337. Minutes of a Policy Review Group Meeting1
Iceland Certification
PARTICIPANTS
-
STATE:
- Edward Derwinski
- John Negroponte
- Abe Sofaer
-
DOD:
- John Maresca
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JUSTICE:
- Arnold Burns
- Ralph Ludwizeski
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COMMERCE:
- Bruce Smart
- Daniel McGovern
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WH:
- Colin Powell
- A.B. Culvahouse
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NSC:
- Paul Stevens
- Ty Cobb
- Jim Kelly
- Jock Scharfen
Powell: There are two issues before us. One, whether or not to certify Iceland and the degree of discretion the Secretary of Commerce has in making this decision. And, two, the foreign and national security implications that flow from this decision.
Smart: The Pelly Amendment requires the Secretary of Commerce to inform the President of any action by a foreign government that runs against any international conservation agreement or its intentions. It is a two-step process. First, we must tell the President what happened and then, second, the President decides what to do regarding sanctions. Iceland’s scientific whaling program was rejected by the IWC and they have not given the IWC a proposed alternate program. Commerce did not certify Iceland when it took its first 80 whales but we advised them at that time that we would certify if they started their second phase of whaling. Furthermore, our counsel tells us that under the Pelly Amendment we are legally obligated to certify them.
Burns: There is a long history behind this issue. In the Japanese Whaling Association case environmentalist groups challenged Secretary Mac Baldridge seeking to enjoin him to certify Japan for whaling practices which were in contravention to the IWC’s scheme. Baldridge said that the Secretary of Commerce had discretion under the Pelly Amendment whether to certify Japan or not. He exercised this discretion and concluded that the Executive Agreement reached between the United States and Japan whereby the Japanese agreed to end all commercial whaling by 1988 justified not certifying Japan in this instance. The District and Appellate Court ruled that the Secretary of Commerce did not have discretion under the Pelly Amendment not to certify. The United States Supreme Court, after reviewing the fuzzy legislative history of the Amendment, concluded that the Secretary of Commerce did indeed have discretion under the Pelly Amendment.2 On this point, the Department of Justice has an easy call: under the rule of law the Secretary of Commerce has discretion. It is just as clear, however, that it would be an abuse of discretion by the Secretary of Commerce not to certify on the record before him in this case. Secretary Baldridge could have certified Iceland a year ago, but did not. For over a year the United States has acted reasonably and patiently in dealing with Iceland. In conclusion, it is the Department of Justice’s view that [Page 963] were the Secretary not to certify the United States would lose its case in court.
Our congressional relations would be damaged if we do not certify. Representative Packwood and others would go “beserk” if the Administration does not certify in this situation. Remember, it is a two-step process. The first step being certification and the second step being sanctions. At the sanction’s stage the President can consider the national security concerns. Japan, however, will not import the whale meat if Iceland is certified.
The Attorney General was told this morning that it is the Department’s view that certification will be required under the Pelly Amendment if Iceland takes another whale and that we could not defend in court the failure to certify. The Attorney General said that it might be prudent to have the President or Vice President call the Prime Minister of Iceland and say that every play has an end and we are pulling the curtain down on this play.
Sofaer: Everything that Defense says in this discussion is irrelevant. (Laughter) What Defense says is only relevant as to our national security interest. It is not relevant to the legal debate.
Furthermore, we at State do not contend that we have the right to tell the Secretary of Commerce not to certify or how and whether to exercise the discretion given to him under a statute. The Department can advise Commerce regarding the procedures involved.
I will address Arnie’s (Burns) second conclusion concerning the Secretary of Commerce’s discretion. It does not follow automatically that a given event requires certification. Rather, the decision to certify should be reached through a reasoned process.
