The post-1945 era of US predominance has been characterized by the rapid expansion of international law and the proliferation of intergovernmental organizations (IGOs). Intergovernmental organizations have enabled the United States to disseminate its policy preferences with legitimacy and efficiency, and continuity.Footnote 1 US policy preferences gain greater legitimacy through being adopted as the policy of an IGO; international institutions have also served to disguise to some degree US dominance.Footnote 2 At a very general level it is easy to see how this happens. Collective action is taken by or at the bidding of an IGO rather than at the direction of the hegemon; in the event that the IGO does not, or is unlikely to, adopt the policy course favoured by the hegemon, the hegemon can resort to unilateralism. The United States wanted to get a second UN Security Council resolution explicitly authorizing the war against Iraq, for example, but in the event that it was unable to do so, it went ahead anyway, albeit without the legitimacy that acting through the United Nations would have accorded the invasion. The legitimacy that gaining Security Council authorization for the invasion of Iraq would have accorded US policy would have been in large part the legitimacy of acting within the international law on the use of force as embodied in the Charter of the United Nations. International law is thus integral to the process of the legitimization and dissemination of US policy preferences via IGOs. International law underpins the structures of intergovernmental organizations and it provides a medium of communication between states within the IGO. International law plays a major role in disguising US dominance; what might otherwise appear as ‘mere’ US policy choices can be presented as law, and on occasion be enforced as such.Footnote 3 The Korean War and the 1991 Gulf War, although authorized by the Security Council, were essentially US wars.
This article seeks to trace at a relatively low level of analysis the process of the legitimization and often disguised dissemination of US policy preferences via the International Whaling Commission (IWC). It does so within a framework provided by the CSC (cognitive structures of co-operation) theory of treaty interpretation,Footnote 4 which derives from the theorization of international law as ideology developed by Shirley Scott.Footnote 5 The CSC theory of treaty interpretation links the constitutive treaty of an IGO with the course of institutional life and is therefore an ideal approach to investigating the place of international law in the hegemonic dissemination of policy preferences via intergovernmental organizations. CSC theory provides a framework within which to trace the evolution of a multilateral treaty-based process of international co-operation in terms of an ideational nexus of logic embedded in the constitutive treaty. It further theorizes how that structure of ideas is integral to the structure of socio-political power confirmed by that treaty. An outline of the theoretical framework will be provided before it is applied to US participation in the International Whaling Commission (IWC) from its inception in 1946 until the adoption of a moratorium on commercial whaling in 1982. The IWC is an IGO in which the United States has played a major, though generally under-recognized, role. The study suggests that the United States has on occasion been able to use IGOs to legitimize and camouflage the dissemination of its policy preferences whether or not the IGO has been effective in its own right and whether or not the United States has acted multilaterally, bilaterally, or unilaterally.
1. The political interpretation of multilateral treaties
There has over recent years been increased scholarly interest in inter-disciplinary analysis of the negotiation and effectiveness of multilateral treaties and in the course of institutional life. A frequently used measure of regime effectiveness is the degree to which a treaty regime has achieved its objectives,Footnote 6 and objectives are often assumed to be those specified in the preamble to the treaty establishing the regime when read at face value. This is in keeping with Article 31 of the Vienna Convention on the Law of Treaties, which the International Court of Justice has acknowledged to constitute customary international law.Footnote 7 Article 31 provides that, unless it can be established that the parties intended to give a special meaning to a term, treaties ‘shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’.Footnote 8 While Article 31 combines the subjective, objective, and teleological schools of treaty interpretation,Footnote 9 the orthodox interpretation of Article 31 holds that it gives most weight to the ‘ordinary meaning’ of the text.Footnote 10 There has been little questioning as to whether a legal theory of treaty interpretation, which derives from the system of international law and has meaning within that system, should necessarily be applicable where the questions asked of a treaty are of a political nature. The shared legal goals of the states party to a treaty may not equate with the political goals of individual states. Even if the preamble of a treaty could be read as a true statement of the goals of the parties, the goals expressed in that treaty are not the only goals of the states concerned. In practice, the pursuit of environmental objectives is moderated by economic objectives, the pursuit of world peace is moderated by considerations of national security, and so on.Footnote 11
There has therefore been a need for a political theory of treaty interpretation by which to gauge the political, as opposed to legal, meaning of a treaty. As a political document, a treaty can be regarded as indicative of a structure of ideas integral to the set of political relationships from which the treaty was produced. The treaty reflects and alludes to those ideas but does not necessarily define them. In undertaking a legal interpretation of a treaty the context can serve as a guide to understanding the legal meaning of the text. In the CSC approach to the political interpretation of a treaty, that relationship is reversed such that the treaty is a guide to understanding the structure of ideas at the core of a political process. The CSC theory of treaty interpretation views the constitutive treaty of an IGO as instantiating a logical framework integral to an ongoing process of co-operation. The CSC can be thought of as the ideational backbone of the IGO. It emerges during negotiation on the issue that gives rise to the IGO. The ideas through which positions and interests are mediated are regarded as integral to those broader political dynamics. If the treaty is to be related to this broader political process there needs to be a theoretical link between ideas and political reality. As will be seen below, this is achieved with the assistance of ideology theory. The CSC approach to treaty interpretation is in no way intended to replace a legal interpretation of a treaty; the objective of the approach is not to gauge the legal meaning of, but the political dynamics captured within, a multilateral treaty.
