Encouraging Environmental Cooperation Through the Pelly Amendment

The Journal of Environment & Development

Volumn 3, Issue 1, 1994, Pages 3-28

  Charnovitz, Steve ^a  

^a General Electric   (United States)

Author keywords

[No Author keywords available]

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EID: 84972623095     PISSN: 10704965     EISSN: 15525465     Source Type: Journal    
DOI: 10.1177/107049659400300102     Document Type: Article

References (68)

1. For further discussion of the issue of why nations cooperate, see Richard N. Cooper, “International Cooperation in Public Health as a Prologue to Macroeconomic Cooperation,” in Cooper et al., Can Nations Agree? Issues in International Economic Cooperation (Washington: Brookings, 1989).
2. For a somewhat different list of reasons, see Richard Blackhurst and Arvind Subramanian, “Promoting Multilateral Cooperation on the Environment,” in Kym Anderson and Richard Blackhurst (eds.), The Greening of World Trade Issues (London: Harvester Wheatsheaf, 1992): 256.
3. For a discussion of the victim-pays and mutual compensation principles, see Jon Nicolaisen, et al., “Economics and the Environment: A Survey of Issues and Policy Options,” in OECD Economic Studies, Spring 1991:31,37.
4. See also OECD, Economics of Transfrontier Pollution (Paris: OECD, 1976): 88–89.
5. For a discussion of carbon absorption payments to countries that maintain their tropical forests, see GATT Secretariat, “Trade and the Environment” in International Trade 90–91, Vol. 1,: 38.
6. Recent findings in game theory show that a strategy of “exploiting a sucker” can prevail in Prisoner's Dilemma simulations. See “Never Give a Sucker an Even Break,” Scientific American, (October 1993): 22.
7. See Steve Charnovitz, “Environmental Harmonization and Trade Policy,” in “Environmental Harmonization and Trade Policy,” in Durwood Zaelke et. al. (eds), Trade and the Environment (Washington: Island Press, 1993): 282.
8. See Alice Enders and Amelia Porges, “Successful Conventions and Conventional Success: Saving the Ozone Layer,” in Anderson and Blackhurst (1992):138–39 (there is a high probability of coincidence between the actor's interest and the law).
9. Peter H. Sand uses the term “mutual recognition” similarly to the use of the term “rope” here. See Sand, “International Cooperation: The Environmental Experience,” in Jessica T. Mathews (ed.), Preserving the Global Environment (New York: W.W. Norton, 1991): 259–61.
10. See Gregory Rose, “Prior Informed Consent: Hazardous Chemicals,” Review of European Community & International Environmental Law, Vol. 1, No. 1,1992:64.
11. Roger Dingham, “Lessons from the History of Sealing and Whaling in Japanese-American Relations,” in John R. Schmidhauser and George O. Totten III (eds.), The Whaling Issue in U.S.-Japan Relations (Boulder: Westview Press, 1978),: 24. The scheme used gave Japan substantial sums with which to compensate its pelagic sealing industry.
12. See Neville M. Goodman, International Health Organizations and their Work (London: J&A Churchill, 1952): 235–37.
13. For a discussion of proposed legislation along these lines, see Craig Obey, “Trade Incentives and Environmental Reform: The Search for a Suitable Incentive,” Georgetown International Environmental Law Review, Vol IV. 1992: 421,427.
14. For a discussion of the distinction between process standards and sanctions, see Steve Charnovitz, “The Environment Versus Trade Rules: Defogging the Debate,” Environmental Law, 1993: 475,491–92.
15. See, for example, Leonard S. Woolf, International Government (New York: Brentano's, 1916):149 (international interests are far stronger and far more real than national interests).
16. See Patrick Low (ed.), International Trade and the Environment, The World Bank, at iv.
17. Carrots can also be used by one international institution to foster participation in another. For a suggestion of how the World Bank might be enlisted in such an effort, see David Mulenex, “Improving Compliance Provisions in International Environmental Agreements,” in Lawrence E. Susskind et. al. (eds.), International Environmental Treaty Making, Harvard Law School, 1992:186–87.
