UNITED STATES - RESTRICTIONS ON IMPORTS OF TUNA
Panel Report 1991
The Panel noted that the issues before it arose essentially from the
following facts: the Marine
Mammal Protection Act (MMPA) regulates, inter alia, the harvesting of
tuna by United States fishermen
and others who are operating within the jurisdiction of the United
States. The MMPA requires that
such
fishermen use certain fishing techniques to reduce the taking of
dolphin incidental to the harvesting of
fish. The United States
authorities have licensed fishing of yellowfin tuna by United States vessels in
the ETP on the condition that the domestic fleet not exceed an
incidental taking of 20,500 dolphins per
year in the ETP.
The MMPA also requires that the United States Government ban the
importation of commercial fish or products from fish caught with commercial
fishing technology which results in the incidental killing or incidental
serious injury of ocean mammals in excess of United States standards. Under United States customs law, fish
caught by a vessel registered in a country is deemed to originate in that
country.
. . .
Under the MMPA, the United States currently prohibits importation into
its customs territory of yellowfin tuna and yellowfin tuna products from Mexico
which were caught with purse-seine nets in the ETP.
. . .
The Panel concluded . . . that the Note Ad Article III covers only
those measures that are applied to the product as such. The Panel noted that the MMPA regulates
the domestic harvesting of yellowfin tuna to reduce the incidental taking of
dolphin, but that these
regulations could not be regarded as being applied to tuna products as
such because they would not directly regulate the sale of tuna and could not
possibly affect tuna as a product.
Therefore, the Panel found that the import prohibition on certain
yellowfin tuna and certain yellowfin tuna products of Mexico and the provisions
of the MMPA under which it is imposed did not constitute internal regulations
covered by the Note Ad Article III.
5.15 The Panel further concluded that, even if the provisions of the
MMPA enforcing the tuna
harvesting regulations (in particular those providing for the seizure
of cargo as a penalty for violation of
the Act) were regarded as regulating the sale of tuna as a product, the
United States import prohibition
would not meet the requirements of Article III. As pointed out in paragraph 5.12 above,
Article III:4
calls for a comparison of the treatment of imported tuna as a product
with that of domestic tuna as a
product. Regulations
governing the taking of dolphins incidental to the taking of tuna could not
possibly
affect tuna as a product.
Article III:4 therefore obliges the United States to accord treatment to
Mexican
tuna no less favourable than that accorded to United States tuna,
whether or not the incidental taking of
dolphins by Mexican vessels corresponds to that of United States
vessels.
. . .
. . .
5.23 The Panel proceeded to examine whether Article XX(b) or Article
XX(g) could justify the MMPA provisions on imports of certain yellowfin tuna
and yellowfin tuna products, and the import ban imposed under these
provisions. The Panel noted that
Article XX provides 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 ...
(b) necessary to protect human, animal or plant life or health; ...
(g) relating to the conservation of exhaustible natural resources if
such measures are made effec-
tive in conjunction with restrictions on domestic production or
consumption; ...".
The Panel noted that the United States considered the prohibition of
imports of certain yellowfin
tuna and certain yellowfin tuna products from Mexico, and the provisions
of the MMPA on which this
prohibition is based, to be justified by Article XX(b) because they
served solely the purpose of protecting dolphin life and health and were
"necessary" within the meaning of that provision because, in respect
of the protection of dolphin life and health outside its jurisdiction, there
was no alternative measure reasonably available to the United States to achieve
this objective. Mexico considered
that Article XX(b) was not applicable to a measure imposed to protect the life
or health of animals outside the jurisdiction of the contracting party taking
it and that the import prohibition imposed by the United States was not
necessary because alternative means consistent with the General Agreement were available
to it to protect dolphin lives or health, namely international co-operation
between the countries concerned.
The Panel noted that the basic question raised by these arguments,
namely whether Article XX(b) covers measures necessary to protect human, animal
or plant life or health outside the jurisdiction of the contracting party
taking the measure, is not clearly answered by the text of that provision. It refers to life and health protection
generally without expressly limiting that protection to the jurisdiction of the
contracting party concerned. The
Panel therefore decided to analyze this issue in the light of the drafting
history of Article XX(b), the purpose of this provision, and the consequences
that the interpretations proposed by the parties would have for the operation
of the General Agreement as a whole.
. . .
