A WTO DISPUTE
From A to Z:
US – Tuna
Dolphin
The Tuna - Dolphins Case:
Brief Background


In the eastern tropical Pacific Ocean, schools of
Yellowfin tuna often swim below herds of dolphin.
Tuna fishermen were therefore using the dolphins
to locate tuna, where they would then encircle
both tuna and dolphins with purse seine nets to
capture the tuna.
This resulted in the intentional killing and injury of
many dolphins hence international efforts to reduce
dolphin mortality, initiated and urged by USA.
The Measure in Issue:
The US Marine Mammal Protection Act of
1972 which prohibited any person under USA
jurisdiction from the taking, harassing, hunting,
capturing, or killing of any marine mammal whether
directly or incidentally in connection with the harvesting of
fish.
The Act also prohibited the importation into the
United States of any marine mammal or marine
mammal product and any fish or fish product
harvested through the incidental killing of marine
mammals.
Specific Aspects of the Measure
in Issue:
1.



The Primary Nation Embargo. (Section 101 (a) (2) and
Section 305 (a) (1) and (2) of the Act.)
which prohibited the importation into USA of any commercial fish
or fish products harvested by a method that resulted in the
incidental killing or injury of marine mammals in excess of USA
standards. (Para 2.9)
These standards were deemed not exceeded if the exporting
country provided evidence that it had a comparable regulatory
program and rate of incidental taking.
The primary nation embargo did not also apply if a country entered
into a formal agreement with USA containing certain specified
commitments. (Para 2.11).
Specific Aspects of the Measure in
Issue - Continued:
2.
The Intermediary Nation Embargo.
(Section 101 (a) (2) (C) of the Act)


which prohibited the importation into USA by any
country of tuna that was imported from countries that
maintained tuna harvesting practices and policies that
were subject to the direct ban. (Para 2.12)
Such an intermediary nation was to prove that it had
not imported such products within 6 months.
The Tuna - Dolphins Case:
Basic Elements
Parties
Complainant
 EEC
 The Netherlands
Respondent
 USA
Third Parties
 Australia, Canada, Costa Rica,
Japan, New Zealand, Thailand,
Venezuela
Timeline
Consultations


Requested by the EEC – 11 March
1992
Requested by The Netherlands –
3 July 1992
Panel





Requested by EEC: 5 June 1992
Established:14 July 1992
Composed: 25 Aug 1992
Panel notification of inability to
complete work within time limit 1 Oct 1993.
Report circulated: 20 May 1994
The Tuna - Dolphins Case:
Summary of Parties’ Claims
EEC and Netherlands
 The Primary nation embargo
and the Intermediary nation
embargo were contrary to
Article XI.


Were not border adjustments
under Article III.


Were not covered by the
Article XX Exceptions. (Para
3.1)

USA
The Intermediary nation
embargo was consistent with
Article XX (g), (b) and (d).
The Primary nation embargo
did not nullify or impair any
benefits accruing to the EEC or
the Netherlands since it did not
and could not apply to the EEC
and Netherlands.
The Primary nation embargo
was consistent with Article XX
(b) and (g). (Para 3.2)
Arguments in Support of Parties’
Claims - Article III and XI
EEC and Netherlands



The embargoes though not applied
to exports of tuna from their
territories could be examined under
GATT. (Para 3.15)
The embargoes were not justifiable
as measures relating to the
enforcement at the time of
importation of an internal law that
applied equally to the imported
product and the like domestic
product under the terms of the Note
ad Article III. (Para 3.4)
The measures constituted a
quantitative restriction prohibited
under Article XI:1. (Para 3.3)
USA



The primary nation embargo could not
be examined under GATT because it
did not affect the trade of the EEC and
the Netherlands. (Para 3.16)
The US said that the EC and
Netherlands bore the burden of
proving that the measure was
inconsistent with GATT. (Para 3.6)
The US measures were applied at the
border and therefore should not be
examined under national treatment
provisions of Article III. (Para 3.6)
Panel Findings – Article III
On determining whether the embargoes, though applied at the border should
be examined under the national treatment provisions of Article III, the panel
observed that a Note to Article III extends the scope of Article III to domestic
measures enforced at the time or point in time of importation. (Para 5.8)
The Note however was not applicable because Article III calls for a
comparison of treatment between domestic and imported like products and not
a comparison of policies or practices of the country of origin with those of the
country of importation. The Note could only apply to the enforcement at the
point of importation of those laws that were applied to the imported and
domestic products considered as products. It could not apply to policies or
practices that could not affect the product as such. (Para 5.8)
The Note to Article III was therefore not applicable because the US measure
was concerned with harvesting / importing policies and not the treatment of
the product. (Para 5.9)
Panel Findings – Article XI: 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.”
The panel found that the embargoes were inconsistent
with Article XI:1 because they were “prohibitions or
restrictions” in terms of Article XI, since they banned the
import of tuna or tuna products from any country not
meeting certain policy conditions. ( Para 5.10).
Arguments in Support of
Parties’ Claims - Article XX (g)
EEC and Netherlands