2. Defining the cognitive structure of co-operation
The cognitive structure of co-operation, or CSC, has four essential and interrelated components: a goal common to the negotiating states, pursuit of which gave rise to the perceived need for a multilateral treaty; the issue to which pursuit of this goal gave rise; the foundation ideology or philosophical basis for determining how to proceed; and the ‘solution’ as the way by which the parties have agreed to tackle the issue. Each of the CSC components can be identified through interpretation of the treaty text in conjunction with the travaux préparatoires and an appreciation of the intellectual milieu of the day. To this extent, identification of the CSC components bears some resemblance to the textual approach to treaty interpretation. Let us look at each CSC component in a little more detail.
2.1. The legitimation goal common to the negotiating states that gave rise to the regime issue
The starting point for identifying the CSC instantiated in a treaty is to locate a goal common to the negotiating states, without which the treaty regime or IGO would not have come into existence. This is a rational, self-interested goal, the unchecked pursuit of which on the part of two or more states was likely either to bring the states into conflict or to hinder the ability of each state to achieve its goal. Research tells us that most states pursue what could broadly be described as ‘realist’ foreign policy objectives, that is, core national interests as perceived by the decision-making elite. Realism is the dominant perspective in most foreign policy bureaucracies.Footnote 12 The goal may, for example, be national security or economic growth. It is important to note that the legitimation goal is not articulated in the treaty text; indeed, the goals expressed in the preamble are most likely to be markedly different from the goal common to the negotiating states whose pursuit gave rise to the perceived need to negotiate a multilateral treaty. The process of negotiating a CSC that is to be embedded in a treaty is the process of agreeing on some common constraints to be imposed on pursuit of the legitimation goal. Once agreed to, the CSC and hence the treaty in which it is instantiated will serve to legitimize pursuit of that goal, albeit within the agreed limits.
2.2. Definition of the issue to be addressed
Also conceptually prior to the treaty is the definition of the issue to which the treaty is a response. From the perspective of the hegemon, this is an important CSC component for legitimizing the dissemination and implementation of its preferred policy choices. The issue needs to be such as to demand a response and must appear to be one common to all states rather than one of concern only to the hegemon. As with the legitimation goal, the issue is unlikely to be stated as such in the constitutive treaty, but it may often be the case that the hegemon has worked hard to define the issue as it wishes. While most of the key multilateral treaties negotiated in the decades after the Second World War responded to issues as defined by the United States and the West, developing countries and non-governmental organizations (NGOs) have more recently been active in identifying and defining issues and calling for treaties in response. Examples include the need to ban landmines,Footnote 13 and to curtail or at least manage the export of hazardous wastes.Footnote 14
2.3. The agreed solution to that issue
Incorporated into the substantive provisions of the constitutive treaty is a ‘solution’ to the CSC issue – that is, what the parties agree to do or not to do to address the issue of mutual concern. In treaty regimes without formal institutional structures the solution is a substantive one – for example that existing nuclear-weapon states not assist other states to acquire, and for non-nuclear states not to seek to acquire, nuclear weapons. In the case of the constitutive treaty of an IGO the solution will incorporate the provisions specifying how the IGO will function. Significant here are membership requirements and voting procedure as well as the means of amending the treaty. Such provisions will determine the extent to which the IGO can function independently of the hegemon. It is the solution, whose essence is often contained within one or two of the first few of the substantive provisions but that is ‘filled out’ with other details, that is most important to the IGO operating so as to implement efficiently the broad policy preference of the hegemon in a predictable and stable manner. The hegemon could be expected to aim to ensure that such provisions are advantageous to itself in the future dissemination of its broad policy preferences. While one might expect that this would equate to the hegemon wanting full control over the operation of the IGO, Abbott and Snidal maintain that allowing the IGO a considerable degree of autonomy will increase its effectiveness;Footnote 15 the IGO will need to be largely autonomous if conducting its diplomacy via the IGO is to be an efficient modus operandi for the hegemon. If the hegemon is to use the IGO to disseminate its policy preferences while also to some extent masking that influence, it may well be that a hegemon would seek to have the IGO function largely autonomously from the hegemon but for it to be able to intervene if and as desired.
The impression of the ‘rightness’ of the solution is further enhanced by the fact that the treaty in which it is enunciated is a document of legal standing. Once US policy preferences have been instantiated in a treaty, the impression of power being wielded is neutralized, because the policies are now those of the institution rather than those of the hegemon only, and international law is often spoken about as though it were a politically neutral body of law that can be fairly applied to all. The treaty itself and its legal status are thus in themselves an important aspect of the camouflage of US agency. From this perspective it is little wonder that the United States took the lead in establishing so many institutions and treaty regimes after the Second World War, in many cases providing the draft constitutive treaty.
