state, would carefully monitor Norwegian whaling to determine 

 if recommended sanctions under the certification become 

 warranted. 



The U.S. -Japanese Agreement — As noted in the Marine 

 Mammal Commission's past two Annual Reports, the U.S. and 

 Japan reached an agreement in November 1984 whereby Japan 

 would phase out its commercial whaling activity on or before 

 April 1988 and withdraw its objection to the IWC's moratorium 

 provision, Schedule paragraph 10 (e) . In return, the U.S. 

 would refrain from certifying Japan under applicable U.S. 

 laws for certain limited whaling activity that would be 

 contrary to the established IWC quotas. As part of the 

 agreement, the Government of Japan indicated it would file a 

 prospective withdrawal of its objection to the moratorium 

 provision with the IWC on 1 April 1985, which would take 

 effect in April 1988. A number of environmental groups 

 brought suit against the Secretaries of Commerce and State 

 seeking to prevent the Secretaries from entering into the 

 agreement with Japan. Among other things, the suit sought a 

 declaratory judgment that the Secretary of Commerce is 

 required to certify Japan if Japanese whalers exceed quotas 

 adopted by the IWC. The U.S. District Court ruled in favor 

 of the plaintiffs on 5 March 1985 and the U.S. immediately 

 filed an appeal. In light of the court case, Japan advised 

 the U.S. in April 1985 that it would delay filing the 

 prospective withdrawal of its objection to the IWC moratorium 

 decision, pending final resolution of the court case. 



After unsuccessful appeals by the U.S. Government, the 

 U.S. Supreme Court agreed on 13 January 1986 to review the 

 matter. On 30 June 1986, the Supreme Court handed down a 

 final decision on the matter which found for the U.S. 

 Government and reversed the lower court ruling. Among other 

 things, the Court held that the Secretary of Commerce is not 

 automatically directed to certify a nation that fails to 

 conform to the IWC whaling schedule and that the Secretary's 

 decision to secure Japan's future compliance with the IWC's 

 program through the 1984 agreement, rather than by certifica- 

 tion and imposition of economic sanctions under the Pelly and 

 Packwood-Magnuson Amendments, is a reasonable exercise of the 

 discretionary authority under those laws. The Court's 

 decision was shared by five justices with four justices 

 joining in a dissenting opinion. By overturning the lower 

 court's decision, the 1984 U.S. -Japan agreement was allowed 

 to stand, and, consistent with its provisions, the Government 

 of Japan filed the prospective withdrawal of its objection to 

 Schedule paragraph 10 (e) with the Secretary of the IWC on 

 1 July 1986. 



In 1987, major issues facing the IWC are likely to 

 involve planning for the comprehensive assessment, further 



40 



