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CIAO DATE: 9/00
State Compliance With International Legitimate Norms: Wildlife Preservationist Pressures On Japanese Fishing
Isao Miyaoka
International Studies Association
41st Annual Convention
Los Angeles, CA
March 14-18, 2000
Introduction
Why do states comply with international norms? The analogy of classical theories on individuals' compliance is useful to understand state compliance with international norms. For example, Friedrich Kratochwil lists three theories related to norm compliance in social life:
The Hobbesian or realist position derives compliance with norms from force or the threat of force. A second class of theories explains compliance in terms of the long-term utilitarian calculations of actors, a perspective perhaps best identified with Hume's argument about the nature of conventions. Third is the idealist position of Durkheim, who conceptualizes norms and rules as “social facts” existing objectively and constraining individual choices. 1
Similarly, Ian Hurd lists three factors of norm compliance: coercion, self-interest, and legitimacy. 2 Each factor has an affinity with material power, common interests, and collective knowledge, the core concepts of three major theories of international relations: realism, neoliberalism, and constructivism respectively. 3
Realism (both classical realism and neorealism) normally plays down the theoretical importance of norms because they assume that norms themselves possess no power to affect state behavior. Neorealists such as Kenneth Waltz and Robert Gilpin characterize the structure of the international system as anarchy and as the distribution of military, economic, and technological capabilities among states. 4 Even when these theorists admit the existence of norms in international life, they attribute the prescriptive power of norms to the material capabilities of dominant states. Gilpin, for example, argues that “the primary foundation of rights and rules is in the power and interests of the dominant groups or states in a social system,” and that “In every social system, the dominant actors assert their rights and impose rules on lesser members in order to advance their particular interests. ” 5 What matters in this account is not norms but material power.While Neoliberalism accepts the neorealist account of international material structure, it also admits the role of international institutions including norms in shaping state behavior. 6 In Robert Keohane's account, international regimes possess the functions of: “reducing the costs of legitimate transactions, while increasing the costs of illegitimate ones, and of reducing uncertainty” “facilitat[ing] negotiations leading to mutually beneficial agreements among governments”; and “affect[ing] incentives for compliance by linking issues together and by being linked together themselves. ” 7 According to neoliberalism, states comply with norms of a regime that offers the states long-term economic incentives. Neoliberalism stresses the instrumental role of norms in affecting state behavior.
Constructivism views the role of norms more broadly. First, norms not only constrain state behavior but also construct state identities and interests. Second, norms are not merely ideas in a neoliberal term: “beliefs held by individuals. ” 8 They are also collectively or intersubjectively held ideas. In Alexander Wendt's term, constructivism is a more ideational (or less materialist) and more holist (or less individualist) approach than neorealism and neoliberalism. 9 Moreover, John Ruggie emphasizes that norms play not only an instrumental role but also a normative role. 10 From a constructivist perspective, states are conceived as “role-players” rather than as “utility-maximizers, ” the latter of which is the common assumption of two rationalist theories: realism and neoliberalism. 11 James March and Johan Olsen summarized the logic of appropriateness that a role-player follows: “1) What kind of situation is this? 2) Who am I? 3) How appropriate are different actions for me in this situation? 4) Do what is most appropriate. ” 12 For states, according to this logic, the appropriateness of their action is more important than the consequences of their action. In other words, norm compliance derives from a sense of obligation rather than cost-benefit calculation. Then, what defines appropriateness? The answer is legitimate norms. States comply with legitimate norms because they define the appropriateness of action. In short, a constructivist approach attributes norm compliance to legitimacy or the prescriptive force of norms.
In this paper, I focus on the legitimacy of international norms as a measure of how strongly norms pull states to voluntary compliance without depending on coercion or self-interests. 13 This topic has importance in both practice and theory. In practice, state policymakers need to consider the implications of not only power struggle but also legitimacy contest for their policy and the implications of their policy to these struggle and contest. The international system is anarchical but not disordered. It is not a Hobbesian state of nature. It does not have a supranational government but is not without governance, which “refers to activities backed by shared goals that may or may not derive from legal and formally prescribed responsibilities and that do not necessarily rely on police powers to overcome defiance and attain and compliance.” 14 For governance, coercive power is not sufficient. Governance also asks for legitimacy: that is, normative influence. As Inis Claude puts it, “Politics is not merely a struggle for power but also a contest over legitimacy. ” 15 As a case of this paper shows, political defeat in a legitimacy contest may lead to a serious damage to their national interest. Moreover, understandings of how international norms acquire legitimacy is crucial for intergovernmental and transnational non-governmental organizations to strengthen their effectiveness and to realize the success of their international campaigns to promote or discourage a specific international norms.
In theory, argument on legitimacy highlights the limitation of current dominant international relations theories: realism and neoliberalism. Both of them share the instrumental rationalist approach and neither of them recognizes the normative effects of international norms. The concept of norm legitimacy can supplement the incompleteness of the rationalist theories that attribute the effectiveness of norms to the military and economic power of great powers (realism) or to economic functions of international institutions and norms (neoliberalism). Moreover, argument on norm legitimacy can enrich constructivism, an emerging approach to international relations that views the role of norms more broadly.
Recently, however, the concept of legitimacy has not attracted much attention in the empirical research of international relations. 16 It is partly because many scholars such as King, Keohane, and Verba believe that “Many of the most important questions concerning political life—about such concepts as agency, obligation, legitimacy, . . . —are philosophical rather than empirical. ” 17 Nonetheless, is it necessary to draw a sharp line between philosophical research and empirical research? Should all the normative matters be dealt with only by political philosophers? Instead, I argue that it is necessary to make a distinction between normative claims and the analysis of normative phenomena. Chris Brown similarly argues that “The usual meanings of normative revolve around the idea of standard setting and prescription, and the danger is that two different kinds of intellectual activity will be confused: the setting of standards, and the study of how (and what and by whom) standards are set. ” 18 Another reason for little attention to legitimacy is that political scientists tend to avoid the topics of law and morality, two major normative elements, for the sake of developing their own discipline. In this paper, I address the puzzle: how standards of behavior (or norms) become normative in a political context.
This paper first attempts to develop the falsifiable concept of international norm legitimacy with some attention to methodology so that it can be applied to the empirical research of international relations. 19 Building on David Beetham's work, I advocate that the concept of norm legitimacy be understood in the intersubjective contexts of ethical values, scientific views, legal validity, and political consent by a majority of states in the international community. From these dimensions, legitimacy is subcategorized into ethical, scientific, legal, and political legitimacy respectively. Under what conditions do international norms have an independent normative effect? It would be safe to argue that the international legitimacy whose legitimacy is high in all the dimensions has a strong effect on state compliance. But can we say more? Under this analytical framework, I then examine Japan's responses to international prohibitionary norms against driftnet fishing and research whaling during the period from 1987 to 1992. In conclusion, I argue that political legitimacy matters to state compliance even when there is no ethical, scientific nor legal legitimacy of the norm in question.
Theoretical Framework
Concepts of norm and legitimacy
In general, norms are defined as standards of behavior. 20 For an analytical purpose, moreover, we should draw a distinction between “the normative” and “the normal. ” 21 Christopher Gelpi agrees with this distinction, stating:
In a descriptive, a norm refers to a behavioral regularity, that is, the way an actor usually behaves, and it often refers to a pattern of behavior developed over an extended period. In a prescriptive sense, a norm refers to the way in which an actor ought to behave. This usage does not necessarily carry any connotations of frequent or usual behavior. In this work I refer to norms exclusively in their prescriptive sense; when I say that a state has violated a norm I mean it has behaved in a way it previously recognized as illegitimate [emphasis is original]. 22
Neoliberals use the term norm as the normal. 23 Like Gelpi I refer to norms as the normative or normative standards of behavior. 24
How do we know a norm when it exists? I assume that an international norm of X exists when an actor insists that all states should do X. For example, when the United States maintained that no states should allow their nationals to use driftnets on the high seas, the prohibitionary norm of high seas driftnet existed in the discourse. It does not matter to the existence of the norm whether the United States really believed the norm or whether Japan accepted the norm. The degree to which extent the governments accepted the norm is the question of norm legitimacy. In this paper, I use the term of norms in a way that the strength of oughtness varies from one norm to another: that is, the legitimacy of norms varies. In other words, unlike Gelpi, I do not consider that all norms are legitimate; unlike many social constructivists, nor do I consider that all norms are “collective expectations for the proper behavior of actors with a given identity [emphasis added].” 25 By definition here, some norms are mere normative claims. 26
The second primary concept, legitimacy, is simply defined here as a property of a norm which itself exerts a pull toward compliance on states normatively. 27 By contrast, scholars focusing on the concept of legitimacy usually use the Weberian subjective definition of legitimacy as “the belief in legitimacy. ” Among those who examine legitimacy at the inter-state level, for example, Hurd defines it as “the normative belief by an actor that a rule or institution ought to be obeyed. ” 28 According to Beetham, this definition poses two problems. First, legitimacy can be judged in terms of beliefs; and they are not the same things. Second, legitimacy can also be judged in terms of elements, other than beliefs, such as expressed consent. 29 Instead, Beetham argues that rather than reporting people's belief in legitimacy, the social scientist should make a judgement about legitimacy against criteria that exist in a particular society at a particular time. In so doing, he tries to avoid judging legitimacy against universal abstract concepts such as righteousness and justice that moral and political philosophers attempt to establish in academia. 30 As he admits, 31 this “legitimacy in context” 32 argument is akin to the Winchian idea that “the order in the minds of the actors is to be traced by identifying the rules which guide their thoughts and actions. ” 33 For example, John Williams applies this approach to the legitimacy of Yugoslavia as a state at both the domestic and the international levels. 34
In this paper, I expect that a causal relationship between norm legitimacy and state behavior can exist, although the relationship is not mechanically deterministic. 35 The dependent variable is state compliance with, or defiance of, norms while the independent variable is the legitimacy of norms. Since I analyze the effects of norm legitimacy on state behavior, I need to examine the intersubjective understandings of norm legitimacy by a group of decision makers. This requires a set of two assumptions, which is more complicated than Beetham's approach that social scientists directly judge legitimacy in a particular social context. First, the “forms of life” or the social contexts in which a group of decision makers are embedded enable them to interpret the legitimacy of a norm. Second, I can vicariously make the same or at least substantially similar judgement about norm legitimacy that the group of decision makers actually did in the past, by analyzing the norm and the contexts in question. Like constructivists who take the externalist position that “the content of at least some mental states is constituted by factors external to the mind,” 36 I focus on the social construction of legitimacy. Unlike the “Third Image” or systemic constructivists, however, I pay attention to both international and domestic ideational structures.
Multi-Dimensions of Legitimacy
In a daily use, synonyms for legitimacy include lawfulness, justice, righteousness, fairness, impartiality, evenhandedness, equal treatment, and equity. The concept of legitimacy contains both a legal and an ethical dimension. In general, international relations scholars such as Hurd and Williams examine the ethical dimension of legitimacy while international law scholar Thomas Franck focuses on the legal dimension of legitimacy. On the other hand, Beetham, political theorist who focus on the legitimacy of domestic power relationship, pays attention to three dimensions of legitimacy: 1) “conformity to rules (legal validity)”; 2) “justifiability of rules in terms of shared beliefs”; and 3) “legitimation through expressed consent.” 37 In this paper, drawing on Beetham's work, I advocate that the concept of norm legitimacy be understood in the intersubjective contexts of ethical values, scientific views, legal validity, and political consent by a majority of states in the international community. The first two, ethical and scientific legitimacy corresponds to Beetham's second dimension (justifiability), the last two, legal and political legitimacy to his first and third dimensions (conformity and legitimation) respectively. I also group the first two type of legitimacy into the substantive element of legitimacy based on ethical obligation and the last two into the procedural element of legitimacy based on political obligation. In short, I shed light on not only ethical and legal but also scientific and political dimensions of legitimacy.
