International Dolphin Conservation Under U.S. Law: Does Might Make Right?

Finding adequate solutions to wildlife conservation problems is rarely simple or straightforward. In developing acceptable domestic conservation policies, a nation must balance competing economic, political, biological and social concerns. When a wildlife problem is of international relevance, the range of competing interests is even broader. A nation\u27s wildlife policies must then take into account not only various concerns of the nation\u27s own citizenry, but also potential impacts on foreign policy. In addition, economic, political and cultural needs and values of the other nations whose interests are implicated must be recognized and weighed in the balance. The problem of dolphin mortality incidental to tuna fishing in the eastern Pacific Ocean is a case in point. For reasons still not understood by scientists, large schools of mature yellowfin tuna are often found in association with herds of dolphins. Fishermen take advantage of this association by encircling the dolphins with nets, trapping both the dolphins and the tuna underneath. Initially, such fishing on dolphins caused hundreds of thousands of dolphins to drown after becoming entangled. Although special nets and fishing techniques have been adopted over the last decade to substantially reduce incidental mortality, thousands of dolphins are still killed each year in the eastern Pacific Ocean tuna fishery. The problem is of grave concern to fishermen, scientists and the global citizenry. However, because tuna fishing in this area occurs on the high seas, no one nation has jurisdiction to establish universal dolphin-protective rules. Instead, under customary international law each nation regulates the activity of its own fishermen, except where the nations involved have agreed to adopt regulations established by an international organization. The United States first addressed the dolphin by-catch problem with the enactment of the Marine Mammal Protection Act of 1972 (MMPA), which attempted to balance the need for dolphin protection with the economic interests of U.S. tuna fishermen. Over the succeeding years, various provisions in the MMPA were strengthened and new provisions were adopted in an attempt to reduce to insignificant levels the number of dolphins incidentally killed during tuna fishing. Among these were provisions for trade embargoes to enforce U.S. dolphin protection standards in non-U.S. tuna fisheries. The United States has also tried to develop an international solution to the problem through its participation in the Inter-American Tropical Tuna Commission (IATTC). For example, in an agreement entered into in 1992 with eight other member nations, the United States affirmed its commitment to reducing dolphin mortality in the eastern Pacific Ocean through a multilateral program with the objectives of (1) ...reducing [such] mortality ...to levels approaching zero ...and, (2) ...se eking ecologically sound means of capturing tunas. Despite the success of the MMPA and IATTC programs in reducing the dolphin mortality levels, dolphins were still being killed in the eastern Pacific tuna fishery. For this reason, the U.S. Congress responded to pressures to step up the pace of dolphin protection and enacted the International Dolphin Conservation Act (IDCA) in 1992. The IDCA imposes a five-year moratorium on fishing on dolphins and allows the lifting of trade sanctions from those nations which were embargoed under the MMPA if such nations agree to the moratorium. In addition, the Act requires the posting of observers on all vessels fishing for tuna in areas where there is a regular and significant association between marine mammals and tuna; bans purse-seine fishing on eastern spinner and coastal spotted dolphins; and forbids U.S. citizens from selling, purchasing, transporting or shipping to the United States, tuna caught in association with dolphins. The passage of the IDCA was not without controversy, however. A strong faction of interested parties supported enforcement of the progressive approach to reducing dolphin mortality that the IATTC adopted. The moratorium approach for dealing with the dolphin mortality problem had previously been presented to and rejected by Congress because of opposition from both the fishing industry and environmentalists. After environmental groups reversed their positions and with strong endorsement of the IDCA by the Administration, Congress ultimately chose the moratorium approach. This decision may have satisfied the desire for more urgent action but may be counterproductive in terms of development of international legal norms and perhaps ecologically as well. The choice Congress made in 1992 raises several important questions regarding international law. First, how should a state attempt to solve an international wildlife conservation problem? Second, is a state\u27s use of its economic power to impose its point of view on more dependent states valid under international law? Third, is such validity affected when that point of view is shared by a majority of the states involved in the problem? Finally, what approach to addressing conservation of common resources best serves the purposes of the international legal order? Part II of this Comment will describe the political and economic background of the dolphin by-catch controversy including an analysis of U.S. attempts to reduce dolphin mortality by threat of trade sanctions under domestic legislation. It will also examine the efforts of the multilateral organization, IATTC, to reduce dolphin by-catch in the Pacific tuna fishery. Part III sets forth the significant provisions of the International Dolphin Conservation Act and discusses its legislative history, in which Congress had a choice between a multilateral approach and a unilateral trade sanctions approach. Part IV then analyzes these approaches in light of applicable international law. This Comment will conclude by asserting that of the two approaches presented to Congress in 1992, IATTC\u27s multilateral agreement ultimately would better serve the interests of both the United States and the international legal order