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The Second Tuna GATT Panel Report

Published online by Cambridge University Press:  21 July 2009

Friedl Weiss
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Extract

Comparative advantage which motors free trade crucially depends on national differences in respect of endowment with resources – e.g. natural,human, technological – and with factors and standards of production, including standards on production processes. Yet, is it open to any GATT contracting party to unilaterally force its own standards upon others?Moreover, is it permissible for a contracting party to enforce such standards by means of ‘trade sanctions’ in the form of import prohibitions against another whose environmental standards regarding certain production processes it has judged inferior to its own? The answer is a resounding ‘yes’ from some exponents of the environmental constituency, arguing that values pertaining to global environmental welfare should prevail. Similarly, some members of the GATT constituency, particularly developing countries, emphatically reject what it they term ‘eco-imperialism’.Generally, their argument is that, in order to safeguard the welfare of world trade against disguised protectionist aberrations, governmental environmental measures must be justified under the general exceptions of GATT.

Keywords

dispute setdementenvironmental lawGATTtrade law.
Type
Current Legal Developments
Information
Leiden Journal of International Law , Volume 8 , Issue 1 , Spring 1995 , pp. 135 - 150
Copyright
Copyright © Foundation of the Leiden Journal of International Law 1995

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References

1. See Marine Mammal Protection Act of 1972 as amended, PL 92–522, 86 USC 1027 (hereinafter: the“Act”).

2. See S. 101 (a).

3. See Ss. 101(a.2) and 305(a.l) and (a.2).

4. See S. 101(a.2.c).

5. The harvesting nation must have adopted a regulatory program on the incidental taking of marine mammals that is comparable to that of the United States; the rate of incidental ‘taking’ must be comparable to that of US vessels; the vessels of the harvesting nation are required to observe quotas for the incidental ‘taking’ of specified species of dolphin; the rate of incidental ‘taking’ must be monitored by the Inter-American Tropical Tuna Commission;the harvesting nation must co-operate reasonably with the United States in specified research programs.

6. These commitments require a country to: ban harvesting tuna through purse seine nets deployed on, or to encircle, dolphins or other marine mammals, beginning 1 March 1994 for a period of five years; place an observer on each vessel engaging in purse seine fishing in the Eastern Tropical Pacific Ocean; reduce dolphin mortality resulting from purse seine net operations by its vessels by a statistically significant margin during a specified period of time.

7. See panel report United States - Import Restrictions and Labelling of Tuna From Mexico, circulated 3 September 1991, BISD 39S/155 (unadopted but derestricted); reproduced in 30 ILM 1594 (1991).

8. See para. F(f)6 of the 1989 Decision on Improvements to the GATT Dispute Settlement Rules and Procedures, BISD 36S/61.

9. See panel report United States - Restrictions on Imports of Tuna, unadopted and not yet published in BISD; reproduced in 33 ILM 839 (1994).

10. Para. 1 of Art. XI on General Elimination of Quantitative Restrictions states: “1. No prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licences or other measures, shall be instituted or maintained by any contracting party on the importation of any product of the territory of any other contracting party or on the exportation or sale for export of any product destined for the territory of any other contracting party”.

11. The Note reads: “[a]ny internal tax or other internal charge, or any law, regulation or requirement of the kind referred to in paragraph 1 which applies to an imported product and the like domestic productand is collected or enforced in the case of the imported product at the time or point of importation, is nevertheless to beregarded as an internal tax or other internal charge, or a law, regulation or requirement of the kind referred to in paragraph 1, and is accordingly subject to the provisions of Article III”.

12. Para. 1 of Art. Ill on National Treatment on Internal Taxation and Regulation states: “ 1.The contracting parties recognize that internal taxes and other internal charges, and laws,regulations and requirements affecting the internal sale, offering for sale, purchase,transportation, distribution or use of products, and internal quantitative regulations requiring the mixture, processing or use of products in specified amounts or proportions,should not be applied to imported or domestic products so as to afford protection to domestic production”.

13. Para. 4 reads: “4. The products of the territory of any contracting party imported into the territory of any other contracting party shall be accorded treatment no less favourable than that accorded to like productsof national origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation,distribution or use. The provisions of this paragraph shall not prevent the application of differential internal transportation charges which are based exclusively on the economic operation of the means of transport and not on the nationality of the product.”

14. Art. XX on General Exceptions provides: “[s]ubject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countrieswhere 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; […]; (d) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement,including those relating to customs enforcement, the enforcement of monopolies operated under paragraph 4 of Article II and Article XVII, the protection of patents, trade marks and copyrights, and the prevention of deceptive practices; (e) relating to the products of prison labour; […]; (g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption”.

15. See 1155 UNTS 331.

16. UN Doc. E/CONF. 2.

17. GATT Doc. L/6872.

18. BISD 39S/195, para. 5.150.

19. See panel reports Canada - Measures Affecting the Exports of Unprocessed Herring and Salmon, adopted 22 March 1988, BISD 35S/98; and United States - Prohibition of Imports of Tuna and Tuna Products From Canada, adopted 22 February 1982, BISD 29S/91. The panels thereby ignored the complainantś argument that these panels had no reason to decide that issue (para. 3.37).

20. Cf. Art. 32 of the 1969 Vienna Convention on the Law of Treaties.

21. See Robertson, A. & Demetriou, M., “But That Was in Another Country…”: The Extraterritorial Application of US Antitrust Laws in the US Supreme Court, 43 ICLQ 417–425 (1994).Google Scholar

22. BISD 35S/114, para. 4.6.

23. Para. 5.24.

24. In the panel report EEC – Value-Added Tax and Threshold, of 26 June 1984, adopted by the Committeeon Government Procurement on 16 May 1984, BISD 31S/247, the United States said that the EC's practice of excludingthe value-added tax (VAT) from the contract price of EC Member State government purchases in relation to the determination of whether such purchases fall under the Agreement “destroyed […] uniformity and thus impaired the Agreement's balance of rights and obligations” (para. 14); in the panel report EEC - Member Stateś ImportRegimes for Bananas, DS/32/R, submitted to the parties to the dispute on 19 May 1993, not yet adopted or publishedin BISD, it was pointed out that “the quantitative restrictions and other restrictions inconsistent with the General Agreement at issue in the present case had upset the balance of rights and obligations under the General Agreement” (para. 273).

25. BISD 39S/198, para. 5.25.

26. Panel report Thailand - Restrictions on Importation of and Internal Taxes on Cigarettes,DS10/R, adopted on 7 November 1990, BISD 37S/200, at 223 (para. 75).

27. 31 ILM 878 (1992).

28. See the as yet unadopted panel report United Sates - Taxes on Automobiles, which concluded, inter alia, that the Corporate Average Fuel Efficiency (CAFE) regulation, one of three US measures affecting imported automobiles challenged by the EC, was inconsistent with Art. 111(4), and could not be justified under Art. XX(g) or (d). Reproduced in 33 ILM 1397 (1994); See further Charnovitz, The GATT Panel Decision on Automobile Taxes, 17 International Environmental Reporter 921–925 (1994).

29. Para. 1 of the Preamble of the Agreement Establishing the World Trade Organization; the text of the WTO Agreement and the related multilateral trade agreements are reproduced in 33 ILM 1125 et seq. (1994).

30. Preamble of the Agreement on Agriculture, in id.

31. Para. 17 of the Agreement on Sanitary and Phytosanitary Measures, in id.

32. Arts. 2(10) and 5(7) of the Agreement on Technical Barriers to Trade, in id.

33. Art. 8(2.c) of the Agreement on Subsidies and Countervailing Measures, in id.

34. S. 13(2), in id.