Ethical Considerations
Both ethical and scientific legitimacy refers to justifiability in terms of shared beliefs. While scientific legitimacy is judged in terms of causal beliefs, ethical legitimacy is judged in terms of ethical beliefs: world views and principled beliefs. According to Judith Goldstein and Robert Keohane's use of these terms, world views are “possibilities for action . . . such as market rationality, sovereignty, and personal privacy.” Principled beliefs are composed “of normative ideas that specify criteria for distinguishing right from wrong and just from unjust.” 38 Since these beliefs are closely related ethical values, the ethical legitimacy of a norm invokes a sense of ethical obligation to those addressed.
Since the moral structure of the international system is thin, we need to focus on domestic ideational structure for the judgment of ethical legitimacy. We should also be aware, however, that even within a society there may be conflicting beliefs among different segments of the society. Thus, I pay special attention to the ethical beliefs collectively held in a policy network, which is a group of those decision makers who can affect the process in dealing with the international norm in question. Such collectively held beliefs form the structure of a policy network, which in turn offers the ethical perspective to the insiders. In order to make a descriptive inference on the intersubjective entity of beliefs, I observe behavior and analyze discourse in the policy network in question. 39 Finally, I propose that the ethical legitimacy of an international norm be high to the policy network when the norm fits ethical beliefs existing in the network. For example, a norm of slavery is hardly legitimate to a policy network that collectively holds a belief in human equality.
Scientific legitimacy
Scientific legitimacy is judged in terms of causal beliefs. Take, for example, a norm of reducing the emission of carbon dioxide in order to alleviate the problem of global warming. The scientific legitimacy of the norm is low when no one believes that the emission of carbon dioxide causes global warming. In the words of Goldstein and Keohane, causal beliefs are “beliefs about cause-effect relationships which derive authority form the shared consensus of recognized elites.” 40 Peter Haas and other scholars focus on such recognized elites as an “epistemic community.” It is a network of specialists who share principled and causal beliefs as well as notions of validity and a common policy enterprise. 41 By definition, an epistemic community that shares a common policy enterprise attempts to affect government policymaking processes with expert knowledge, for example, by articulating the need to address particular problems and proposing policies for solving them. 42 The impact of epistemic communities on state behavior is likely to be greater in proportion to: 1) the degree of uncertainty among decision makers; 2) the degree of consensus among specialists; and (3) the degree of institutionalization of specialists' advice. 43 When the degree of these factors is high, decision makers depend on causal beliefs from a relevant epistemic community in order to judge the scientific legitimacy of an international norm. 44
Causal beliefs affect not only legitimacy judgement but also cost-benefit calculation, as neoliberals note ideas as information for alleviating the problem of bounded rationality. Accordingly, we should make a distinction between the legitimacy and the rationality of a norm. The power of scientific legitimacy to affect state behavior can be attributed to a sense of ethical obligation. 45 When one believes that X causes Y and that Y is ethically wrong or unjust, a regulatory norm on X is highly legitimate to the person. On the other hand, causal beliefs also affect the cost-benefit calculation of an actor. When one believes that X causes Y and that Y is economically too costly, a regulatory norm on X is highly rational. Take the global warming issue for example again with the assumption that the emission of carbon dioxide causes global warming. When global warming is too costly, a norm of reducing the emission of carbon dioxide is rational. When one ethically believes that human beings should not alter the eco-system, the norm is legitimate ethically and scientifically. Here I propose that the scientific legitimacy of an international norm be high to the policy network when the network receives the causal beliefs from an epistemic community that the norm has ethically desirable effects.
Legal legitimacy
Legal legitimacy is judged in terms of conformity to existing rules. Many scholars associate the legitimacy of domestic governance with legal validity. Max Weber regards legal authority as one of his three pure types of legitimate authority. 46 In the works of Carl Schmitt and Niklas Luhmann, moreover, “The belief in legitimacy . . . shrinks to a belief in legality.“ 47 At the interstate level, Franck develops the concept of rule legitimacy. He argues that the legal and social rules that conform to the existing rules of the international community are legitimate and makes a distinction between two types of conformity to established rules: “coherence” and “adherence.” 48 Coherence describes “connectedness, both internally (among the several parts and purpose of the rule) and externally (between one rule and other rules, through shared principles).” 49 Adherence refers to conformity to secondary rules: rules about rules and rule-making. 50 Similarly, I pay special attention to the coherence between the norms in question and their respective international regimes and the adherence of the norms to the resolution- and rule-making procedures of the international organizations at which the norms were discussed and adopted in the form of a legally non-binding resolution. As Franck argues, I propose that the legal legitimacy of an international norm be high to the policy network when the norm has a high degree of coherence and adherence.
We need to distinguish between legal norms and legally legitimate norms. All legally legitimate norms are not necessarily legal norms themselves. For example, most resolutions adopted at the United Nations General Assembly are widely considered not legally binding even if they are legally legitimate. Moreover, legality and legal legitimacy are different. The former is based on a sense of legal obligation while the latter on social obligation. Legal obligation is absolute while social obligation is a matter of degree. 51 Considering this distinction, Franck explains social obligation as a “status-based obligation.” 52 Drawing on legal philosopher Ronald Dworking's concept of “associative obligation,” Franck elaborates upon this type of obligation as follows:
The international system appears to be evolving a rather sophisticated normative structure without police enforcement. A sense of obligation pulls states in the direction of compliance with norms which, on the one hand, are not coercively mandated by a global sovereign, but, on the other hand, do not obligate solely on the basis of states' grace and favor. Though states' compliance with the rules may be voluntary, states' obligation to them is not. Nations, or those who govern them, recognize that the obligation to comply is owed by them to the community of states as the reciprocal of that community's validation of their nations' statehood [emphasis in original].
This constructivist account of social obligation is equivalent to a popular account of political obligation. 54 I now turn to the concept of political legitimacy that is also related to such political obligation.
Political legitimacy
Political legitimacy is judged in the degree of collective legitimation by states at a multilateral setting. Suppose, for example, that an international organization votes three resolutions through the same legal procedures. The first resolution is adopted by the consensus, and the second is by a simple majority, while the third is rejected at the vote. The first is more politically legitimate than the other two and so is the second than the third, given that the ethical, scientific, and legal legitimacy of the three resolutions are equal. It is important to note that a resolution adopted by a great majority is politically legitimate not only to the states that voted for it but also to the states that voted against it. Through the adoption of resolutions, the norms contained in them become more or less institutionalized. As Peter Katzenstein puts it, “Once institutionalized, norms do not simply express individually held preferences, values, or ideas. Institutionalized norms are collectively held and exist external to actors.” 55 In the words of Émile Durkheim, norms become “social facts.” 56
I propose that a norm have a high degree of political legitimacy especially when it is institutionalized in the global international society. Suppose that one resolution is adopted by a simple majority at an international organization the number of whose member states are more than one hundred and fifty while the other is adopted by a simple majority at an international organization the number of whose member states is twenty. Following the same logic, more than three decades ago, Claude drew attention to collective legitimization as a political function of the United Nations.
the prominence of the United Nations in the pattern of international organization and its status as an institution approximating universality give it obvious advantages for paying the role of custodian of the scale of international approval and disapproval. While the voice of the United Nations may not be the authentic voice of mankind, it is clearly the best available facsimile thereof, and statesmen have by general consent treated the United Nations as the most impressive and authoritative, instrument for the expression of a global version of the general will. 57
Thus, the political legitimacy of an international norm has a strong effect when state decision makers feel a sense of political obligation to follow the norm as a member state of the international community once the norm was institutionalized in the community. 58 As mentioned above, however, the degree of institutionalization varies from resolution to resolution. 59 In this paper I presume that the degree of institutionalization is in proportion to the frequency of adopting resolutions for a particular norm, the specificity and consistency of their contents, the number of votes for and against them, and the legitimacy of the organization adopting them.
Case selection
This paper employs a case study method that focuses on Japan's responses to two international prohibitionary norms against driftnet fishing and scientific whaling during the period from 1987 to 1991. Both of the norms were related to Japanese fishing activities that drew harsh environmental criticisms from abroad. This case selection enables the author to make comparison between the similar contemporary cases that share not only the same state and period but also the same type of explanatory variable for state behavior: wildlife preservationist norms. 60 On the other hand, the outcomes of the two cases are opposite. Although Japan initially contested both of the prohibitionary norms, it eventually complied with the norm against driftnet fishing by the end of 1991. In the meantime, it continued to catch minke whales for scientific research. As Kowert and Legro put it, “in order to understand how norms work, studies must allow for more variation: the success or failure, existence or obsolescence of norms.” 61 This paper takes up one case of norm compliance and one case of norm defiance. In an attempt to isolate the independent effects of norm legitimacy on state compliance, moreover, I chose the two cases where norm compliance can be adequately explained neither by realism (power or more narrowly economic sanctions), by neoliberalism (common interests), nor by international law (legal obligation). 62
First, by the late 1980s, the threat or use of unilateral sanctions had already lost its effectiveness as means of forcing Japan to comply with wildlife protection norms. It is true that Japan's compliance in 1984 with a commercial whaling moratorium resulted from the threat to exclude Japanese fishing boats from the 200-mile Exclusive Economic Zone (EEZ) of the United States under the 1979 Packwood-Magnuson Amendment to the Magnuson Fishery Conservation and Management Act. The strategy of using this exclusion threat, however, became unavailable in 1988 when the United States completely phased out fishery allocations for Japanese fishermen within the US zone. 63 In the meantime, the United States could have invoked the 1971 Pelly Amendment to the Fishermen's Protective Act to prohibit the importation of fish products into the United States from Japan if the President had decided to do so after the recognition by the Secretary of Commerce that Japan was diminishing the effectiveness of an international fishery conservation program. In reality, however, the United States did not do so because it would suffer from Japan's retaliation. 64 In 1988, the United States relied on the Japanese fisheries market more than Japan on the US market. 65 Moreover, unilateral trade sanctions for wildlife protection abroad became increasingly invalidated at the General Agreement on Tariffs and Trade (GATT) and the United Nations Convention on Environment and Development (UNCED or Rio Summit). In September 1991, a GATT dispute-resolution panel found that the US ban on Mexican tuna imports under the Marine Mammal Protection Act was in violation of the GATT agreement. The eroding legitimacy of unilateral economic sanctions was also reflected in the Rio Declaration and Agenda 21 adopted at UNCED in June 1992. For example, Principle 12 of the Rio Declaration provides that “Unilateral actions to deal with environmental challenges outside the jurisdiction of the importing country should be avoided.” 66 In this international climate, it was increasingly difficult for the United States to implement unilateral economic sanctions on ecological grounds. 67
Second, the functionalist argument of neoliberalism is also at odds with the fact that the norms in question were not “functional” to Japan at all. It was not Japan's economic interests to cease driftnet fishing or to abandon the hope of resuming commercial whaling as a result of its research on the conditions of the population of the minke whales. In fact, Japan contested both of them at least initially. In these cases, the effect of norms can be considered without regard to their economic benefits to Japan. 68 Neoliberalism may challenge this argument by stating that these issues were linked to other politically and economically critical issues, and that Japan complied with the norm to ban driftnet fishing for saving its international reputation. In reality, however, issue linkage did not occur in these cases. The issue of research whaling was confined in the minor international organization, the International Whaling Commission (IWC), while the issue of driftnet fishing was independently discussed at the United Nations General Assembly. Moreover, the reputation argument of neoliberalism may not be wrong but surely be insufficient. If Japan only had calculated the cost (negative reputation) and the benefit (economic gain from these industries) incurred in these cases, Japan would have complied with the ban on research whaling first. Research whaling was conducted on a non-commercial basis by just one company, Ky-ôdô Senpaku, with some 300 employees. The Japanese squid driftnet fishery produced a yield worth some 40 billion yen and created about 10,000 jobs in the fishing industry and 50,000 in the fish processing industry. 69 More important, Japan's defiance of the norms in question would not have led to the loss of its reputation for credibility (or trustworthiness) in observing agreed-upon rules, which is the main usage of reputation in neoliberalism. 70 These norms emerged in the form of resolutions at international organizations. State defiance of international resolutions is totally different from that of the international legal treaties that the state had sighed and ratified. These resolutions were not legally binding: the norms in question were not legal norms. That leads to my last point: we can examine legitimacy without considering the effect of legality.