The point is, the Secretary of Commerce has discretion. The statute says that he is to investigate the events. I do not have the benefit of knowing all the facts in the investigation, but I do know the record of the last six months and it’s very impressive to me. It should be addressed in writing by the Department of Commerce indicating why it requires certification under the Amendment. Review of the Record indicates (1) they’ve reduced their overall take of whales by half—from 200 to 100, (2) Iceland is prepared to redesign their entire research program to keep it at a minimum. Now, this doesn’t satisfy me or Arnie (Burns) because it falls short of the Japan case where they had agreed to take no more whales by fixed date. But they have said concretely that they’d move in the right direction. (3) They have indicated their intention to remain in the IWC. This is meaningful. The meaning we have given to scientific whaling is a very tough one. The IWC initiative clearly is helping conservation and we are moving forward, therefore, with our conservation goals. It is in our best interest to keep Iceland engaged in the IWC. Now, I am not arguing what they have done is satisfactory [Page 964] for the long term, but it is satisfactory enough for State to want in written form from Commerce the reason why it is so bad that they have to certify. We need more debate regarding the scope of discretion.
Burns: The mark of a great lawyer is the ability to give that type of presentation on a case without any merit whatsoever. (Laughter)
Stevens: That will be in the record.
Burns: It should be.
There is discretion under the law and the Secretary of Commerce has exercised this discretion with great patience and has decided in exercising this discretion that certification is necessary.
The IWC has been a paradigm of international cooperation. It is not the most important international body, but because of its work there are only three countries left in the world that can be considered whaling nations: Korea, Japan, and Iceland.
Because of the Pelly and Packwood Amendments we are the policemen of this organization and it would be bad to be a paper tiger. Iceland has been told we would certify.
There can be no certification only if there are no more whales taken.
Smart: Secretary Baldridge went on record that there would be no certification only if no more than 80 whales were taken.3 Since we went on record we cannot back off now.
Furthermore, the IWC has stated that the Iceland scientific program is not acceptable. It is for the IWC to pass on this, not the U.S.
Sofaer: A document can be made between Iceland and the U.S. that would be acceptable.
We have the highest regard for Commerce. But by pushing a very strong resolution in the IWC it put us in a box where we cannot exercise our discretion under U.S. law.4 I cannot understand why a reasonable exercise of discretion cannot take another form. We simply want a weekend to work this out with Commerce, letting the chips fall were they may.
McGovern: A point must be made: the IWC resolution was cleared by the State Department and the State Department had three members on the Committee.
Sofaer: State’s recommended changes to the resolution were to reserve U.S. discretion. I know, I put them in.
McGovern: The change was “if the IWC did not recommend a change in a country’s scientific whaling” then they could continue [Page 965] whaling. That is, silence from the IWC was consent. The reason for this was that the IWC would not step up to the issue. Secretary Baldridge wanted to step up to the issue.
Negroponte: There are equally valid ways to meet IWC conservation goals. We said this early on to preserve flexibility. Iceland has moved their position significantly. Quantitatively it is true that they have not moved as far as we want. Qualitatively it seems that they have come far psychologically from their earlier position of questioning the legitimacy of the IWC.
The question is whether it is adequate movement to justify non-certification. When measured against certification and the inevitable sharp reaction Iceland will take as a result of such certification, then it is clearly good movement. Certification would harm the IWC’s prospects and progress in conservation.
McGovern: John (Negroponte) faithfully tells adequately what Shultz to Baldridge letter5 states but not what the July 16 letter from Baldridge states regarding what he told Mr. Carlucci.6 (McGovern quotes word-for-word a passage from the July 16 letter regarding the obligation to immediately certify under the Pelly Amendment.)
Burns: There is ample legislative history indicating that Congress intended the Secretary would have no discretion. The legislative solution to the Secretary not certifying would be to pass a law which states the Secretary has no discretion. That would be a disaster.
Sofaer: Discretion should be exercised with all the available facts.
Smart: But Baldridge drew his line clearly.
Sofaer: If I were on the Appellate Court and told that even though you had received new letters that you could not exercise discretion, I would reverse you on the grounds that you had abused your discretion because discretion must be exercised on the whole contemporaneous record.
Powell: Commerce is saying, however, that they are exercising discretion on the new evidence.
I feel compelled to ask an infantry, 2½ mile per hour question: Why is Iceland doing this to us?
Sofaer: Why not.
Powell: Rainbow all over again.7
Negroponte: They have made efforts to come to our position. I leave it to others to pass judgment as to the adequacy of this movement.