2.4. The foundation ideology as the philosophical underpinning of the solution
The CSC approach to treaty interpretation places greater weight on the preamble than does the Vienna Convention on the Law of Treaties, because it regards the preamble as referring to the philosophical foundation of the set of interrelated ideas that is integral to the political dynamics at play. The fourth key element of the CSC is a principle or small group of interrelated principles, which provides the philosophical underpinning of the solution. In a well-designed treaty the solution will appear as the only one possible given the application of that principle to the issue at hand. The philosophical foundation is an accepted statement of fact that underpins the solution, justifying why that is the best response to the issue at hand. It may not be expressed explicitly in the treaty, but references to the philosophical foundation are usually found towards the beginning of the preamble. The stronger the logical nexus between the issue, the philosophical foundation, and the solution, the more obvious will it seem to be to proceed in that manner and the greater the camouflage for US policy dissemination, since it will be these principles rather than US demands that appear to be dictating why states are required to act in accordance with the solution. Hence, for example, the philosophical foundation of the Treaty on the Non-proliferation of Nuclear Weapons is that the further horizontal proliferation of nuclear weapons would increase security dangers. Although not all analysts agree with this proposition, the idea was widely assumed to be accurate at the time the treaty was drafted and underpins the ‘solution’ by which only existing nuclear-weapon states were to be permitted to possess nuclear weapons.Footnote 16
The philosophical underpinning of the CSC serves as the conceptual link between the CSC as a set of interrelated ideas and the set of political relationships in which the treaty is embedded. CSC theory is founded on a philosophical position by which ideas are regarded as integral to structures of power and as necessary, though not sufficient, explanatory variables in a process of socio-political change. It is therefore not a question of whether ideas impact on reality; if it is accepted that ideas are necessary causal factors in a process of socio-political change, any perceived change in those ideas is either a force for change in its own right or reflects change elsewhere. This means that tracing change within the cognitive structure embedded within the multilateral treaty is a short cut to tracing broader political dynamics at play. Because the CSC approach to the political interpretation of treaties is premised on the philosophical position by which ideas are necessary, even if not sufficient, causal factors in socio-political change, change cannot occur within the political relationships in which the treaty is embedded without corresponding change to the CSC and vice versa. The philosophical foundation serves as the pivot between the CSC as instantiated in the treaty, and the set of political relationships confirmed in the treaty. This dual role of the philosophical underpinning is theorized with the assistance of ideology theory.
The term ‘ideology’ is often equated with ‘dogma’ in the sense of beliefs not subject to critical interrogation; another meaning given to the term is that of a system of beliefs such as liberalism or communism. Neither is of direct relevance here. The writings of Marx have given rise to two interrelated traditions of writing on ideology: that by which the term is used to refer to the intrinsic characteristics of ideas that serve to obscure and create false illusions, and that to mean an idea or principle being analysed in terms of its political role in sustaining or overturning patterns of domination.Footnote 17 The CSC theory of treaty interpretation draws on the second of these meanings as well as on the work of John Thompson, but is not an application of any single theorist of ideology.Footnote 18 As used in CSC theory, the term ‘ideology’ does not refer to the intrinsic quality of ideas as false, bad, or wrong, but is used to denote the fact that an idea is being analysed in relation to power. According to Thompson, ‘[r]elations of domination are sustained by a mobilization of meaning which legitimates, dissimulates or reifies an existing state of affairs; meaning can be mobilized because it is an essentially open, shifting, indeterminate phenomenon.’Footnote 19
The key point that CSC theory takes from the literature on ideology is the principle that every structure of socio-political power contains within it a principle or small set of interrelated principles integral to that power structure. The principle or small set of interrelated principles, to be referred to as an ideology, needs to be sustained during the life of the socio-political structure if that structure is to remain stable; this is done through rhetoric assuming the principles to be true. According to CSC theory, the logic of the CSC nexus needs to be preserved during the life of the IGO if the treaty regime is to appear strong and if the hegemon is to keep accruing the benefits of legitimation, efficiency, stability, and camouflage for the dissemination of its policy preferences. As new problems arise, discourse within the IGO needs to treat the problem as secondary to that which gave rise to the treaty. A new sub-issue must also be addressed on the basis of a principle or small set of interrelated principles giving rise to a solution, and the solution to that sub-issue must in turn serve to reinforce the original nexus. If rhetoric functions to undermine the philosophical foundation of the CSC integral to the IGO, the ‘solution’ will no longer appear as the ‘only one possible’ and alternatives may be proposed. If the IGO is to appear stable, the agreed philosophical underpinning of the IGO, which is integral to the political dynamics of the IGO members, must be assumed true in discourse within that IGO, and the solution must appear as the only one possible given the application of that principle to the issue at hand.
International law is an arena in world politics in which ideational forces intersect with material forms of power. CSC theory articulates this dynamic as captured in the treaty establishing an IGO and offers a framework within which to trace the dynamic as it continues throughout the life of the treaty regime. It is a theoretical approach situated outside law, although it cannot be neatly categorized into a single school of international relations theory. CSC resonates with the emphasis on power contained within realist accounts of the hegemon's relationship with IGOs, as well as with the neoliberals' recognition of the benefits that a hegemon derives from working through IGOs. The CSC theory of treaty interpretation and the theorization of international law as ideology from which it derives is compatible with recent scholarly interest in the role of ‘norms’ in world politics and constructivist writing on international law,Footnote 20 but if it is to be referred to as constructivist, it could best be described as ‘critical constructivist’ because of its emphasis on the relationship between discourse and power.Footnote 21 Perhaps the most significant contribution of CSC theory to the growing interdisciplinary literature on the politics of international law is its theorization at the level of specific treaty provisions, phrases, and terms, of the relationship between power, norm dissemination, and contestation, and the multilateral treaty as a material source of international law.
