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GATT AND THE PROTECTION OF THE GLOBAL COMMONS: IMPLICATION OF THE TUNA-DOLPHIN I, II CASES
By Sakda Phanitcul
B. Article XX (b) - Protection of Animal Life
The United States posited that its import embargo on Mexican tuna was justified under Article XX (b)(45) because the embargo served the purpose of protecting dolphin life and health and was "necessary" because the measure adopted was the only one reasonably available to protect dolphin life and health outside US. Jurisdiction.(46) In reviewing the Article XX general exceptions, the Panel noted that previous panels placed the burden of showing compliance with the exceptions upon the party seeking their advantage and concluded that the exceptions were to be read narrowly.(47) The Panel noted that Article XX was "a limited and conditional exception" to the GATT obligations and that Article XX did not establish positive obligation of parties.(48) Given this background, the Panel proceeded to examine the central aspect of the US. argument with respect to the applicability of Article XX (b): whether it could be used to protect the life and health of animals outside (emphasis added) the United States.(49)
The Panel concluded that Article XX (b) would not justify trade embargo for the purpose of protecting the health and life of animals outside the jurisdiction of the country imposing the embargo.(50) The Panel conceded that nothing explicit in the wording of Article XX (b) provided this answer,(51) but when turning to the drafting history of the exception, the Panel found that the concern of the drafters was with the "life or health of humans, animals or plants within the jurisdiction (emphasis added) of the importing country."(52) More importantly, the Panel concluded that if one country could dictate to others the health, safety and conservation laws that must be followed in order to conduct trade, then trade could take place only between states with identical internal regulations.(53)
(45) GATT Article XX (b) states: "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 adaption or enforcement by any contracting party of measures:
(b) necessary to protect human, animal or plant life or health;" GATT, supra note 29, at 32-3.
(46) U.S.-Mexico GATT Panel, supra note 21, at 1606.
(47) Id., at 1619. See Canada - Administration of the Foreign Investment Review Act (1984), 30 GATT BISD Supp. 140, 164; United - Section 337 of the Tariff Act of 1930, 36 GATT BISD Supp. 393. McDorman noted that in neither case was the reliance on the Article XX exception successful. McDorman, supra note 32, at 53.
McGovern criticized the Panel of going too far by taking the intention of the United States into consideration, however, he generally agreed win the Panel that Article XX exceptions should be interpreted narrowly. He noted: "It is well established that the exception are to be construed narrowly, and that the onus lies on party invoking an exception (a) that the measure should in fact tend to achieve the objective mentioned in the exception, (b) that the measure should involve the minimum derogation (emphasis added) from the relevant rules and principles, and (c) that the derogation should not be disproportionate to the goal being pursued. See McGovern, supra note 44 at 13.11-3.
(48) U.S.-Mexico GATT Panel, supra note 21, at 1619.
(49) Id., at 1619-20.
(50) Id., at 1620.
(51) Id., at 1619-20.
(52) Id., at 1620. For a contrary view of the drafting history and the meaning to he given Article XX (b) and (g) with respect to extraterritorial application, see Steve Charnovitz, Exploring the Environmental Exceptions in GATT Article XX, Journal of World Trade Law, October 1991, at 37, 52-3 and by the same author, GATT and the Environment: Examining the Issues, 4 International Environmental Affairs 203 (1992). [hereinafter Charnovitz (1992)] Charnovitz argued that trade treaties (before GATT was established - authors) have provided exceptions for the protection of humans, animals and plants since the late 19th Century. He further argued that there was ample indication that these exceptions were understood as applying to extraterritorial laws, for example, in the International Convention for the Abolition of Import and Export Prohibitions and Restrictions (of 1927) includes measures to preserve animals and plants from "degeneration or extinction." Stone also noted that as far back as 1911 the United States, Great Britain, Russia and Japan had reached agreement on the Preservation and Protection of Fur Seals in the North Pacific and Arctic region, otherwise the unmanaged commons were especially susceptible to abuse. See Christer Stone, THE Gnat IS OLDER THAN MAN: GLOBAL ENVIRONMENT, Princeton University Press, 1993, at 91. However, Jackson made comments on Charnovitz's articles with respect to the drafting history of GATT that: "while Chamovitz's view is interesting, and the research is apparently thorough, it is not entirely persuative and overlooks important issues of treaty interpretation." See John H. Jackson, supra note 17 at 1241.
(53) U.S.-Mexico GATT Panel, supra note 21, at 1620. For a contrary view, see Trebilcock and Howse, supra note 4, at 347. Trebilcock and Howse argued that by imposing such embargo on Mexican tuna, the United States did not dictate to Mexico how it should protect its own environment. First, the United States was not aiming to dictate to Mexico how it should regulate a purely domestic environmental problem. The measure was aimed at the preservation of dolphins as species surviving in the world's oceans, i.e., of the global environmental commons. Second, the American legislation was not interfering with any specific obligations or rights assigned to Mexican fishermen under Mexican law. Despite the adoption of extraterritoriality language of the Panel, the American dolphin protection measures did not impose any obligations on Mexican fishermen that were in actual conflict with environmental laws or policies of the Mexican government.