GATT Tuna2 (TUNA2)
CASE NUMBER: 129
CASE MNEMONIC: TUNA2
CASE NAME: Tuna-Dolphin, 2nd Case
1. The Issue
The U.S. Marine Mammal Protection Act placed bans on imports
of tuna harvested by a method called purse seining which results
in killings of marine mammals in excess of U.S. standards. It
placed embargoes on countries such as Mexico to restrict imports from
countries that import tuna from Eastern Tropical Pacific and
export that tuna to the United States. It was in the first panel (GATT I)
that Mexico challenged the MMPA (see TUNA case).
GATT found that the United States violated Article XI of GATT,
by adopting quantitative restrictions on imports. The United States
in turn used GATT's Article III:4 as an instrument in arguing the
restrictions were internal regulations. This argument was
rejected by GATT I's panel on the grounds that Article III restrictions
were only to be applied to "products" and not "processes" by which
products were produced. Thus, the panel concluded that Article
III:4 was not relevant. Three years later the GATT Tuna-Dolphin
II case occurred, a separate panel from the first, and it came to
the same conclusion about Article III:4. GATT II decided the
embargoes were not helpful in furthering U.S. conservation objectives.
Also, these objectives could have been achieved only if the primary
exporter changed its policies and practices. France and the EC
were among the 34 countries who demanded that the GATT Council
adopt a dispute panel report condemning the U.S. legislation on
banning imports of "non-dolphin friendly tuna", or in other words
tuna caught with purse seine driftnets. They argued that "the
issue needs a multilateral base because if one nation enforces
strict regulations for protection of dolphins," then the actions
of all nations will be obstructed.
The tuna/dolphin controversy provides a useful and current
case study in the conflict between global free trade and
international environmental protection. Furthermore, there are
numerous laws in the United States and in other industrialized
countries which rely on trade measures to achieve environmental
objectives. Effective international agreements are not quickly
made, and in turn irreparable harm such as species loss may
occur. As for one of environment's most well known dilemmas; the
dolphin/tuna story, the reconciliation of global free trade goals
and international environmental protection are to be addressed.
Fishing induced dolphin mortality could be eliminated by
prohibiting the use of purse-seine gear in fishing for yellowfin
tuna associated with dolphins. There is little likelihood that
all the nations fishing in the Eastern Tropical Pacific Ocean (ETP)
would agree to the prohibition since purse-seining is the only
economically efficient means of gathering tuna. The act of
purse-seining begins where dolphin schools are encircled with mile long
nets that "purse" the fish, dolphins and other sea life by
drawing the cable attached to the net, thus gathering all the contents.
The animals become trapped and eventually drown. This technique
has incidentally killed over 6 million dolphins over the years
from the time of the first purse-seine net invention.
Different environmental regulations have mushroomed out of
this one problem. The main imposers of environmental improvement
have been by the MMPA (Marine Mammal Protection Act), the EPA
(Environmental Protection Agency), and GATT (General Agreement on
Tariffs and Trade), they have all worked diligently to reduce
dolphin mortalities. Deaths caused by US vessels are now reduced
to less than 1,000 annually due to the environmental eyes
watching. However, vessels flying foreign flags such as the Mexican one are
estimated to exceed 50,000 deaths per year.
In GATT I, Mexico challenged the US MMPA's restrictions on
fishing operations. The U.S. created standards so that other
countries seeking to export tuna harvested in the ETP to the US
have to adopt similar environmental programs as the US. Mexico
won the case in that the U.S. violated Article XI of GATT. The US
argued that the restrictions were internal regulations enforced
at the point of entry as permitted by Article III:4; nevertheless,
GATT I's panel put aside this argument aside on grounds that
Article III restrictions could only be applied to products and
not processes by which the product was produced.
This conclusion was reached in part by analogizing internal
regulations to internal taxes, which may also be applied at the
point of entry under Article III:2. This article noted that
taxes levied directly on products were eligible for border adjustments
(those taxes collected at the point of entry). On the other
hand, certain taxes not directly levied on products were not eligible
for border adjustment. The panel did not mention that there was
disagreement as to the eligibility of certain other taxes not
levied directly on products, including taxes on capital
equipment, energy, machinery, and transport. These taxes would seem to have
had provided a closer analogy as to regulations affecting
production processes of the tuna. Also, since regulating dolphin
mortality incidental to fishing operations does not affect the
final product, the panel concluded Article III:4 did not apply.
Next, the panel realized the US embargo was really a
quantitative restriction prohibited under Article XI. The panel for GATT I
concluded at that point that a country can only control the
production or consumption of a natural resource if the production
is within its own jurisdiction. This is a crucial issue taken
into GATT II's case as well.