The USA measures were not
primarily aimed at
conservation of an
exhaustible natural resource
and were not taken in
conjunction with domestic
restrictions on production
and consumption. (Paras
3.53, 3.58)
Article XX (g) could not be
invoked for natural resources
located outside the
jurisdiction of the party
taking the measure. (Para
3.15)
USA



Both embargoes were justified
under XX (g) as measures
relating to conservation of
dolphins, an exhaustible
natural resource. (Para 3.49)
There was no requirement
that such resources had to be
in the domestic jurisdiction of
the country imposing the
measure. (Para 3.16)
Measures met the requirement
of the preamble to Article XX.
(Para 3.7)
Panel Findings – Article XX (g)
1.
The embargoes were not justified by Article XX (g). (Para 5.11).
2.
Article XX (g) suggests a 3 step analysis. (Para 5.12)


Policy should fall within the range of policies to conserve exhaustible
natural resources. The policy to conserve dolphins was one to conserve
an exhaustible natural resource. (Para 5.13).
Measure should be “related to” the conservation of an exhaustible
natural resource and should be made effective “in conjunction” with
restrictions on domestic production or consumption. The embargoes
were aimed at changing other countries’ policies so as to effect the
conservation. The embargoes could not by themselves further USA
conservation objectives – were not primarily related to conservation, but
to changing policies that would lead to conservation. (Para 5.23)
Panel Findings – Article XX (g)
Continued

Measure must be applied in conformity with the
preamble to Article XX – that is, not in a manner that
constitutes a means of arbitrary or unjustifiable
discrimination. Since an essential condition of Article XX
(g) had not been met, this requirement was not inquired
into. (Para 5.27)
3.There is no limitation on the location of the exhaustible
natural resource to be conserved. It can be outside the
conserving country’s jurisdiction.
Arguments in Support of
Parties’ Claims - Article XX (b)
EEC and Netherlands



The animals whose life and health
was to be protected had to be within
the jurisdiction of country taking
measure. (Para 5.28)
The intermediary nation embargo
did not meet the “necessary” test as
required under Article XX (b)
because USA had not demonstrated
that it had exhausted all reasonable
measures available to it to pursue its
dolphin conservation policy in
international waters through means
compatible with GATT. (Para 3.75)
USA measures were not within
meaning of Article XX (b). (Para
3.71)
USA



The embargoes were “necessary” to
protect the life and health of
dolphins. (Para 3.64) USA interpreted
“necessary” to mean the measure
was “needed” to protect such life or
health. USA argued that it had
exhausted all other options before
taking the measures in issue. (Para
3.69)
There is no requirement that such
animals have to be within jurisdiction
of conserving country. (Para 5.28)
Measures met requirement to Article
XX. (Para 3.60)
Panel Findings – Article XX (b)
1.
The embargoes were not justifiable under Article XX (b).
2.
The text of Article XX (b) suggests a 3 step analysis: (Para 5.29)

The measure should be to protect human, animal or plant life or health.
The USA measure fell within this requirement.


The measure is “necessary” to protect human, animal or plant life or
health. The term “necessary” meant that no alternative existed. The USA
measure was taken so as to force other countries to change their policies
and could only be effective only if such changes occurred. Could not be
considered necessary for the protection of animal life or health. (Para
5.39)
The measure was applied in a manner consistent with the preamble to
Article XX, namely, it not be applied in a manner that constitutes a
means of arbitrary or unjustifiable discrimination. Since an essential
condition of Article XX (g) had not been met, this requirement was not
inquired into.
Arguments in Support of Parties’
Claims - Article XX (d)
EEC and Netherlands
The primary nation embargo was
inconsistent with GATT, thus
could not serve as the basis for
an invocation of Article XX (d).
(Para 3.80)
USA
The intermediary nation embargo
was necessary to secure
compliance with the primary
nation embargo. (Para 3.78)
Panel Findings – Article XX (d)
The panel found that the measures taken
under the primary embargo were
inconsistent with Article IX:1 GATT. As
such, the primary nation embargo could
not serve as a basis for justification of the
intermediary nation embargo. (Para 5.41)
CONCLUSIONS
1.



Environmental Aspect
The panel noted that the question in issue was not the validity of the
environmental objectives pursued by USA but whether in pursuit of its
environmental objectives, USA could impose trade embargoes to secure
changes in the policies pursued by other contracting parties pursued in
their jurisdictions. (Para 5.42)
The panel therefore had to resolve whether the Contracting Parties by
agreeing to give each other in Article XX the right to take trade measures
necessary to protect the health and life of plants, animals and persons or
aimed at the conservation of exhaustible natural resources, had agreed
to accord each other the right to impose trade embargoes for such
purposes.
The Panel examined this issue in light of the recognized methods of
interpretation and found that none of them lent support to the view that
such an argument was reflected in Article XX.
Conclusions Continued
2. General Conclusion
The primary nation embargo and the
intermediary nation embargo did not meet
the requirements of the Note ad Article
III, were contrary to Article XI:1, and
were not covered by the exceptions in
Article XX (b), (g) or (d) of GATT. (Para
6.1)