Tuna-Dolphin GATT Case (I and II)

This is due to the tendency of these dolphins to swim above schools of yellowfin tuna which occurs in the Eastern Tropical Pacific (ETP) Ocean.

Dolphin casualties in the ETP Ocean have led to the initial ban on tuna imports from Mexico which have been harvested using this controversial purse-seine fishing technique.

[1] The controversy and initial ban by United States on tuna imports from Mexico was based on the "taking" prohibition in the MMPA (Marine Mammal Protection Act of 1972).

The MMPA requires a general prohibition on "taking" and importation into the United States of marine mammals including (harassment, hunting, killing, capture, or any attempts thereof) unless explicitly authorized.

Under Section 101(a)(2)(B) of MMPA there are special prerequisites for determining average incidental taking rates as comparable to those subjected of the United States commercial fleets.

[2] On August 28, 1990, pursuant to court orders, the US government imposes embargo on yellowfin tuna imports harvested with purse-sein netting in the Eastern Tropical Pacific Ocean.

Article III refers to the National treatment provision and the fact that countries must apply tariffs equally to similar products of all other contracting parties.

Although the intention of the embargo is to bring to light the externalities of dolphin casualties due to the purse-seine harvesting techniques, the issue of PPMs is that the process is irrelevant if the product is the same.

The issue with Article XX is that even while it may be valid, it cannot be applied outside the jurisdiction of the United States, hence making the argument in the favor of Mexico.

[2] The outcome of this challenge fell in the favor of Mexico however these findings were not adopted formally due to the upcoming NAFTA negotiations, however the argument was revisited in the Dolphin Tuna II case in 1992.

[2] The GATT Tuna-Dolphin II case was brought against the United States by the European Economic Community (EEC) and the Netherlands in June 1992, who claimed that the U.S. did not have the right to place embargoes on intermediary nations.

"[4] The United States rebutted by claiming that nowhere in Article XX (g), was there any mention of the resource needing conservation having to be within the jurisdictional territory of the country enforcing the measure.

The United States also claimed that its embargo measures were in fact taken in conjunction with restrictions on domestic production and consumption, and that they met the requirement of the preamble to Article XX.

They also agreed with the EEC and the Netherlands on the fact that Article III's purpose only pertains to the conditions for treatment comparisons between domestic and importing countries' like products, not their policies and practices.

Like the United States, they too, could not find any content with the GATT that alluded to the exhaustible resource needing conservation or protection, having to be within the jurisdictional territory of the country enforcing the measure.

Furthermore, the panel felt that banning tuna from primary and intermediary nations, regardless of whether their practices harmed or killed dolphins, but rather based on the fact of whether their practices were comparable to that of the United States, made it seem as if the United States was forcing primary and intermediary nations to adopt its fishing policies; this clearly was never the purpose of the GATT.

to the Marine Mammal Protection Act (MMPA) of 1972 which would support the International Dolphin Conservation Program and management of tuna in the Eastern Tropical Pacific Ocean.

[6] Findings by Congress have shown that nations fishing for tuna in the ETP have achieved significant reductions in dolphin mortality by participating countries.

This Act lifts the ban on imports from countries that are participating in the IDCP, and reductions have shown to be of great significance from hundreds of thousands of dolphin fatalities, to that of only 5,000 annually.

Lastly, the term "dolphin-safe" has been modified to mean no dolphin mortalities occurred, instead of banning tuna caught through the use of purse-seine nets.

[9] One of the requirements of the IDCPA was that the National Oceanic and Atmospheric Administration (NOAA) carry out three studies to determine whether dolphins were being harmed by the tuna fisheries.

The district court ruled in favor of Earth Island, stating in the end that Final Finding was "arbitrary and capricious," based on the fact that (1) NMFS did not carry out the studies required by the MMPA, (2) considering the best available evidence, the agency's "no adverse impact" finding was implausible, and (3) the court found there to be evidence of "political meddling."

Starting 2008, Mexico raised complaints with the World Trade Organization's (WTO) about United States import restrictions and use of dolphin safe labeling on Tuna products.

[12] Mexico argued, that US conditions for "dolphin-safe" labeling were "discriminatory and unnecessary," and that they violated Articles 2.1, 2.2, and 2.4 of the Technical Barriers to Trade (TBT).

For Article 2.4, however, the panel did agree with Mexico that the United States dolphin-safe labeling measures were more trade restrictive than necessary to achieve their objectives.