3. CSC theory and the IWC
At first glance it is not surprising that accounts of the IWC typically make little or no reference to the United States. The United States was one of 14 states that signed the International Convention for the Regulation of Whaling (ICRW) in 1946, but its own whaling industry had well and truly withered by that time. The early life of the IWC is usually thought of as one of relative failure in terms of imposing effective limits on the catch of whales. In the late 1970s and early 1980s the IWC underwent a radical shift such that its raison d'être went from being that of maintaining the whaling industry to that of protecting the whales from the industry. This fundamental shift is also often described with little mention made of any role for the United States, other than its then fulfilling a benign role in enforcing the moratorium decision of the IWC. The transformation in the objectives of the regime tends to have been ascribed in part to a ‘conflict at the heart of the ICRW and thus the IWC from its very inception’.Footnote 22 Scharff, for example, asserts that the drafters did not recognize the contradictions inherent in the conjunction of the two goals in the preamble: the conservation of whale stocks and the orderly development of the industry.Footnote 23 Rose and Crane similarly refer to the ICRW as reflecting the conflicting objectives of its negotiators,Footnote 24 and Curnutt to its having an ‘arguably incompatible’ set of objectives.Footnote 25 Such assessments are based on a straightforward legal reading of the treaty text. The CSC theory of treaty interpretation will now be used to try to tease out whether the treaty is as confused as it is often portrayed as being and to discern the US role in this IGO. To what extent has the IGO served as a vehicle for, while also camouflaging, the dissemination of US policy preferences in this issue area?
3.1. Identifying the CSC embedded in the ICRW
The goal whose pursuit gave rise to the perceived need for the treaty was that of facilitating the national whaling industry making as much profit as possible. This goal was shared by the major whaling states of the 1930s, including Germany, Japan, Norway, and the United Kingdom. The issue to which this Convention responded was a perceived need to take action because of the ruthless exploitation of whaling stocks by the industry and the fear that stocks would be depleted to the extent of destroying the industry. The heavy capital investment required in this industry in ships and equipment encouraged those engaged in the industry to take as large a catch as they could in the short term so as to maximize financial return.Footnote 26 Pre-war efforts at industry regulation had each been short-term and not fully successful.
The philosophical foundation or, to express it differently, the logical assumption underpinning the negotiation of a solution was the concept of conservation, a term in widespread use post-Second World War and prior to the emergence in the 1960s of environmentalism. The third paragraph of the preamble states,
Recognizing that the whale stocks are susceptible of natural increases if whaling is properly regulated, and that increases in the size of whale stocks will permit increases in the numbers of whales which may be captured without endangering these natural resources.
Conservation related to the use of resources in such a way that they were not wasted and that there would be sufficient remaining for future generations.Footnote 27 Science was integral to the philosophy of conservation, for science would guide the policymakers to the best possible regulation of the industry. In this sense it was similar to the concept of sustainable development. Conservation did not mean non-use unless the needs of that resource required a period of non-use to allow stocks to increase.Footnote 28
The essence of the solution to the need for a greatly improved and ongoing means of industry regulation was, according to Article III of the ICRW, to establish the International Whaling Commission. This could adopt whaling regulations in a Schedule annexed to its constitutive treaty that could be modified without the need to amend the treaty itself. According to Article V(2)(b), amendments to the Schedule were to be made on the basis of scientific findings. The treaty anticipated the need not to whale certain species at certain times, but no government at that time questioned the need to exploit whales.Footnote 29 Preambular paragraph five reads,
Recognizing that in the course of achieving these objectives, whaling operations should be confined to those species best able to sustain exploitation in order to give an interval for recovery to certain species of whales now depleted in numbers.
Conservation differed from the more recent philosophies associated with environmentalism, which are much more likely than conservation to demand protection of the environment for its own sake, perhaps on utopian or aesthetic grounds. Conservation, as a philosophy, was closely aligned with science, the belief being that science could dictate appropriate policy on natural resources. The requirement that IWC decisions be based on science reaffirmed conservation as the philosophical basis of the IGO and the logical underpinning of the chosen solution. Understanding conservation in 1940s and 1950s terms means that a tension identified by many writers on the IWC – between conservation of whales and regulating their exploitationFootnote 30 – did not exist at the time the treaty was drafted.