Thus, the record indicates that the concerns of the drafters of Article
XX(b) focused on the use of sanitary measures to safeguard life or health of humans,
animals or plants within the jurisdiction of the importing country.
. . .
The Panel considered that if the broad interpretation of Article XX(b)
suggested by the United States were accepted, each contracting party could
unilaterally
determine the life or health protection policies from which other
contracting parties could not deviate
without jeopardizing their rights under the General Agreement. The General
Agreement would then no
longer constitute a multilateral framework for trade among all
contracting parties but would provide
legal security only in respect of trade between a limited number of
contracting parties with identical
internal regulations.
The Panel considered that the United States' measures, even if Article
XX(b) were interpreted to
permit extrajurisdictional
protection of life and health, would not meet the requirement of necessity set
out in that provision. The
United States had not demonstrated to the Panel - as required of the party
invoking an Article XX exception - that it had exhausted all options
reasonably available to it to pursue
its dolphin protection objectives through measures consistent with the
General Agreement, in particular
through the negotiation of international cooperative arrangements,
which would seem to be desirable in
view of the fact that dolphins roam the waters of many states and the
high seas. Moreover, even
assuming that an import prohibition were the only resort reasonably
available to the United States, the
particular measure chosen by the United States could in the Panel's
view not be considered to be necessary within the meaning of Article
XX(b). The United States linked
the maximum incidental dolphin taking rate which Mexico had to meet during a
particular period in order to be able to export tuna to the United States to
the taking rate actually recorded for United States fishermen during the same period. Consequently, the Mexican authorities
could not know whether, at a given point of time, their policies conformed to
the United States' dolphin protection standards. The Panel considered that a limitation on trade based on
such unpredictable conditions could not be regarded as necessary to protect the
health or life of dolphins.
On the basis of the above considerations, the Panel found that the
United States' direct import
prohibition imposed on certain yellowfin tuna and certain yellowfin
tuna products of Mexico and the
provisions of the MMPA under which it is imposed could not be justified
under the exception in Article
XX(b).
The Panel proceeded to examine whether the prohibition on imports of
certain yellowfin tuna and certain yellowfin tuna products from Mexico and the
MMPA provisions under which it was imposed could be justified under the
exception in Article XX(g). The
Panel noted that the United States, in invoking Article XX(g) with respect to
its direct import prohibition under the MMPA, had argued that the measures
taken under the MMPA are measures primarily aimed at the conservation of
dolphin, and that the import restrictions on certain tuna and tuna products
under the MMPA are "primarily aimed at
rendering effective restrictions on domestic production or
consumption" of dolphin. The
Panel also
noted that Mexico had argued that the United States measures were not
justified under the exception in
Article XX(g) because, inter alia, this provision could not be applied
extrajurisdictionally.
5.31 The Panel noted that Article XX(g) required that the measures
relating to the conservation of
exhaustible natural resources be taken "in conjunction with
restrictions on domestic production or
consumption". A
previous panel had found that a measure could only be considered to have been
taken
"in conjunction with" production restrictions "if it was
primarily aimed at rendering effective these
restrictions".44 A
country can effectively control the production or consumption of an exhaustible
natural resource only to the extent that the production or consumption
is under its jurisdiction. This
suggests that Article XX(g) was intended to permit contracting parties
to take trade measures primarily
aimed at rendering effective restrictions on production or consumption
within their jurisdiction.
5.32 The Panel further noted that Article XX(g) allows each contracting
party to adopt its own conservation policies. The conditions set out in Article XX(g) which limit resort
to this exception, namely that the measures taken must be related to the
conservation of exhaustible natural resources, and that they not
"constitute a means of arbitrary or unjustifiable discrimination ... or a
disguised restriction on international trade" refer to the trade measure
requiring justification under Article XX(g), not however to the conservation
policies adopted by the contracting party. The Panel considered that if the extrajurisdictional
interpretation of Article XX(g) suggested by the United States were accepted,
each
contracting party could unilaterally determine the conservation
policies from which other contracting
parties could not deviate without jeopardizing their rights under the
General Agreement. The consider-
ations that led the Panel to reject an extrajurisdictional application
of Article XX(b) therefore apply also to Article XX(g).
. . .
On the basis of the above considerations, the Panel found that the
United States direct import
prohibition on certain yellowfin tuna and certain yellowfin tuna
products of Mexico directly imported
from Mexico, and the provisions of the MMPA under which it is imposed,
could not be justified under
Article XX(g).