Case 1: The Legitimacy of the Norm against Driftnet Fishing
It took only the three years between 1989 and 1991 for international campaigns against large-scale pelagic driftnet fishing to phase out the 100-year-old Japanese practice from the high seas. A large-scale pelagic driftnet (hereafter referred to simply as driftnet or high seas driftnet) is defined in a United Nations General Assembly resolution as “a method of fishing with a net or a combination of nets intended to be held in a more or less vertical position by floats and weights, the purpose of which is to enmesh fish by drifting on the surface of or in the water.” 71 This resolution points out that “large-scale“ driftnets “can reach or exceed 30 miles (48 kilometers) in total length.” 72 Japanese fishermen used such driftnets because the density of fish in the high seas is low. High seas account for 90 per cent of the total ocean, but fish resources in the high seas are one tenth of total marine resources. 73 The driftnet fishing issue became the first case in the history of the United Nations (UN) in which Japan and the United States introduced conflicting draft resolutions to a committee of the UN General Assembly. 74 In late 1991, the Japanese government considered the driftnet fishery and the Uruguay Round of GATT as the most urgent economic foreign policy issues. 75 Eventually, in November 1991, Japan decided not to conduct drift-net fishing on the high seas from January 1993. 76
Ethical legitimacy
For the analysis of wildlife protection norms, it is necessary to distinguish the principle of preservation from the principle of conservation. The conservation principle is based on the instrumental value of nature and animals and is defined as “sustainable utilization of species and ecosystems along with the maintenance of genetic diversity. 77 The preservation principle refers to the protection of individual animals as holders of intrinsic or inherent value and rights to life. 78 The post-war wildlife regimes and UNCED whose essential concept is sustainable development have associated ethical legitimacy with the conservation principle, rather than the preservation principle. In the international discourse on driftnet fishing, however, environmental NGOs added preservationist concerns to the issue 79 and emphasized the aspect of a “highly indiscriminate and wasteful fishing method” (resolution 44/225) by comparing driftnets to “walls of death.” 80 The discourse strongly reflected ethical issues surrounding incidental catches of marine mammals and sea birds, especially dolphins. 81 The United States threatened to invoke the 1990 Dolphin Protection Consumers' Information Act to restrict the use of driftnet fishing for the protection of dolphins. 82 The International Whaling Commission (IWC) discussed the driftnet by-catch of dolphins in 1991. 83 Like the whales, the dolphins were popular enough to become a symbol of ecological protection in Western countries. 84
Japan did not accord ethical legitimacy to the ban on driftnet fishing at all that is based more on the preservationist principle. In order to take countermeasures against development of the ethical preservationist principle, especially for large “charismatic” animals such as dolphins, whales, and elephants, in the late 1980s and early 1990s, Japan began to give emphasis to conservation or sustainable use of living resources based on science. Japan's report to UNCED argued that:
It is believed that there are also some who have taken extreme positions, advancing arguments that do not conform to the spirit of Agenda 21, as they are not compatible with the idea of legitimate utilization of oceanic resources and securing a stable supply of food for the growing population of the world as it approaches the twenty-first century. Such arguments lead to countries being denied the right to utilize available resources, for example, in restrictions being imposed on high-seas fisheries on the basis of inadequate scientific data, to a total ban on catching marine mammals, and the establishment of protective zones on the basis of inconclusive scientific data. 85
On the basis of the conservation principle, Japan expressed its willingness to regulate its fishing activities as long as it was scientifically proven that they paused threat to the survival of target and non-target species.
Scientific legitimacy
Science played a major role in legitimizing the ban on driftnet fishing. Operative Paragraph 3 of the 1989 UN General Assembly resolution (44/225) recommends that:
all interested members of the international community, particularly within regional organizations, continue to consider and, by 30 June 1991, review the best available scientific data on the impact of large-scale pelagic driftnet fishing and agree upon further co-operative regulation and monitoring measures, as needed.
In June 1991, scientists from Japan, the United States, Canada, the Republic of Korea, and Taiwan reviewed “the best available scientific data” at Sidney, British Columbia, Canada. As UN General Assembly resolution 46/215 notes, however, the United States, Canada, and Japan “failed to conclude that this practice has no adverse impact which threatens the conservation and sustainable management of living marine resources.” 86
Because of this scientific uncertainty, the UN General Assembly finally introduced a global moratorium on the high seas driftnet fishing in late 1991.Japan did not admit this level of a cautionary principle and gave no scientific legitimacy to the driftnet moratorium. A 1991 report of the UN Secretary-General on driftnet fishing notes the position of the Japanese government:
124. On the other hand, in its submission dated 23 September 1991, Japan, commenting on the Sidney meeting, stated that the claims for immediate prohibition of high seas driftnet fishing focused only on the numbers of incidental catch by this fishery. According to Japan, the point however was not the absolute number of the incidental catch, but the ratio of the incidental catch to the total stock size of the species incidentally taken. The ratio, it noted, not the number, was the accurate indicator of the impact of the incidental catch.126. Japan submitted that the results of the Sidney meeting did not support any assertion that any level of high seas driftnet operation would have an unacceptable impact on stocks of marine species, and therefore Japan did not support the introduction of the moratorium. 87
Japan concluded that it could not be proven scientifically that the practice had an adverse impact on living resources in the high seas. Japan was strongly dissatisfied with the politicization of the scientific discourse. 88
Legal legitimacy
Resolution 44/225 recalls “the relevant principles elaborated in the United Nations Convention on the Law of the Sea [UNCLOS].” The convention marked the end of an era when freedom ruled the high seas. Articles 116(b) and 120 of UNCLOS provide that the freedom of fishing on the high seas is subject to “the rights and duties as well as the interests of coastal States” regarding fisheries of straddling stocks, highly migratory species (such as albacore tuna), marine mammals, anadromous stocks (such as salmon), and catadromous species. These species and stocks were commercially or incidentally caught by high seas driftnets. It is wrong, however, to assume that every single article of UNCLOS had already become international customary law. Douglas Johnston argues that the high seas fishery provisions of UNCLOS are, rather than binding general or customary law, non-binding “soft law” principles: “(1) the duty to conserve; (2) the duty to cooperate; and (3) the duty to negotiate.” 89 It is arguable that the norm emerged from “the duty to conserve,” a principle of UNCLOS.
In UNCLOS, Article 119 is the most specific about the duty to conserve the living resources of the high seas. Article 119.1 provides that States shall:
a) take measure which are designed, on the best scientific evidence available to the States concerned, to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, . . .
b) take into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened.
According to Article 119.1, states have an obligation to “maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield,” but have no obligation to regulate fisheries with regard to “species associated with or dependent upon harvested species.” Following the strict interpretation of Article 119.1, it is debatable that the UNCLOS regime itself can legitimize the absolute prohibition, not reduction, of the use of a specific kind of fishing gear.
Although the Japanese government admitted that the fishery provisions of UNCLOS had become customary, it also perceived that the prohibitionary norm went well beyond the specific UNCLOS provisions. 90 On the other hand, no international law clearly supported driftnet fishing. Legal legitimacy was not an issue for this case. Having accepted the duty to conserve, Japan engaged itself in a scientific debate with the United States and other countries.
Political legitimacy
I argue that the prohibitionary norm against high seas driftnets became institutionalized in the international community in late 1991 (see Appendix 1). The United Nations General Assembly adopted by consensus a resolution to call for a high seas driftnet moratorium for three years in a row from 1989. In the meantime, various international organizations expressed their support for the norm: the South Pacific Forum, the Organization of Eastern Caribbean States, and the IWC. In addition, the Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific entered into force on 17 May 1991. According to mainstream lawyers, most resolutions passed by the United Nations General Assembly are not legally binding but merely recommendatory. 91 Other international law scholars consider UN General Assembly resolutions more than merely recommendation. They regard the resolutions as “soft law,” which “does express the element of strong expectation that states will gradually conform their conduct to its requirements, which may include that they enact binding national regulations to control particular activities.” 92 Similarly, I claim that UN General Assembly resolutions reflect a social norm of the international community.
The Japanese government perceived that the consensus adoption of the 1991 UN General Assembly resolution institutionalized a norm prohibiting driftnet fishing. At the Cabinet meeting of 26 November 1991, Agriculture, Forestry, and Fisheries Minister Tanabu stated that not a single country supported the Japanese argument that driftnet fishing was scientifically manageable in terms of the conservation of fisheries resources. He added that the government could not do anything but to consider Japan's position in international society and to accept a driftnet ban. 93 It is interesting to note that the government not only was pressured to accept the norm by its political legitimacy but also relied on the legitimacy to persuade the Japanese public including driftnet fishermen to accept its decision. On the next day, Sezaki Katsumi, acting permanent representative of Japan to the United Nations, made a statement at the second committee of the UN General Assembly:
[The Japanese government] had set aside the issue of interpretation of the scientific analysis, and had decided to adopt that agreement in view, inter alia, of the concerns expressed by Member States and of the welfare of all those who depended on fisheries for their livelihood. [Japan's] delegation remained convinced of the importance of scientific analysis and at the same time, attached great importance to the international cooperation promoted by the United Nations. Therefore, it would make every effort to abide by whatever agreement was reached. 94
At the final stage of norm institutionalization, Japan realized that it would not be able to defy the norm as one of the “members of the international community” (resolution 46/215). Thus, Japan quickly changed its policy with a view to obtain the small concession of delaying the start of a full moratorium from 30 June 1992 to 31 December 1992. 95 On 20 December 1991, the UN General Assembly unanimously adopted resolution 46/125. 96
Case 2: The Legitimacy of the Norm against Research Whaling
On 13 March 1987, one day before Japanese whalers caught the last minke whale (Balaenoptera acutorostrata) in the Antarctic for commercial purposes, the Fisheries Agency of Japan decided to start “research whaling“ to end a global moratorium on commercial whaling. 97 Research whaling, which is also called ”scientific whaling“ in English, is defined here as “to kill, take, and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit” (Article 8.1 of the 1946 International Convention for the Regulation of Whaling (ICRW)). Despite a 1987 resolution of the International Whaling Commission (IWC) to call for postponement of Japan's research whaling program, the Japanese government started the program by hunting 273 minke whales in the 1987-88 season. 98 Since then, Japan has annually caught 300 to 400 minke whales for scientific research under the IWC regime, in the hope of resuming commercial whaling. 99
Ethical legitimacy
Like the driftnet case, the research whaling case was fundamentally an issue over the preservationist principle. While the former was related to the incidental catch and death of non-target species such as marine mammals, turtles, and sea birds, the latter was associated with the ethical appropriateness of killing whales for human use. 101 Those who advocate the preservation of particular species such as the whale ethically distinguish them from other species. 102 James Scarff illustrates this point as follows: “If all animals have the same rights, then a proponent of complete protection for whales would logically have to support complete protection of most or all other animals eaten as human food. To avoid this extreme position, whale protectionists generally argue that the rights of whales are greater than those of other animals.” 103 This distinction is also reflected in a 1995 statement by World Wildlife Fund (WWF) President Kathryn Fuller: “To World Wildlife Fund, whales are for watching. We oppose commercial whaling because whales have an intrinsic value as mammals of great intelligence, whose behavior and language set them apart.” 104 From the perspective of the special status of the whale, anti-whaling people believed that all humans should neither kill nor consume the meat of intelligent whales. 105 Nonetheless, this stance contradicts with the conservation principle embedded in the ICRW. 106 Indeed, the preservationist argument was not officially made in IWC meetings.
