1 International Convention for the Regulation of Whaling, with Schedule of Whaling Regulations, Dec. 2, 1946, 62 Stat. 1716,161 UNTS72 [hereinafter Whaling Convention]. The Whaling Convention is implemented in U.S. law by the Whaling Convention Act of 1949, 16 U.S.C. §§916-916/ (1994).

2 Whaling Convention, supra note 1, Arts. 111(2), V, 62 Stat, at 1717-19, 161 UNTS at 78, 80.

3 Id., Art. V(3), 62 Stat, at 1719, 161 UNTS at 80-82.

4 See 2 Patricia Birnie, International Regulation of Whaling: From Conservation of Whaling to Conservation of Whales and Regulation of Whale-Watching 615, 713 (1985).

5 16 U.S.C. §§1371-1385 (1994).

6 16 U.S.C. §1538(a)(l)(A) (1994).

7 The Pelly Amendment of 1971, 22 U.S.C. §1978 (1994), amended the Fishermen’s Protective Act of 1967, 22 U.S.C. §§1979-1980 (1994).

8 The Packwood-Magnuson Amendment of 1979, 16 U.S.C. §1821 (e)(2) (1994), amended the Fishery Conservation and Management Act of 1976, 16 U.S.C. §§1801-1882 (1994).

9 See Shabecoff, Philip, U.S. Presses Japan to Halt Its Whale Hunting, N.Y. Times, Jan. 2, 1984, at 1 Google Scholar.

10 See Marian Nash Leich, Contemporary Practice of the United States, 79 AJIL 434 (1985); see also Caron, David D., International Sanctions, Ocean Management and the Law of the Sea: A Study of Denial of Access to Fishing, 16 Ecology L. Q. 311, 321–23 (1989)Google Scholar. Essentially, the 1984 agreement provided that the secretary of commerce would determine that Japan’s actions did not “diminish the effectiveness” of the Whaling Convention—even though it was exceeding the International Whaling Commission’s (IWC) phase-out quota—because of Japan’s promise to halt its commercial whaling. Thus, the secretary would not find justification to certify Japan under the Packwood- Magnuson and Pelly Amendments. The U.S.-Japan agreement was immediately challenged by a group of conservationists who brought suit claiming that certification was mandatory under the amendments once it was established that a country was in violation of the IWC quota. In 1985, the district court found that the secretary did not have discretion regarding certification and held that Japan must be certified. Later the same year, the court of appeals affirmed. Shortly after the court of appeals decision, the Japanese government announced the withdrawal of its objection and pledged to begin observing the moratorium in 1988 (in keeping with the agreement). It also stated that it was reserving “the right to withdraw the withdrawal” of the objection depending on the Supreme Court’s decision. In 1986, the Supreme Court overturned the court of appeals decision, finding that the secretary of commerce could exercise discretion over whether to certify Japan under the amendments. See Japan Whaling Ass’n v. American Cetacean Soc’y, 478 U.S. 221 (1986) (although the suit was against the secretary of commerce, Japanese fishing associations were permitted to intervene).

11 The taking of large numbers of whales for scientific purposes has been criticized. See D’Amato, Anthony & Chopra, Sudhir K., Whales: Their Emerging Right to Life, 85 AJIL 21, 48 (1991)Google Scholar (noting that “even a single whale, by its sheer size, would overwhelm any modern scientific research laboratory, providing enough material to keep a team of scientists busy for months”).

12 Letter to the Speaker of the House of Representatives and the President of the Senate Reporting on Japanese Whaling Activities, 1 Pub. Papers 424 (1988). President Reagan exercised his discretion under the Pelly Amendment not to impose trade sanctions.

13 See President Reagan Denies Japan Fishing Access to U.S. Waters Because of Whaling Violation, 5 Int’l Trade Rep. (BNA) 536 (Apr. 13,1988); Shabecoff, Philip, U.S. Denies Japan Plea on Fishing, N.Y. Times, Apr. 7, 1988, at Dl Google Scholar. In 1995, the secretary of commerce certified Japan under the Pelly Amendment, but President Clinton declined to invoke sanctions. See Clinton Opts Against Japan Sanctions Despite Pelly Certification on Whaling, 13 Int’l Trade Rep. (BNA) 283 (Feb. 21, 1996).

14 See U.S. Dep’t of State Press Release on U.S. Opposes New Japanese Whaling in North Pacific (July 31,2000), obtainable from <http://www.state.gov>.

15 Resolution on Whaling Under Special Permit in the North Pacific Ocean, IWC Res. 2000-5 (2000), obtainable from <http://ourworld.compuserve.com/homepages/iwcoffice/sciperms.htm>.

16 See U.S. Dep’t of State Press Release on U.S. Objects to Japan’s Lethal Whaling Research Program (Aug. 16, 2000), obtainable from <http://www.state.gov>.

17 U.S. Dep’t of State Press Release on U.S. Announces Initial Actions in Response to Expanded Japanese Whaling Program (Aug. 30, 2000), obtainable from <http://www.state.gov>.

18 See United States—Restrictions on Imports of Tuna, GATT Doc. DS29/R (1994), reprinted in 33 ILM 839 (1994); United States—Import Prohibition of Certain Shrimp and Shrimp Products, WTO Doc. DS58/AB/R (1998), reprinted in 38 ILM 118 (1999).

19 Letter from Secretary of Commerce Norman Y. Mineta to President William J. Clinton (Sept. 13,2000), obtainable from <http://www.noaa.gov/whales/>.

20 Memorandum on Japanese Research Whaling, 36 Weekly Comp. Pres. Doc. 2075 (Sept. 13, 2000); see also Statement on Action on Japanese Whaling Practices, 36 Weekly Comp. Pres. Doc. 2062 (Sept. 13, 2000).

21 See Pearlstein, Steven, Clinton Presses Japan to Halt Whale Hunts, Wash. Post, Sept. 14, 2000, at A31 Google Scholar; Struck, Doug, U.S. Fishing Sanctions Gall Japan, Wash. Post, Sept. 16, 2000, at A15 Google Scholar.