Chapter IV — Marine Mammal-Fisheries Interactions 
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 “neces- 
sary” within the meaning of Article XX(b) or “pri- 
marily 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- 
dolphin problem, such as international agreements, 
were unavailable. 
Using identical reasoning, the panel 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 
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 of Representatives. 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 consid- 
ered by the GATT Council. Unless and until the 
Council adopts the decision, the United States is under 
no obligation to bring its domestic law into confor- 
mance with the General Agreement. 
During 1992 Mexico and the United States contin- 
ued negotiations to resolve the dispute over the tuna 
embargoes without further proceedings under the 
General Agreement. As such, the panel’s decision has 
yet to be adopted. 
113 
A separate challenge to the tuna embargo provi- 
sions of the Marine Mammal Protection Act was filed 
under the GATT in 1992 by the European Community 
and The Netherlands on behalf of the Netherlands 
Antilles. The European Community requested the 
formation of a GATT panel to consider the secondary 
tuna embargo provisions of the Act. On 14 July 1992 
the GATT Council granted that request. Proceedings 
in the matter were suspended following passage of the 
International Dolphin Conservation Act to enable the 
parties to pursue further consultations. Those consul- 
tations failed to resolve the dispute and the European 
Community and The Netherlands indicated in Decem- 
ber that they intend to file brief with the GATT panel 
early in 1993. 
The Bering Sea and 
Gulf of Alaska Ecosystems 
Since the mid-1970s there have been alarming 
declines in populations of northern fur seals, Steller 
sea lions, harbor seals, and four species of fish-eating 
seabirds in certain parts of the Bering Sea and Gulf of 
Alaska. The cause or causes of the declines are not 
clear. Possibilities include entanglement in lost and 
discarded fishing gear; incidental take in driftnet, 
trawl, and other fisheries; decreased food availability 
due to harvesting of pollock or other finfish and/or 
due to environmental changes affecting the distribu- 
tion, abundance, or productivity of pollock or other 
important prey species; naturally occurring diseases; 
intentional shooting; and environmental pollution. 
In December 1990 the Commission and the Nation- 
al Marine Fisheries Service jointly sponsored a 
workshop to (1) identify critical uncertainties concern- 
ing the causes of and the possible relationships among 
the observed population declines; (2) identify the 
research that would be required to resolve the uncer- 
tainties; and (3) determine how to improve research 
planning and resource management in both the Bering 
Sea and the Gulf of Alaska. The workshop report 
(see Appendix B, Swartzman and Hofman 1991) was 
forwarded to the National Marine Fisheries Service, 
the Fish and Wildlife Service, and the National 
Science Foundation on 25 July 1991. 
