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Intergovernmental Organizations as Disseminators, Legitimators, and Disguisers of Hegemonic Policy Preferences: The United States, the International Whaling Commission, and the Introduction of a Moratorium on Commercial Whaling

  • SHIRLEY V. SCOTT

Abstract

The recognized benefits to a hegemon of working through an intergovernmental organization (IGO) include legitimating its policy preferences, disseminating them with efficiency, and promoting stability. While most would agree that international law is important in this process, it is less easy to map exactly how international law fulfils this role. Using the cognitive structures of co-operation (CSC) approach to the political interpretation of multilateral treaties, this article demonstrates at a relatively low level of abstraction the way in which a constitutive treaty embeds an ideational structure integral to the political relationships within the IGO. This can serve the interests of the hegemon but may also make it difficult for the hegemon to disseminate a fundamentally changed policy should its preferences alter. This paper uses the CSC theory of treaty interpretation to trace the under-recognized role of the United States in bringing about the 1982 adoption of a moratorium on commercial whaling by the International Whaling Commission.

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4 S. V. Scott, The Political Interpretation of Multilateral Treaties (2004). The section of this article dealing with the IWC draws on chapter 6 and additional material. See also S. V. Scott, ‘The Political Interpretation of Multilateral Treaties: The Case of CEDAW’, (2007) New Zealand Journal of Public and International Law 103.

5 The theory of international law as ideology has been developed in, inter alia, S. V. Scott, ‘International Law as Ideology: Theorising the Relationship between International Law and International Politics’ (1994) 5 EJIL 313; Scott, S. V., ‘Universalism and Title to Territory in Antarctica’, (1997) 66 Nordic Journal of International Law 33; S. V. Scott, ‘Beyond Compliance: Reconceiving the International Law–Foreign Policy Dynamic’, (1998) Australian Year Book of International Law 35; Scott, S. V. and Withana-Arachchi, R., ‘The Relevance of International Law for Foreign Policy Decision-Making when National Security Is at Stake: Lessons from the Cuban Missile Crisis’, (2004) 3 Chinese Journal of International Law 163; S. V. Scott, The Political Interpretation of Multilateral Treaties (2004); Scott, S. V. and Ambler, O., ‘Does Legality Really Matter? Accounting for the Decline in US Foreign Policy Legitimacy following the 2003 Invasion of Iraq’ (2007) 16 European Journal of International Relations 67; R. Withana, Law, Politics and Power: The Relationship between International Law and State Behaviour during International Crises (2008 forthcoming).

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7 Territorial Dispute (Libyan Arab Jamahiriya v. Chad), Judgment, ICJ Rep. 1994, at 6, para. 41; Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, ICJ Rep. 1996, at 803, para. 23; Kasikili/Sedudu Island (Botswana/Namibia), Judgment, ICJ Rep. 1999, at 1045, para. 18.

8 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331.

9 The subjective school emphasizes the intentions of the negotiating states; the objective school focuses on the text itself; and the teleological emphasizes the object and purpose of the treaty. See, inter alia, A. Aust, Modern Treaty Law and Practice (2000), 184–206; Bos, M., ‘Theory and Practice of Treaty Interpretation’, (1980) 27 Netherlands International Law Review 3; U. Linderfalk, On the Interpretation of Treaties: The Modern International Law as Expressed in the 1969 Vienna Convention on the Law of Treaties (2007); A. McNair, The Law of Treaties (1961), 364–473; I. Sinclair, The Vienna Convention on the Law of Treaties (1984), 69–76; and Vandervelde, K. J., ‘Treaty Interpretation from a Negotiator's Perspective’, (1988) 21 Vanderbilt Journal of Transnational Law, 281.

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11 Scott, supra note 4.

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13 This gave rise to the 1997 Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and Their Destruction, 36 ILM 1509.

14 This gave rise to the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 28 ILM 657.

15 Abbott, K. W. and Snidal, D., ‘Why States Act through Formal International Organizations’, (1998) 42 Journal of Conflict Resolution 3, at 16.

16 1968 Treaty on the Non-Proliferation of Nuclear Weapons 729, UNTS 161, Arts. I and II, supported by Art. IX, para. 3.

