country’s breach of a fisheries protection agreement. The President, in turn, would
then be able to impose seafood trade bans onto that respective country.
In the 1970s it was particularly Japan and the Soviet Union who were notified as
exceeding IWC quotas for fin, sei and sperm whales. Since the US threatened these
countries with trade sanctions, both accepted (and arguably also adhered) to the
quotas set by the Commission. Also other countries that, at that time, were not
members of the IWC received such notification and were threatened with sanctions.
These countries, however, finally opted to join the IWC and to adhere to the quotas.
Problematic in this account is that IWC rules and the Pelly Amendment do not
necessarily align. While the Pelly Amendment is designed to support conservation
agreements, it falls short of recognising the organisational set up of the respective
agreement itself. In the case of Japan and the Soviet Union, both countries formally
objected to the quotas and were thus not bound to them. The same accounted for
Iceland when it was notified under the Pelly Amendment in 2011 as diminishing the
effectiveness of the IWC by conducting commercial whaling. When Iceland rejoined
the IWC in 2002, it formally, and legally, issued a reservation to the moratorium on
commercial whaling and is therefore not bound to it. The Pelly Amendment neglects
these internal procedures and inevitably places US views on how the IWC (or any
other agreement is to function) onto other states.
A similar case has occurred in 2014 with respect to Iceland’s trade in whale
products. This time, however, it was not the IWC which was cause for concern, but
the Convention on International Trade in Endangered Species (CITES) of 1973. To
recall, CITES contains three Appendices. All species listed on Appendix I are fully
protected and trade in them is not allowed. Amongst others, fin, sperm and humpback whales are listed on this Appendix. According to CITES rules, countries can
lodge reservations to the listing and can conduct trade with non-members or other
parties with reservations. Since trade in fin whale meat occurs mostly between
Iceland and Japan, the latter of which also having also lodged a reservation, trade
is therefore fully in conformity with CITES rules. A certification under the Pelly
Amendment referring to undermining the effectiveness of CITES consequently
negates the mechanisms within CITES itself.
The second important act in the United States to understand the external dimension of US law is the Marine Mammal Protection Act (MMPA), which the US
Senate adopted in 1972. The MMPA is a far-reaching act which protects all marine
mammals, irrespective of their conservation status, from commercial exploitation.
Since the US has long recognised the close interaction of its indigenous populations
with marine mammals, however, these are exempted from the provisions of the act,
provided they do not conduct marine mammal hunts in a wasteful manner. In
practice this means that marine mammal products cannot be sold on the US market
and cannot be imported or exported, even for personal use. This furthermore means
that despite the provisions of the ICRW and potential commercial whaling that is
legal under the Convention, in US waters no whaling activities are permitted. In
1976 the Magnuson-Stevens Fishery Conservation and Management Act was passed
whose main purpose was to prevent overfishing in US waters. Both the MMPA and
the ICRW are explicitly listed as regimes protecting fisheries. If, therefore, a country
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5 The International Legal Framework for Whales
then be able to impose seafood trade bans onto that respective country.
In the 1970s it was particularly Japan and the Soviet Union who were notified as
exceeding IWC quotas for fin, sei and sperm whales. Since the US threatened these
countries with trade sanctions, both accepted (and arguably also adhered) to the
quotas set by the Commission. Also other countries that, at that time, were not
members of the IWC received such notification and were threatened with sanctions.
These countries, however, finally opted to join the IWC and to adhere to the quotas.
Problematic in this account is that IWC rules and the Pelly Amendment do not
necessarily align. While the Pelly Amendment is designed to support conservation
agreements, it falls short of recognising the organisational set up of the respective
agreement itself. In the case of Japan and the Soviet Union, both countries formally
objected to the quotas and were thus not bound to them. The same accounted for
Iceland when it was notified under the Pelly Amendment in 2011 as diminishing the
effectiveness of the IWC by conducting commercial whaling. When Iceland rejoined
the IWC in 2002, it formally, and legally, issued a reservation to the moratorium on
commercial whaling and is therefore not bound to it. The Pelly Amendment neglects
these internal procedures and inevitably places US views on how the IWC (or any
other agreement is to function) onto other states.
A similar case has occurred in 2014 with respect to Iceland’s trade in whale
products. This time, however, it was not the IWC which was cause for concern, but
the Convention on International Trade in Endangered Species (CITES) of 1973. To
recall, CITES contains three Appendices. All species listed on Appendix I are fully
protected and trade in them is not allowed. Amongst others, fin, sperm and humpback whales are listed on this Appendix. According to CITES rules, countries can
lodge reservations to the listing and can conduct trade with non-members or other
parties with reservations. Since trade in fin whale meat occurs mostly between
Iceland and Japan, the latter of which also having also lodged a reservation, trade
is therefore fully in conformity with CITES rules. A certification under the Pelly
Amendment referring to undermining the effectiveness of CITES consequently
negates the mechanisms within CITES itself.
The second important act in the United States to understand the external dimension of US law is the Marine Mammal Protection Act (MMPA), which the US
Senate adopted in 1972. The MMPA is a far-reaching act which protects all marine
mammals, irrespective of their conservation status, from commercial exploitation.
Since the US has long recognised the close interaction of its indigenous populations
with marine mammals, however, these are exempted from the provisions of the act,
provided they do not conduct marine mammal hunts in a wasteful manner. In
practice this means that marine mammal products cannot be sold on the US market
and cannot be imported or exported, even for personal use. This furthermore means
that despite the provisions of the ICRW and potential commercial whaling that is
legal under the Convention, in US waters no whaling activities are permitted. In
1976 the Magnuson-Stevens Fishery Conservation and Management Act was passed
whose main purpose was to prevent overfishing in US waters. Both the MMPA and
the ICRW are explicitly listed as regimes protecting fisheries. If, therefore, a country
110
5 The International Legal Framework for Whales