Japanese government officials sensed a preservationist value at the bottom of opposition to Japan's research whaling. 107 Shima Kazuo, Japanese commissioner to the IWC, stated in 1993 “It is really deplorable that the IWC has become an organization to protect the rights of whales.” 108 Special treatment of whales was not accepted by the Japanese government and whaling industry, which traditionally treated the whale as one type of fish. 109 In 1994, former IWC Commissioner Yonezawa Kunio stated: “It is most presumptuous to seek to impose one's ethical values or penchant for certain fauna on others who do not share the same views, especially when these views are merely ideological and wholly unscientific, as with the IWC.” 110 In order to challenge the preservation principle, the Japanese government accepted, or at least used, the conservation principle. 111 In the case of the whaling issue, the Japanese government repeatedly reminded anti-whaling nations of the conservation spirit of the ICRW, “a convention to provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry”(the Preamble). This was why the Japanese government mainly targeted the abundant minke whale, not endangered whales such as the 700 blue whales in the Antarctic Ocean. 112 In the Special Meeting in December 1987 of the scientific committee, “Many members noted . . . that the take of 300 whales for one year would be unlikely to adversely affect the overall status and trends in the stock.” 113 In 1987, the IWC scientific committee estimated the exploitable population of the Southern Hemisphere minke whale at 287,000. 114 For Japan, in essence, the ban on research whaling had no ethical legitimacy.
Scientific legitimacy
After deciding in 1984 to accept the commercial whaling moratorium, Japan focused on the lifting of the moratorium by 1990. When the IWC adopted the moratorium in 1982 on the ground that there was “uncertainty” on the status of whale stocks, it also added that the moratorium
will be kept under review, based upon the best scientific advice, and by 1990 at the latest the Commission will undertake a comprehensive assessment of the effects of this decision on whale stocks and consider modification of this provision and the establishment of other catch limits (Schedule 10 (e) of the ICRW).
After 1982, the onus was placed on whaling nations to prove that whales were not endangered. 115 The Japanese government had actively participated in the IWC sighting surveys on the minke whale in the Antarctic since 1978, known as the IDCR (International Decade of Cetacean Research) program, by providing researchers, a research vessel, and most of the costs. The Japanese commercial whaling fleet also conducted research from the whales hunted in the Antarctic Ocean, but the data were biased since commercial hunting targeted bigger mature whales in areas where the minke whale was abundant. Research whaling could improve this bias by employing a random sampling method. 116
Nonetheless, the epistemic community of cetologists was divided on Japan's research program. An IWC resolution adopted in 1989 acknowledged that “the Scientific Committee was not unanimous in its view of the [Japanese] research programme.” 117 Some cetologists argued that non-lethal methods such as sighting research and skin sampling was enough for resource management and that lethal methods such as research whaling were not necessary. 118 In 1990, the IWC also adopted a “Resolution on Redirecting Research towards Non-lethal Methods.” 119 In response to such criticism, Executive Director of the Institute of Cetacean Research and marine biologist Nagasaki Fukuzô explained the need for research whaling in the British science journal Nature:
Undeniably, useful information can be obtained from nonlethal sampling, such as estimates of total abundance. But for assessing population dynamics, it is necessary to kill the animal. In the case of baleen whales such as the minke, the age can be determined by counting the annual rings in the ear plug, for example. Segregative distribution by age, sex and maturity can be determined only by lethal sampling, and this information is essential for the regulation of catches. 120
Scientific knowledge was necessary to resolve the “uncertainty” and to help the IWC in its review process of the commercial whaling moratorium. For this reason, the Japanese government argued, it was cooperating in the IDCR program and was carrying out sampling surveys on the same stock. 121 It seemed illogical to the government that those who stressed scientific uncertainty opposed a research program to solve the uncertainty. 122 It appeared that they avoided solving the uncertainty because they wanted to maintain the commercial whaling moratorium. 123 The government did not admit any scientific legitimacy for the ban on research whaling.
Legal legitimacy
In addition to the guidelines established by the scientific committee, two IWC resolutions in 1986 and 1987 introduced eight criteria for evaluating research whaling programs to prevent commercial whaling from being conducted under the guise of scientific studies. 125 At the 1987 IWC annual meeting, the United States successfully proposed a resolution that conferred on the IWC the authority “to review, annually . . . the report of the Scientific Committee regarding special permits involving the killing of whales.” The resolution also recommended contracting governments to “refrain from issuing or revoking, permits to its nationals that the Commission, taking into account the comments of its Scientific Committee, considers do not satisfy each of the criteria.” This resolution, with Article 6 of the ICRW, enables the IWC to issue resolutions to recommend contracting governments to cancel their research whaling programs. 126
Nevertheless, a prohibitionary norm on research whaling lacks legal legitimacy. Whaling for scientific research is permitted by the ICRW or the IWC charter as an inherent right of contracting governments. Between 1951 and 1993, ten nations issued more than 170 special permits. 127 Japan had conducted scientific research whaling of several hundred Bryde's whales in the late 1970s. 128 Article 8.1 of the ICRW stipulates:
Notwithstanding anything contained in this Convention, any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take, and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit, and the killing, taking, and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention.
The first phrase, “Notwithstanding anything contained in this Convention,” means that scientific research whaling does not contravene the commercial whaling moratorium that the IWC adopted in 1982. 129
Moreover, IWC resolutions under Article 6 of the ICRW calling for cancellation of Japanese research whaling did not legally affect the right of contracting governments to conduct research whaling as stipulated under Article 8. 130 Agriculture, Forestry, and Fisheries Minister Katô Mutsuki stated at the Standing Committee on Agriculture, Forestry, and Fisheries of the House of Representatives on 28 July 1987 that Japan could not give up research whaling just because of a mere recommendation, since the Convention of the IWC stipulated that it was a right of member states to conduct research whaling. 131
Political legitimacy
Between 1987 and 1992, the IWC adopted several resolutions regarding Japan's research whaling programs. The first resolution, which came out of the IWC meeting held at Bournemouth on 26 June 1987, recommends:
the Government of Japan to refrain from issuing special permits . . . until such time as the Scientific Committee is able to resolve the serious uncertainties identified in its discussion as to the capability of the research methods proposed to contribute sufficiently reliable results needed for the Comprehensive Assessment or for other critically important research needs. 132
This was formally a resolution for postponement, but it virtually meant the suspension of the research program in question. 133 The resolution, however, was not adopted by an overwhelming majority, but by a vote of 16 in favor, 9 against, and 6 abstentions. The majority was smaller than that of votes for the 1982 moratorium, which was adopted by a vote of 25 in favor and 7 against. The result was also less critical than those of Iceland's research program (adopted by a vote of 16 in favor, 6 against, and 9 abstentions) and of the Republic of Korea's (19, 3, 9). 134
Anti-whaling NGOs argued that Japan was ignoring world opinion against research whaling. 135 Had a prohibitionary norm on research whaling been institutionalized in international society? It is difficult to conclude so. First, as time went by, IWC resolutions became increasingly less critical about Japan's research whaling (see Appendix 2). The June 1989 IWC annual meeting at San Diego adopted a weakly worded resolution which “INVITES the Government of Japan to reconsider its research program [emphasis in original].” This resolution was more in favor of the Japanese government than any previous resolutions on the topic, since “the invitation of reconsideration” was a weaker expression than “the recommendation of postponement.” Moreover, the resolution on the proposed take by Japan was adopted by a smaller majority: 13 votes in favor to 6 against, with 8 abstentions. Judging from these results, Japan's IWC Commissioner Shima maintained in a 1990 article that the scientific nature of Japan's research whaling was steadily gaining better understandings in the IWC. 137 In the 1990 meeting held at Noordwijk, The Netherlands, the IWC shelved a review of the moratorium, although the Commission was supposed to undertake one by 1990 at the latest. Given the situation against whaling in general, it was the Japanese delegation that strongly called for a reconsideration resolution. This time, the resolution was adopted unanimously. 138 A reconsideration resolution was again adopted by consensus at the 1991 IWC meeting in Reykjavik, Iceland. 139 In the 1992 IWC meeting in Glasgow, for the first time, the IWC unanimously adopted a resolution that “INVITES the Government of Japan to continue to reconsider and improve the proposed research under special permit in 1992/93.” The Japanese press reported this as acceptance of Japan's research whaling program. 140
Second, the IWC was a relatively small specialized organization, although its geographical scope was global. The number of the member nations in 1987 was just 41 among over 150 nations in the world, and only 32 nations attended the IWC annual meeting held in June 1987. 141 Moreover, the number of the members dropped to 36 in 1991, and only 30 nations attended the IWC meeting in that year. 142 Therefore, it is possible to conclude that a majority of the IWC did not constitute a majority opinion in international society. Third, as argued above, IWC resolutions did not deny the right itself to research whaling by contracting governments. The resolutions addressed the “problems” of specific research whaling programs and concluded that the programs should be postponed until they were solved sufficiently. Two IWC resolutions adopted in 1986 and 1987 regulated research whaling practice, which shows that the IWC condoned the right to research whaling. In short, a norm against research whaling in general did not have political legitimacy, despite widespread criticism against Japan's research whaling in Western countries. 143
Conclusion
In the late 1980s and early 1990s, Japan was pressured to end driftnet fishing and research whaling. Eventually it accepted the norm to ban the former but continued to ignore the norm against the latter. Since rationalist accounts such as neorealism and neoliberalism seem, at best, insufficient for explaining the cases, my argument depends on a constructivist account of how ideational structures affect states and their behavior. 144 I argue that legitimacy, not material coercion, or self-interest, can explain this variation in outcome. My argument, however, attempts to go beyond a conventional moral and legal account of legitimacy as a step to respond to a common criticism to constructivism: “Which norms and under what conditions?” 145 For this purpose, I present a theoretical framework to examine ethical, scientific, legal, and political legitimacy in the social contexts. In the driftnet fishing case, the only dimension of legitimacy that the Japanese government acknowledged was political legitimacy. In the research whaling case, it did not accord legitimacy in any dimensions. Although these case studies are a preliminary test on the effects of norm legitimacy on state behavior, my tentative conclusion is: political legitimacy is an important factor in state compliance even when there is no ethical, scientific nor legal legitimacy of the norm in question. This conclusion is not surprising, considering that norms gain political legitimacy in the political process of collective legitimation, in which the ethical, scientific, and legal aspects of legitimacy are likely to be contested for political purposes. This conclusion is surprising, however, for those who think the normative force of norms stems only from legality, morality, or both. 146
This conclusion offers three theoretical implications for international relations theory. First, state compliance with international norms can be explained without reference to norm internalization. In other words, for compliance, norms do not always need to be internalized first by individuals through a socialization process. Some constructivists hold that states comply with norms because norm internalization has led to the transformation of state identity and interests. 147 Hurd makes a similar argument on compliance with legitimate norms:
A rule will become legitimate to a specific individual, and therefore become behaviorally significant, when the individual internalizes its content and reconceives his or her interests according to the rule . . .. One incidental consequence of internalization is the futility of statements structured in the form: “the power of legitimacy is shown when an actor complies with a legitimate rule that goes against its interests.” This is internally inconsistent because the rule has affected the actor's own definition of its interests, not just the value of the payoffs of the different options. Thus the actor does not perceive a conflict between its interests and its obligations.
