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need not be reduced and corresponding damage to U.S. fishing interests can be avoided. The Secretary of Commerce has certified Soviet minke whaling in the Antarctic under the Packwood-Magnuson Amendment, thereby effectively requiring the Secretary of State to cut Soviet allocations. Finally, since Norway receives no allocations to fish, this aspect of the resolution can have no practical effect on the third nation that has objected to the moratorium.
Finally, Mr. Chairman, I have been asked to discuss preparations for the upcoming IWC meeting on July 15-19, 1985. The work of this meeting will be considerably different from past meetings because there will be no catch or effort limitations established for those whale stocks which are commercially harvested. Without need for any further decisions, the 1982 moratorium decision will be implemented by setting commercial catch limits to zero, and any other action will require an unlikely three-quarters majority of the votes in support.
The main agenda item to be discussed is the future activities of the Commission. At the 36th Annual Meeting,
last year, the U.S. proposed and the Commission agreed,
include: maintaining IWC's capacity to monitor the status
of a major turning point in its history and must adapt to meet its continuing responsibilities in the face of severe budgetary constraints and shifting funding sources.
Additional areas for discussion at the IWC meeting are identified in the draft agenda which I am submitting for the
The preparation of U.S. positions on all IWC agenda items is subject to review by the IWC Interagency Committee. Each
year a series of meetings is conducted to provide for partici-
The Interagency Committee is open to any U.S. citizen with interest in U.S. whale conservation policy but NOAA reserves the authority to determine the appropriateness of each person's participation. Persons who represent foreign
interests may not attend.
This concludes my statement, and I would be pleased to
address any questions.
Mr. MCMANUS. I would also ask that the Government's brief in the court of appeals be included in the record, in view of the fact that, without objection, it was ordered that the plaintiffs' amended lawsuit and, I believe, Judge Richey's decision be so entered.1
Mr. YATRON. Thank you, Mr. McManus. Without objection, it will be entered in the record.
I just would like to say that it appears to me the Japanese are being permitted to circumvent U.S. law. Some of the previous people who testified, I think justifiably, are concerned because there is the threat of possible whale extinction. So I think their statements were in order.
Can you tell us how many sperm whales the United States will allow the Japanese to catch in 1986 and 1987 without threat of certification?
Mr. MCMANUS. In 1986 and 1987, that would be 200 per year. The figure of 1,200 sperm whales, which you have heard in testimony previously, comprises 400 in the 1984 coastal season, 400 in the 1985 coastal season, and 200 in each of the following two seasons, which I believe are the ones to which you referred, Mr. Chairman. This is providing, of course, that the Japanese withdraw their objections, as stipulated in the November 13 exchange of letters.
Mr. Chairman, I wish to make very clear for the record, and to avoid any misunderstanding, that the exchange of letters and the agreement by the Secretary of Commerce on November 13, 1984, does not simply represent relenting on the part of the United States. The Secretary of Commerce extracted something from the Japanese. He extracted undertakings to withdraw the two pending objections to IWC decisions which the Japanese had. I cannot over
1 See app. 9.
state the importance to this process of the fact that the Japanese are perfectly entitled, under article V of this convention, to lodge objections. As a matter of international law, they were not bound, either by the zero quota on sperm whales or by the moratorium when it comes into effect.
The purpose of the agreement struck by the Secretary of Commerce, the one which Mr. Cheater feels "stinks," if I recall accurately his testimony, was to get the world's premier whaling nation out of commercial whaling.
All right, it will be 2 years late. We understand why the plaintiffs in this lawsuit are concerned. We understand the sentiments about whales that are shared by the people who preceded me at this table. But as I have said to any number of people who have called me on the telephone since November 1984-that is, members of the public who have called to complain about my role in thisthey pay us these vast sums of money to make difficult decisions, not easy decisions. This was a difficult decision.
