The Supreme Court's decision in Japan Whaling Association temporarily settled the question of whether the United States would pursue whale conservation with a hard line or moderate approach. The Court's decision to affirm the moderate approach will affect United States conservation efforts as well as the IWC's efforts. Conservationists argue that a strict approach to whale protection is the only effective alternative. Current United States policy and law reject that view. Had a full Court adopted a strict conservationist position with Justice Marshall and the other three dissenters, United States whale policy would be markedly different. United States policy would be certain and predictable. But, academic certainty and predictability may not protect whales.
This hard line conservationist approach would present whaling nations with the alternative of whaling or continuing to fish in the United States EEZ. To Japan, this would pose a dilemma given the extent of Japanese fishing in the United States EEZ. Yet the Japanese may find it more profitable to continue whaling because they could substitute lost fishing opportunities in other countries' EEZs. The Soviets would not face a similar dilemma because they presently have no fishing allocation in the United States EEZ. The decision may also be easy for other whaling nations who may be able to fish elsewhere. United States law is set to cancel all foreign fishing in the United States EEZ. If that happens, Packwood-Magnuson Amendment sanctions would be meaningless.
Scott T. Larson,
United States Whale Policy: The Judiciary Casts Its Vote in Favor of a Moderate Approach,
20 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol20/iss1/3