17 T. Eagleton, Ideology: An Introduction (1991), 90.

18 For a fuller discussion of the relationship between the theorization of international law as ideology and key ideology theorists, see Withana, supra note 5, 63–6.

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20 See, inter alia, F. V. Kratochwil, ‘How do Norms Matter?’, in M. Byers (ed.), The Role of Law in International Politics: Essays in International Relations and International Law (2000); and C. Reus-Smit (ed.), The Politics of International Law (2004).

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23 Scarff, J. E., ‘The International Management of Whales, Dolphins, and Porpoises: An Interdisciplinary Assessment (Part One)’, (1977) 6 Ecology Law Quarterly 326, at 353–4. See also S. Andresen, ‘The International Whaling Commission (IWC): More Failure than Success?’, in E. L. Miles et al., Environmental Regime Effectiveness: Confronting Theory with Evidence (2002), 379–403.

24 G. Rose and S. Crane, ‘The Evolution of International Whaling Law’, in P. Sands (ed.), Greening International Law (1993), 164.

25 J. Curnutt, Animals and the Law: A Sourcebook (2001), 351.

26 K. Radway Allen, Conservation and Management of Whales (1980), 82.

27 F. Sandbach, Environment, Ideology and Policy (1980), 22.

28 L. Havemeyer et al., Conservation of Our Natural Resources, based on Van Hise's The Conservation of Natural Resources in the United States (1937), vii.

29 Birnie, P., ‘The Role of Developing Countries in Nudging the International Whaling Commission from Regulating Whaling to Encouraging Nonconsumptive Uses of Whales’, (1985) 12 Ecology Law Quarterly 937, at 938.

30 See, e.g., A. D'Amato and S. K. Chopra, ‘Whales: Their Emerging Right to Life’, (1991) 85 AJIL 21, at 34; Sigvaldsson, H., ‘The International Whaling Commission: The Transition from a “Whaling Club” to a “Preservation Club”’, (1996) 31 Cooperation and Conflict 311, at 324; Suter, K. D., ‘The International Politics of Saving the Whale’, (1981) 35 Outlook 283, at 290.

31 Minutes of Second Meeting of International Whaling Conference, London, 13 January 1944.

32 Dwight D. Eisenhower to Dr Barnard, quoted by Mr Hesselton, Congressional Record, 83rd Congress, 2nd session, 100 (22 July 1954), at 11463.

33 ‘Establishment of Permanent Commission’, IWC US No. 5, 21 November 1945.

34 S. Andresen, ‘The Making and Implementation of Whaling Policies: Does Participation Make a Difference?’, in D. G. Victor, K. Raustiala, and E. B. Skolnikoff (eds.), The Implementation and Effectiveness of International Environmental Commitments: Theory and Practice (1998), 431–73, at 439.

35 Ibid., at 438–9.

36 Art. III (2), confirmed in Rule V of the Rules of Procedure adopted at its first meeting.

37 ‘International Whaling Conference to be Held at Washington DC on 20th November, 1946. Instructions to British delegation’, United Kingdom Public Record Office, FO371/58281, 49762.

38 ICRW, Art. X(4).

39 J. L. McHugh, ‘The Role and History of the International Whaling Commission’, in W. E. Schevill (ed.), The Whale Problem. A Status Report (1974), 305–35, at 335.

40 R. Carson, Silent Spring (1962).

41 Endangered Species Conservation Act of 1969, Pub.L.No. 91–135 ‡2.

43 Ibid., at 5(a).

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46 Enacted by Pub.L.No. 92–219, 23 December 1971, 85 Stat. 786, 22 USC 1978.

47 Marine Mammal Protection Act of 1972. Pub.L.No. 92–522, ‡107. 86 Stat. 1027 (1972).

48 Pub.L.No. 96–61, 93 Stat. 407 (1979) (amending 16 USC‡1821(e) (1976).

49 A term used by Ikenberry, supra note 1.

50 Curnutt, supra note 25, 351–2.

51 Report of UNCHE, Recommendation 86.

52 IWC, ‘Chairman's Report of the Twenty-Fourth Meeting’, 24.

53 Hain, J. H. W., ‘The International Regulation of Whaling’, (1975) 3 Marine Affairs Journal 28, at 41, citing the US Commissioner to the IWC at the 25th Annual Meeting, 25 June 1973.