[Page 966]Powell: One to four Secretaries of Commerce have exercised discretion and have concluded they were compelled to certify. State has said they would not tell the Secretary of Commerce how to exercise this discretion, and the President’s lawyer agrees.
Culvahouse: I agree.
Powell: So whatever new State paper can be made, Commerce’s discretion will still be followed.
Sofaer: Give us a few days so that we can work to bring Iceland closer to Commerce’s position.
Smart: We want them to follow the IWC. We do not set out what the IWC position should be. The organization sets this out. Iceland does not follow it and we are required under the law to report and say if their acts diminish the program.
Sofaer: No. If it diminishes the conservation purpose.
Derwinski: We have informal assurance that no whale would be taken until next Friday.8 This gives us more time to follow legal options.
Maresca: We’d be shooting ourselves in the foot if we certify. [less than 1 line not declassified] Even certification without sanctions can result in [less than 1 line not declassified] acts hurting our bases.
All agree there is discretion. There are two areas of interest: (1) lessen the number of whales taken and (2) preserve our bases. To certify would undermine both; (1) Iceland would withdraw from the IWC thus harming our conservation goals, and (2), past experience shows that our bases are a pressure point that they are willing to manipulate.
I yield to others regarding the details of the negotiations. But if there is discretion we should look to our objectives. Further negotiations may, perhaps, be the thing to do for both our conservation and national security interest.
Smart: It’s a matter of stating a fact.
Burns: It’s just one bite of the apple. Historically, there have been five certifications, none of which have had sanctions because in each instance the country has fallen in line. National security interest gets consideration at the sanctions’ level.
Maresca: Iceland is a small country and this is one of the few issues in which they can exercise clout [1 line not declassified].
McGovern: Commerce has never said it won’t discuss things with Iceland as long as they don’t take another whale. Last week’s response from Iceland was their bottom line because of their domestic politics.9
[Page 967]Sofaer: That was last week’s bottom line. It may be we could devise a better long range plan.
Smart: We’ll negotiate. We never said we wouldn’t.
Negroponte: The bottom line is certification and numbers are the key in the future.
Smart: Clearly the right direction is to take less whales. But there have been no numbers.
Sofaer: That is as of now.
Cobb: Iceland would say as of a few year’s ago they were a major whaling nation. It made up ½ of one percent of their GNP. Now, they are down to 80 whales and maybe 100. They would say, just don’t rub our faces in the mud.
Smart: Let’s assume we certify then go to the next question on how to make it as painless as possible.
Powell: That’s right. Japan will then not import their whale meat.
Smart: Japan wants to preserve their fishing rights under the Packwood Amendment under which they’d lose half their fish if they took Iceland’s whales.
Powell: Commerce’s view will be the same as it is now if another whale is taken.
Smart: Yes, but we’d consider all facts.
Sofaer: We appreciate that.
Negroponte: If Iceland makes a commitment regarding future numbers . . .
Powell: What John (Negroponte) is saying is what actions can Iceland take to put more money in the discretion account.
Smart: The issue is whether something downgrades the IWC program, then we must say this.
McGovern: The IWC position is clear. There could be no whaling until Iceland submits a new scientific program to the IWC that cures the defects of their old program.
Arnold Burns and Ralph Ludwizeski leave the meeting at this point.
Maresca: No, I think it’s looking, for example, for a further declaration by Iceland that would give the Secretary more discretion.
Smart: The real issue is if we do certify then what steps can we take to diminish the fallout.
Powell: That’s the way it looks, unfortunately.
Sofaer: But. It is the process we should look at. It looks as if they are moving in good faith and we should wait until this process is completed. It is possible that good new data can become available that would impart discretion to the Secretary. So, you do not say no [Page 968] certification but rather you leave the process open thus leaving open your court case in turn.
I’ll stop now and you can return to your disaster.
Powell: Yes. Our whale is shot. We have a court case. What next?
Derwinski: We’ve been rational, if legalistic. [1½ lines not declassified]
Powell: What will Iceland do?
Derwinski: I believe that’s set out in the paper.10 Their dock workers will slow down our goods and they will restrict our flight operations. It will begin this way.
