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Contemporary Practice of the United States Relating to International Law

Published online by Cambridge University Press:  27 February 2017

Marian Nash Leich
Marian Nash Leich*
Affiliation:
Office of the Legal Adviser, Department of State
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American Journal of International Law , Volume 79 , Issue 2 , April 1985 , pp. 431 - 441
Copyright
Copyright © American Society of International Law 1985

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References

1 See further 77 AJIL 875-76 (1983), and 75 AJIL 144-45 (1981).

1 May 26, 1930, TS No. 918, 50 Stat. 1355 (entered into force July 28, 1937), as amended, Dec. 28, 1956, TIAS No. 3867, 8 UST 1057, and Feb. 24, 1977, TIAS No. 9854, 32 UST 2475.

2 S. Treaty Doc. No. 2, 99th Cong., 1st Sess. (1985).

1 The Packwood-Magnuson Amendment (sec. 3 of Pub. L. No. 96-61, Aug. 15, 1979, 93 Stat. 407) to the Magnuson Fishery Conservation and Management Act of 1976 (16 U.S.C. §1801 et seq. (1982)) was specifically directed toward the protection of whales. Section 3(a) of Pub. L. No. 96-61 added to § 201 (foreign fishing) of the Act new paragraphs that provide for a reduction by not less than 50 percent in each fishery allocation within the U.S. 200-nautical-mile fishery conservation zone for a foreign country whose nationals the Secretary of Commerce certifies to be, directly or indirectly, conducting fishing operations or engaging in trade or taking that diminishes the effectiveness of the International Convention for the Regulation of Whaling (see note 3 infra). Under sec. 201 (e)(2)(A)(i), 16 U.S.C. §1821(e)(2)(A)(i), such certification shall also be deemed a certification for the purpose of sec. 8 of the Fishermen’s Protective Act (the Pelly Amendment, note 2 infra), 22 U.S.C. §1978. The certified nation is permitted up to 1 year to remedy the conditions leading to the certification before its fishing allocation is completely terminated.

2 The Pelly Amendment to the Fishermen’s Protective Act of 1967, §8 thereof, was enacted by Pub. L. No. 92-219, Dec. 23, 1971, 85 Stat. 786, 22 U.S.C. §1978. It authorizes the President, upon certification from the Secretary of Commerce, to embargo imports of fish products from a foreign country whose nationals are diminishing the effectiveness of an international fishery conservation program. The Pelly Amendment has played a major role in U.S. efforts to persuade other nations to observe international fishery conservation programs, including whaling quotas.

3 The International Convention for the Regulation of Whaling, with Schedule of Whaling Regulations, Dec. 2, 1946, TIAS No. 1849, 62 Stat. 1716, entered into force for the United States Nov. 10, 1948. The Protocol to the Convention, Nov. 19, 1956, TIAS No. 4288, 10 UST 952, entered into force for the United States May 4, 1959. For reference to the numerous amendments to the Schedule of Whaling Regulations, see Treaties in Force, Treaties and Other International Agreements of the United States, published annually as of Jan. 1 by the Department of State.

4 The moratorium adopted by the International Whaling Commission on July 24, 1982 as paragraph 10(e) of the Schedule to the Convention reads:

* Notwithstanding the other provisions of paragraph 10, catch limits for the killing for commercial purposes of whales from all stocks for the 1986 coastal and the 1985/ 86 pelagic seasons and thereafter shall be zero. This provision will be kept under review, based upon the best scientific advice, and by 1990 at the latest the Commission will undertake a comprehensive assessment of the effects of this decision on whale stocks and consider modification of this provision and the establishment of other catch limits.*

* The Governments of Japan, Norway, Peru and the Union of Soviet Socialist Republics lodged objection to paragraph 10(e) within the prescribed period. For all other Contracting Governments this paragraph came into force on 3 February 1983.

Peru withdrew its objection on 22 July 1983.

The objections of Japan, Norway, and the Union of Soviet Socialist Republics not having been withdrawn, the paragraph is not binding upon these Governments.

International Whaling Commission, Schedule to International Convention for the Regulation of Whaling, 1946, as amended by the Commission at the 35th Annual Meeting, July 1983, and replacing that dated February 1983, at 13 (1983).

5 Dept. of State File No. P85 0009-1595, in response to id., No. P85 0009-1590.

On Dec. 11, 1984, the Government of Japan notified the International Whaling Commission by telex of the withdrawal of its objection to footnote 1 of table 3 of the Schedule to the International Convention for the Regulation of Whaling. See Circular Communication from Dr. Ray Gambell, Secretary of the Commission, to Contracting Governments, No. RG/ DVR/A1627, Dec. 13, 1984, attaching (confirmatory) note, Ambassador of Japan (at London) to the Secretary of the International Whaling Commission, No. FCO/266/84, Dec. 11, 1984, found also at Dept. of State File Nos. P85 0009-1600 and 1601.