54 ‘Report of the Scientific Committee’, Appendix IV to IWC, Twenty-Third Report of the Commission (London: Office of the Commission, 1973), at 38.

55 Dr White, US representative, at 25th Meeting of the IWC. IWC/25/13-I.

56 Statement of Hon. R. A. Frank, Administrator, National Oceanic and Atmospheric Administration (NOAA), Department of Commerce, at ‘Review of Recent Efforts to Protect Endangered Species’. Hearings and Markup before the Subcommittee on International Organizations of the Committee on Foreign Affairs, House of Representatives, Ninety-Sixth Congress, First Session, Part II. Consideration of Proposals to Ban Commercial Whaling; Markup; Review of the 31st Session of the International Whaling Commission, March 24, June 14, and July 25, 1979 (1979), at 13.

57 See Andresen, supra note 34, at 440.

58 Gambell, R., ‘International Management of Whales and Whaling: An Historical Review of the Regulation of Commercial and Aboriginal Subsistence Whaling’, (1993) 46 Arctic 97, at 102.

59 P. Forkan, Humane Society of the United States, ‘A World Order for Whales’, mimeographed article published in 1979 by Project Interspeak, 77–82, at 80.

60 Birnie, P., International Regulation of Whaling: From Conservation of Whaling to Conservation of Whales and Regulation of Whale-Watching (1985), I, 562.

61 ‘Report of the Preparatory Meeting to Improve and Update the International Convention for the Regulation of Whaling, 1946, Reykjavik (6–9 May 1981). IWC/33/20.

62 See Birnie, supra note 60, at 552.

63 Andresen, S., ‘Science and Politics in the International Management of Whales’, (1989) Marine Policy 99, at 108.

64 See Andresen, supra note 34, 440.

65 Chairman's Report of the Thirtieth Meeting in Thirtieth Report of the IWC (1980), at 26.

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67 Sigvaldsson, supra note 30, at 331.

68 Andresen, supra note 63, at 112.

69 See Sigvaldsson, supra note 30, at 331.

70 See Andresen, supra note 34, at 445.

71 See, e.g., Maffei, supra note 66, at 291; and Suter, supra note 30, at 290.

72 J. N. Tønnessen and A. O. Johnsen, The History of Modern Whaling, trans. R. I. Christophersen (1982), 499.

73 B. Czech and P. R. Krausman, The Endangered Species Act: History, Conservation Biology, and Public Policy (2001), 22.

74 H. Agrímsson, ‘Developments Leading to the 1982 Decision of the International Whaling Commission for a Zero Catch Quota 1986–90’, in S. Andresen and W. Østreng, International Resource Management: The Role of Science and Politics (1989), 221–31, at 227.

75 Opening Statement of the United States Delegation, 33rd Annual Meeting of the IWC. IWC/33/OS.

76 1997 Kyoto Protocol to the United Nations Framework Convention on Climate Change, (1998) 37 ILM 22.

77 T. Stephens, ‘Kyoto is Dead, Long Live Kyoto! A New Era for International Climate Change Law’, Australian and New Zealand Society of International Law Fifteenth Annual Conference, Canberra, 28–30 June 2007, 1, available at http://law.anu.edu.au/CIPL/Conferences&SawerLecture/2007/ANZSIL%202007/Publications/2007%20stephens%20anzsil%20paper%20final.pdf (last visited 16 August 2007). Australia has shifted its climate change policy under Prime Minister Kevin Rudd, and ratified the Kyoto Protocol on 12 December 2007.

78 ‘President Bush Discusses Global Climate Change’, White House press release, 11 June 2001, available at http://www.whitehouse.gov/news/releases/2001/06/20010611-2.html (last visited 16 August 2007).

79 ‘Thus the USA managed what the IWC had no means to accomplish: halt commercial whaling.’ Andresen, supra note 63, at 112.

80 Depledge, J., ‘Against the Grain: The United States and the Global Climate Change Regime’, (2005) 17 Global Change, Peace and Security 11, at 16.

* Associate Professor of International Relations, University of New South Wales. This is a revised version of a paper presented to the Annual Meeting of the International Studies Association, Chicago, 28 February– 3 March 2007.

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