4. Using CSC theory to trace the role of the United States in establishing the IWC
The United States was the key player in establishing the IWC. It is not difficult to see how the US-led IWC was of benefit to a non-whaling hegemon that nevertheless wanted to ensure a supply of whale oil.Footnote 31 The ICRW locked in the US policy preference for maintaining a viable industry and disseminated it in an efficient way on an ongoing basis. US leadership was to a large extent masked by its working through an IGO in which decisions were to be taken on the basis of science. While science is typically portrayed as a politically neutral process of enquiry undertaken in the interests of all, it had become an important component of national power, particularly during the two world wars. As Eisenhower commented in 1954,
The United States has become strong through its diligence in expanding the frontiers of scientific knowledge. Our technology is built upon a solid foundation of basic scientific inquiry, which must be continuously enriched if we are to make further progress.Footnote 32
The foundation ideology of science-based conservation facilitated the United States' gaining an entrée into the regime that as a non-whaling state it would not otherwise readily have had; according to the United States the fact that decisions on regulation were to be based on science meant that membership did not need to be confined to representatives of particular countries but could be composed of the ‘persons best qualified to act in the interests of all countries concerned for the conservation and best utilization of the resource’.Footnote 33 According to Article X(2) ‘any government’ may sign the Convention. This is unusual amongst fishery regimes, most of which require either producer or some kind of user interests.Footnote 34 It is interesting to note that one analyst of the IWC has attributed the open nature of IWC membership to idealistic sentiment in the wake of the Second World War: that everybody should have an equal right to participate.Footnote 35
The foundation ideology of conservation legitimated the regulations promulgated by the IWC and made it appear as quite an autonomous institution within which decisions were to be taken by a three-quarters majority on the basis of science. In actual fact, this requirement did not in practice preclude the IWC taking decisions on a political basis, unsupported by science. The CSC solution as incorporated into the Convention required that amendments to the Schedule be based on scientific findings, and at its first meeting the Commission decided to establish a Scientific and Technical Committee. The Commission was not, however, legally bound to accept the views of the Scientific Committee; a decision to amend the Schedule required only that it be taken by a three-quarters majority of those members voting.Footnote 36 And, according to Article 5(3), any amendment to the restrictions and regulations governing whaling enumerated in the Schedule would not apply to any government that lodged an objection to the adoption of such an amendment; this had been a US proposal.Footnote 37 The United States had also proposed that the Convention enter into force with only three ratifications; although this was increased to six in the final text of the treaty,Footnote 38 it is difficult to escape the conclusion that the United States had not been intent on constructing a strong organization impervious to political influence.
The Treaty nevertheless imposed constraints on future US policy dissemination. The United States – like other treaty parties – would need to work within the cognitive framework confirmed in the treaty. Most basically, proposals for Schedule amendments would need to be justified on scientific grounds if they were to appear ‘objective’ and, as was to become significant, founding the ICRW on the principle of conservation meant that emphasis was on usage of whales in a sustainable manner as opposed to their preservation. It was not just that the hegemon would have to get its rhetoric right. The philosophical cohesion of the treaty was integral to the set of political relationships of which the treaty was a part. Were all the other states in the treaty regime to shift their preferred policy choices, this would either force a change to, or stem from, a shift in the cognitive structure integral to this process of international co-operation.
The IWC was not an effective IGO during its early years. The industry was reluctant to accept constraints on its taking of whales, the Scientific Committee did not at first have the means of acquiring the necessary information on which to make ‘rational’ decisions, and the science of the day was inadequate for the task demanded of it. For much of the early life of the IWC the organization appeared on the brink of collapse.Footnote 39
5. The transformation of US whaling policy in the 1970s
US whaling policy was transformed in the 1970s. This reflected a shift in popular philosophies pertaining to natural resources and the influence on US domestic politics of the environmental movement and lobby groups. Environmentalism was by now a powerful political idea and movement in the United States, as heralded by the publication in 1962 of Rachel Carson's Silent Spring.Footnote 40 The ‘save the whale’ campaign began as an initiative of US-based non-governmental organizations, including Friends of the Earth, Project Jonah, and Greenpeace, and became a flagship campaign of the environmental movement. In 1969 the United States amended its Endangered Species Preservation Act of 1966, enabling it to ‘list’ species threatened with extinction, including those found in foreign jurisdictions or on the high seas,Footnote 41 and to prohibit their importation into the United States.Footnote 42 The amendment required the United States to promote bilateral and multilateral treaties to protect endangered wildlife.Footnote 43 In late 1970 Secretary of the Interior Walter Hickel placed eight species of whales on the Department's endangered species list and, under the Endangered Species Act, prohibited the import of oil, meat, and other products from whales.Footnote 44 In 1971 the Secretary of Commerce, Maurice Stands, announced the prohibition of all commercial whaling by the United States after 15 December 1971.Footnote 45
The 1971 Pelly Amendment (section 1978) to the Fishermen's Protective Act of 1967 required the Secretary of Commerce to certify to the president (i) whether foreign countries were fishing in a manner or under circumstances that diminished the effectiveness of an international fishery conservation programme; or (ii) whether the countries were directly or indirectly engaged in trade or taking which diminished the effectiveness of any international programme for threatened or endangered species to which the United States was party. Following certification, the president could decide whether to ban imports of fisheries products from the country in question.Footnote 46 The 1972 Marine Mammal Protection Act provided for a moratorium on the taking of all marine mammals and products in the United States, and prohibited their importation,Footnote 47 although an exception was made to permit Inuit and First Peoples to hunt bowhead whales to preserve their long-standing social customs. The Act required the US cabinet secretaries to follow a programme of international activities to implement the Act, including initiating bilateral and multilateral agreements to protect and conserve all marine mammals, to amend existing international treaties to which the United States was a party to make such treaties consistent with the purposes and policies of the Act, and to endeavour to negotiate a binding international convention that would ensure comprehensive protection for the various species. The 1979 Packwood-Magnuson Amendment to the 1976 Fisheries Conservation and Management ActFootnote 48 dealt specifically with whaling. It removed presidential discretion in the imposition of sanctions; when a nation was certified as conducting fishing operations or engaging in trade or taking that diminished the effectiveness of the ICRW, the president was required to cut its fishery allocation in US waters by at least 50 per cent.
