PREPARED STATEMENT OF ROBERT J. MCMANUS, GENERAL COUNSEL, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, U.S. DEPARTMENT OF COMMERCE Mr. Chairman and Members of the Subcommittee: Thank you for the opportunity to address the Subcommittee today. I would like to begin my remarks by addressing the November 13, 1984, exchange of letters between Secretary Baldrige and the Charge d'Affaires ad interim of the Japanese Embassy. I will then address House Concurrent Resolution 54, and finally the U.S. Government's preparations for the annual meeting of the International Whaling Commission in July. The Exchange of Letters As matters stood in November of last year, Japan had course, was the so-called "moratorium" on all commercial whaling, as provided by a 1982 amendment to paragraph 10e of the Schedule. By its own terms, the moratorium will apply to pelagic whaling beginning this coming fall, and to coastal whaling in 1986. There was no doubt that Article, V of the treaty permitted Japan's objections, and that continued Japanese whaling under those objections would not violate the Convention. To put it another way, Japan's coastal sperm whaling in 1984 was subject to no international quotas, just as all Japanese commercial whaling after the effective date of the moratorium would not have been subject to international quotas, so long as Japan's objection to the moratorium remained in place. At the same time, the Pelly and Packwood-Magnuson Amendments permit certification of whaling activities that diminish the effectiveness of the Convention, even if the foreign country in question is acting lawfully. Faced with this reality, Secretary Baldrige has used his authority under the Pelly and Packwood-Magnuson Amendments to induce Japan to withdraw its objections and get out of commercial whating. After difficult and detailed bilateral discussions last November, the Charge d'Affaires ad interim of Japan sent Secretary Baldrige a letter proposing conditions under which Japan would withdraw its objections and comply belatedly with all aspects of the IWC conservation program, Secretary Baldrige's reply concluded that if Japan took the steps set out in its letter to comply with the IWC sperm whale and moratorium decisions, Japan would not be acting in a manner to diminish the effectiveness of the IWC conservation program and thus would not be certified. Specifically, the arrangement provided that if the Japanese agreed to end all commercial sperm whaling, effective at the end of the 1987 coastal season, then the Japanese could take up to 400 sperm whales during each of the 1984 and 1985 coastal seasons without risk of U.S. sanctions. The Japanese were required to indicate their agreement to end sperm whaling by withdrawing on or before December 13, 1984, their objection to Footnote 1 of Table 3, effective in 1988. Japan withdrew that objection, on December 11. The second part of the November arrangement provided that if by April 1, 1985, Japan withdrew its moratorium objection such that all Japanese commercial whaling would cease by April 1, 1988, then the Japanese may take up to 200 sperm whales in each of the 1986 and 1987 coastal seasons and may take other whales under limitations acceptable to the United States through the end of the 1986/87 pelagic season and end of the 1987 coastal season without imposition of Pelly or Packwood-Magnuson sanctions. Meanwhile, Mr. Chairman, the Secretaries of Commerce and State were sued by a number of environmental groups who sought to prevent Secretary Baldrige from carrying out his agreement with the Japanese and to force him to certify the Japanese for exceeding what was in effect a zero quota on sperm whales in 1984. They argued that under the PackwoodMagnuson and Pelly Amendments the Secretary had no discretion with regard to certification. On March 5, 1985, Judge Richey of the D.C. District Court granted the plaintiffs' motion for summary judgment and ordered Secretary Baldrige to certify to the President, under the Packwood-Magnuson and Pelly Amendments, Japanese sperm whaling in the 1984 coastal season. The United States appealed and on March 18, 1985, the Court of Appeals granted a stay pending appeal and established an expedited schedule for briefing and oral argument, which is now set for May 16. In response to these developments in the courts, the Government of Japan has now informed Secretary Baldrige that, if the United States Government prevails in the litigation, Japan will withdraw its objection to the moratorium on the terms originally established by the exchange of letters last November, so that Japan would cease all commercial whaling by April 1, 1988, at the latest. I will provide for the record copies of the exchanges of letters with Japanese officials that reflect the foregoing developments. House Concurrent Resolution 54 Next, I would like to present briefly the Administration's position on House Concurrent Resolution 54. The Department of Commerce is opposed to adoption of the resolution, as drafted, because it contains conclusions of law with which we do not agree. Furthermore, in urging the Secretary of State to reduce at this time fishery allocations to nations which have not yet withdrawn objections to IWC decisions, the resolution has been overtaken by events and is unnecessary. Since Japan has now conditionally agreed to phase out its commercial whaling activities, its fishery allocations |