This argument is right as long as legitimacy refers only to the legitimacy based on “an internal sense of moral obligation”: that is, ethical and scientific legitimacy. By contrast, political and legal legitimacy is attributable to social pressure rather than internal conviction. States feel obliged to comply out of a sense of political obligation as a member of the community, rather than feeling a moral obligation. 148 To distinguish moral and political obligations does not mean that they never work together. Sometimes they do and sometimes they do not. My point is: when a state comply with the norm which are politically and legally legitimate but lack moral and scientific legitimacy, the state is likely to be dissatisfied at, and frustrated by, the content of the norm. It should be noted that collectively held norms are not necessarily shared norms. 149 They form external social facts.
Second, related to the first point, a distinction should analytically be made between moral community and political community, as Thomas Franck argues. 150 Scholars in the “English school,” such as Martin Wight and Hedley Bull, analyze the international system as an “international society.” According to Bull, an international society “ 151 exists when a group of states, conscious of certain common interests and common values, form a society in the sense that they conceive themselves to be bound by a common set of rules in their relations with one another, and share in the working of common institutions.” 152 Although this Grotian notion of international society focuses on “society of states” rather than a universal society of mankind, it also presupposes cosmopolitan culture (common values) to a certain degree. 153 It is because Bull places the Grotian model of the international system between the Hobbesian and the Kantian models. Nevertheless, many scholars including Bull would agree that the current global international society is not a community in the stricter sense that “members of a community have shared identities, values, and meanings.” 154 Here worth noting is Terry Nardin's distinction between purposive association and practical association, which is based on Michael Oakeshott's dichotomy of enterprise/civil associations. Purposive association “consists of relations among those who get together to further particular ends” 155 while practical association refers to “a relationship among those who are engaged in the pursuit of different and possibly incompatible purposes, and who are associated with one another, if at all, only in respecting certain restrictions on how each may pursue his own purposes.” 156 From the latter's pluralistic perspective, international society is not so much moral community as political community seeking peaceful coexistence under the institution of sovereignty. My case studies agree with him that international society is better captured by this pluralistic conception.
Finally, the independent effect of political legitimacy implies the importance of the UN General Assembly as a global forum to generate the “general will” of the international community. Although no one regards the General Assembly as the panacea for international problems since it is difficult to reach a overwhelming majority in a politically critical issue in the first place, one could put forward at least the proposition: a state will not vote against a UN General Assembly resolution when it finds no or only a few other countries will do so. According to Miguel Marín-Bosch's research on votes in the General Assembly, one to three negative votes were cast in the twelve per cent of the resolutions adopted from 1946 through September 1997 (see Appendix 3). The proposition seems more validated when one excludes from his findings the negative votes cast by the United States and Israel. Among the 2,331 negative votes, the 715 votes from the United States accounted for 31 per cent and the 489 votes from Israel for 21 per cent. This trend peaked in the period between 1981 and 1990 when the former accounted for 47 per cent and the latter for 28 per cent: the votes from these two countries made up the three quarters of the total. 157 For a recent example, the United States ignored resolutions adopted by the UN General Assembly for seven years in a row, condemning US sanctions against Cuba for Cuban violations of human rights. In 1998, the resolution was adopted by a vote of 157 in favor, 2 (the United States and Israel) against, and 12 abstentions. 158 By contrast, Japan cast no negative votes alone or with another state, and only one negative vote with two other states.
The account of this variance across states requires further research at least from two perspectives. First, it is not clear how the lack of support from the United States affects the normative force of international norms. Paul Kowert and Jeffery Legro argue that “Norms backed by the United States are likely to become more widespread and effectual than otherwise similar norms originating in Luxembourg.” 159 A related question is how the support of a norm by the United States affects the rate of norm compliance. As they suggest, the relationship between normative and material structures requires further exploration. 160 Second, the question of to which political legitimacy matters more is related to the question of how a particular state identifies itself in the international community. If I were allowed to exaggerate in order to present a contrast between the United States and Japan, I would argue that the former views the international community instrumentally while the latter regards it as constitutive of itself. It is no wonder that most American political scientists favor rationalism over constructivism.
APPENDIX 1
Resolutions and other Documents on Large-scale Pelagic Driftnet Fishing 161
| I | 1989 |
| July | (Tarawa, Kiribati): The South Pacific Forum adopted the Tarawa Declaration. |
| November (Wellington): | South Pacific states and territories adopted the Convention on the Prohibition of Driftnet Fishing in the South Pacific. |
| November (Castries, St. Lucia): | The Authority of the Organization of Eastern Caribbean States adopted the Castries Declaration. |
| November (New York): | The United Nations General Assembly adopted by consensus resolution 44/225: “Large-scale pelagic driftnet fishing and its impact on the living marine resources of the world's oceans and seas.” |
| II | 1990 |
| July (Noordwijk): | The IWC adopted by consensus a “resolution in support of the United Nations General Assembly initiative regarding large-scale pelagic driftnet fishing and its impact on the living marine resources of the world's oceans and seas.” |
| October (Noumea, New Caledonia): | The South Pacific Conference adopted a resolution against driftnet fishing. |
| December (New York): | The United Nations General Assembly adopted by consensus resolution 45/197: “Large-scale pelagic driftnet fishing and its impact on the living marine resources of the world's oceans and seas.” |
| III | 1991 |
| December (New York): | The United Nations General Assembly adopted by consensus resolution 46/215: “Large-scale pelagic driftnet fishing and its impact on the living marine resources of the world's oceans and seas.” |
| IV | 1992 |
| June (Rio de Janeiro): | UNCED adopted Agenda 21 that supported UN General Assembly resolution 46/215 in Paragraph 17.55. |
APPENDIX 2
Votes on Research Whaling for IWC Resolutions 162
| Resolutions | Target Nations | Approval | Disapproval | Abstention | Total |
| 1982 moratorium 163 | 25 | 7 | 5 | 39 | |
| 1987 postponement | Japan | 16 | 9 | 6 | 41 |
| South Korea | 19 | 3 | 9 | ||
| Iceland | 16 | 6 | 9 | ||
| 1988 postponement(postal ballot) 164 | Japan | 19 | 6 | 2 | 41 |
| 1988 notification | Norway | 14 | 4 | 10 | |
| Iceland | Consensus | ||||
| 1989 reconsideration | Japan | 13 | 6 | 8 | 38 |
| Iceland | Consensus | ||||
| Norway | 15 | 6 | 6 | ||
| 1991 reconsideration | Japan | Consensus | 36 | ||
| 1991 postponement | USSR | 20 | 4 | 5 | |
| 1992 reconsideration and improvement | Japan | Consensus | 37 | ||
| 1992 reconsideration | Norway | 17 | 5 | 6 |
Note 1: Friedrich Kratochwil, "The Force of Prescription," p. 686, International Organization 38.4 (autumn 1984): 685-708. Oran Young lists six bases of compliance: self-interest, enforcement, inducement, social pressure, obligation, and habit or practice. Oran R. Young, Compliance and Public Authority: A Theory with International Applications (Baltimore: Johns Hopkins University Press, 1979) 18-25. Back.
Note 2: Ian Hurd, "Legitimacy and Authority in International Politics," pp. 383-89, International Organization 53.2 (spring 1999): 379-408. Back.
Note 3: Andreas Hasenclever, Peter Mayer, and Volker Rittberger, Theories of International Regimes (Cambridge: Cambridge University Press, 1997). Back.
Note 4: Kenneth N. Waltz, Theory of International Politics (New York: McGraw-Hill, 1979) 88-101 and 191-92; and Robert Gilpin, War and Change in World Politics (Cambridge: Cambridge University Press, 1981) 13 and 25-38. Back.
Note 5: Kenneth N. Waltz, Theory of International Politics (New York: McGraw-Hill, 1979) 88-101 and 191-92; and Robert Gilpin, War and Change in World Politics (Cambridge: Cambridge University Press, 1981) 13 and 25-38. Back.
Note 6: Here "institutions" refers to "persistent and connected sets of rules (formal and informal) that prescribe behavioral roles, constrain activity, and shape expectations." International institutions are deemed to take one of three forms: formal intergovernmental or cross-national nongovernmental organizations; international regimes; and conventions. Robert O. Keohane, International Institutions and State Power: Essays in International Relations Theory (Boulder: Westview Press, 1989) 3-5. Keohane associates a regime to explicit rules in a particular issue area, and conventions to informal implicit rules and understandings. Back.
Note 7: Robert O. Keohane, After Hegemony: Cooperation and Discord in the World Political Economy (Princeton: Princeton University Press, 1984) 107. Back.
Note 8: Judith Goldstein and Robert O. Keohane, "Ideas and Foreign Policy: An Analytical Framework," 3, in Judith Goldstein and Robert O. Keohane, eds., Ideas and Foreign Policy: Beliefs, Institutions, and Political Change (Ithaca: Cornell University Press, 1993) 3-30. Back.
Note 9: Alexander Wendt, Social Theory of International Politics (Cambridge: Cambridge University Press, 1999). Constructivists also take an ontological position that agents and structures are mutually constituted. Back.
Note 10: John Ruggie, "What makes the World Hang together? Neo-utilitarianism and the Social Constructivist Challenge," 862-74, International Organization 52.4 (autumn 1998): 855-885. Back.
Note 11: Hasenclever, Mayer, and Rittberger, Theories of International Regimes 5 and 155.
Note 12: James G. March and Johan P. Olsen, Rediscovering Institutions: The Organizational Basis of Politics (New York: Columbia University Press, 1989) 23. See also James G. March and Johan P. Olsen, "The Institutional Dynamics of International Political Orders," 948-54, International Organization 52.4 (autumn 1998): 943-69. Back.
Note 13: I do not directly address legitimacy of sovereign states and international organizations as international actors or that of the international system as a whole. For the latter topic, see Henry A. Kissinger, A World Restored (New York: Grosset and Dunlap, 1964); and Gilpin, War and Change in World Politics. Back.
Note 14: James N. Rosenau, "Governance, Order, and Change in World Politics," 4, in James N. Rosenau and Ernst-Otto Czempiel, ed., Governance without Government: Order and Change in World Politics (Cambridge: Cambridge University Press, 1992) 1-29. Back.
Note 15: Inis L. Claude, "Collective Legitimation as a Political Function of the United Nations," 368, International Organization 20 (1966): 367-79. Back.
Note 16: Martha Finnemore and Kathryn Sikkink, "International Norm Dynamics and Political Change," 889, International Organization 52.4(autumn 1998): 887-917. Back.
Note 17: Gary King, Robert O. Keohane, and Sidney Verba, Designing Social Inquiry: Scientific Inference in Qualitative Research (Princeton: Princeton University Press, 1994) 6. Back.
Note 18: Chris Brown, International Relations Theory: New Normative Approaches (New York: Columbia University Press, 1992) Back.
Note 19: Strategic culture is another example of elusive concepts. For an attempt to make the concept falsifiable, see Alastair Iain Johnston, Strategic Culture and Grand Strategy in Chinese History (Princeton: Princeton University Press, 1995) Chapter 2. Back.
Note 20: Stephen D. Krasner, ed., International Regimes (Ithaca: Cornell University Press, 1983) 2. Back.
Note 21: Janice E. Thomson, "Norms in International Relations: A Conceptual Analysis," 77, International Journal of Group Tensions 23.1 (spring 1993): 67-83. Back.
Note 22: Christopher Gelpi, "Crime and Punishment: The role of norms in Crisis Bargaining," 340, American Political Science Review 91.2 (June 1997): 339-60. Back.
Note 23: Peter J. Katzenstein, "Introduction," 20, in Peter J. Katzenstein, ed., The Culture of National Security: Norms and Identity in World Politics (New York: Columbia University Press, 1996) 1-32. For example, Robert Keohane defines norms "simply as standards of behavior" and excludes from his definition the norms which are "justified on the basis of values extending beyond self-interests, and regarded as obligatory on moral grounds by governments." He takes the descriptive definition of norms for his functional theory. Keohane, After Hegemony 57-58. Back.