Another issue raised in GATT I and relevant in GATT II was
Article XX sections b, d and g. The United States argued that
even if the restrictions placed on them were prohibited in other
provisions of GATT, the restrictions could be utilized as
exceptions to the general obligations of Article XX(b), (d), and
(g). Article XX states that "...subject to the requirement that
such measures are not applied in a manner which would constitute
a means of arbitrary or unjustifiable discrimination between
countries where the same conditions prevail, or a disguised
restriction on international trade, nothing in this agreement
shall be construed to prevent the adoption or enforcement by any
contracting party of measures". Section B enforces the
humanitarian rights of the matter saying, nothing shall prevent
the protection of humans, animals, health, etc.; Section D measures
the securement of compliance with laws which are consistent with
the provisions of the above agreement; Section G relates to the
conservation of exhaustible natural resources, in this case
dolphin, when dealing with restrictions of consumption and
production. From these laws, Panel 1 concluded that Article
XX(b) was not to be used extra-jurisdictionally. Furthermore, if the
extra-jurisdictionality rule was useful, the measures brought before
the panel were not "necessary" as in conjunction with Article XX.
Necessary according to GATT means that no GATT consistent
measures (the cooperation efforts of all countries to protect dolphins in
the process of tuna fishing) were available at the time.
In looking at the MMPA regulations, the panel found that the
US' measures were too unpredictable to be considered as
"necessary" to protect dolphins since the rate of Mexican dolphin takings as
compared to the US' were linked together. "Mexican authorities
could not know in advance whether they were in compliance with
the MMPA." Article XX(g) couldn't be applied extra-jurisdictionally
as well because the panel interpreted the rules as being taken in
"conjunction with restrictions on domestic production or
consumption to mean that they must be primarily aimed at
rendering "effective" those restrictions." A country can only control its
production/consumption only if it is under its jurisdiction.
Article XX(g) must not have been meant to have been applied
extra-jurisdictionally. In addition, the US measures did not meet
Article XX(g) requirements in that they relate to conservation of
the natural resource, dolphins. At the same time section D was
thrown out since the MMPA was clashing with GATT.
In June, 1992, the EEC (mainly France) requested GATT to
establish a dispute resolution panel to review US restriction
policies dealing with the import of tuna under the federal MMPA.
In 1994, the panel announced that the US embargo violated the
GATT prohibition of quantitative restrictions. The MMPA prohibits the
taking of marine mammals (dolphins) in the act of tuna fishing
where purse seine nets are used. This bar is inclusive of those
nations that import tuna from nations that do both
exporting/importing of tuna. In GATT II, the United States is
not entitled under GATT to use trade measures to force other
countries to adopt its own domestic policies, environmental or otherwise.
To satisfy the terms of the US law, it is not enough to kill
fewer dolphins, a country also has to adopt fishing methods which
conform to those used by US fishing fleets.
The latest panel report on GATT II relates to the secondary
tuna embargo, only this time the France has replaced Mexico. It
adopts somewhat of a different reasoning from GATT I. The three
man panel says GATT rules do not in principle disbar countries
from using trade measures to protect "the global commons" or
environmental resources outside their jurisdiction. The panel
argues that these measures have to be designed directly in order
to protect the resource in question, dolphins. Further, they do not
have to satisfy the criterion that no other more GATT consistent
measure is available. On both counts, it is saying that the US
embargo is a failure. The United States is in an appealing
position of undermining its own environmental protections, such
as its embargo on imports of tuna caught by methods that also kill
dolphins. "The US is shooting itself in the foot by attacking
EU's law." The US views it as "we have our obligations and the
European's have theirs". Article XX(g) was interpreted by the
second panel as such:
1. Article XX(g) must be invoked to further policies to
conserve exhaustible natural resources.
Utilizing the components of Article XX seen above, the panel
rejected the EEC's contention that dolphins are not an
exhaustible natural resource. The depletion of the stocks of dolphins are
not relevant at any given time. The main issue here is whether the
resource could be depleted, and they can be. Next, Article XX(g)
was reviewed. Panel 2 stated the article could be applied extra-
jurisdictionally and they also concluded that Article XX(g)
didn't support the protection of resources located within the territory
of the country invoking it. The article lacked limitation when it
came to the location of the living things being protected, i.e.
dolphins. Looking at Article XX(g) part 2, panel 2 added to
panel 1's decision in that under both the primary and intermediate
nation embargoes GATT's basic problem with the Marine Mammal Protection
Act, is that it requires other nations to change internal
policies. With the Mexican case, the United States insisted that Mexico was
to make the same calculations and adopt same solutions, or else
lose its opportunity to offer their tuna to American consumers.
Since then the tuna-dolphin case has since become a potent symbol
of friction between environmental and trade policies and of the
heat it can generate. GATT seems to have been bothered by the
broad brush of the U.S. measure:
2. "must be related to the conservation of exhaustible
natural resources and made effective in conjunction with
the restrictions on domestic production or consumption."
3. The measure can not be applied in a manner that
would constitute a means of arbitrary or unjustifiable
discrimination between countries where the same
conditions prevail, or a disguised restriction on
the tuna is embargoed simply on the basis of a country's
policies, regardless of whether an individual tuna may
have been caught without harming dolphins.
