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GATT AND THE PROTECTION OF THE GLOBAL COMMONS: IMPLICATION OF THE TUNA-DOLPHIN I, II CASES
By Sakda Phanitcul
C. Article XX (g)--Conservation of Scarce Natural Resources
As an alternative to Article XX (b), the United States sought to justify its import prohibition under Article XX (g), arguing that the embargo on tuna was primarily aimed at the conservation of dolphin and that the import embargo was primarily aimed at rendering effective the restrictions existing in the United States on the production and consumption of tuna.(54) The Panel noted that Article XX (g) required that an import embargo had to be utilized in conjunction with restrictions on domestic production or consumption and that any embargo had to be "primarily aimed at" rendering the domestic restrictions effective.
D. The "Dolphin Safe" Labeling Provision
Mexico posited that the labeling provision of the United States Dolphin Protection Consumer Information Act (DPCIA)(55) were inconsistent with GATT Article IX (1) which requires an importing country to treat like products in the same manner respecting marking requirements.(56) In the alternative, Mexico argued that the labeling provisions were inconsistent with Article I (1), the MFN clause, because Mexican tuna was discriminated against since it originated from the eastern tropical Pacific Ocean.(57) The Panel quickly dismissed the Mexican argument that the "Dolphin Safe" labeling provision of the DPCIA was inconsistent with GATT Article IX (1) by nothing that the GATT obligation related only to labeling regarding the origin of the product and not to labeling regarding the product generally.(58)
The Mexican argument that the labeling provision was inconsistent with Article I (1) was also dismissed. The Panel took the view that the key question was whether "the right of access to the label" met the non-discriminatory principles of most-favored-nation.(59) The Panel focused upon this issue since the labeling provision was voluntary in that tuna products could be sold with out the "Dolphin Safe" label, and that no benefit was obtained from the government by having or not having the "Dolphin Safe" label affixed to the products.(60) The Panel noted that any advantage which might possibly result from access to this label depends on the free choice of consumers to give preference to tuna carry the "Dolphin Safe" label.(61)
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(54) U.S.-Mexico GATT Panel, supra note 21, at 1607.
(55) Dolphin Protection Consumer Information Act (DPCIA), 16 U.S.C. Section 1385 (Supp. 11 1990).
(56) GATT Article IX (1) states: "Each contracting party shall accord to the products of the territories of other contracting parties treatment with regard to marking requirements no less favourable than the treatment accorded to like products of any third country" (emphasis added) GATT, supra note 29, at 13.
(57) GATT Article I (1) states: "With respect to customs duties and charges of any kind imposed on or in connection with importation or exportation or imposed on the internatioal transfer of payments for imports or exports, and with respect to all rules and formalities in connection with importation and exportation, and with respect to all matters referred to in paragraph 2 and 4 of Article III, any advantage, favour, priviledge or immunity granted by any contracting party any product originating in or destined for any other country shall be accorded immediatly and unconditionally to the like products originating in or destined for the territories of all other contracting parties." (emphasis added) GATT, supra. note 29, at 3.
(58) See U.S.-Mexico GATT Panel,.supra note 21, at 1622 and Mcdorman, supra note 32, at 472.
(61) Id., at 1622. The decision of the Panel on the issue of labeling was welcome by environmentalist community. Esty noted: "In almost all circumstances, labeling offers a useful "default" trade restriction because it permits product to be sold but giving consumers information about possible environmental harms related to the product. Therefore, it strikes a useful balance between trade and environmental goals in many situations where the appropriateness of more severe restrictions is uncertain. Labeling can, in fact, be a powerful tool for environmental policy advances. The use of labels therefore provides a valuable approach to some of the more troubling trade and environmental disputes. See Esty, supra note 3, at 134.