Baptists and Bootleggers for the Environment: The Origins of United States Unilateral Sanctions

The Journal of Environment & Development

Volumn 4, Issue 1, 1995, Pages 53-75

  DeSombre, Elizabeth R ^a  

^a HARVARD UNIVERSITY   (United States)

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EID: 0002964048     PISSN: 10704965     EISSN: 15525465     Source Type: Journal    
DOI: 10.1177/107049659500400104     Document Type: Article

References (86)

1. General Agreement on Tariffs and Trade, Basic Instruments and Selected Documents, Supplement No. 39, “Protocols, Decisions, Reports 1991-1992 and Forty-eighth Session,” Geneva: The Contracting Parties to the General Agreement on Tariffs and Trade, December 1993, pp. 155-205; “United States - Restrictions on Imports of Tuna: Report of the Panel,” DS29/R, June 1994.
2. Earth Island Institute v. Mosbacher, decided Aug 28,1990.
3. Others have used this analogy to indicate the effects of unusual coalitions. See, for example, Bruce Yandle, “Intertwined Interests, Rent Seeking, and Regulation/’ Social Science Quarterly, 1984, pp. 1002-1012.
4. The analogy does not necessarily map environmentalists and industry directly to Baptists and bootleggers, but is merely intended to demonstrate that normally disparate or contentious groups can have an unexpected zone of overlapping interests.
5. For the second half of the equation, the effect of unilateral sanctions on multilateral cooperation, see Elizabeth R. DeSombre, “Unilateral Sanctions for Multilateral Norms,” paper prepared for delivery at the 1994 Annual Meeting of the American Political Science Association, September 1994.
6. It should be noted that in some cases the unit of concern is “foreign nationals” and in some cases it is the policy of a foreign country. In all cases, however, the decision to impose or threaten sanctions relates to the country itself and in order to avoid sanctions that country has to give evidence that its nationals are performing the action required by the United States.
7. Steve Chamovitz, for example, defines as sanctions only those restrictions that target imports or exports unrelated to the desired policy change. See “A Taxonomy of Environmental Trade Measures,” Georgetown International Environmental Law Review, Vol. 6, No. 1, Winter 1993, p. 4. David Baldwin, on the other hand, chooses to define economic sanctions to include all of economic statecraft. See Economic Statecraft, Princeton: Princeton University Press, 1985, p. 36. Hufbauer, Schott and Elliott define sanctions as “deliberate, government-inspired withdrawal, or threat of withdrawal, of customary trade or financial relations.” Gary Clyde Hufbauer, Jeffrey J. Schott, and Kimberly Ann Elliott, Economic Sanctions Reconsidered: History and Current Policy, 2nd ed., Washington, DC: Institute for International Economics, 1990, p. 2.
8. In the whaling case in particular, the United States used the threat of certification (with certification as the official threat that sanctions might be imposed) to gain behavior changes on the part of some states. Spain removed its objection to the North Atlantic fin quota in 1980, South Korea withdrew its objection to the ban of cold harpoons in 1980, Taiwan stopped foreign whaling in 1980 and then banned all whaling in 1981, and Japan agreed to abide by the commercial whaling moratorium, just to name a few early instances in which threats of sanctions were sufficient to gain behavior changes on the part of the target states. See also Steve Chamovitz, “Encouraging Environmental Cooperation Through the Pelly Amendment,” Journal of Environment & Development, Vol. 3, No. 1, Winter 1994, pp. 2-38.
9. To designate these sanctions as “environmental” or “conservation” sanctions is problematic, since for at least some of the constituents involved in bringing them about they may stem from protectionist desires. Nevertheless, it seems possible to make a judgment about which sanctions have environmental or conservation goals as at least a justification by some actor in the political process.
10. An effort was made, through combing legislative documents, to include all current legislation allowing the U.S. to use this particular means to threaten sanctions. History provides examples of similar pieces of legislation that are no longer in date, such as the 1887 U.S. ban on importation of mackerel during spawning season and the 1897 U.S. ban on the importation of fur seals from the North Pacific ocean. 24 Stat. 434 (1887) (expired 1892), 30 Stat. 227, Section 9 (1897)(repealed in 1912).
11. P.L. 87-814; 76 Stat. 923; 16 U.S.C. 951 et seq.
12. 40 Federal Register48159; 16 U.S.C. 955(c). Imports of tuna from the country in question may be allowed if accompanied by a certificate of eligibility, allowed in certain circumstances outlined in 50 C.F.R 281.7.
13. P.L. 87-794; 76 Stat. 872.
14. This piece of legislation is less clearly in the same category as the others, though a case can be made that an increased tariff is an import restriction.
15. P.L. 94-70; 89 Stat. 385; 16 U.S.C. 971.
16. P.L. 94-265, Title II; 90 Stat. 345; 16 U.S.C. 1825.
17. 16 U.S.C. 1825. Although the economic motivation (of access by U.S. fishers to tuna within EEZs of other countries) may have outweighed the concern for tuna conservation, this legislation is included in this set of sanctions because it was justified on environmental grounds.
18. 16 U.S.C. 1825.
