"The Norwegians' insistence to continue to carry out whaling operations in
violation of not only US law but international standards is not acceptable."
US Trade Representative Mickey Kantor said this to the Washington Post (June 2, 1994)
after meeting with Norwegian Prime Minister Gro Harlem Brundtland. The US
government had just back-pedaled after threatening to impose sanctions against
Norway under the Pelly Amendment to the Fishermen's Protective Act 1967
(1971).
So why is the US backing down against Norway? Because, to use Kantor's words, sanctions would be in violation of not only US law but international standards.
Under the Pelly Amendment, the US can ban imports of fish products from any country whose nationals "are conducting fishing operations in a manner or under circumstances which diminish the effectiveness of an international fishery conservation programme", or who "directly or indirectly, are engaging in trade or taking which diminishes the effectiveness of any international programme for threatened or endangered species".
But sanctions against Norway under the Pelly Amendment would be in violation of GATT. They would also be in violation of the Pelly Amendment itself, which requires that any sanctions be consistent with GATT.
In case this seems like a uniquely Norwegian perspective on US law, it is strikingly similar to that expressed by Bill Archer, chairman of the Committee of Ways and Means of the US House of Representatives, in the following letter (May 3, 1995) to Commerce Secretary Ron Brown:
"Dear Mr. Secretary Brown:
Some concerns have been brought to my attention regarding US trade policy as it relates
to imposition of Pelly Amendment sanctions against nations who have initiated, or intend
to initiate limited harvests of non-endangered whales. Specifically, I have been informed
that officials at the Department of Commerce and the Department of State have indicated
that such sanctions can, and will, be imposed if deemed appropriate on Norway for its
harvest of minke whales.
Norway, as a member of the IWC, has taken an objection to the 1982 amendment to the Schedule of IWC that called for a total ban on commercial whaling by 1986. The amendment was subject to "review based upon the best scientific advice" by 1990, at the latest. It is my understanding that in 1993 the Scientific Committee of the IWC unanimously found that a limited harvest of minke whales, a non-endangered species, would not have an adverse impact on population stocks.
With this is mind, I urge you, in examining the issue, to address whether the case does in fact justify Pelly Amendment sanctions under GATT and the recently approved Uruguay Round Agreements. Since the Pelly Amendment retaliation must be consistent with GATT, there is concern that such trade embargoes would not be consistent with GATT rules nor come within the exception under Article XX(g). I encourage you to apply the GATT principle that scientific objectives are the only legitimate objectives justifying standard-related trade barriers. Indeed, article 2.2 of the Agreement on Technical Barriers to Trade specifically references science as the framework of trade. Cultural, ethical, or moral values are not included in the list of legitimate objectives.
Since the IWC is meeting at the end of this month, it would seem most prudent to have a clarification with respect to the Administration's position on these significant trade issues. As you can appreciate, the trade implications go far beyond the issue of whales and would impact other nations concerned with the appropriate boundaries of international trade restrictions."
In the 24 years since it was passed into law, the Pelly Amendment has only been used once, targeting a non-GATT member, Taiwan. That is not a violation of GATT.