1. This paper is an adaptation of a longer article originally published in EcologyLawQuarterly 21 (1994). Financial support was provided by the Mississippi Law Re- search Institute at the University of Mississippi Law Center and the Mississippi- Alabama Sea Grant Consortium under Grant NA16RG0155-02 from the U.S. Depart- ment of Commerce, National Oceanic and Atmospheric Administration, Office of Sea Grant. 2. Remarks of Secretary of the Interior Bruce Babbitt from his lecture at the University of Colorado Law School, 29 October 1992, entitled "The Future Environ- mental Agenda for the United States," UniversityofColoradoLawReview 64 (1993): 513, 521.
3. United Nations Convention on the Law of the Sea, done 10 December 1982, Montego Bay, reprinted in InternationalLegalMaterials 21 (November 1982): 1261- 1354 (hereafter cited as LOS Convention). As of February 1993 there were 55 ratifica- tions of or accessions to the convention. The treaty will enter into force 1 year after the 60th ratification. 4. At least as against other states parties to the LOS Convention.
5. General Agreement on Tariffs and Trade, opened for signature 30 October 1947, U.S.StatutesatLarge 61:A3, UnitedNationsTreatySeries 55:187. GATT entered into force in January 1948 and as of 1991 was subscribed to by 104 governments, which together account for nearly 90% of world trade (GATT, GATTActivities1991 [July 1992]: 1). 6. GATT, UnitedStates:RestrictionsonImportsofTuna, adopted 3 September 1991, Panel Report DS21/R. The panel report may be found in InternationalLegalMaterials 30 (November 1991): 1598. 7. Marine Mammal Protection Act, U.S.CodeAnnotated, vol. 16 (1985, Supp. 1993), Secs. 1361-1407. The MMPA requires that nations whose fleets fish in the eastern tropical Pacific have a dolphin-protection plan comparable to the U.S. pro- gram. If a nation fails to certify that its tuna fleet has met the U.S. standards, the secretary of the treasury is required to place an embargo on imports of that nation's tuna (Sec. 1371[a]).
8. UN document GAOR 49 A/46.49 (1991), Res. 46/210. 9.ReportoftheUnitedNationsConferenceonEnvironmentandDevelopment (Rio de Janeiro, 3-14 June 1992), UN document A/Conf.151/26/Rev.l, Vol. 1, Annex I, Rio declaration on Environment and Development, Annex II, Agenda 21, Pars. 2.22(e) and (i), and Annex III, "Non-legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation, and Sustainable Develop- ment of all Types of Forests," Principle 14; Reportof theIntergovernmentalNegotiatingCommitteeforaFrameworkConventiononClimateChangeontheWorkoftheSecondPartofItsFifthSession (New York, 30 April-9 May 1992), UN document A/AC.237/18 (Part 1I)/Add.l (15 May 1992), Art. 3(5). 10. See General Agreement on Tariffs and Trade (n. 5 above), Art. XXIII:2. The GATT dispute-resolution procedure is set out in the GATT Understanding regarding Notification, Consultation, Dispute Settlement, and Surveillance, BasicIn-strumentsandSelectedDocuments (BISD) 26 Supp. 210 (1980), as modified by GATT, BISD 29 Supp. 13 (1983). S 11. Public Law 102-523, codified at U.S.CodeAnnotated, vol. 16 (Supp. 1993), Secs. 1411-18.
1 12. Packwood-Magnuson Amendment, U.S.CodeAnnotated, vol. 16 (1985, Supp. 1993), Sec. 1821(e)(2). 1 13. Public Law 100-220, Title IV, Secs. 4001-9, U.S.Statutes at Large 101 (1987): 1477, codified at U.S.CodeAnnotated, vol. 16 (Supp. 1994), Sec. 1822 note. 14. U.S.CodeAnnotated, vol. 16 (Supp. 1993), Sec. 1826. 1 15. Public Law 101-627, codified at U.S.CodeAnnotated, vol. 16 (1993), Sec. 1371(a)(2)(E). 16. For a discussion of the act see n. 11 above and accompanying text. fit 17. Public Law 94-265, Sec. 205, U.S.StatutesatLarge 90 (1976): 331, 345, codi- fied at U.S.CodeAnnotated, vol. 16 (1985, Supp. 1993), Sec. 1825. A 18. Public Law 101-627, Sec. 801 (28 November 1990), codified at U.S.CodeAnnotated, vol. 16 (Supp. 1994), Sec. 1822 note. 19. U.S.CodeAnnotated, vol. 16 (1985, Supp. 1993), Secs. 971 et seq. 20. Ibid., Secs. 951 et seq. 21. Ibid., Secs. 1531-44. 22. Ibid., Secs. 3371 et seq.
