310. Information Memorandum From the Assistant Secretary of State for Oceans and International Environmental and Scientific Affairs (Malone) to Secretary of State Shultz 1
SUBJECT
- Court Decision Concerning Japanese Whaling
On March 5, 1985 United States District Court Judge Richey ruled against the United States Government on all aspects of the lawsuit filed by several environmental organizations challenging the United States Government’s right to make the November 13, 1984 agreement with Japan on whaling (American Cetacean Society, et al. v. Malcolm Baldrige ). The Department of Justice has filed for an immediate stay of the decision, pending an appeal.
In the order Judge Richey opined that the Secretary of Commerce and the Secretary of State do not have any discretion under the Pelly [Page 870] Amendment to the Fishermen’s Protective Act (Pelly) or under the Packwood Amendment to the Fishery Conservation and Management Act (Packwood) not to certify Japanese sperm whaling, in excess of the International Whaling Commission’s (IWC) zero sperm whale quota, as diminishing the effectiveness of the International Convention for the Regulation of Whaling (Convention) and its conservation program.
Therefore, Judge Richey orders the Secretary of Commerce to certify Japan under both Pelly and Packwood. The implication of his order to certify Japan under Pelly is that the President will have to exercise his discretion under that statute as to whether to restrict the importation of Japanese fishery products consistent with provisions of the General Agreement on Tariffs and Trade (GATT).2 The implication of his order to certify Japan under Packwood is that the Secretary of State will have to reduce (no discretion) Japan’s directed fisheries allocation by at least 50%.
Under the Federal Rules of Procedure (Rule 62) no proceeding to enforce the order can be brought until the expiration of ten days after its entry, i.e., before March 15, 1985. The Justice Department will appeal this decision and seek a stay of the order pending appeal. In the first instance a request for stay will be submitted to the District Court, Judge Richey. It is probable that he will deny it. Next the request for stay will be presented to the Appellate Court. Justice has indicated that it is not possible to predict what the Appellate Court will do until the composition of the Appellate panel is known.
If the decision is not overturned and/or the stay is denied, the actions required by this order would overturn the November 13 arrangement between the United States and Japan which provided that if the Government of Japan withdraws its objection to the IWC sperm whaling prohibition by December 13, 1984, to be effective no later than 1988, the United States would not certify Japan and apply sanctions under the Packwood-Magnuson or Pelly Amendments for the taking of up to 400 sperm whales each in the 1984 season and the next season. This condition was met by Japan’s withdrawal of its objection on the sperm whale prohibition on December 11, 1984. The decision would require the immediate certification of Japan for diminishing the effectiveness of the IWC Convention and its conservation program for the taking of sperm whales (approximately 270 have been taken to date as allowed under the agreement).
The decision would also nullify the second and most important part of the U.S.-Japan agreement which provides that if Japan notifies the IWC by April 1, 1985 that it withdraws its objection to the IWC [Page 871] moratorium on commercial whaling, such withdrawal to be effective in 1988, Japan may take 200 sperm whales in the 1986 coastal season and in the 1987 coastal season and not be certified for such whaling. Also Japan may whale for, at most, two years beyond the dates contemplated by the IWC commercial moratorium for other whales which it currently takes without the U.S. invoking sanctions. Catch limits for other whales are to be established by the U.S. in consultation with Japan, using as a guide the last quotas voted by the IWC. Although we have not been told whether the Japanese Government has made a decision, there have been many indications that it is likely that Japan would have withdrawn its objection to the IWC moratorium.
The U.S.-Japan fishing relationship is an important part of our bilateral economic relationship, benefiting both the U.S. and Japan. Beyond the major economic consequences if this decision were upheld, there are serious legal and political ramifications.
- Source: Department of State, Chronological Files, 1984–1985, Lot 86D362, March #2 1985 Completed Items. Confidential. Drafted by Kendrew and Flournoy and cleared by Blumberg, Hoyle, Arnaudo, Reis, Anderson, Larson, and Verville on March 6. There is no indication that Shultz saw the memorandum.↩
- Article I of the GATT prohibits certain forms of trade discrimination.↩