The third proposal which has been broached by whaling nations is the reorganization of the IWC. The Japanese have complained bitterly in recent months about what they allege to be the unbalanced composition of the IWC and the unfair management of its scientific committee. As such, they expressed their interest in normalizing the Commission.

The details of this proposal have not been elaborated, but the intent is clear. The Japanese wish to return to the days of an IWC whaling cartel by excluding nonwhaling nations from the decisionmaking process. Administrative changes in membership requirements or voting procedures of the Commission could allow Japan to revoke previous landmark conservation decisions of the IWC, with disastrous consequences. Such a proposal, if it is offered formally, should be swiftly and forcefully dispatched.

Finally, Greenpeace would like to take this opportunity to applaud the leadership and initiative of Representative Bonker and yourself, Mr. Chairman, in submitting House Concurrent Resolution 54. This resolution marks an important reaffirmation of congressional intent regarding the implementation of the commercial whaling moratorium. For over a decade Congress has sought to strengthen and uphold the IWC. Oversight hearings in this subcommittee, resolutions and significant pieces of legislation such as the Packwood-Magnuson amendment, all have been geared toward establishing the United States as a leader in whale conservation efforts.

The current administration has ignored that proud legacy. Now more than ever, this resolution is necessary as a reminder that whales are not to be treated as bargaining chips in international trade or foreign policy disputes. U.S. law must be applied in a firm and even-handed manner and our resolve to protect the integrity of the IWC must be made clear.

We therefore urge this subcommittee to act promptly and favorably on House Concurrent Resolution 54.

Thank you, Mr. Chairman. That concludes my oral testimony. [Mr. Cheater's prepared statement follows:]

an

PREPARED STATEMENT OF MARK CHEATER, WILDLIFE LegislaTIVE DIRECTOR,
GREENPEACE, U.S.A.

I appreciate this opportunity to testify today on behalf of nearly 700,000 Greenpeace supporters nationwide. Greenpeace is international environmental organization dedicated to the preservation of marine ecosystems, and for over a decade has been in the forefront of efforts to confront environmental abuse. One of our top priorities during this time has been to bring the commercial exploitation of whales to a halt. Therefore, it is with great pleasure that I speak before this subcommittee on the whaling issue.

today

I. THE BILATERAL WHALING AGREEMENT OF NOVEMBER 13, 1984

The bilateral whaling deal amounts to nothing less than the most egregious reversal of U.S. conservation policy in recent memory. On one level it is an abdication of our nation's responsibilities under the International Convention for the Regulation of Whaling. On another level, it constitutes a violation of federal law and the intent of Congress. And, most importantly, it goes against the grain of public opinion and defies the will of the American people.

For the purposes of establishing an accurate historical

record on this matter, I would like to chronicle the events that led up to the signing of the infamous agreement. Next, I would like to discuss the legal action that was taken in response to the deal, and subsequent actions by the Japanese and American governments. Finally, I will touch upon the biological and political implications of these actions.

Events Culminating in the Bilateral Whaling Agreement

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In 1981, the International Whaling Commission (IWC) approved moratorium on sperm whaling by a vote of 25 to 1. Japan was the sole nation to disapprove of this resolution, and also the sole nation to file a formal objection, a device which exempts the nation in question from complying with the particular resolution.

The following year, the IWC passed a moratorium on all commercial whaling operations. As part of a compromise plan to obtain passage of this landmark decision, the whaling nations were granted a grace period (until 1986) to gradually phase out their commercial whaling operations. In addition, Japan was granted a two-year exemption to the sperm whaling ban through the allocation of 850 North Pacific sperm whales for the 1982-83 and 1983-84 seasons.

refused whales,

At the 1984 annual meeting of the IWC, the Commission to establish a further quota for North Pacific sperm which effectively caused the moratorium on this species to be implemented. The Japanese indicated their intention to carry on with sperm whaling in spite of this action.

However, they feared that the U.S. government might invoke economic sanctions in response to any sperm whaling. The Packwood-Magnuson Amendment to the Fishery Conservation and Management Act mandates a fifty percent reduction in the U.S. fishing allocation of any nation which "diminishes the effectiveness" of the IWC. The threat of losing hundreds millions of dollars' worth of American fish made eager to reach some accomodation with the U.S. whalers set to sea in October.

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the Japanese before their

Japanese diplomats came to Washington on a number of occasions in the fall of 1984 to discuss this issue with Commerce and State Department officials. On October 12, fearing that a U.S. concession was imminent, Greenpeace and eleven other groups a letter to then-NOAA Administrator John Byrne and State Department official Edward Wolfe urging them to reject "a ny bilateral deal which would in any way subvert the IWC's decision for a zero quota on the North Pacific sperm whale." The letter further stated: "[a] ny compromise now negotiated by our government with Japan outside the IWC process would fly in the face both of our treaty obligations, and the historic objectives of U.S. whaling policy... and would constitiute a serious breach of international protocol." At that series of discussions, no firm agreement was reached, but the groundwork was established for an ultimate agreement.

In early November, the Japanese returned for another round of discussions. The negotiations dragged on for almost two weeks, and the final details of the bilateral deal were hammered out in late-night sessions on the weekend of November 10-11.