23. U.S.CodeAnnotated, vol. 22 (1990, Supp. 1993), Sec. 1978. 24. U.S.CodeAnnotated, vol. 16 (1985, Supp. 1993), Secs. 1361-1407. 25. Public Law 101-162, Title VI, Sec. 609, U.S.StatutesatLarge 103 (1989): 1037, codified at U.S.CodeAnnotated, vol. 16 (1993), Sec. 1537 (hereafter cited as Sea Turtle Conservation Amendments).
26. 746 F. Supp. 964 (N.D. Cal. 1990), affirmed 929 F. 2d 1449 (9th Cir. 1991). 27. Marine Mammal Protection Act (n. 7 above), Sec. 1371(a)(2). 28. Nautilus Press, MarineFishManage�nent (May 1991): 3-4.
Y9. Memorandum of 19 December 1990, Federal Register 56 (1991): 357; Depart- ment of State, "Turtles in Shrimp Trawl Fishing Operations Protection," Public Notice 1320; "Guidelines," FederalRegister, 56 (1991): 1051. The nations affected are Mexico, Belize, Guatemala, Honduras, Nicaragua, Costa Rica, Panama, Colombia, Venezuela, Trinidad and Tobago, Guyana, Suriname, French Guiana, and Brazil. 30. Sea Turtle Conservation Amendments (n. 25 above), Sec. 1537(a)(5)(A) re- quires the secretary of state in consultation with the secretary of commerce to provide Congress with "a list of each nation which conducts commercial shrimp fishing opera- tions within the geographic range of distribution of such sea turtles." The Commerce Department originally interpreted the act to apply to all shrimp fishing vessels op- erating globally, not just to those in the wider Caribbean region. The Department of State chose to interpret the act more narrowly but may expand the scope of the embargo program in coming years to all shrimp fishing vessels including the large fleets of Japan, China, and Australia (telephone conversation with Terry Henwood, National Marine Fisheries Service, St. Petersburg, Florida, 2 July 1993). 31. The requirement that TEDs be used on all vessels at all times was enacted in 1993 to bring them into line with the U.S. program, which considerably expanded the TEDs requirement in domestic waters on 1 January 1993. See Department of State, "Revised Guidelines for Determining Comparability of Foreign Programs for the Protection of Turtles in Shrimp Trawl Fishing Operations," Public Notice 1763, FederalRegister 58 (1993): 9015. 32.FederalRegister 56 (1991): 105 1; FederalRegister 58 (1993): 9015.
33. FederalRegister 58 (1993): 9015, 9017. 34. Ibid. 1 35. Department of State, "Certification Pursuant to Section 609 of Public Law 101-162," Public Notice 1807, FederalRegister 58 (1993): 28428. The following nations were certified: Belize, Brazil, Colombia, Guyana, Mexico, Nicaragua, Panama, and Venezuela. Costa Rica and Guatemala were exempted from the certification process because their commercial shrimp fishing fleet is located in the Pacific rather than in the Caribbean and therefore poses no threat to sea turtles. ]Q(M 36. Ibid. The import ban has been in place against French Guiana since 1 May 1992 because it was the only nation not certified in 1992.