18. Lash views the United States as “the unelected international environmental policeman. ” See William H. Lash III, “NAFTA and the Greening of International Trade Policy, Center for the Study of American Business, CIS 60, September 1993: 3. But a policeman must have a law to police. Thus, vigilantism is used here.
19. One example of an external carrot came in 1993 at the International Whaling Commission meeting in Kyoto. Japan apparently used promises of economic assistance to secure votes in favor of a relaxation of the commercial whaling ban. See Andrew Pollack, “Commission to Save Whales Endangered, Too,” The New York Times, 18 May 1993: C4. Japan's gambit was unsuccessful.
20. GATT Secretariat, “Trade and the Environment,” in International Trade 1990–1991, Vol. I: 21. As with much in the Report, no evidence was offered.
21. See Gene S. Martin Jr. and James W. Brennan, “Enforcing the International Convention for the Regulation of Whaling: The Pelly and Packwood-Magnuson Amendments,” Denver Journal of International Law and Policy, Winter 1989:293–94.
22. The law defines a fishery conservation program as one that protects “the living resources of the sea.” See 22 U.S.C. 1978 (h)(3). Thus, non-fish resources such as whales are included.
23. Public Papers of the Presidents of the United States. Gerald R. Ford, 1975: 47.
24. Simon Lyster, International Wildlife Law (Cambridge: Grotius, 1985), at 35 and House Report 95–1029: 9.
25. Public Papers of the Presidents of the United States. Jimmy Carter, 1979: 265.
26. Public Papers of the Presidents of the United States. Ronald Reagan, 1985: 704.
27. International Convention for the Regulation of Whaling, Schedule, 10(3), November 1992.
28. Public Papers of the Presidents of the United States. Ronald Reagan, 1986:1051.
29. Public Papers of the Presidents of the United States. Ronald Reagan, 1988:424–25.
30. Public Papers of the Presidents of the United States. George Bush, 1989:1112.
31. Public Papers of the Presidents of the United States. George Bush, 1990:1811–1812.
32. Keith Schneider, “U.S. Moves to Punish Japan for Trade in Turtles,” The New York Times, 21 March 1991, at A12
33. and David Sanger, “Japan, Backing Down, Plans Ban on Rare Turtle Import,” The New York Times, 20 June 1993, at Al.
34. Public Papers of the Presidents of the United States. George Bush, 1991: 521.
35. Public Papers of the Presidents of the United States. George Bush, 1991:1306–1308.
36. Weekly Compilation of Presidential Documents, 1992: 2381–2382.
37. “Commerce Department Certifies Norway for Commercial Whaling Resumption,” Press Release, 5 August 1993.
38. See also Inside U.S. Trade, 10 November 1993:1912. Norway also killed 136 whales for “research” purposes. Abuses of research whaling was the subject of the 1992 Pelly certification. The 1993 certification covered only commercial whaling, not research whaling.
39. “See “Brown Raises Threat of Sanctions Against Norway in Whaling Dispute,” Inside U.S. Trade, 13 August 1993: 8.
40. See also “Whale Management Body Irks Scientists,” Science, 18 June 1993: 1711 (IWC favors politics over science).
41. But see Robert Thomson, “Culture Clash Creates an Endangered Species,” Financial Times, 15–16 May 1993:9 (IWC scientific report made no clear recommendations).
42. “Message to the Congress on Whaling Activities in Norway,” Weekly Compilation of Presidential Documents, 1993: 2000. He ordered that a list of potential trade sanctions in seafood products be drawn up.
43. Hugh Carnegy, “Norway seeks US go-ahead for whaling,” Financial Times, 6 October 1993: 6 (Norway will try to persuade the US at the IWC meeting in May 1994 to support a resumption of commercial whaling).
44. See also “Is this really a good time to punish Norway,” The Washington Times, 23 September 1993: A22 (urging President Clinton to take into account Norway's behind the scenes assistance to Israeli and Palestinian negotiators).
45. Edward R. Ricciuti, “Rhinos at Risk,” Wildlife Conservation, September/ October 1993: 22.
46. “People's Republic of China, Taiwan Cited for Illegal Trade in Rhinos, Tigers,” U.S. Department of Interior, Press Release, 7 September 1993.
47. “Rhinoceros and Tiger: Time for a Decision,” CITES Press Release, 9 September 1993.