6. Using CSC theory to trace the influence of the United States on the course of IWC life
In CSC terms, what the United States now wanted was a radically transformed solution. It will be recalled that the ICRW incorporated the solution of establishing the IWC and charging it with the task of amending the Schedule as required by science in order to conserve the resource. But the United States now wanted an end to commercial whaling. The solution of ‘no whaling’ had in US policy been underpinned by the philosophy of environmentalism rather than conservation, but while it would be hard enough to bring about a Schedule amendment providing for no commercial whaling, rewriting the preamble would require amending the Convention. In a somewhat similar fashion to debate on reform of the UN Security Council, the more polarized the views became of what needed to be done, the more vociferous the calls for treaty amendment but the less likely that any reform could be accomplished. The tensions within the IWC brought about by changed hegemonic preferences in response to the domestic environmental movement meant that the subsequent proposal of the United States to replace the Convention appealed to many members, but it was also to mean that a more widely acceptable replacement treaty would be impossible to draft. It took over a decade for the United States to have the IWC adopt its new policy preferences, during which time it needed to supplement diplomatic ideational and diplomatic manoeuvring with ‘hub and spoke bilateralism’.Footnote 49
It was not simply a matter of the change in US policy preferences not sitting comfortably with the treaty establishing the IWC. Were all IWC members to have undergone a comparable shift in their perceived national interest it was unlikely that this would have been a problem, but the treaty incorporated an agreed cognitive structure. Integral to this set of socio-political relationships had been a common objective of catching as many whales as possible, moderated by an agreed philosophical foundation of conservation by which science was to be used as a basis for imposing some agreed constraints on pursuit of that interest. This cognitive structure was integral to the existing socio-political structure referred to as the IWC. The ‘solution’ now sought by the United States could only appear necessitated by the foundation ideology of conservation should the very future of the industry be threatened. As will be seen, it actually proved impossible to bring the moratorium about without shifting the membership of and thereby the power equilibrium within the IWC.
The United States took its no-whaling policy to the 1972 United Nations Conference on the Human Environment in Stockholm. US ‘insistence’ led the conference to recommend that the IWC impose a ten-year moratorium on whaling.Footnote 50 Recommendation 33 of the Action Plan for the Human Environment stated ‘that Governments agree to strengthen the International Whaling Commission, to increase international research efforts, and as a matter of urgency to call for an international agreement, under the auspices of the International Whaling Commission and involving Governments concerned, for a 10-year moratorium on commercial whaling’.Footnote 51 The US delegation to the 1972 IWC meeting was headed by Russell Train, chairman of the US President's Council on Environmental Quality, who had been at Stockholm. At the 1972 meeting the United States made its first proposal that the Schedule be amended wherever a numerical quota appeared to substitute the numeral ‘0’ for all such numerical quotas.Footnote 52 Understandably, given that the solution had to appear to emanate from the principle or small set of principles constituting the philosophical foundation of the treaty regime, the United States justified its moratorium proposal on the basis of conservation: a ‘desire to achieve the fastest possible restoration of depleted whale stocks’.Footnote 53 The weakness in this argument was that the Scientific Committee meeting at the 1972 meeting concluded that there was no scientific justification for a blanket moratorium.Footnote 54 It became clear that those advocating an end to whaling were basing those views on a moral belief that it was wrong to whale, rather than on scientific knowledge. In response to claims that science did not justify a moratorium, the US representative argued that the state of knowledge of the whale stocks was so inadequate that it was only common prudence to suspend whaling. In 1973 the United States proposed a ten-year moratorium on commercial whaling, once more arguing on the basis of scientific uncertainty.Footnote 55
Recognizing that it was unlikely to get sufficient votes, the United States from 1974 to 1979 supported a ten-year moratorium on all commercial whaling in its opening statements at the IWC meetings and in discussions with other countries, but did not place the moratorium on the agenda.Footnote 56 In the late 1970s the United States drew on its domestic legislation and applied bilateral pressure to encourage the whaling nations of Chile, Peru, South Korea, and Spain to join the IWC.Footnote 57 US efforts to convince other IWC member states of the need for a moratorium were not assisted by its position on aboriginal whaling. Despite scientific evidence and the view of the Scientific Committee that there should be a zero quota for bowhead whales, United States policy supported the catch of bowheads by the Inuits. At its 1977 meeting the IWC voted to ban all hunting of bowheads, which scientists recognized to be the most endangered of the whales.Footnote 58 The United States engaged in secret ‘commissioners' meetings’ to gain support for a bowhead quota. In 1977 the IWC set a compromise quota of 12 bowheads. The fact that the IWC approved the continued catch of bowheads in the Bering Sea by the Alaskan Inuits despite the Scientific Committee's recommended ban on all catches of this stock highlighted the fact that IWC decisions were not all as dictated by science.