37. For example, G. Hufbauer, J. Schott, and K. Elliot, EconomicSanctionsRecon-sidered:HistoryandCurrentPolicy (Washington, D.C.: Institute for International Eco- nomics, 1985), describe over 100 case studies of 20th-century economic sanctions. Although their analysis found some sanctions successful (generally those in which the target state was economically and politically weak), the overall level of success in changing the policies of target nations was considered disappointing (p. 79). 38. See generally D. Caron, "International Sanctions, Ocean Management, and the Law of the Sea: A Study of Denial of Access to Fisheries," EcologyLawQuarterly 16 (1989): 311, 350 (U.S. sanctions to deny foreign access to fishing in U.S. waters may lead to policy changes but also undermine the international regime governing the EEZ); D. Wilkinson, "The Use of Domestic Measures to Enforce International Whaling Agreements: A Critical Perspective," DenverjournalofInternationalLawandPolicy 17 (1991): 291 ("there is difficulty in attempting to enforce an international regulatory regime through the application of domestic law. Inevitably, unilateral ac- tions are either of limited utility or create diplomatic friction"). See also T. Bayard, "Comment on Alan Sykes' 'Mandatory Retaliation for Breach of Trade Agreements: Some Thoughts on the Strategic Design of Section 301,"' BostonUniversityInternationalLaw Journal 8 (1990): 325, 331 (although retaliatory threats may prove useful against smaller nations, they are a prescription for trade war if used against other economic superpowers).
39. "More Might-versus-Right: How America's Love of Weaponry in Trade Could Sink the GATT," Economist, 3 July 1993, p. 17; "The Green Gangs: Environ- mental Activists Are Reshaping the Staid Diplomacy of Trade," Time, 3 August 1992, Pp. 58-59. 40. The LOS Convention (n. 3 above), Article 2 provides coastal state sovereignty over the Territorial Sea. Article 3 allows the Territorial Sea to extend up to 12 nm. Article 8 defines internal waters. Article 19 provides for innocent passage through the Territorial Sea but specifically lists "any fishing activities" as noninnocent and therefore "prejudicial to the peace, good order or security of the coastal state."
41. The LOS Convention (n. 3 above), Article 56(1) identifies the general rights of coastal states within the zone and provides the following: "In the exclusive economic zone, the coastal state has: (a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non- living." Article 62(4) provides a list of the laws and regulations regarding the utilization of living resources that the coastal state may promulgate. These include, inter alia, regulations pertaining to seasons and areas of fishing; ages, sizes, and species of fish that may be caught; kinds of gear that may be used; sizes and types of fishing vessels that may be used; and many other conservation and management matters. 42. The LOS Convention (n. 3 above), Article 56(2) provides, "In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention." 43. W. Burke, "The Law of the Sea Convention and Fishing Practices of Nonsig- natories, with Special Reference to the United States," in ConsensusandConfrontation:TheUnitedStatesandtheLawof theSeaConvention, ed. J. Van Dyke (Honolulu: Law of the Sea Institute, 1985), p. 316.
. 44. This argument was brought to my attention during a telephone conversation with Professor William T. Burke, University of Washington Law School, 31 August 1993.
45. The rights, duties, and interests of coastal states are enumerated as those dealing with straddling stocks (LOS Convention [n. 3 above], Art. 63), highly migra- tory species (Art. 64), marine mammals (Art. 65), anadromous stocks (Art. 66), and catadromous species (Art. 67). In addition, the use of the phrase "inter alia" seems to broaden coastal states' interests to include the protection of coastal states' sovereign rights over the living resources in their EEZs granted by Article 56. 46. LOS Convention (n. 3 above), Article 119, Par. 1, reads, "In determining the allowable catch and establishing other conservation measures for the living re- sources in the high seas, States shall: (a) take measures which are designed, on the best scientific evidence available to the States concerned, to maintain or restore popula- tions of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors, including the special requirements of developing States, and taking into account fishing patterns, the inter- dependence of stocks and any generally recommended international minimum stan- dards, whether subregional, regional or global; (b) take into consideration the effects on species associated with or dependent upon harvested species with a view to main- taining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened."
. 47. For example see ibid., Art. 53 (archipelagic sea lanes), Art. 60 (artificial islands and structures in the EEZ), Art. 83 (delimitation of Continental Shelf between adjacent states), and Art. 123 (cooperation of states bordering semienclosed seas). 48. I. Shearer, "High Seas: Drift Gillnets, Highly Migratory Species, and Marine Mammals," in TheLawoftheSeainthe1990s: AFrameworkforFurtherInternational^operation, ed. T. Kuribayashi and E. Miles (Honolulu: Law of the Sea Institute, 1992), p. 233. 49. Ibid., pp. 244-46.