Note 24: Unlike Gelpi, however, I treat this concept in a constructivist fashion rather than within a neoliberal framework. Gelpi, "Crime and Punishment" 340. Back.
Note 25: Katzenstein, "Introduction" 5. This definition also incorporates both social and legal norms. Back.
Note 26: I argue that norms are not entirely unobservable. They are often codified at international forums in the form of resolution and legal treaty. Back.
Note 27: This is based on Franck's partial definition of legitimacy. Thomas M. Franck, The Power of Legitimacy among Nations (Oxford: Oxford University Press, 1990) 24. For a similar use of this concept, see, for example, Hedley Bull, The Anarchical Society: A Study of Order in World Politics (New York: Columbia University Press, 1977) 54 and 134. Back.
Note 28: Hurd, "Legitimacy and Authority in International Politics" 381 . Back.
Note 29: David Beetham, The Legitimation of Power (Basingstoke: MacMillan, 1991) 11-12. Back.
Note 33: Martin Hollis and Steve Smith, Explaining and Understanding International Relations (Oxford: Clarendon Press, 1990) 87. This Winchian argument itself is based on Wittgenstein's idea on the rule. Peter Winch, The Idea of a Social Science and its Relation to Philosophy (London: Routledge and Kegan Paul, 1958), 35. For the Wittgenstein-Winchian approach, see also Nicholas Greenwood Onuf, World of Our Making: Rules and Rule in Social Theory and International Relations (Columbia, South Caroline: University of South Carolina Press, 1989) Chapter 1. Back.
Note 34: John Williams, Legitimacy in International Relations and the Rise and Fall of Yugoslavia.(New York: St. Martin's Press, 1998). Back.
Note 35: Friedrich Kratochwil and John Ruggie, "International Organization: A State of the Art on an Art of the State," International Organization 40.4 (autumn 1986): 753-75. As Martha Finnemore puts it, norms "create patterns of behavior." Martha Finnemore, National Interests in International Society (Ithaca: Cornell University Press, 1996) 130. To avoid tautology, norm legitimacy is observed independently of state compliance and defiance. Back.
Note 36: Wendt, Social Theory of International Politics173. Back.
Note 37: Beetham, The Legitimation of Power 20. Back.
Note 38: Goldstein and Keohane, "Ideas and Foreign Policy" 8-10. They classify ideas into three categories: world views, principled beliefs, and causal beliefs. I will deal with causal beliefs in the sub-section of scientific legitimacy. Back.
Note 39: Finnemore, National Interests in International Society 23-24. Back.
Note 40: Goldstein and Keohane, "Ideas and Foreign Policy" 10. Back.
Note 41: Peter M. Haas, ed., Knowledge, Power, and International Policy Coordination (Columbia, South Carolina: University of South Carolina Press, 1997). In the volume, an "epistemic community" is defined as "a network of professionals with recognized expertise and competence in a particular domain and an authoritative claim to policy-relevant knowledge within that domain or issue-area." Peter M. Haas, "Introduction: Epistemic Communities and International Policy Coordination," p. 3 in Peter M. Haas, ed., Knowledge, Power, and International Policy Coordination (Columbia, South Carolina: University of South Carolina Press, 1997) Back.
Note 42: In this sense, an epistemic community parallels a group of Kingdon's "policy entrepreneurs": "people willing to invest their resources in return for future policies they favor" in the problem and the policy streams, and in the coupling of the two streams and the politics stream. John W. Kingdon, Agendas, Alternatives, and Public Policies, 2nd ed. (New York: Harper Collins, 1995), p. 204. Back.
Note 43: Hasenclever, Mayer, and Rittberger, Theories of International Regimes 150; and Haas, "Introduction" 3-4. Back.
Note 44: In this sense, causal beliefs are sharable information rather than the intersubjective structure of a policy network. Katzenstein, "Introduction" 20n63. Back.
Note 45: It should be noted here that by definition an epistemic community shares principled beliefs as well as causal beliefs. A scientific discourse may be dictated by the ethical beliefs of the epistemic community, which may also cause the politicization of science. See, for example, Karen T. Litfin, Ozone Discourses: Science and Politics in Global Environmental Cooperation (New York: Columbia University Press, 1994). Back.
Note 46: Max Weber, The Theory of Social and Economic Organization, ed. Talcott Persons (New York: The Free Press, 1947) 328. Back.
Note 47: Jürgen Habermas, Legitimation Crisis, trans.Thomas McCarthy (Boston: Beacon Press, 1975) 98. Back.
Note 48: Franck. The Power of Legitimacy among Nations. Back.
Note 50: Chayes and Chayes stress the importance of accordance with fair and accepted procedure for the legitimacy of norms. Abram Chayes and Antonia Handler Chayes, The New Sovereign: Compliance with International Regulatory Agreements (Cambridge: Harvard University Press, 1995) 127-31. Back.
Note 51: Franck, The Power of Legitimacy among Nations 37. Back.
Note 52: Ibid. 200. His term of rule refers to a set of legal or social norms. See ibid. 42. Back.
Note 54: Ronald Dworkin, Law's Empire (Cambridge: Belknap Press, 1986) 216. Back.
Note 55: Peter J. Katzenstein, Cultural Norms and National Security: Police and Military in Postwar Japan (Ithaca: Cornell University Press, 1996) 21. Back.
Note 56: Anthony Giddens, Politics, Sociology and Social Theory (Stanford: Stanford University Press, 1995) 123-33. Back.
Note 57: Claude, "Collective Legitimation as a Political Function of the United Nations" 371-72. Back.
Note 58: Franck, The Power of Legitimacy among Nations 190. Back.
Note 59: While Keohane uses the term institutionalization as the degree of incorporation of international institutions into the international system, he holds that institutionalization can be measured along three dimensions: commonality, specificity, and autonomy. Keohane, International Institutions and State Power4-5. For the concept of institutions, see ibid. 3-5. On institutionalization of ideas, see Goldstein and Keohane, eds., Ideas and Foreign Policy 20-24. For international environmental institutions, see Peter M. Haas, Robert O. Keohane, and Marc A. Levy, eds., Institutions for the Earth: Sources of Effective International Environmental Protection (Cambridge: The MIT Press, 1993). Back.
Note 60: The focus on prohibitionary norms, rather than mere regulatory norms, facilitates explicit examination of the effect of norms on state behavior. For various examples of global prohibitionary norms, see Ethan A. Nadelmann, "Global Prohibition Regimes: the Evolution of Norms in International Society," International Organization 44.4 (autumn 1990): 479-526. Back.
Note 61: Paul Kowert and Jeffery Legro, "Norms, Identity, and Their Limits," 485, in Peter J. Katzenstein, ed., The Culture of National Security: Norms and Identity in World Politics (New York: Columbia University Press, 1996) 451-97. Back.
Note 62: Finnemore, National Interests in International Society 32. Back.
Note 63: This is a good example of change in the distribution of material capabilities, which is a focus of neorealism. Back.
Note 64: In 1987, Japan's four major opposition parties (Japan Socialist Party, Clean Government Party, Democratic Socialist Party, and Japan Communist Party) tabled a retaliation bill to restrict imports of fisheries products from nations which regulated the operations of Japanese fishing vessels "inappropriately." Although it was backed by the All Japan Fishermen's Union, the Fisheries Agency opposed it, pointing out that the bill could be in a violation of the GATT provisions. House of Representatives, Secretariat, Shûgiin nôrinsuisan iinkai kaigiroku [Minutes of Agriculture, Forestry, and Fisheries Committee, House of Representatives] (28 July 1987) 10 and 16; House of Councillors, Secretariat, Sangiin nôrinsuisan iinkai kaigiroku[Minutes of Agriculture, Forestry, and Fisheries Committee, House of Councillors] (30 July 1987) 19; Yomiuri shinbun 8 September 1987: 7. In the meantime, the Ministry of Agriculture, Forestry, and Fisheries warned the US side against taking sanctions by referring to this domestic trend. Nihon keizai shinbun 5 December 1988: 5. Back.
Note 65: Japan's imports from the United States were valued at approximately 285.3 billion yen, which was much larger than the US imports of fish from Japan: 39.1 billion yen. Suisan Nenkan Henshû Iinkai, ed., Suisan nenkan 1993 [Fisheries Yearbook 1993] (Tokyo: Suisansha, 1993) 308-9. For this reason, two other legal sources of possible threat to Japan's economic interests were not very threatening. First, under the 1990 Dolphin Protection Consumers' Information Act (DPCIA), the United States also threatened to impose an embargo on the fisheries imports from Japan which were caught with driftnets from July 1992 (partially from December 1991 for tuna and its processed products). Second, a High Seas Driftnet Fisheries Enforcement Bill passed the US Congress on 4 October 1992, and came into force on 2 November 1992. This act provides that the United States place an embargo on imports of marine products and fishing gear from the countries that conduct high seas driftnet fishing after 1 January 1993. It also extends coverage from marine and wildlife products to all products for those who do not cease the practice under the initial sanction for six months. Ministry of Foreign Affairs, Fisheries Division, "Kôkai nagashiami gyogyô mondai" [High Seas Driftnet Fisheries Issue], Tokyo, 18 June 1992, 2; Ministry of Foreign Affairs, Fisheries Division, "Kankyô to gyogyô mondai" [Environment and Fisheries Issue], Tokyo, 3 December 1992, 5 and 8; Asahi shinbun 19 September 1991, evening edition, 2; Nihon keizai shinbun 19 September 1991, evening edition, 1; Mainichi shinbun 20 September 1991, 11; Yomiuri shinbun 21 September 1991, 7; and Nihon keizai shinbun 4 November 1992: 3. Back.
Note 66: See also Paragraph 2.22 of Agenda 21. Back.
Note 67: For a recent account on "legitimate" coercive bargaining tactics and threats, for example, see Leonard J. Schoppa, "The Social Context in Coercive International Bargaining," International Organization 53.2 (Spring 1999): 307-42. Back.
Note 68: This is why Gelpi chooses cases where state interests clearly conflict. Gelpi, "Crime and Punishment" 340. Back.
Note 69: Two Japan Whaling Association officials, interview by author, Tokyo, 1 July 1999. Suisan Nenkan Henshû Iinkai, ed., Suisan nenkan 1993 300. Ministry of Foreign Affairs, "Kôkai nagashiami gyogyô mondai" 3; Ministry of Agriculture, Forestry, and Fisheries, Statistics and Information Department, Gyogyô yôshokugyô seisan tôkei nenpô: Heisei 3 nen [Annual Statistics Report on Fishery and Aquaculture Output: 1991] (Tokyo: Nôrin Tôkei Kyôkai, 1993) 71; and The International Herald Tribune27 November 1991. Back.
Note 70: For a brief overview of the literature, see Robert W. McElroy, Morality and American Foreign Policy: The Role of Ethics in International Affairs (Princeton: Princeton University Press, 1992) 46-53; and Jonathan Mercer, Reputation and International Politics (Ithaca: Cornell University Press, 1996), Chapter 1. Back.
Note 71: United Nations (UN) General Assembly resolution 44/225: Large-scale Pelagic Driftnet Fishing and its Impact on the Living Marine Resources of the World's Oceans and Seas, in UN General Assembly, 44th Session, Official Records, Supplement 49, Resolutions and Decisions Adopted by the General Assembly during its Forty-Fourth Session I, A/44/49 (1989) 147-8. Back.
