An Independent Attorney at Law Mr. Boynton specializing in environmental, natural resources and
international law. He has long acted as an advisor to the Institute of Cetacean Research.
In looking at international conferences and Japan-U.S. negotiations, in
most cases, the West, the U.S. and Britain have had several lawyers on their
team. Is this the norm and what is their role?
Boynton:I don't really understand your question but I think its normal to
have lawyers involved in negotiating treaties and other legal situations.
In the West, its almost impossible to consider these negotiations without
having any lawyers present.
Take for an example, the International Whaling Conference, in which I have
been personally involved. First of all, you must understand that the
conference commenced in 1945 with the support of Britain and the U.S..
Thus, the treaty and its official language was in English. The headquarters
office was based in Britain. In retrospect, the whaling regime was created
under a U.S.-British initiative and under their guidelines, looking at the
of the whaling industry from a political and commercial background.
International treaties involve negotiations and interpretation of
international law, struggle and compromise, over issues and thereby are
based upon 120% on law. For instance, when the U.S. representatives are
negotiating with their Japanese counterparts, usually they dispatch at least
three professionals - lawyers. At times, a Department of Commerce
delegation might include lawyers from private law firms from whom they seek
professional advice.
As you mentioned before, you act as an advisor to the Institute of
Cetacean Research. Has the Japanese delegation been successful with your
approach?
Boynton:Even now, there are no professional lawyers on the Japanese
delegation. I am only an advisor, and I cannot negotiate on their behalf or
participate in the negotiations themselves. Furthermore, the
decision-making process is in the hands of bureaucrats. I don't care who
handles the negotiations, but they have wanted me as an advisor since I told
them that its illogical to have doors slammed in their faces, when it is in
their inherent right to use a resource which has been scientifically proven
that it can be used continuously. My opinion is simple and clear: Japan
has relied too much on the West when negotiating international treaties.
As a result, it has neglected to advocate their inherent rights, which is
the underlying cause for their continued failure to extract concessions.
Do you have any specific example?
Boynton:In 1983, Britain and the US, without informing Japan, included
seven newly independent Caribbean states in the main conference, thereby
enabling the passage of the Prohibition of Commercial Whaling Resolution
based upon the number of countries in favor of the clause. This was an
obvious violation of the treaty. For example, in the treaty it is stated
"the number of whales which could be captured will be decided by the
scientific committee." Contrary to the new prohibition clause, the
scientific committee issued a report indicating that it was acceptable to
take 6,000 minke whales in 1983. Naturally, Japan had the right to reject
signing the treaty, to appeal to the International Court of Justice or to
withdraw its membership from the treaty. Nevertheless, Japan did not even
bother to realistically consider any of these options.
Even after this kind of humiliating defeat, Japan is still attending
the Whaling Conference without making any strides toward revoking this
clause. As a lawyer and an advisor, what do you suggest they do?
Boynton:Well, Japan did appeal, along with Norway, based upon the right
to appeal. This is important, since any country which exercises this right
is exempted from acting according to a Commission decision. In other words,
Norway and Japan were exempt from the Prohibition of Commercial Whaling.
Nonetheless, Japan withdrew its appeal when they opened themselves to U.S.
pressure and tricks after bilateral negotiations began. The U.S. threatened
Japan, saying that they would apply commercial sanctions if Japan did not
abide by the Prohibition of Commercial Whaling, thereby making the issue
political rather than conservation of the environment. However, based upon
GATT of which both the U.S. and Japan are members, this is an illegal act.
According to GATT guidelines, a country cannot implement import restrictions
without conforming to strict legal procedures. Simply, it is a violation
of GATT to use sanctions as a leverage against Japan to force it to abide by
the Prohibition of Commercial Whaling.
Under these circumstances, Japan had couple of options they could have
explored. Let me name some measures: appeal their case in GATT, withdraw
their membership from the Whaling Treaty, present scientific evidence or
apply a voluntary commercial whaling regulation. In fact, Iceland did
withdraw its membership. Norway still continues to practice commercial
whaling even though it is still a member of the Whaling Treaty, refusing to
submit to U.S. pressure. These are the things I have recommended to Japan
over the years.
Yes, I understand the logic but what should Japan do to succeed in
bilateral and multilateral negotiations?
Boynton:First, it needs to train professionals and place them in
positions where they can be useful. I really do not know about the domestic
situation in Japan, but as politics and commercial activities become
increasingly globalized, there should not be any real differentiation
between international and domestic issues. In looking at the U.S.-Japan
trade friction, the U.S. government and the bar associations are more likely
to advocate for access to practice in Japan. To counterbalance this
situation, Japan needs to provide opportunities and train capable people to
fight on the same ground with foreign attorneys.
Moreover, it should provide opportunities to study law abroad in English.
After finishing school, they should gain practical experience at major law
firms. As a result, not only would they have knowledge of and practical
training in law, but at the same time, they would gain an opportunity to
master English. This is essential since the competition for Japanese
attorneys is not only American. In Asian countries, such as Singapore, Hong
Kong, and the Philippines, most lawyers can speak and write English. This
might be considered a form of imperialism, in which the Western judicial
system seems superior to others. Nonetheless, as long as the West is taking
the lead in legal matters, it is suicidal to fight against the West with
only the top 800 people passing the bar exam per year. Japan needs to know
that besides military and corporate fighters, lawyers are increasingly
becoming important pillars in negotiating international treaties and
business arrangements.
Interviewer's Remarks
In speaking to these three lawyers, it is apparent that they consider
judicial system to be the backbone of the U.S. Evidently, they also believe
that Pax-Americana could continue to rule the world, so to speak, although
most lawyers in the West have no interest in controlling the world or
competing against Japan. In most cases, they are just doing their job.
Under these circumstances, they are apprehensive about the Japanese
prospects to compete when the Western judiciary system is increasingly
becoming the norm of international negotiations.
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