species will depend on the circumstances of each This definition of "diminishing the effectiveness" of a conservation program was fashioned only a year before passage of the Packwood-Magnuson Amendment, in which the identical standard appears. Nowhere in the legislative history of Packwood-Magnuson does a repudiation of this explanation of the phrase appear. Thus, under this definition of "diminishing the effectiveness", the Secretary may conclude, as he has done in the past, that although a nation may not be complying in every detail with IWC regulations, it is demonstrating commitment to the overall whale conservation program in other ways. Το punish a nation which is making good faith efforts to bring itself into line with major conservation decisions is a foolish elevation of form over substance which Congress did not intend and which it explicitly rejected in the only definition of the statutory standard which was offered in the legislative process of either amendment. 7/ 7/ If this Court were to ignore this definition and adopt the district court's view, such a decision would cast a shadow over application of the Pelly Amendment to all international conservation programs as well. For example, the 1978 Amendment to the Pelly Amendment, 22 U.S.C. 1978(a)(2), applies to the Convention on International Trade in Endangered Species of Wild The district court notes (Opinion at 14) that the Pelly and Packwood-Magnuson Amendments were enacted by Congress to enforce compliance with international conservation agreements which lacked any enforcement teeth of their own. We fully agree with this statement of the amendments' purpose. Concluding the analysis there, however, as the court does, begs the question and dodges our arguments. The crucial issue is whether any and every transgression of an IWC quota must automatically and 1/ (footnote continued) Fauna and Flora (CITES). Unlike the Whaling Convention, which addresses activities engaged in by a small number of nations concerning relatively few species, CITES is a broad conservation program. CITES controls international trade in over 1,000 species from marine, freshwater, and terrestrial environments, includes both plants and animals, and with 82 signatories, affects virtually every country on earth. Absent the requisite documentation and findings, no trade in listed species is permissible under CITES. For species listed on Appendix I, what is in essence a zero quota applies to commercial transactions. Accordingly, the district court's interpretation of the term "diminishes the effectiveness" would produce an extreme result when applied to CITES. Under the district court's ruling, an argument could be made that any trade in listed species other than in accordance with CITES necessarily diminishes the effectiveness of its conservation program, irrespective of formal reservations by the parties. Such an interpretation of the Pelly Amendment would take away the discretion that Congress meant to give to the Secretaries to determine which activities "diminish the effectiveness" of treaties. It would require certification of a nation in each instance in which it was in violation of CITES or had lodged a reservation to provisions of the Appendices to CITES, regardless of the impact of the violation on the species or on the effectiveness of the treaty. While there are certainly instances where trade or taking inconsistent with CITES would diminish its effectiveness, not each transgression has that impact, nor should the Secretaries be required to certify to the President that it does. Yet the district court's ruling, which applied by its terms to determinations under the Pelly Amendment, would have precisely that absurd result. inevitably trigger certification when, as here, the totality of the circumstances are such that those responsible for the nation's international conservation commitments believe that the effectiveness of the Convention will not be diminished. Indeed, in the current situation, permitting the Japanese to continue whaling for a few more years at reduced levels will secure an assurance of their cessation of whaling by early 1988 and thus an enhancement of the effectiveness of the Convention. No other United States action not certification or anything else - can achieve such a guarantee, a fact which the Secretary properly considered in making his decision on what action will best serve the cause of whale conservation. The court holds that any and all whaling inconsistent with the Schedule triggers certification irrespective of the circumstances, of ongoing negotiations, and of tangible commitments to the Convention which the United States has been able to induce by the threat of certification. The basis for this narrowly defined view of Secretarial discretion is unclear. The legislative history indicates that Congress was certainly impatient with the pace at which the Executive Branch had moved in making certification decisions under the Pelly Amendment. Representative Murphy explained the purpose of the Packwood-Magnuson Amendment as follows: Mr. Speaker, the reason for the amendment is of a foreign country are in violation of The necessity for some Secretarial discretion was, however, clearly recognized. The district court's opinion ignores the legislative history discussing Secretarial discretion as if it were non-existent. It makes no attempt even to explain it away. In hearings before the Subcommittee on Fisheries and Wildlife Conservation and the Environment of the Committee on Merchant Marine and Fisheries, House of Representatives, Chairman Breaux described the two amendments as follows: Mr. Breaux: I understand under the First, in certifying that a country is in Fisheries, House of Representatives, 96th [Emphasis In an exchange during the same hearing with John Negroponte, Mr. Breaux: ***What is wrong with telling Mr. Negroponte: Well, I think that it is Mr. Breaux: The Secretary has the discretion President Carter took a similar approach when he signed the Packwood-Magnuson Amendment into law on August 15, 1979. Stress- With regard to both the Packwood-Magnuson The signing statement underscores the degree to which foreign policy concerns are entangled in the cause of international whale conservation. This Court clearly recognized such |