Note 72: Note that this resolution also admits the importance of "small-scale driftnet fishing traditionally conducted in coastal waters, especially by developing countries, which provides an important contribution to their subsistence and economic development." Ibid. The resolution, however, fails to clarify the boundary between "large-scale" and "small-scale" driftnets. The 1989 Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific defines a long driftnet as "a gillnet or other net or a combination of nets which is more than 2.5 kilometers in length the purpose of which is to enmesh, entrap or entangle fish by drifting on the surface of or in the water" (Article 1 (b)). South Pacific Forum, Review of Driftnet Fishing in the South Pacific Ocean — Issues and Impacts — : The South Pacific Perspective (submitted to the Secretary-General of the United Nations, August 1991) 43-50. Back.
Note 73: Ono Seiichirô, "Kôkai shigen no gôriteki riyô eno teigen" [Suggestions toward Rational Utilization of High Seas Resources], 209, in Kitahara Takeshi, ed., Kujira ni manabu [Learning from Whales] (Tokyo: Naruyamadô Shoten, 1996) 208-224. Back.
Note 74: Asahi shinbun 4 November 1989: 3; Nihon keizai shinbun 4 November 1989: 1; The International Herald Tribune 8 November 1989. Back.
Note 75: Yomiuri shinbun 5 November 1991: 2. Back.
Note 76: Nihon keizai shinbun 26 November 1989, evening edition: 1 and 19. Back.
Note 77: This is in accordance with the definition of conservation in World Conservation Strategy, an influential report on nature protection, issued in 1980 by the International Union for Conservation of Nature and Natural Resources (IUCN) with the United Nations Environmental Programme (UNEP) and the World Wildlife Fund (WWF). IUCN, UNEP and WWF, World Conservation Strategy: Living Resource Conservation for Sustainable Development (Gland, Switzerland, 1980). Back.
Note 78: Peter Singer, Animal Liberation, new revised ed. (New York: Avon, 1990); and Tom Regan, The Case for Animal Rights (Berkeley: University of California Press, 1983). Back.
Note 79: South Pacific Forum, Review of Driftnet Fishing in the South Pacific Ocean 15-16. Behind the politicization of driftnet fishing also lay economic concerns about the impact of driftnet fishing on fisheries resources among fishermen in the South Pacific and in the West Coast of the United States and Canada. Nevertheless, these economic concerns were not a decisive factor to bring the global ban on driftnet. The alleged negative impact on salmon of high seas driftnet fishing had spurred the politicization of the issue in the United States. In the Sidney meeting, however, "The estimated level of by-catch of salmonids in 1989 of 1,614 fish and in 1990 of 141,279 fish were considered by the group to have no known significant biological impact." UN General Assembly, 46th Session, Large-Scale Pelagic Driftnet Fishing and its Impact on the Living Marine Resources of the World's Oceans and Seas: Report of the Secretary-General A/46/615 (8 November 1991) para. 80. Back.
Note 80: Kakuta Naoko, "Shi no kabe to iu na no nagashiami ryôhô" [Fishing Method of Driftnets Called "Wall of Death"], The Komei 343 (August 1990): 158-63. Back.
Note 81: UN General Assembly, 45th Session, Large-Scale Pelagic Driftnet Fishing and its Impact on the Living Marine Resources of the World's Oceans and Seas: Report of the Secretary-General A/45/663 (26 October 1990) para. 92; Suisan Nenkan Henshû Iinkai, ed., Suisan nenkan 1991 90; and International North Pacific Fisheries Commission, "Final Report of 1990 Observations of the Japanese High Seas Squid Driftnet Fishery of the North Pacific Ocean," Seattle: Alaska Fisheries Science Center, 1991, 193-95 (quoted in World Resources Institute, World Resources 1992-93: A Guide to the Global Environment (Oxford: Oxford University Press, 1992) 181). According to a Japanese survey, the Japanese North Pacific driftnet fishery not only caught 106 million squid, but also caught more than 41 million sea creatures in 1990, including 141,000 salmon, 700,000 sharks, 406 sea turtles, 26,000 marine mammals such as whales and dolphins, and 270,000 sea birds. UN General Assembly, 46th Session, Large-Scale Pelagic Driftnet Fishing and its Impact on the Living Marine Resources of the World's Oceans and Seas para. 121. Back.
Note 82: In the 1980s and early 1990s, the United States kept a global "dolphin kill" quota of 20,500 a year for its own tuna fishermen. The Economist 4 May 1991: 91. The actual number of killed dolphins in 1990 was estimated at 5,083, less than half the 1989 total. US Marine Mammal Commission, Annual Report of the Marine Mammal Commission, Calendar Year 1990 (Marine Mammal Commission, Washington, D.C., 1991) 101 (quoted in World Resources Institute, World Resources 1992-93 182). This estimate is more than the number of whales and dolphins killed by the Japanese squid driftnet fishery in the North Pacific during the 1990 season, which was estimated by a Japan-US-Canada research program. International North Pacific Fisheries Commission, "Final Report of 1990 Observations of the Japanese High Seas Squid Driftnet Fishery of the North Pacific Ocean," Table 24, 193-5. Back.
Note 83: The Daily Telegraph 1 June 1991. Although the IWC had no mandate to manage the small whales and the dolphins, there has been a movement to put them under the IWC jurisdiction in the 1990s. The Guardian 13 July 1990. Back.
Note 84: Environmentalists had already criticized the Japanese fishermen for killing a large number of dolphins. See, for instance, The Times 10 November 1990. Back.
Note 85: Government of Japan, Environment and Development: Japan's Experience and Achievement (Tokyo, December 1991) 12-13. See also Fisheries Agency, Gyogyô hakusho: Heisei 3 nendo [White Paper on Fisheries: Fiscal Year 1991] (Tokyo: Nôrin Tôkei Kyôkai, 1992) 127. Back.
Note 86: UN General Assembly, 46th Session, Official Records, Supplement 49, Resolutions and Decisions Adopted by the General Assembly during its Forty-Sixth Session I, A/46/49 (1991) 147-48. Back.
Note 87: UN General Assembly, 46th Session, Large-Scale Pelagic Driftnet Fishing and its Impact on the Living Marine Resources of the World's Oceans and Seas para. 124 and para. 126. In the report, the Fisheries Agency added that the Japanese squid driftnet fishery was conducted in only 1.7 per cent of the North Pacific, and that 90 per cent of the sea turtles caught incidentally were thrown back alive. Asahi shinbun 28 September 1991: 3; Mainichi shinbun 28 September 1991: 9; and Yomiuri shinbun 28 September 1991: 7. Back.
Note 88: For the US government, to put an end to the Japanese and other Asian driftnet fishing on the high seas was a rare chance to please both environmental NGOs and the US fishing industry at the same time. Japan argued that the discourse on the use of driftnets should not be limited to the high seas, since Japan knew that the United States allowed the use of driftnets in its EEZ. A then Fisheries Agency official, interview by author, Tokyo, 22 June 1999. According to Burke, Freeberg, and Miles, "The United States had never sought to eliminate the use of driftnets, trawls, pots, seines, or longlines within its jurisdiction, even though they take larger bycatches than are taken in the North Pacific." William T. Burke, Mark Freeberg, and Edward L. Miles, "United Nations Resolutions on Driftnet Fishing: An Unsustainable Precedent for High Seas and Coastal Fisheries Management," 169, Ocean Development and International Law 25 (1994): 127-86. Back.
Note 89: Douglas M. Johnston, "The Driftnetting Problem in the Pacific Ocean: Legal Considerations and Diplomatic Options," 19-22, Ocean Development and International Law 21 (1990): 5-39. Back.
Note 90: A then Fisheries Agency official, interview by author, Tokyo, 22 June 1999. Back.
Note 91: Malcolm N. Shaw, International Law, 3rd ed. (Cambridge: Grotius, 1991) 93-5. Back.
Note 92: Patricia Birnie, "International Environmental Law: Its Adequacy for Present and Future Needs," 53, in Andrew Hurrell and Benedict Kingsbury, eds., The International Politics of the Environment (Oxford: Clarendon Press, 1992) 51-84. Back.
Note 93: Nihon keizai shinbun 26 November 1991, evening edition: 1; Mainichi shinbun 26 November 1991, evening edition: 1; Yomiuri shinbun 26 November 1991, evening edition: 2; The International Herald Tribune 27 November 1991; The Independent 27 November 1991; and The Financial Times 27 November 1991. The editorial of Nihon keizai shinbun of 27 November 1991 (p. 2) supported the decision by the Japanese government, arguing that the decision was unavoidable for Japan, a nation that has to live in international society. Back.
Note 94: UN General Assembly, 2nd Committee, 46th Session, Official Records, Summary Record of the 52nd Meeting A/C.2/46/SR. 52 (11 December 1991) para. 61. Back.
Note 95: This is a good example of rational choice action under identity constraint, in which the logic of consequentiality is confined by the logic of appropriateness. Back.
Note 96: UN General Assembly, 46th Session, Provisional Verbatim Record of the 79th Meeting A/46/PV.79 (8 January 1992) 64-66. Back.
Note 97: Nihon keizai shinbun 14 March 1987: 30; and Nihon keizai shinbun 15 March 1987: 31. Back.
Note 98: "Resolution on Japanese Proposal for Special Permits," in International Whaling Commission (IWC), Thirty-Eighth Report of the International Whaling Commission (Cambridge, 1988) 29; and IWC, Thirty-Ninth Report of the International Whaling Commission (Cambridge, 1989) 1. Back.
Note 99: In 1994, Japan started scientific research on minke whales in the north western Pacific as well. Japan caught 440 minke whales in the Antarctic in the 1995/96 season, and 77 minke whales in the North Pacific in the 1996 season. TRAFFIC International, Whale Meat Trade in East Asia: A Review of the Markets in 1997 (Cambridge, 1997) 9-10. Back.
Note 100: The Economist 27 June 1992: 12. Back.
Note 101: James E. Scarff, "Ethical Issues in Whale and Small Cetacean Management," 243, Environmental Ethics 3 (fall 1980): 241-79. Back.
Note 102: The ethics of killing whales can be examined from at least two perspectives: ethical distinction of whales and necessity of killing whales. See Scarff, "Ethical Issues in Whale and Small Cetacean Management" 256-75. Back.
Note 104: WWF, Conservation Issues 2.2 (Washington, D.C., April 1995) 2. The intelligence of whales has been in controversy, however, as Milton Freeman points out "there is no testable, nor even generally agreed upon definition of "intelligence" so that it comes to mean almost anything the writer understands the term to mean." Milton M.R. Freeman, "Science and Trans-science in the Whaling Debate," 144, in Milton M.R. Freeman and Urs P. Kreuter, eds., Elephants and Whales: Resources for Whom? (Basel, Switzerland: Gordon and Breach Science Publishers, 1994) 143-57. Back.
Note 105: Arne Kalland, "Whose Whale is That? Diverting the Commodity Path," p. 178, in Milton M.R. Freeman and Urs P. Kreuter, eds., Elephants and Whales: Resources for Whom? (Basel, Switzerland: Gordon and Breach Science Publishers, 1994) 159-86; and Arne Kalland and Brian Moeran, Japanese Whaling: End of an Era (London: Curzon Press, 1992) 193. Back.
Note 106: Scarff, "Ethical Issues in Whale and Small Cetacean Management" 246. Back.
Note 107: House of Representatives, Shûgiin nôrinsuisan iinkai kaigiroku (28 July 1987) 11 and 21. Back.
Note 108: Globe and Mail 15 May 1993 (quoted in Peter J. Stoett, The International Politics of Whaling (Vancouver: UBC Press, 1997) 61). Back.
Note 109: The Japan Times 31 October 1986. Back.
Note 110: The Japan Times 9 November 1994. Back.
Note 111: M. J. Peterson, "Whalers, cetologists, environmentalists, and the international management of whaling," 171 and 186, in Peter M. Haas, ed., Knowledge, Power, and International Policy Coordination (Columbia: University of South Carolina Press, 1997) 147-86; and Freeman, "Science and Trans-science in the Whaling Debate" 150-1. Back.