3. Related Cases
4. Draft Author: Diane McMahon
(1): Trade Product = FISH
(2): Bio-geography = OCEANS
(3): Environmental Problem = Species Loss Sea [SPLS]
B. LEGAL Cluster
5. Discourse and Status: DISagreement and INPROGress
Since the mammals involved in this case are universal
property and involve fishing vessels from all around the world,
cooperation is based on an international forum of countries.
6. Forum and Scope: GATT and MULTIlateral
7. Decision Breadth: 103
The GATT II Agreement demonstrated like the GATT I case that
trade measures used for environmental purposes face stiff
barriers from GATT panels and their rulings. In reality the GATT II
Tuna/Dolphin case could impact 103 members. However, the main
actors in this controversy are the United States and France.
8. Legal Standing: TREATY
The agreement is an executive agreement, and not a formal
treaty. GATT opened for signature in 1947 and was signed by 23
countries and went into force in 1948. The senate has never
formally approved the GATT or acted to implement it. Nevertheless,
it is often regarded as a binding treaty obligation by the United
States. Because of the limits of the international legal system-
particularly in the area of enforcement, many countries are both
unilaterally and multilaterally resorting to trade restrictions
as enforcement tools for environmental treaties and laws.
C. GEOGRAPHIC Cluster
9. Geographic Locations
a. Geographic Domain: PACIFIC
b. Geographic Site: Eastern Pacific [EPAC]
c. Geographic Impact: USA
10. Sub-National Factors: NO
11. Type of Habitat: OCEAN
D. TRADE Cluster
12. Type of Measure: Import Standard [IMSTD]
13. Direct vs. Indirect Impacts: DIRect
14. Relation of Trade Measure to Resource Impact
a. Directly Related: YES TUNA
15. Trade Product Identification: FISH
b. Indirectly Related: YES DOLPHin
c. Not Related: YES SHRIMP
d. Process Related: YES Species Loss Sea [SPLS]
Although tuna are freshly caught from ocean waters, the
market often takes 75 percent of the catch to be allotted as canned tuna
fish in its final form. Currently, the world's leading exporters
of tuna are Mexico and Venezuela followed by several European
16. Economic Data
One estimate is that is will cost $25 million for the cost
of adopting dolphin safe fishing techniques and refitting Mexican
and Foreign (Non-U.S.) tuna boats with dolphin safe nets. The output
of the Mexican fishing industry was $450 million (Mexico).
17. Impact of Measure on Trade Competitiveness: LOW
18. Industry Sector: FOOD
19. Exporters and Importers: USA and FRANCE
20. Environmental Problem Type: Species Loss Land [SPLL]
21. Name, Type, and Diversity of Species
Name: Delphinus Delphis (Common Dolphin), Baja Neritic (Common Whitebellies),
Lagenorhynchus Obliquidens (Pacific White Sided Dolphin)
22. Resource Impact and Effect: HIGH and Regulatory
23. Urgency and Lifetime: HIGH and 10-20 years
24. Substitutes: LIKE products
Dolphin safe tuna processors reveal on tuna cans: "this
product has utilized environmentally safe actions." At the
same time, the fishing industries can create tuna fish "like
products" that taste like tuna and are easier to catch and less
detrimental to the environment in the process.
F. OTHER Factors
25. Culture: NO
27. Rights: YES
The rights of the dolphins are clearly an issue.
Animal rights groups and environmental groups argue the dolphins
are victims of human behavior and industries, likewise, some may
go further to say tunas have rights too.
27. Trans-boundary Issues: NO
28. Relevant Literature
Cone, Marla. "US Lists Tropical Pacific Dolphin Species As
Depleted", Los Angeles Times, November 2, 1993, A3: 5.
Environment 35/9. November, 1993. 21-22
Ferguson, Tim. "One Entangling Edible in the GATT Fight", The
Wall Street Journal, November, 23, 1993, A17.
Goldberg, Donald. "GATT Tuna/Dolphin II: Environmental
Protection Continues to Clash with Free Trade." Center
for International Environmental Law 2. Washington, DC.
June, 1994, 1-6
Joseph, James. International Management of Tuna, Porpoise and
Billfish. University of Washington Press, Seattle, 1979.
Mayer, Don. "International Environmental Protection and the
GATT: The Tuna/Dolphin Controversy", American Business
Law Journal 31. September, 1993. 187-244
Noah, Timothy. "Tuna Boycott is Ruled Illegal by GATT Panel",
Wall Street Journal, May 23, 1994. A3:6
Parrish, Michael. "Judge Grants Ban On Imports in Dolphin-Safe
Tuna Case." Los Angeles Times. January 14, 1992. D2:4.
Robberson, Tod. "In Mexico, A Tempest Over Tuna", Washington
Post, January 8, 1993, A12.
Stammer, Larry. "White House Urges End to Ban on Mexican Tuna,"
Los Angeles Times, March 5, 1992, A3:1
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