19. Proclamation [of U.S. adherence to the principles of EEZs] 5030, 10 March 1983, 3 C.F.R. 2 (1983).
20. P.L. 92-219; the Fisherman's Protective Act was originally of 1967, and, among other things, provided compensation for U.S. fishers whose boats were seized by foreign countries for fishing within those countries’ EEZs.
21. P.L. 92-219 Sec. 8 (a) and (b); 22 U.S.C. 1978.
22. P.L. 92-219, sec. 8, (g)(3) and (4).
23. “Diminish[ing] the effectiveness” is construed broadly in the Pelly amendment. In the whaling case, none of the threatened sanctions are for noncompliance; rather, they are for instances in which states are not members of the IWC and are whaling against IWC recommendations, or when states within the convention opt out of certain provisions of the whaling schedule.
24. 16 U.S.C. 182.
25. 106 Stat 4904.
26. 16 U.S.C. 1361 et seq.
27. It is in the ETP that yellowfin tuna are most likely to school with dolphins. The MMPA also affects other species of fish, but not as strictly as it governs the taking of yellowfin tuna.
28. Federal Register 64558.
29. The 1984 Amendments required that states exporting tuna to the United States document that they had adopted dolphin conservation programs that were equivalent to those followed by the U.S., and with comparable average dolphin mortality rates. The 1988 Amendments set the “comparable” rate at 1.25 times that of U.S. dolphin mortality, and required in addition that any intermediary exporter of tuna to the United States certify and provide proof to the United States that it has prohibited importation of tuna from states from which the United States has already embargoed tuna. Further amendments since then have modified the specific requirements.
30. P.L. 95-376; 92 Stat. 714.
31. P.L. 100-220, Title IV; 16 U.S.C. 1826.
32. P.L. 100-220, Title IV; 16 U.S.C. 1826.
33. P.L. 100-478; this statute is Title II of the Endangered Species Act Amendments of 1988.
34. P.L. 100-478 Sec. 2201(b)(l);102 Stat. 2318.
35. P.L. 100-478 Sec. 2202(a)(1).
36. P.L. 100-478 Sec. 2202(2);102 Stat. 2319.
37. P.L. 101-162, Section 609,103 Stat. 1037,16 U.S.C. 1537.
38. In practice, the National Marine Fisheries Service.
39. P.L. 101-162 S609(b)(2).
40. P.L. 101-627, Title I, section 107; 104 Stat. 4443.
41. P.L. 101-627, Title I, section 107; 104 Stat. 4443.
42. P.L. 101-627, Section 801.
43. Fish that breed in inland rivers and then travel to the sea, such as salmon.
44. P.L. 102-582; 106 Stat. 4900.
45. P.L. 102-582, Section 101.
46. Montreal Protocol on Substances That Deplete the Ozone Layer, Final Act, Nairobi: UNEP, 1987.
47. 42 U.S.C. 7457(b).
48. Prior to this regulation, the process by which CFCs destroyed the ozone layer was scientifically understood, and already the demand for CFC-containing aerosols had dropped by nearly two-thirds; Richard Elliot Benedick, Ozone Diplomacy, Cambridge, MA: Harvard University Press, 1991, pp. 24-28.
49. Benedick, Ozone Diplomacy, p. 31.
50. Edward A. Parson, “Protecting the Ozone Layer,” Institutions for the Earth: Sources cf International Environmental Protection, eds. Peter Haas, Robert O. Keohane, and Marc A. Levy, Cambridge, MA: The MIT Press, 1993, p. 41; Benedick, Ozone Diplomacy, p. 32.
51. Benedick attributes the extension of the Clean Air Act to “public reaction to the revelations of potential danger to the ozone layer.” p. 23.
52. For example, the fact that the CFC-producing industries, regulated under the Clean Air Act and then the Montreal Protocol, were the ones that created and profited fromCFC substitutes was influential in explaining industry's role in the regulation. The same industries whose CFCs were regulated by the Protocol could sell the more costly substitutes to consumers of those products.
53. 100th Congress, 1st Session, S. 570. See also (same Congress) S. 571 and H.R. 2036. The wording of these resolutions is nearly parallel to that of the Marine Mammal Protection Act.
54. For this analysis the categories “environmentalists” and “industry” are oversimplifications for the sake of examination. The process is obviously more complex (and there are variations of motives within actors in these categories), but for the sake of analysis these categories provide a good first cut.
55. Most international treaties, especially those that give regulatory authority to an international commission, have provisions for opting out of the decisions made by that commission, so that states can preserve sovereignty. States make use of these provisions with some regularity. Nevertheless, such provisions are probably over-represented in the cases examined in this paper, since it their use in some cases that disproportionately disadvantages U.S. industry and begins the process for passing sanctioning legislation. Calls for removing such “objections” options are unrealistic because states would be unlikely to cede regulatory authority completely to an international body without such provisions. The force of the international agreement is both that it may help overcome collective action problems and that, once the agreement is in place, it might make further cooperation easier; however, the agreement would be unlikely to gain the approval of the relevant states, the United States included, if it removed such provisions for opting out.
56. IATTC Annual Report 1950 and 1952, La Jolla, CA: IATTC, 1952, p. 3.