50. "German External Debts Arbitration between Greece and the Federal Re- public of Germany, Decision of 26 January 1972," 47 I.L.R. 453-54, cited in Shearer (n. 48 above), p. 245.
51. W. Burke, "Fishing in the Bering Sea Donut: Straddling Stocks and the New International Law of Fisheries," EcologyLawQuarterly 16 (1989): 285, 302-4. 52. Ibid., p. 304. This view is supported in B. Kwiatkowska, "Conservation and Optimum Utilization of Living Resources," in TheLawof theSea:WhatLiesAhead? ed. T. Clingan (Honolulu: Law of the Sea Institute, 1988), p. 259. 53. Burke, "Fishing in the Bering Sea" (n. 51 above), pp. 304-5.
54. M. Nordquist, ed., UnitedNationsConventionontheLawof theSea: ACommen-tary, vol. 4 (Dordrecht: Martinus Nijhoff, 1991), p. 43. See also B. Kwiatkowska, The200-MileExclusiveEconomicZoneintheNewLawoftheSea (Norwell, Massachusetts: Kluwer Academic Press, 1989), p. 161. 55. The legislative history of Part XII is chronicled and analyzed in Nordquist, vol. 4 (n. 54 above), pp. 35-168. See also R. Dupuy and D. Vignes, AHandbookontheNewLawof theSea, vol. 2 (Dordrecht: Martinus Nijhoff, 1991), pp. 1190-1232; B. Kwiatkowska (n. 54 above), pp. 160-97; N. Rusina, "International Legal Principles of Protection of the Marine Environment against Pollution," in TheLawoftheSeaandInternationalShipping, ed. W. Butler (Dobbs Ferry, New York: Oceana, 1985), pp. 261-73.
56. States parties continue to have obligations to ensure that living resources in the EEZ are not endangered by overexploitation under Article 61(2) and to cooperate in the conservation of living resources of the High Seas under Articles 117-19. Addi- tionally, the dispute-settlement provisions at Article 297(3)(b) provide that any party may request formal conciliation if a coastal state has manifestly failed to protect living resources in its EEZ from serious endangerment. Lastly, nothing prevents states from entering into other international agreements for the purpose of protecting these re- sources.
57. LOS Convention (n. 3 above), Art. 281. Of course, the recourse to binding settlement is conditioned on the parties not reaching an agreement by other methods provided in Part XV, Section 1.
58. See generally M. Nordquist, ed., UnitedNationsConventionontheLawoftheSea1982:ACommentary, vol. 5 (Dordrecht: Martinus Nijhoff, 1989); A. Adede, TheSystemforSettlementofDisputesundertheUnitedNationsConventionoftheLawoftheSea (Norwell, Massachusetts: Kluwer Academic Press, 1987); G. Singh, UnitedNationsConventionontheLawof theSeaDisputeSettlementMechanisms (1985); Dupuy and Vignes (n. 55 above), pp. 1333-1401; P. Birnie, "Dispute Settlement Procedures in the 1982 UNCLOS," in TheLawoftheSeaandInternationalShipping:Anglo-SovietPost-UNCLOSPerspectives, ed. W. Butler (1985), pp. 39-68; A. Adede, "The Basic Structure of the Disputes Settlement Part of the Law of the Sea Convention," OceanDevelopmentandInternationalLaw 11 (1982): 125. 59. LOS Convention (n. 3 above), Art. 280. 60. Ibid., Art. 283(1). 61. Ibid., Art. 282.
62. Nordquist, vol. 5 (n. 58 above), p. 27. 63. LOS Convention (n. 3 above), Art. 284. 64. Ibid., Annex V, Art. 6. 65. Ibid., Art. 284(4). 66. Ibid., Art. 281. 67. Ibid., Art. 286. 68. Ibid., Art. 287. The four choices are the International Tribunal for the Law of the Sea established in accordance with Annex VI; the International Court of Justice; an arbitral tribunal constituted in accordance with Annex VII; and a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein. 69. Ibid., Art. 287(3).