6.1. US attempts in 1974–1981 to amend or replace the Convention
In accordance with the requirements of the US Marine Mammal Protection Act 1972, the United States in 1973 introduced the subject of renegotiating the ICRW. US-based whale protection groups proposed that the IWC be replaced by an International Cetacean Commission ‘which would have as its primary purpose the protection of all cetaceans . . . not the protection of whalers’.Footnote 59 Unhappy with the workings of the IWC, whaling states also were prepared to consider a new convention, although they remained strongly committed to the principle of conservation as underpinned the ICRW. At the IWC meeting in 1974 the United States presented a draft protocol, which, following closely the Marine Mammal Protection Act 1972, would transform the IWC into an International Cetacean Convention. The United States founded the proposed alternative convention on the principle of conservation, but in the last preambular paragraph referred to ecosystem protection. The principle of conservation can encompass no exploitation, but only if this is justified by scientific evidence. A ban on exploitation for aesthetic or moral reasons is an aspect of environmentalism, not of conservation.
A working party was set up to review the Convention and the views of member and non-member states were sought. A meeting took place in Canberra in June 1977, at which the revised text and the amendments proposed by the different countries were collated into a single document. The fact that the states involved did not share a philosophical foundation on which to negotiate a means by which to manage the issue was reflected in the lack of agreement on any preambular paragraphs.Footnote 60 Another meeting was held in Copenhagen in July 1978, but disagreement remained as to whether, and to what extent, revision was necessary. Further meetings were held in Portugal in November 1979 and in Iceland in 1981. Even at this 1981 meeting views differed widely regarding whether the existing Convention should be amended or replaced and, if replaced, by what.Footnote 61 Following the failure of the third meeting in Reykjavik, the idea of negotiating a new convention seemed to be abandoned.Footnote 62 This was no doubt because the United States had achieved its policy objective of a moratorium within the existing treaty structure.
6.2. The adoption of a moratorium on commercial whaling
Participation in the IWC grew rapidly in the 1970s and early 1980s. Not only did those countries that had been whaling outside the IWC join, but also a number of non-whaling countries. Nineteen countries entered the IWC from 1981 to 1983.Footnote 63 It appears that Greenpeace was behind a campaign to ‘stack’ the IWC. Greenpeace reportedly devoted millions of dollars to the project, helping to staff the new delegations with scientists and other advisers and paying the initial membership fees of the new countries.Footnote 64 The influx of new members posed a fundamental challenge to a socio-political structure founded on the idea of conservation; the new members ‘diluted’ the power structure within the IWC, pitting the newer philosophy of environmentalism against conservation. At the thirty-first annual meeting of the IWC in 1979 the United States unsuccessfully proposed a moratorium on the commercial killing of whales, again arguing on the basis of conservation; the proposed moratorium was to last ‘until serious flaws in the design and practice of the Commission's current conservation programme’ had been remedied.Footnote 65 Several proposals at the thirty-second and thirty-third annual meetings to amend the Schedule so as to effect a ban on whaling also obtained insufficient votes. The breakthrough, for those opposed to whaling, came in 1982, when the Schedule was amended so as to provide zero catch limits for commercial whaling as from 1986.
Japan, Norway, Peru, and the former USSR lodged formal objections to the decision, but Peru withdrew its objection on 22 July 1983.Footnote 66 The Soviet Union announced that it was stopping whaling in 1985 after the United States used the Packwood-Magnuson Amendment to halve its quota of Alaskan fish.Footnote 67 In 1986 the United States threatened Norway with sanctions and Norway agreed to stop whaling after the 1987 season.Footnote 68 Bilateral pressure was also placed on Japan, which ceased commercial whaling in 1988.Footnote 69 By the close of 1988 all IWC members had discontinued commercial whaling, leaving only that claimed to be for scientific purposes and aboriginal whaling.Footnote 70 The cohesion of the IWC as a socio-political structure dominated by whaling states prepared to accept common scientifically based limitations on their catch of whales had been reduced by the influx of non-whaling states whose definition of the whaling issue, the required solution, and the philosophical underpinning of that solution were fundamentally opposed to those of the whaling nations. This diluted membership agreed to the solution as founded on environmentalism.
On its own, the moratorium decision of the IWC would still not have been adequate to stop the whaling states continuing their industry. The United States achieved the cessation of commercial whaling through systematic bilateral threats and sanctions. Had the United States forced whaling states to abandon their industry without the IWC-imposed moratorium, this would no doubt have been seen as bullying by a hegemon intent on imposing its own policies on others. As it is, the United States could portray its actions as ‘enforcing’ the decision of the IWC. The IWC had provided legitimation for the anti-whaling policies advocated by the environmental movement and pursued by the United States. Even today, debate on the resumption of commercial whaling – at least outside the whaling states – generally assumes the moratorium to have been the decision of an authoritative international body. US agency on the whaling issue has been disguised and environmental goals given much greater credibility and legitimacy than would have been the case if the United States had simply acted bilaterally.
7. Conclusions
While US representatives often talk down the effectiveness of international organizations, including most obviously the United Nations, the period of US hegemony has been notable for the vast expansion in the network of intergovernmental organizations and less formal treaty regimes. This paper has drawn on the CSC theory of treaty interpretation to demonstrate the role of the constitutive treaty of the IWC functioning as both the vehicle and the camouflage for the dissemination and implementation of the hegemon's policy preferences. Accounts of the IWC often state that the ICRW was signed by the representatives of 14 states meeting in Washington DC in December 1946.Footnote 71 Such a politically neutral statement masks the fact that the United States was the dominant influence over the process, presenting the International Whaling Conference with a draft treaty which was adopted in only slightly modified form.Footnote 72 The United States was very influential in establishing the regime, despite the fact that it was not pursing the legitimation goal and, perhaps for that reason, established it as a regime in which states with no connection to the whaling industry could actively participate.