While negotiations were occuring in Washington, rumors abounded that the Japanese coastal sperm whaling fleet had left port in pursuit of its prey. A Greenpeace team was dispatched to Japan to investigate these rumors. On the same weekend that the agreement was finalized, Campbell Plowden and Patrick Herron photo-documented the landing of two sperm whales in the coastal town of Wadaura. The photos of the landing and flensing of these whales at the coastal processing station constituted the first uncontrovertible evidence that Japan had violated the sperm

whaling moratorium.

On November 13, the terms of the bilateral deal and the correspondence formalizing it were released to the public. In essence, the agreement sanctioned a take of 1200 endangered sperm whales by the Japanese over a four-year period, and condoned an unspecified take of Bryde's and minke whales through the 1987-88 coastal whaling and 1986-87 pelagic whaling seasons. The United States agreed not to impose sanctions under the Packwood-Magnsuon or Pelly Amendments under this arrangement. In return, the Japanese government agreed to withdraw its objections (effective 1988) to both the sperm whaling and the commercial whaling

moratoria.

Legal Action Arising from the Bilateral Deal

On the basis of the dangerous precedent which this deal created, Greenpeace and a coalition of environmental and animal welfare groups filed a lawsuit against Secretary Baldrige and Secretary Shultz. Our original complaint, filed on November 8, 1984, sought to enjoin Secretary Baldrige from finalizing this deal and from failing to certify the Japanese under the PackwoodMagnuson Amendment.

The crux of our legal argument is that the Packwood-Magnuson Amendment was adopted by Congress for the purpose of creating mandatory, nondiscretionary sanction to be imposed against nations that exceed IWC quotas. By failing to certify Japanese sperm whaling under this amendment, Secretary Baldrige has ignored his statutory requirments and duties.

It is clear from the legislative history of the PackwoodMagnsuon Amendment and the circumstances surrounding its enactment that Congress intended this law as an obligatory sanction against countries that violate IWC mandates. The threat of losing fifty percent of their U.S. fishing quota has kept many nations from objecting to IWC quotas in the past. As such, this law is the single most important enforcement mechanism available to the IWC.

On December 11, we filed a motion for summary judgement in the case. Soon after that, the Japan Whaling Association and the Japan Fishing Association intervened in the suit on behalf of the defendants.

On March 5, 1985, U.S. District Court Judge Charles Richey handed down a ruling in our favor. Judge Richey ordered Secretary Baldrige to certify Japanese sperm whaling under the Packwood-Magnuson and Pelly Amendments, and nullified the bilateral deal. In his opinion, the Judge declared: "[it is inconceivable to this Court how the Secretary can reconcile his decision not to certify the Japanese sperm whaling with the clear purpose, intent and history of the law he is charged with enforcing, and with the equally consistent interpretation given that law by the agency and by the Secretary himself." "The Secretary of Commerce may not unilaterally, or even bilaterally with the Japanese, dismiss the mandate of the IWC SO as to proceed with his own particular vision of whale preservation," the Judge concluded.

The defendants appealed this decision and were granted a stay of the District Court's order on March 18. The issue is now before the appellate court and has been scheduled on an expedited basis. A final ruling is expected in late May or early June.

Subsequent Actions

and

Immediately after the deal was formalized, the Japanese American governments set out on a campaign to misinform and confuse the public as to the true nature of this agreement. A Commerce Department press release proudly heralded an "agreement

to end Japanese whaling". Japan's Fishery Agency

Almost simultaneously, the director of denied making any such deal. confusion over the bilateral arrangement persists to this day.

The

On December 11, the Japanese government officially informed the IWC secretariat that, "considering the results of the recent talks between the Government of Japan and the Government of the United States," it was withdrawing its objection to the sperm whaling moratorium effective in 1988.

Another Commerce Department press release trumpeted: "Japan has moved to stop its fishing industry from harvesting sperm whales." "In effect, the Japanese have agreed to give up sperm whaling after the 1985 season, the release continued. Secretary Baldrige was quoted as saying: "This action offers promise that the Japanese intend to pursue responsible conservation

practices."

However, just four days later, Japan lodged another objection with the IWC. Stating that the 1984-85 quota for southern hemisphere minke whales was "scientifically unfounded", the Japanese informed the IWC that they were filing a formal protest to this decison. After consulting with the Soviet Union (which had previously objected to this quota), the Japanese announced that they would take approximately 3,000 of these whales, well over the quota of 1,941.

The misinformation campaign persisted over the winter, with the Japanese officials stating: "we have never said we will give up sperm whaling after 1985. That is only the United States' favorite scenario." In a January 23 letter to the Chairman of this subcommittee, Secretary Baldrige implied that the bilateral deal 'would make the IWC's conservation program even more

effective'.

A small working group of IWC members met in England in February to discuss the future of the Commission. At that meeting, Japan (along with Norway) formally proposed the creation

of a new category of whaling that would exempt their coastal operations from the commercial whaling moratorium. In addition, vague threats were made to "normalize" the Commission by excluding non-whaling states from the decision-making process. Conservation-oriented nations at the meeting expressed opposition to these proposals and concern over implications of the bilateral deal.

In March, the Soviet Union exceeded its ceiling of 1,941 minke whales in the Antarctic. As a result, Secretary Baldrige moved on April 1 to certify this nation under the Pelly and Packwood-Magnuson Amendments. This action had the practical effect of denying the Soviets approximately nine million dollars' worth of American fish. When questioned about this obvious discrepancy between the treatment of Japan and the U.S.S.R., Commerce Department officials claimed that the Soviets had never attempted to discuss the issue and were therefore being penalized.