78. Excluded categories of activities are detailed in ibid., Arts. 297(2) and (3). 79. Ibid., Art. 297(3)(a). 80. Ibid., Art. 297(2)(a). 81. Ibid., Arts. 297(2)(b) and (3)(b). Under this special procedure, disputes con- cerning fisheries matters are subject to the compulsory settlement procedures in Sec- tion 2, "except that the coastal state shall not be obliged to accept the submission to such settlement of any dispute relating to its sovereign rights with respect to the living resources in the exclusive economic zone or their exercise, including its discretionary powers for determining the allowable catch, its harvesting capacity, the allocation of surpluses to other States and the terms and conditions established in its conservation and management laws and regulations" (Art. 297[a]). 82. Ibid., Art. 297(3)(b). 83. Ibid., Art. 297(3)(c). 84. Ibid., Arts. 297(2)(a), (b). 85. Ibid., Art. 297(l)(a). 86. Ibid., Art. 297(l)(c).
87. Ibid., Art. 298. 88. Ibid., Arts. 298(l)(a), (b), and (c). 89. This point is reiterated in ibid., Art. 299(1). 90. Ibid., Art. 299(2). 91. Ibid., Art. 300. 92. See Nordquist, vol. 5 (n. 58 above), p. 152, citing A. Kiss, "Abuse of Rights," in EncyclopediaofPublicInternationalLaw, Installment 7, ed. R. Bernhardt (1984), p. 1. See also generally B. Smith, StateResponsibilityandtheMarineEnvironrrcent:TheRulesofDecision (New York: Oxford University Press, 1988), pp. 84-85. 93. LOS Convention (n. 3 above), Art. 301.
94. Ibid., Art. 297(3)(a). 95. Ibid. Use of the phrase "shall not be obliged to accept the submission" indi- cates that a coastal state may not be forced into binding settlement but is not precluded from voluntarily choosing that option. 96. Although a dispute-settlement court or tribunal may wish to adopt the rea- soning employed by an earlier body, it is not required to do so and may instead choose to ignore any prior ruling. 97. Although a reduction in foreign fishing allocations within the U.S. EEZ is probably safe from challenge, any trade restriction imposed as a result of a Pelly Amendment certification is not.
98. He has defined "economic warfare" to include "any measures (such as boy- cotts or embargoes) that are designed to inflict economic injury onto a state in the context of a political dispute" (S. Neff, "Economic Warfare in Contemporary Interna- tional Law: Three Schools of Thought, Evaluated according to an Historical Method," Stanford JournalofInternationaleLaw 26 : 67 n. 1).
99. See R. Lillich, "Economic Coercion and the International Legal Order," in EconomicCoercionandtheNewInternationalEconomicOrder, ed. R. Lillich (1976), pp. 73-86; R. Lillich, "The Status of Economic Coercion under International Law: United Nations Norms," TexasInternationalLawjournal 12 (1977): 17; J. Paust and A. Blaustein, "The Arab Oil Weapon: A Threat of International Peace," American JournalofInternationalLaw 68 (1974): 410, 417; H. Brosche, "The Arab Oil Embargo and United States Pressure against Chile: Economic and Political Coercion and the Charter of the United Nations," CaseWesternReserveJournalofInternationalLaw 7 (1974): 3, 23. 100. O. Elagab, TheLegalityofNon-forcibleCounter-measuresinInternationalLaw (New York: Oxford University Press, 1988), pp. 196-213; D. Bowett, "International Law and Economic Coercion," in EconomicCoercionandtheNewInternationalEconomicOrder, ed. R. Lillich (1976), pp. 89-90; T. Farer, "Political and Economic Coercion in Contemporary International Law," AmericanJournalofInternationalLaw 79 (1985): 405, 413; E. Zoller, PeacetimeUnilateralRemedies (Irvington on Hudson, New York: Transnational Publishers, 1984), p. 71. 101. Neff (n. 98 above), p. 90.
