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Authors

John A. Duff

Document Type

Article

Abstract

A quarter of a century ago, the U.S. Congress enacted one of the first domestic laws aimed at enforcing marine species conservation agreements beyond U.S. territorial limits, the Pelly Amendment. That amendment gave the President the authority and discretion to impose trade sanctions on foreign nations as a means to gain compliance with international fishery conservation agreements. Since the Pelly Amendment's enactment in 1971, Congress has amended it and promulgated other statutes aimed at conserving not only fish, but a wide array of living marine resources such as whales, dolphins, sea turtles and other wildlife threatened by commercial fishing practices. The most recent statutes require, rather than allow, the Executive Branch to impose trade sanctions on nations deemed to be violating marine resource protection pacts. In some cases, sanctions imposed on foreign nations have resulted in bitter trade disputes, such as the tunadolphin conflict that went before a General Agreement on Tariffs and Trade dispute resolution panel. Until recently, the Executive Branch had been successful in limiting conflicts between international conservation and international trade objectives. However, the more recent and less discretionary statutory requirements may impose difficult duties upon members of the Executive Branch who are more comfortable with flexible approaches to trade and foreign affairs issues. This Article reviews the application of three United States statutes which may trigger trade sanctions for violations of marine resource conservation programs. Recently, three issues have arisen which illustrate the range of enforcement measures that may be taken, the circumstances under which they may be employed, the relative discretion on the part of the Executive Branch in administering the laws, and the repercussions that may result. Part Two of this Article discusses the oldest U.S. domestic law used to protect whale stocks worldwide, the Pelly Amendment. It outlines the U.S. Secretary of Commerce's investigation of Japan's recent scientific whaling efforts, the resulting certification of Japan under the Pelly Amendment, and Japan's response to certification. It concludes by underscoring the great discretion afforded the President in determining whether or not to impose trade sanctions. Part Three discusses the United States Court of International Trade's December 1995 application of the Endangered Species Act's sea turtle provision (Section 609). It outlines the Executive Branch's initial, limited application of Section 609 to the wider Caribbean region. It then examines the claim of environmental organizations that the law mandates worldwide application. Part Three next summarizes the court's determination that the law demands global application. It explains the court's finding that Section 609 leaves little discretion to the Executive Branch in imposing trade sanctions. The section concludes by noting that free trade violation charges levied by affected nations could subject U.S. imposed trade sanctions to an international dispute resolution process. Part Four reviews the March 1996 U.S. Court of International Trade decision ordering the U.S. Secretary of Commerce to apply the trade sanction provisions of the High Seas Driftnet Fisheries Enforcement Act against Italy for driftnetting operations in contravention of a global moratorium. It presents the concerns that led to a global moratorium on the use of large scale driftnets on the high seas. It sets out the United States High Seas Driftnet Fisheries Enforcement Act with its congressionally- created worldwide enforcement mechanism, and explains how that law reaches into the Mediterranean Sea to affect Italian fishing practices. Part Four concludes by revisiting questions concerning the need for, and authority of, the global moratorium. It also suggests that a U.S. law that imposes its fishery conservation objectives on fishing in the Mediterranean, an area over which other nations have potentially exclusive fishery jurisdiction, merits review. Based on the three issues referred to above, this Article concludes that the increase in statutorily mandated enforcement measures, at a time when the United States is entering larger and more comprehensive trade agreements, inevitably leads to an increasing likelihood of conflict between free trade and marine species conservation goals. Fair trade and sustainable use issues cannot be addressed when isolated from one another. These recent developments indicate that U.S. policymaking in both areas needs to be reviewed and integrated to achieve a mutually acceptable and balanced practice that will be respected by other States and will withstand the scrutiny of international arbiters.

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