57. The Convention was originally signed by the U.S. and Costa Rica; at the time of the Tuna Conventions Act Amendment Panama and Ecuador were also members, and Colombia had indicated its interest in adhering to the Convention. U.S. Code Congressional and Administrative News 1962, p. 3195.
58. C.F.R. 281.2 (d).
59. House Report 2409, as reported in U.S. Code Congressional and Administrative News, 1962, p. 3196.
60. See Senate Report 94-269; U.S. Code Congressional and Administrative News, 1975: pp. 742-756.
61. U.S. Code Congressional and Administrative News, 1971, 2412; from House Report, 92468.
62. U.S. Code Congressional and Administrative News, 1971: 2409; from House Report 92468.
63. Section 101(a)(2).
64. Federal Register 32118-9.
65. See, generally, U.S. Code Congressional and Administrative News, 1972, and House Report 92-707.
66. Federal Register, 32124.
67. All sea turtles found in these waters are listed in the Endangered Species Act as either endangered or threatened. The ESA prohibits capturing endangered species except as authorized by the Secretary of Commerce. (16 U.S.C. 1531 et seq.)
68. 52 Federal Register 24244-24262, June 27,1987. Trawlers under 25 feet long could meet the requirements instead by limiting their tow times to 90 minutes; the dates between which the regulations were in effect varied by region.
69. This legislation also removed the exemption for trawlers that limited their tow time to 90 minutes.
70. Shrimpers claimed that TEDs cut 20 to 50 percent of their shrimp take, though later studies showed that TEDs had little effect onshrimp take. Atlanta Journal and Constitution, 30 April 1991, p. D3; Jack Rudloe and Anne Rudloe, “Shrimpers and Lawmakers Collide Over a Move to Save the Sea Turtle,” Smithsonian, Vol. 20, December 1989, pp. 44ff; Orlando Sentinel Tribune, 22 April 1992, p. Bl.
71. A standard TED costs about $175, a not insubstantial price for small-scale shrimpers. William Schomberg, “Mexico: Prawns in the Export Game,” El Financiero International, 17 May 1993, p 10.
72. P.L. 101-162, Section 609(b)(2).
73. It was this concern that underpinned the creation of the ICNAF and served as the driving force behind the Pelly Amendment.
74. The other species caught in driftnets is albacore tuna, which related to earlier tuna conservation sanctions. U.S. catches of albacore tuna also declined during this period.
75. UN General Assembly Resolution 44/225.
76. The history of negotiation for the UN resolution (and 46/215, a related resolution pushed by the United States to strengthen UN policy against driftnetting) and for the various domestic measures is linked, with many of the same actors working on both international and domestic measures.
77. Usually because they are not members of the Commission, or because they have opted out of the obligation.
78. It was the Endangered Species Act in 1970 that ended the U.S. commercial whaling industry.
79. This legislation was incidentally almost immediately rendered useless by the fact that the United States, and then CITES, declared a ban on all international trade in ivory.
80. The 1992 amendments to the Pelly Amendment, described above at note 25, increase the potential power of the wildlife sanctions by allowing for the prohibition of fish products as well, but in the cases in which these sanctions have been threatened so far the President has chosen only to threaten imports of wildlife products.
81. Another reason for imports restricted to be related to the environmental harm in question may be that there is a clearer moral justification to such trade restrictions; the harmed industry can be seen as somehow responsible for the restrictions it suffers, due to its inadequate environmental policy.
82. That strategy is attempted by industry actors in several of the cases examined here. Environmentalists, however, oppose any such action; the other two possible strategies in theory may enjoy the support of environmentalists.
83. See Barbara Connolly, forthcoming dissertation, University of California at Berkeley.
84. For one take on executive opposition to the MMPA, see George H. Mitchell, Jr. and Patrick Adcock, “Between Compliance and Defiance: Executive Branch Disposition of ‘Unwanted’ Environmental Legislation,” Journal of Environment & Development, Vol. 3, No. 2, Summer 1994, pp. 1-15.
85. Hufbauer, Schott, and Elliott find that the GNP of the state imposingthe sanctions is usually 10 times bigger than the target state. They also find that the most successful sanctions are those in which the economic health of the target state is weak. Hufbauer, Schott and Elliot, pp. 63, 97. The economic power of the sending state might not be necessary in cases where sanctions have a symbolic domestic value, but in the types of import restrictions considered here the value to the industry pushing for them is in specific economic relief, and sanctions are less likely to be imposed for symbolic value.
86. In several of the sanctions cases in this study the Executive resisted applying the sanctions. For example, the tuna embargo on Mexico under the Marine Mammal Protection Act was imposed only after the Department of Commerce was ordered to do so by the both the District Court and the Court of Appeals for the 9th Circuit. See Elizabeth R. DeSombre, Unilateral Action for Multilateral Goals: United States Sanctions for International Norms (title tentative), dissertation in progress, Harvard University, Department of Government.