102. See generally G. Arangio-Ruiz, ThirdReportonStateResponsibility, UN docu- ment A/CN.4/440 (19 July 1991), pp. 8-35. All of these measures are subject to the general rule that they be proportional in degree to the other nation's wrongful con- duct (G. Arangio-Ruiz, FourthReportonStateResponsibility, 53-56, UN document A/ CN.4/444/Add.l [25 May 1992]). See also Elagab (n. 100 above); Zoller, PeacetimeUnilateralRemedies(n. 100 above); E. Zoller, EnforcingInternationalLawthroughU.S.Legislation (Irvington on Hudson, New York: Transnational Publishers, 1985); S. Ro- senne, TheInternationalLawCommission'sDraftArticlesonStateResponsibility:Part1,Arts.1-35 (Norwell, Massachusetts: Kluwer Academic Press, 1991), pp. 298-300; I. Brownlie, Systemof theLawofNations:StateResponsibility:PartI (New York: Oxford University Press, 1983). 103. Organization of American States Charter, Bogota, 30 April 1948, amended Buenos Aires, 27 February 1967, UnitedNationsTreatySeries3;U.S.TreatiesandOtherInternationalAgreements 2:2394, 21:607.
104.CaseconcerningtheAirServicesAgreerrzentof 27March1946betweentheUnitedStatesandFrance, Decision of 9 December 1978, 54 I.L.R. 304. Professor Willem Riphagen served as president of the arbitral tribunal. The other two arbitrators were Thomas Ehrlich and Paul Reuter. Great weight has been given to the decision because Riphagen and Reuter are members of the International Law Commission. 105. Ibid., Par. 4. 106. Ibid., Par. 8. 107. Ibid., Par. 9. 108. Ibid., Par. 84. 109. Ibid., Par. 85. 110. Ibid., Par. 89. The relevant provision in the agreement reads, "In a spirit of close collaboration, the aeronautical authorities of the two Contracting Parties will consult regularly with a view to assuring the observance of the principles and the implementation of the provisions outlined in the present Agreement and its Annex" (Par. 88). 111. Ibid., Pars. 88, 90.
112. Ibid., Par. 90. 113. The AirServices tribunal alluded to this problem by stating that "counter- measures therefore should be a wager on the wisdom, not the weakness of the other Party. They should be used with a spirit of great moderation and be accompanied by a genuine effort at resolving the dispute" (ibid., Par. 91). 114. Ibid., Par. 3. 115. Ibid., Par. 90. 116. Special Rapporteur G. Arangio-Ruiz asserts in his FourthReportonStateResponsibility to the International Law Commission (n. 102 above), "[T]he very basic requirement for any countermeasure lawfully to be resorted to is the actual existence of an internationally wrongful act infringing a right of the reacting state" (p. 2).
117. Air Services (n. 104 above), Pars. 94, 96. The LOS Convention compulsory dispute-resolution measures that allow courts and tribunals to prescribe provisional measures to preserve the respective rights of the parties to the dispute or to prevent serious harm to the environment clearly meet this criteria. See LOS Convention (n. 3 above), Art. 290. 118. Court of Justice (Comm.v.France), case 232/78, E.C.R. 2729, 2739 (1979). 119. Bowett (n. 100 above), p. 92. According to Elagab, "if it transpires that there is in reality a definite commitment to peaceful settlement between the parties
concerned, resort to countermeasures by either party must be considered as prima facie unlawful. This general rule applies particularly where the treaty containing that rule establishes mechanisms for ensuring its implementation" (Elagab [n. 100 above]), p. 183. 120. Elagab (n. 100 above), pp. 183-84. 121. Ibid.
122. See LOS Convention (n. 3 above), Arts. 58(1) and (3). 123. Ibid., Art. 194(4). 124. Ibid., Art. 56(l)(b)(iii).
125. Although the United States had certified several nations in 1974 and 1978 under the Pelly Amendment for diminishing the effectiveness of the International Whaling Commission, no sanctions were ever imposed. The first sanctions imposed under the Pelly Amendment and Packwood-Magnuson Amendment took place in 1985. Embargoes of tuna under Section 205 of the Magnuson Fishery Conservation and Management Act first occurred in 1979. The first embargo under the MMPA took place in 1980.
126. Statement by David Phillips during a hearing, "GATT: Implication on Envi- ronmental Laws," before the House Subcommittee on Health and the Environment of the Committee on Energy and Commerce, 102d Cong., 1st sess., 48 (1991) (the U.S. Trade Representative and State Department actively discouraged other nations from supporting the U.S. position in the GATT Tuna-Dolphin Decision).