I cannot tell you, Mr. Chairman, what would have happened had the Japanese simply been certified in November of 1984 for taking the two sperm whales that Mr. Plowden says he saw taken and flensed. Perhaps the Japanese would have capitulated. Mr. Plowden thinks so. That was not the decision made by the Secretary of Commerce. We believe that, as a matter of law, it is the Secretary of Commerce who is charged with the responsibility of assessing the likelihood of what will and will not happen in response to various actions that might be taken under the Pelly or the PackwoodMagnuson amendments, not the plaintiffs in this lawsuit.
Mr. YATRON. But there is nothing to stop the Japanese from continuing to whale after the 4 years?
Mr. MCMANUS. There is nothing to stop the Japanese from continuing to whale after the 4 years?
Mr. YATRON. Yes, who's going to stop them?
Mr. MCMANUS. Well, they would be violating the treaty. I mean, if the agreement is implemented, the Japanese would have withdrawn their objection. They would be violating an international treaty obligation. I suppose, Mr. Chairman, ultimately there is nothing to stop any country from doing anything in violation of its obligations until we have an enforceable system of world federalism, but we don't.
Mr. YATRON. Will the administration appeal the Baldrige case further if the district court's decision is upheld?
Mr. MCMANUS. I can't tell you, Mr. Chairman, without seeing what the court of appeals says. It might be that it would not. But I cannot answer that question on behalf of the administration at this time, Mr. Chairman, because I have not seen the opinion that has not been written, nor have I asked the Solicitor General what he thinks.
Mr. YATRON. If you lose, then what do you do?
Mr. MCMANUS. Well, then we make a decision. The decision is whether or not to seek a stay pending appeal from the Supreme Court and file a petition for a writ of certiorari, or just fold our tents and certify the Japanese and repudiate the agreement and let the chips fall where they may. That would be the decision which
the administration will confront should it lose the appeal now being handled on an expedited basis by the D.C. circuit.
Mr. YATRON. Is the administration prepared to execute the Pelly and Packwood-Magnuson statutes if the district court's decision is upheld?
Mr. MCMANUS. Yes, sir. If the district court's decision is upheld by the court of appeals, the Secretary will be obligated to certify Japanese sperm whaling in violation of footnote 1 to table 3 of the schedule.
Mr. YATRON. Does this decision not, in fact, place the United States Government on the side of the Japanese Government in fighting for continued commercial whaling, in violation of our own laws, as well as the decisions of the IWC?
Mr. MCMANUS. Well, that's a two-part question, Mr. Chairman. Whether or not it puts the administration on the side of the Japanese in violation of our own laws is, as I said at the outset, precisely the question before the court of appeals. Our answer is "No," for the reasons stated in the brief that will be included in the record of these proceedings.
With respect to the second part of your question—that is, does it violate the International Whaling Commission's moratorium-I would say, without fear of contradiction, that it does not.
I notice that one of the statements in House Concurrent Resolution 54 is that it is the sense of Congress that observance by the United States and Japan of the 1984 agreement would be a violation of the moratorium on commercial whaling established by the International Whaling Commission. Mr. Chairman, I suggest that we be precise when we talk about what is and what is not a "violation" of a treaty to which the United States is a party and to which Japan is a party. Japan can take those whales without violating the convention because it has lodged a valid objection. The United States is not taking the whales. I do not see, in the implementation of the agreement, a violation of the convention, as is suggested by the language of House Concurrent Resolution 54.
Mr. YATRON. Since the letters of understanding between the United States and Japan were issued on November 13, have other whaling nations approached the United States to work out bilateral arrangements in an effort to avoid U.S. sanctions for noncompliance with the IWC rulings?
Mr. McMANUs. I can only answer for myself, Mr. Chairman. The answer is "not to my knowledge."
I was struck by the difference between Mr. Van Note's account of the November negotiations with the Japanese and my own recollections, having been a very involved participant in those. I don't know who talks to whom off the record, or who places phone calls to whom. But I am not aware of any stampede to the office of the Secretary of Commerce to work out bilateral arrangements, which I think is the brunt of your question and some of the testimony we have heard.
Mr. YATRON. Have we made an effort to have an agreement with the Soviets, as we have with the Japanese?
Mr. MCMANUS. Not to my knowledge, Mr. Chairman. We have certified the Soviet Union. I do not know what the Soviet response would be, but their allocations are being cut.