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GATT AND THE PROTECTION OF THE GLOBAL COMMONS: IMPLICATION OF THE TUNA-DOLPHIN I, II CASES
By Sakda Phanitcul
2. THE REPORT OF THE PANEL(21)
The Tuna- Dolphin case arose because the US. Marine Mammal Protection Act,(22) enacted in 1972, required the US. government to reduce the incidental killing of marine mammal by commercial fishermen.(23) In addition to imposing limits on US. fishermen, the MMPA require the Secretary of Commerce either to certify that foreign governments were taking steps to prevent the killing of marine mammals or else to ban the importation of tuna products from the offending countries.(24)
In 1988, believing that dolphins in the eastern tropical Pacific Ocean, when tuna swim together with dolphins, were being killed by fishermen in violation of this law, a California environmental group, Earth Island Institute, brought the action to enforce the congressional mamdate.(25) The federal court agreed that the administration was not upholding the law and ordered Mexican tuna imports banned from the United States.(26) Mexico, believing that its GATT-guaranteed right to export tuna products to the United States had been violated, challenged the U.S. embargo and requested for a GATT dispute settlement panel to adjudicate the matter.(27)
A. Article XI(1) or Article III(4)
The principle Mexican argument against the US. boycott was that it was not consistent with Article XI(1) of the GATT.(28) Article XI(1) prohibits nations from imposing quantitative restrictions (quota) or quantitative prohibitions on imports (ban).(29) Such trade restrictions are inconsistent with the GATT objectives.(30)
The United States took the position that the appropriate provision was not Article XI(1) but the national treatment obligation, Article III(4), which allows countries to impose internal regulations on imported products provided that the regulation does not discriminate between foreign and domestic products, and is not applied in a manner affording protection to domestic production.(31) The essence of the American argument was that dolphin-taking standards on Tuna fishing were internal measures applied to both the American and foreign fishing industry equally, and thus, met the requirement of national treatment in Article III (4).(32) The fact that the regulation had an effect at the border was argued as not being fatal to the US. position that the embargo was an internal measure because of the interpretative note to Article III (Note Ad Article III).(33) Based upon these GATT provisions, the US. claimed that the direct import embargo constituted at the border enforcement of the Marine Mammal Protection Act (MMPA) requirement that all tuna from the eastern tropical Pacific Ocean be harvested in the appropriate dolphin friendly manner.(34) The GATT Panel noted that the MMPA did not regulate the tuna itself, nor did it regulate the sale of tuna but went to the manner in which the tuna was caught.
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(21) See United States Restrictions in Imports of Tuna, Report of the GATT Panel, August 16, 1991, reprinted in 30 International Law Material 1594 (1991) [hereinafter U.S. Mexico GATT Panel].
(22) Marine Mammal Protection Act of 1972 (MMPA), Public Law Number 92-252, Section 101 (a) (2), 86 Stat. 1027, 1030, (codified at 16 U.S.C. Section 1371 (a) (2) (1988)).
(23) Esty, supra note 8, at 30.
(25) Earth Island v. Mosbacher, 764 F. Supp.964.
(26) Esty, supra note 8 ,at30.
(29) GATT Article XI(1) states: "No prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licenses or other measures, shall be instituted or maintained by any contracting party on the importation of any product of the territory of any other contacting party or on the exportation or sale for export of any product destined for the territory of any other contracting party." See General Agreement on Tariff and Trade, 55 U.N.T.S. 194, reprinted in John Jackson and William Davey, 1989 Documents Supplement to LEGAL PROBLEMS OF INTERNATIONAL ECONOMIC RELATIONS, Second Edition, 1-67. [hereinafter GATT].
(30) John H. Jackson, WORLD TRADE .A\D THE LAW OF GATT, at 305-16.
(31) US.-Mexico GATT Panel, supra note 21, at 1602-04.
(32) GATT Article III(1) states: "The contracting parties recognize that internal taxes and other internal charges, and laws, regulations and requirements affecting the internal sale, offering for sale, purchase, transportation, distribution or use of products, and internal quantitative regulations requiring the mixture, processing or use of products in specified amounts or proportions, should not be applied to imported or domestic products so as to afford protection to domestic production."
GATT Article III(4) states: "The products of the territory of any contracting party imported into the territory of any other contracting party shall be accorded treatment no less favourable than that accorded to like products (emphasis added) of national origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distridution or use. The provisions of this paragraph shall not prevent the application of differential internal transportation charges which are based exclusively on the economic operation of the means of transport and not on the nationality of the product." See GATT, supra note 29, at 7, Ted L. McDorman, The 1991 U.S.-Mexico GATT Panel Report on Tina and Dolphin: Implications for Trade And Environment Conflicts. North Carolina Journal of International Law & Commercial Regulation, Volume 17, Summer 1992, Number 3, at 466-67.(33) GATT Note Ad Article III states: "Any internal tax or other internal charge, or any law, regulation or requirement of the kind referred to in paragraph i which applies to an imported product and to the like domestic product and is collected or enforced in the case of the imported product at the time or point of importation, is nevertheless to be regarded as an internal tax or other internal charge, or a law, regulation or requirement of the kind referred to in paragraph 1, and is accordingly subject to the provisions of Article III." See GATT, supra note 29, at 54.