acceptable as a price for the prospective benefits to the marine environment. In addition, other fishing nations could certainly supply the United States with some portion of the fish products normally imported from Japan, thereby reducing even further the relatively minor economic impact of the prohibition.

With regard to the political ramifications, a letter from the Assistant Secretary of State for Congressional Relations to the Chairman of the Merchant Marine and Fisheries Committee concerning the Pelly Amendment suggests that the statute's approach to the implementation of international fishery conservation is not politically inappropriate:

While the use of trade sanctions is generally inconsistent with our obligations and policies, it is recognized as appropriate to apply limited restrictions to trade to achieve comparability between the treatment afforded domestic and foreign interests in carrying out such conservation programs.¹²

The President's power to set the duration of the import prohibition furnishes a device which could be used to control the economic and political impact of sanctions. If a prohibition were imposed until such time as the Soviets and Japanese demonstrated to the satisfaction of IWC observers aboard their whaling fleets that they were not exceeding any IWC quotas or violating any of the Commission's regulations, the economic incentive for compliance would be strong, and if compliance were obtained early in the 1974-1975 season, as President Ford expects, the sanctions could be lifted, after having been in force only a few months, and having caused minimal economic disruption.

The Pelly Amendment issue arises at a delicate time in relations with both Japan and the Soviet Union. The Japanese are still smarting from the American cutback of soybean exports in 1974, which they regarded as a violation of a firm commitment by Washington, and the Russians recently repudiated the 1972 trade agreement with the United States because of Congress' attempt to tie trade concessions to a loosening by the Soviets of restrictions on Jewish emigration. Nonetheless, the President's decision undercuts the Amendment's credibility, and may in fact encourage recalcitrance over the implementation of marine conservation programs on the part of nations which export large dollar amounts of fish products to us or are important to our foreign policy. To refrain from exercising this power when the circumstances present a textbook case for its application is in effect to destroy its utility, and in light of this failure to act,the threat of a possible future reassessment and change in policy can only appear hollow. An additional effect of the President's refusal to invoke sanctions could be Congressional action either making such sanctions mandatory once a prima facie case is made under the Amendment, or increasing the scope of the trade sanctions imposed to include all goods imported from an offending nation.

The President, in deciding not to impose prohibitions on Soviet and Japanese fish products, has thus let slip away an opportunity to demonstrate that the United States is serious in its adherence to the principles [5 ELR 10047] concerning whale population conservation enunciated by Secretary Morton. Selective trade sactions of limited duration would not entail unacceptable economic and political costs, and could serve as a forceful incentive to offending countries to end their slaughter of the world's largest creatures. Although Mr. Ford's inaction has seriously undermined the credibility of the Pelly Amendment, there is still the faint hope that sanctions may be imposed later if the Japanese or Soviets prove more obstinate about complying with IWC quotas and regulations during the 1974-1975 season than the President expects. For the present, however, the unsatisfactory status quo will be allowed to continue, as the American government, which alone could if it chose apply powerful pressure to save the whales from possible extinction, chooses instead to wish them luck.

1. 117 Cong. Rec. 46934 (1971).

2. President's Message to the Congress Submitting a Report on International Whaling Operations and Conservation Programs, 11 Pres. Doc. 55 (Jan. 16, 1975).

3. Mar. 31, 1932, 49 Stat. 3079 (1935-36), T.S. No. 880.

4. Dec. 2, 1946, 62 Stat. 1716 (1948), T.I.A.S. No. 1849. The United States is internally bound to the Convention by the Whaling Convention Act of 1949, 16 U.S.C. §§ 916-9161 (1970).

5. 42 U.S.C. § 1978 (Supp. 1971), P.L. 92-219 (Dec. 23, 1971). The material sections of the Amendment are as follows:

(a) Certification to President

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 such certification, the President may direct the Secretary of the Treasury to prohibit the bringing or importing into the United States of fish products of the offending country for such duration as he determines appropriate and to the extent that such prohibition is sanctioned by the General Agreement on Tariffs and Trade.

(b) Notification to Congress

Within sixty days following certification by the Secretary of Commerce, the President shall notify the Congress of any action taken by him pursuant to such certification. In the event the President fails to direct the Secretary of the Treasury to prohibit the importation of fish products of the offending country, or if such prohibition does not cover all fish products of the offending country, the President shall inform the Congress of the reasons therefor.

6. The following sections of GATT demonstrate that Presidential action taken under the Pelly Amendment would be permitted under the General Agreement:

Article XX

Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:

* * *

(g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption; …

1971 U.S. Code Cong. & Admin. News, 92d Cong., 1st Sess. 2413.

7. H.R. 3304, 92d Cong., 1st Sess. (1971).

8. 1971 U.S. Code Cong. & Admin. News, 92d Cong., 1st Sess. 2410.

9. Id. at 2414.

10. Supra, n. 2.

11. 1 Marine Mammal News 6 (Jan. 1975).

12. Letter from David M. Abshire to Hon. Edward A. Garmatz, July 7, 1971, set forth at 1971 U.S. Code Cong. & Admin. News, 92nd Cong., 1st Sess. 2418.