Note 112: Akao Toshinobu, Chikyû wa uttaeru: Taikenteki chikyû kankyô gaikôron [An Agenda for Global Survival: An Ambassador Reflects on Environmental Protection] (Tokyo: Sekai no Ugokisha, 1993) 165. Back.
Note 113: IWC, Thirty-Ninth Report of the International Whaling Commission (Cambridge, 1989) 164. See also "Report of the Special Meeting of the Scientific Committee to Consider the Japanese Research Permit (Feasibility Study)," in IWC, Thirty-Ninth Report of the International Whaling Commission (Cambridge, 1989) 159-66. Back.
Note 114: IWC, Thirty-Eighth Report of the International Whaling Commission (Cambridge, 1988) 43. Back.
Note 115: The Times 29 April 1991. Back.
Note 116: House of Representatives, Shûgiin nôrinsuisan iinkai kaigiroku (28 July 1987) 5; and IWC, Forty-Third Report of the International Whaling Commission (Cambridge, 1993) 29. Back.
Note 117: "Resolution on the Proposed Take by Japan of Whales in the Southern Hemisphere under Special Permit," in IWC, Fortieth Report of the International Whaling Commission (Cambridge, 1990) 36. Back.
Note 118: IWC, Forty-Third Report of the International Whaling Commission (Cambridge, 1993) 29; The Guardian 24 November 1990; and The Daily Telegraph 12 April 1991. Back.
Note 119: IWC, Forty-First Report of the International Whaling Commission (Cambridge, 1991) 49. Back.
Note 120: Fukuzo Nagasaki, "The Case for Scientific Whaling," 189, Nature 344 (15 March 1990) 190. Back.
Note 122: IWC, Thirty-Eighth Report of the International Whaling Commission (Cambridge, 1988) 14; Peterson, "Whalers, Cetologists, Environmentalists, and the International Management of Whaling" 169; Shima Kazuo, "Hogei mondai wo kangaeru" [Consideration of the Whaling Issue], 399, Sekai (August 1990): 395-99; and Nakajima Keiichi, "Hogei mondai ni kansuru futatsu no sokumen" [Two Perspectives regarding the Whaling Issue], 22, Refarensu (May 1994) 5-36. Back.
Note 123: Anti-whaling scientists initially opposed even the non-lethal IDCR as unscientific. Akao, Chikyû wa uttaeru 159; Shima, "Hogei mondai wo kangaeru" 398; Suwa Yûzô, Amerika wa kankyô ni yasashiinoka [Is the United States Environment-friendly?] (Tokyo: Shinhyôron, 1996) 226. Back.
Note 124: Paragraph 30 of the Schedule of the ICRW provides that permit proposals should address the four sets of information on the objectives of the research; the number and stock of the animals to be taken; the participation of foreign scientists; and the possible effect of the proposed catches on conservation of the stock. IWC, Thirty-Ninth Report of the International Whaling Commission (Cambridge, 1989) 161. Back.
Note 125: IWC, Thirty-Seventh Report of the International Whaling Commission (Cambridge, 1987) 11-12; and IWC, Thirty-Eighth Report of the International Whaling Commission (Cambridge, 1988) 11-12. Back.
Note 126: IWC, Thirty-Eighth Report of the International Whaling Commission (Cambridge, 1988) 11-12; "Resolution on Scientific Research Programmes," in ibid. 27-8; Itabashi Morikuni, "Akumu no nakano hogei kaigi" [The Whaling Meeting in Nightmare], 55, Ekonomisuto (21 July 1987): 54-57; and Umezaki Yoshito, "Shigenhogo dewanaku jinshu sabetsu shisô da" [Not Resource Conservation but Racial Thought], 21, Sekai shûhô (21 July 1987): 18-21. Such resolutions are not legally binding, but they could give the United States grounds for taking economic sanctions against nations that ignored the IWC resolution. House of Councillors, Sangiin nôrinsuisan iinkai kaigiroku (30 July 1987) 5; and Yomiuri shinbun 30 June 1987: 9. The US government also held that the commercial whaling moratorium gave legitimacy to economic sanctions against disguised "commercial whaling," but the Japanese government did not see any legitimacy in the moratorium itself. Arne Kalland, "Whose Whale is That?" 178. Back.
Note 127: Katô Yoshinobu, "Hogei to nihonjin" [Whaling and the Japanese], 83, Dokkyôdaigaku kyôyô shokagaku kenkyû 28.1 (September 1993): 82-98. Back.
Note 128: Far Eastern Economic Review 28 May 1987: 39. Back.
Note 129: The IWC did not amend the ICRW itself, partly because the anti-whaling nations wanted to keep whaling nations within the regime, and partly because it became difficult for them to attain the three-fourths majority necessary to amend the treaty. Stoett, The International Politics of Whaling 116; and Peterson, "Whalers, Cetologists, Environmentalists, and the International Management of Whaling" 179. Back.
Note 130: House of Councillors, Sangiin nôrinsuisan iinkai kaigiroku (30 July 1987) 5. Back.
Note 131: Nihon keizai shinbun 29 July 1987: 5. Back.
Note 132: "Resolution on Japanese Proposal for Special Permits," in IWC, Thirty-Eighth Report of the International Whaling Commission (Cambridge, 1988) 29. Back.
Note 133: House of Councillors, Sangiin nôrinsuisan iinkai kaigiroku (30 July 1987) 9. Back.
Note 134: IWC, Thirty-Eighth Report of the International Whaling Commission (Cambridge, 1988) 14. Norway whose Prime Minister Gro Brundtland was renowned as one of the environmental world leaders also started a seven-year research program in 1988. IWC, "Special Permit Catches," available at http://ourworld.compuserve.com/homepages/iwcoffice/Catches.htm#Permit. Japan was not isolated. Back.
Note 135: Asahi shinbun 1 November 1988: 6. Back.
Note 136: IWC, Fortieth Report of the International Whaling Commission (Cambridge, 1990) 17; and "Resolution on the Proposed Take by Japan of Whales in the Southern Hemisphere under Special Permit," in ibid. 36. Similar resolutions on the Icelandic and the Norwegian proposals were also adopted. "Resolution on Icelandic Proposal for Special Permits," and "Resolution on Norwegian Proposal for Special Permits," in ibid. 35-6. Back.
Note 137: Shima, "Hogei mondai wo kangaeru" 397. See also IWC, Fortieth Report of the International Whaling Commission (Cambridge, 1990) 17. Back.
Note 138: IWC, Forty-First Report of the International Whaling Commission (Cambridge, 1991) 15; and "Resolution on Special Permit Catches by Japan in the Southern Hemisphere," in ibid. 47-8. In 1990, however, the IWC also adopted a "Resolution on Redirecting Research towards Non-lethal Methods." Ibid. 49. Back.
Note 139: IWC, Forty-Second Report of the International Whaling Commission (Cambridge, 1992) 14; and "Resolution on Special Permit Catches by Japan in the Southern Hemisphere," in ibid. 45. Back.
Note 140: IWC, Forty-Third Report of the International Whaling Commission (Cambridge, 1993) 29; "Resolution on Special Permit Catches by Japan in the Southern Hemisphere," in ibid. 49; and Mainichi shinbun 4 July 1992: 1. Back.
Note 141: House of Councillors, Sangiin nôrinsuisan iinkai kaigiroku (30 July 1987) 9; and Yomiuri shinbun 30 June 1987: 9. Back.
Note 142: The Independent 1 June 1991. Back.
Note 143: On March 2, 2000, the Prime Ministers of New Zealand and Australia agreed to act together against Japan's research whaling in the Antarctic. Asahi shinbun 3 March 2000: Back.
Note 144: By replicating compliance practice, state identity as a member of the community continues to be re-constructed. This constructivist account is equivalent to the main argument of the English School that adherence to common rules and institutions is a prerequisite for entering, and staying inside, international society. Back.
Note 145: Finnemore and Sikkink, "International Norm Dynamics and Political Change" 905. Back.
Note 146: For Hedley Bull, a common set of rules refers to "imperatives of morality and law." Bull, The Anarchical Society 25. Similarly, Andrew Hurrell attributes the autonomous compliance pull of rules and norms to their relations with the underlying legal structure of international society and to a shared sense of a moral community and justice. Andrew Hurrell, "International Society and the Study of Regimes: A Reflective Approach," in Volker Rittberger, ed., Regime Theory and International Relations (Oxford: Clarendon, 1993) 49-72. Back.
Note 147: Jeffery T. Checkel, "The Constructivist Turn in International Relations Theory (A Review Essay)," 340, World Politics 50 (January 1998) 324-48. For norm internalization, see, for example, Finnemore and Sikkink, "International Norm Dynamics and Political Change" 904-5. Back.
Note 148: Young, Compliance and Public Authority 23n19. A. John Simmons makes a similar distinction between a positional duty and a moral duty. A. John Simmons, Moral Principles and Political Obligations (Princeton: Princeton University Press, 1979) 12. Back.
Note 149: Ronald J. Jepperson, Alexander Wendt, and Peter J. Katzenstein, "Norms, Identity, and Culture in National Security," 54n69, in Peter J. Katzenstein, ed., The Culture of National Security: Norms and Identity in World Politics (New York: Columbia University Press, 1996) 33-75. Back.
Note 150: Franck, The Power of Legitimacy among Nations 234. Back.
Note 151: Martin Wight, Systems of States (Leicester: Leicester University Press, 1977); Bull, The Anarchical Society; and Barry Buzan, "From International System to International Society: Structural Realism and Regime Theory Meet the English School," 335, International Organization 47.3 (summer 1993): 327-52. See also Hasenclever, Mayer, and Rittberger, Theories of International Regimes 169-76; and Louis Henkin, How Nations Behave: Law and Foreign Policy, 2nd ed. (New York: Columbia University Press, 1979) Part One. Back.
Note 152: Bull, The Anarchical Society 13. Back.
Note 154: Emanuel Adler and Michael Barnett, "A Framework for the Study of Security Communities," 31, in Emanuel Adler and Michael Barnett, ed., Security Communities (Cambridge: Cambridge University Press, 1998) 29-65. Back.
Note 155: Terry Nardin, Law, Morality, and the Relations of States (Princeton: Princeton University Press, 1983) 4. Back.
Note 157: Miguel Marín-Bosch, Votes in the UN General Assembly (The Hague: Kluwer Law International, 1998) 110, 183-85, and 195-200. Back.
Note 158: The Daily Yomiuri 16 October 1998: 5. Back.
Note 159: Kowert and Legro, "Norms, Identity, and Their Limits" 491. Back.
Note 161: UN General Assembly, 44th Session, Official Records, Supplement 49, Resolutions and Decisions Adopted by the General Assembly during its Forty-Fourth Session I,A/44/49 (1989) 147-48; UNGA, 45th Session, Official Records, Supplement 49 A, Resolutions and Decisions Adopted by the General Assembly during its Forty-Fifth Session I, A/45/49 (1990) 123-24; UNGA, 46th Session, Official Records, Supplement 49, Resolutions and Decisions Adopted by the General Assembly during its Forty-Sixth Session I, A/46/49 (1991) 147-48; International Whaling Commission, Report of the International Whaling Commission (Cambridge, 1991) 46 and 49-50. Back.
Note 162: The data are from International Whaling Commission, Report of the International Whaling Commission (Cambridge, 1988-93), unless specified otherwise. "Total" refers to the number of the IWC members. Back.
Note 163: House of Representatives, Shûgiin nôrinsuisan iinkai kaigiroku (28 July 1987): 14. Back.
Note 164: Nihon keizai shinbun 16 February 1988: 3; and Yomiuri shinbun 4 April 1989: 1. Back.
Note 165: Marín-Bosch, Votes in the UN General Assembly 183-85. Back.
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