In a complicated bartering agreement drafted late last year, the U.S. Commerce Department promised to waive the threat of economic sanctions against Japan — specifically, involving the right to fish in U.
S. territorial waters — if Japan’s fishing fleet would promise to end sperm whale hunting by 1988 (SN: 12/1/84, p. 343). As a further inducement, Commerce offered to allow Japan 400 sperm whales a year through this year, 200 a year for the next two years, and other whale species at limits to be specified later by the United States.
But in a landmark ruling handed down earlier this month, U.S. District Court Judge Charles R.
Richey rejected the compromise pact. There is but one issue in this case, Richey says: whether Commerce Secretary Malcolm Baldrige has discretionary authority to determine what actions will trigger an automatic sanction. And he does not, Richey writes in his 28-page opinion: “Once the Secretary has determined that a nation is acting so as to diminish the effectiveness of the International Whaling Convention [IWC], he must certify that fact to the President.
” Under the Packwood-Magnuson amendment to a fisheries law, the President must then revoke the violator’s U.S. fishing rights. Though Commerce had claimed its pact would preserve the effectiveness of the IWC by ultimately bringing Japan into compliance with the ban, Richey rejected that argument. “Packwood-Magnuson was enacted to put teeth into the certification process by eliminating the discretion given the Executive [branch of government] whether to apply sanctions,” he explained. Moreover, he said, after Commerce’s past record of interpreting the taking of 15 or 20 endangered bowhead whales as endangering the entire IWC structure, it was inconceivable to him how the agency justified offering Japan 1,200 sperm whales and unknown numbers of minke and Bryde’s whales with impunity. As a result, Richey ordered Commerce to certify Japan’s failure to heed the IWC quota and prohibited Secretary of State George Schultz from withholding sanctions.
Last week the Commerce Department filed for a stay of that order pending its appeal of Richey’s decision.