MARINE MAMMAL COMMISSION — Annual Report for 1991 



less favorably that tuna caught by the U.S. fleet. The 

 panel found that Article HI was not applicable in this 

 instance because the trade measure was not applied to 

 tuna as a product, but rather to the method of produc- 

 tion. Having found that Article m did not apply, the 

 panel determined that the Act's embargo provision 

 violated General Agreement Article XI, which prohib- 

 its quantitative restrictions on imports. 



The panel then considered arguments made by the 

 United States that the embargo provision fits within 

 exceptions under Article XX(b) and XX(g) that allow 

 contracting parties to adopt trade measures "necessary 

 to protect human, animal or plant life or health" or 

 "relating to the conservation of exhaustible natural 

 resources if such measures are made effective in 

 conjunction with restrictions on domestic production 

 or consumption. " The panel found that Article XX(b) 

 did not apply to measures taken to protect the life or 

 health of animals beyond the jurisdiction of the 

 country applying the measures. Similarly, the panel 

 found that the Article XX(g) exception did not apply 

 extrajurisdictionally. To interpret the provision more 

 broadly, the panel stated, would allow contracting 

 parties to dictate unilaterally the environmental 

 policies from which other countries could not deviate 

 without jeopardizing their rights under the General 

 Agreement. 



The panel also determined that, even if the Article 

 XX exceptions could be applied extrajurisdictionally, 

 they would not be available in the case of the tuna 

 embargoes. In the panel's view, the United States had 

 not demonstrated that the embargoes were "necessary" 

 within the meaning of Article XX(b) or "primarily 

 aimed at conservation" within the meaning of Article 

 XX(g) because there had been no showing that other, 

 less restrictive means of addressing the tuna-porpoise 

 problem, such as international agreements, were 

 unavailable. 



authorizes, but does not require, trade measures 

 inconsistent with the General Agreement is not itself 

 in conflict with the General Agreement. The tuna 

 labeling requirements of the Dolphin Protection 

 Consumer Information Act were determined to be 

 consistent with the General Agreement. 



Under GATT procedures, a panel decision does not 

 become effective until it has been adopted unanimous- 

 ly by the GATT Council. That is, one nation can 

 block adoption of the decision. Shortly after release 

 of the panel's decision, 62 members of the U.S. 

 Senate wrote to the President asking that the United 

 States block adoption. Pending further bilateral 

 negotiations, Mexico and the United States agreed not 

 to have the panel decision considered by the GATT 

 Council. Unless and until the Council has adopted the 

 decision, the United States is not technically in 

 violation of the General Agreement and is under no 

 obligation to bring its domestic law into conformance 

 with the General Agreement. 



Several nations have expressed concern about the 

 panel's decision and are reviewing potential conflicts 

 between international trade policies and environmental 

 objectives. A GATT working party on trade and the 

 environment has been reconstituted to study whether 

 multilateral agreements may be used as a basis for 

 invoking the Article XX(b) and XX(g) exceptions 

 extrajurisdictionally. 



Using identical reasoning, the panel also found the 

 intermediary nation embargo provision of the Marine 

 Mammal Protection Act to be inconsistent with the 

 General Agreement. The Pelly Amendment provi- 

 sions were found not to be inconsistent with the 

 General Agreement. While indicating that trade 

 sanctions imposed under the Pelly Amendment would 

 likely be found inconsistent with the General Agree- 

 ment, the panel stated that a statutory provision that 



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