US actions pursuant to the Pelly and Packwood-Magnuson Amendments have been interpreted in much of the English-language literature as ‘saving the day’ in the face of a weak IWC. In their history of the Endangered Species Act, for example, Czech and Krausman commented that, prior to the Pelly Amendment, the International Whaling Commission had been ‘a relatively powerless meeting of the minds’ and that the Pelly amendment had ‘paid off quickly’.Footnote 73 The analysis undertaken in this paper has highlighted the fact that the IWC decisions that were to be ‘enforced’ by the United States had been largely US policy choices in the first place, whose adoption by the IWC was facilitated by additional non-whaling states joining the regime.
The CSC approach has defined, at a relatively low level of abstraction, what might be regarded as the drawback for the hegemon of having locked in a broad policy preference – that is, that if the hegemon wishes to disseminate a changed policy preference via that IGO it will need to do so in a way consistent with the ideational framework on which that treaty regime is built. This is not simply a case of identifying the correct rhetoric. Sets of interrelated ideas are integral to socio-political structures, and in this case membership of the IWC had to be increased until it incorporated a critical mass of members prepared to operate on the basis of environmentalism rather than conservation. The whaling nations present in 1982 argued that the moratorium proposal lacked a necessary scientific basis as required under the Convention,Footnote 74 and they were right. This was not just a problem of semantic argument but represented a broader tussle going on between the political and economic status quo in the West and the fundamental transnational challenge of environmentalism. The US government was appeasing the new philosophy and political movement by accepting it in a not-too-radical form and disseminating that new philosophy abroad, at least as it pertained to an industry in which the United States had little at stake economically.
We have seen that the United States struggled for a decade to have whaling states accept a moratorium on commercial whaling despite the Scientific Committee not having recommended a moratorium. The United States argued that science did render a moratorium necessary if only because the state of scientific knowledge was so poor. But the relevant science had by this time improved and the specific whales that the scientists wanted left alone were exactly those that the United States wanted to continue hunting. It is not surprising that the US line of argument was not convincing to the whaling nations, forcing the United States to supplement its ideational and diplomatic manoeuvring with bilateral political pressure. US interventions in the IWC and US unilateral actions taken outside the IWC were justified by the United States on the basis of IWC weakness. The US representative at the 1981 meeting of the IWC claimed that a complete moratorium on the commercial killing of whales was ‘the only reasonable response to the fundamental and pervasive uncertainty with which the IWC manages the world's whales . . . The Commission's conservation program is inadequate to manage whales without incurring unacceptable risks’.Footnote 75 This resonates with the US attitude towards the world's principal treaty addressing climate change: the Kyoto Protocol.Footnote 76 A US-led, Australian-supported, trans-Pacific campaign to discredit the Kyoto Protocol had the intended effect of shifting popular and even scholarly views on the agreement.Footnote 77 One of the justifications given for the US ‘trashing’ of the Protocol was the fact that the Protocol was in any case ‘fatally flawed’, hence the need for the United States to search for other ways of moving forward on the issue.Footnote 78
But a CSC approach has revealed that it was because of the United States that the IWC was weak in the first place. Given that amendments to the Schedule required a three-quarters majority and were to be based on scientific findings, the IWC at first glance appears relatively autonomous. And yet its open membership, as well as the fact that recommendations of the Scientific Committee did not have to be accepted and that members could effectively defect from Commission decisions, meant that the IWC was in practice relatively weak and open to political pressures. When the United States no longer wanted the industry and sought to curry favour with the domestic environmental movement, it used the IWC to try to destroy the industry. US rhetoric talking down the effectiveness of the IWC served as quite a clever rhetorical device that has been largely ‘bought’ by commentators on the IWC, who often portray US unilateral measures ‘to enforce IWC decisions’ as saving the day in the face of a weak IWC.Footnote 79 Similarly in the case of the Kyoto Protocol, the lack of emissions reduction targets for developing countries may be part of the reason why the Protocol is inadequate to prevent serious harm from climate change even if all states were to comply with their obligations, but another reason is the flexibility mechanisms that make it easier for developed countries to comply without making any fundamental changes to their economies. These mechanisms were incorporated into the treaty at the insistence of the United States,Footnote 80 which then failed to ratify the treaty.
This is a significant point, for it helps to explain why the United States might engage in so much ‘UN-bashing’ despite the fact that the United States on occasion uses the United Nations as a means of legitimizing the dissemination of its broad policy preferences. It would seem that the United States as hegemon has, for example, been happy to accept UN legitimization for its use of force should that be forthcoming; if not, then talking down the capabilities of the United Nations means that the United Nations can still provide the United States with justification for its policy choices. Accompanied by skilful rhetoric and ideational manoeuvring, IGOs appear to have provided the hegemonic United States with a fail-safe means of legitimizing the dissemination of its broad policy preferences.