Smart: Have they done this in the past?
Sofaer: I remind you these are our friends.
Derwinski: The base is their only weapon. They will use it and it doesn’t matter what the issue is. [less than 1 line not declassified]
Smart: What have we done in the past?
Powell: Suffered. Then yielded.
Smart: How do we yield?
Maresca: Certification alone would be enough to anger them. Perhaps an apology.
Powell: What if there is a suit?
McGovern: Green Peace will sue. Their lawyers called us.
Cobb: So what? We’re better off if the court orders us to do this.
Sofaer: We have done this in the past. It simply places our backs against a wall and then we get more information, negotiate and do whatever the court tells us to do.
McGovern: But we are talking about certifying here, we will not be sued.
Derwinski: We’d get a better reaction from Iceland if we get sued in court. Then we go to Iceland and tell them we’ve been the good guys.
Maresca: Why not follow up the letter with a last minute delegation and talks with Iceland? We might get concessions and a declaration. But even without this, we could say at least we are engaged in a process and are negotiating which we do not want to jeopardize.
Smart: But I don’t think certification impacts sovereignty. Only sanctions impact sovereignty.
Sofaer: I disagree. Packwood has great extraterritorial impact.
Smart: You’re right on Packwood.
Sofaer: It’s incredible.
[Page 969]Negroponte: We can’t go to Iceland with just the one-more-whale warning again.
Derwinski: Just suspend certification while the negotiation process proceeds.
Smart: But it’s the Secretary of Commerce’s discretion and NOAA (National Oceanic and Atmospheric Administration) must be the ones to negotiate.
Powell: The Prime Minister’s letter needs an answer. I suggest we answer the letter at the NSC with the help of State, Defense, Commerce, and Justice. It should set out (1) the situation, (2) Commerce’s view and (3) Secretary of Commerce’s legal authority.
Then, it might be useful for Commerce to negotiate with Iceland and get the type of information Abe (Sofaer) is describing. And if we cannot get this type of information then tell the Icelanders why we must certify.
The President might reveal in his letter his disinclanation toward sanctions just to put a little sugar on the pill.
Smart: We don’t object to talking further.
Derwinski: The meeting should be held somewhere else than Iceland. During Rainbow we met in London to get away from their reporters. In the past they have indicated a willingness to meet in Boston, New York or Montreal.
Powell: There are two possible bets. The first bet is to change the Secretary of Commerce’s mind. I wouldn’t put my money on that. The second bet is to explain to Iceland that certification is unavoidable, but we don’t want to do this.
We need to decide who will attend the meeting and where it will be held.
Sofaer: The Salem Museum of Whaling. It might be good to put our activity in perspective.
Negroponte: Tony Calio and the Fishing Minister of Iceland.11
Cobb: We want to avoid that. One’s most closely associated with the position the Icelanders object to.
Sofaer: I suggest Ed (Derwinski) et al go and consult and come back in two hours or so.
Cobb: Is the presidential delegation to be included in the President’s reply to the Prime Minister?
Powell: Yes. State can write the letter. Then tell the Ambassador so he can call this in.
[Page 970]Smart: I cannot go with Verity in the hospital and Calio might not be able to go.
Powell: You work out these issues.
Derwinski: Commerce can contact John (Negroponte).
Powell: Ty (Cobb) has the conn. I am sorry to do this to everyone over the Labor Day weekend.
Negroponte: Our goal is to gain more explicitly what they intend to do in future years.
- Source: Reagan Library, Cobb, Tyrus: Files, Whaling (Folder 2). Confidential. Prepared by Scharfen. On the front page, Scharfen wrote, “FYI from Jock Sharfen.”↩
- See footnote 5, Document 317.↩
- See footnote 4, Document 330.↩
- See footnote 2, Document 333.↩
- See Document 332.↩
- Not found, but see footnote 4, Document 332.↩
- See footnote 2, Document 324.↩
- September 11.↩
- Reference is to Prime Minister Palsson’s September 2 letter; see Document 335.↩
- See the attachment to Document 334.↩
- Halldor Asgrimsson.↩