MARINE MAMMAL COMMISSION — Annual Report for 1992 
merely to demonstrate that it does not import, or has 
discontinued importing, tuna subject to a primary 
embargo. Rather, the intermediary nation must show 
that it has acted to prohibit the importation of the 
offending tuna and tuna products. 
The Federal Government filed a notice of appeal in 
the case on 25 February 1992. The Government 
subsequently set forth three grounds for its appeal. 
First, it argued that the district court lacked jurisdic- 
tion over plaintiffs claims for imposition of an 
embargo against intermediary nations. The Govern- 
ment contended that exclusive jurisdiction over such 
claims rests with the Court of International Trade. 
Second, the Government asserted that the district 
court erred in concluding that the scope of the second- 
ary embargoes applicable to intermediary nations is 
broader than the primary embargoes upon which they 
are based. Third, defendants claimed that the district 
court misconstrued the provisions of the Marine 
Mammal Protection Act when it ruled that intermedi- 
ary nations that do not import any yellowfin tuna or 
tuna products from embargoed nations are subject to 
the secondary embargo unless they formally acted to 
prohibit such imports. 
A stay of the appeal was requested by the parties 
on 31 July 1992 when it appeared that Congress might 
adopt amendments to the Marine Mammal Protection 
Act that could make the appeal moot. A stay was 
granted and subsequently extended to enable the 
parties to pursue settlement discussions in light of the 
enactment of the International Dolphin Conservation 
Act of 1992. At the end of 1992 the stay remained in 
effect and the parties were trying to settle the case. 
General Agreement on Tariffs and Trade 
The General Agreement on Tariffs and Trade 
(GATT) is an international agreement that sets forth 
limitations on the use of international trade restric- 
tions, such as taxes, duties, quotas, or unnecessarily 
restrictive standards. The agreement was originally 
drafted in 1947 and currently has more than 100 
contracting parties, including the United States. 
Trade disputes that may arise between contracting 
parties are settled either by consultations between the 
parties, or if consultations prove unsuccessful, by 
referral to a formal dispute panel. 
112 
On 5 November 1990 Mexico requested consulta- 
tions with the United States concerning the imposition 
of tuna import restrictions under the Marine Mammal 
Protection Act. When those consultations failed to 
resolve the dispute, Mexico requested that a panel be 
established under the General Agreement. Mexico 
asserted that the Marine Mammal Protection Act’s 
embargo provisions were inconsistent with the General 
Agreement. It also challenged the possible broaden- 
ing of trade sanctions under the Pelly Amendment, the 
intermediary nation embargoes, and the tuna labeling 
provisions of the Dolphin Protection Consumer 
Information Act. 
The panel delivered its decision to the GATT 
contracting parties on 3 September 1991. The panel 
found the U.S. embargo of Mexican tuna to be 
inconsistent with the General Agreement. The panel 
rejected the U.S. position that the embargo was 
consistent with General Agreement Article III because 
the Marine Mammal Protection Act constituted an 
internal measure that treated foreign-caught tuna no 
less favorably that tuna caught by the U.S. fleet. The 
panel found that Article III 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 III 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 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. 