48. Resolution of the Conference of the Parties Conf. 6.10,1987.
49. Letter from the Secretary of the Interior to the President, 7 September 1993.
50. CITES Conf. 6.10. Although CITES has no authority over internal trade, the Conference urged all Parties to take steps to establish a complete prohibition on all sales and trade, internal and international. See also Jeremy Mark, “Trade Sanctions Against Taiwan, China Weighed,” The Wall Street Journal, 11 June 1993: A5D.
51. U.S. Department of Interior, Press Release, 7 September 1993.
52. Weekly Compilation of Government Documents,: 2300.
53. Weekly Compilation of Government Documents: 2300.
54. For example, see Gene S. Martin Jr. and James W. Brennan, “Enforcing the International Convention for the Regulation of Whaling: The Pelly and Packwood-Magnuson Amendments,” Denver Journal of International Law and Policy, Winter 1989:299–301. There was also a Japan whaling case in 1985 when Japan agreed to withdraw its objection to the IWC moratorium if the United States did not complete its certification of Japan.
55. See Japan Whaling Association v. American Cetacean Society, 478 U.S. 221, 229.
56. This is a provisional rating. If Taiwan and China take significant steps by March 1994, then the success of this threat might be upgraded by future analysts. Of course, one would need to look at whether the steps come in time to save the species. See “Clinton Threatens to Impose Sanctions on China, Taiwan for Tiger, Rhino Trade,” Daily Report for Executives (BNA) 9 November 1993: Al 7.
57. Weekly Compilation of Presidential Documents, 1993: 2000–2001.
58. Gary Clyde Hufbauer, Jeffrey J. Schott, and Kimberly Ann Elliott, Economic Sanctions Reconsidered (Washington: Institute for International Economics, 1990): 93. This study did not include the Pelly amendment.
59. Unpublished data. The authors calculate a success rate of 52% using a different methodology that counts a partial success as a total success. The 37% figure is an adjustment to conform to weighted methodology used here. Forthcoming in Bayard and Elliott, Reciprocity and Retaliation: An Evaluation of Tough Trade Policies (Washington: Institute for International Economics, 1994).
60. One principle of the Atlantic Charter (of 1941) is that nations will endeavor “to further the enjoyment by all States, great or small…of access, on equal terms. to the trade and to the raw materials of the world which are needed for their economic prosperity.” See 3 Bevans 686.
61. Given the contemporary attention to maintaining exports, small countries may also have leverage. Malaysia, not a large country, was successful recently in threatening Austria with trade sanctions in opposition to a new Austrian tax on tropical timber. See “Parliament Rescinds Tropical Wood Tax, Maintains Product Eco-Label Requirement,” 15 International Environment Reporter (BNA) 830. Of course, Malaysia is larger than Austria. Moreover, Malaysia was helped by announcements of other ASEAN nations that they would follow Malaysia's example.
62. For example, every account of the International Trade Organization of 1948 points to the non-approval by the U.S. Congress as the reason for the ITO demise. The other signatories that did not go ahead to establish the ITO without the United States are never mentioned. For example, see “GATT ery v Greenery,” The Economist, 30 May 1992: Survey 15.
63. GATT Secretariat, “Trade and the Environment” in International Trade 90–91, Vol. 1:22.
64. See Piritta Sorsa, “GATT and Environment: Basic Issues and Some Developing Country Concerns,” in Patrick Low (ed.), International Trade and the Environment, The World Bank: 325,332.
65. Gsrard Eldin, “The Need for Intergovernmental Co-Operation and Coordination Regarding the Environment,” OECD Observer, February 1971, at 3, 6 (emphasis added). Eldin was Deputy Secretary General of the OECD.
66. See Andrew Moravcsik, “Introduction” in Peter B. Evans, et. al. (eds.), Double-Edged Diplomacy (Berkeley: U. California Press, 1993): 29.
67. For example, see William H. Lash III, “Green Gang's GATT Holdup,” The Journal of Commerce, December 10,1993, at 6A.
68. J.B. Condliffe, The Reconstruction of World Trade (New York: W.W. Norton, 1940): 151–52.