"The tuna test." (tuna-dolphin dispute)

(March/April 1992)

In an investigation of the looming conflict between environmental and trade laws, we reported on what has come to be known as the "tuna-dolphin" dispute. The dispute began when the United States imposed an embargo against tuna From Mexico because Mexican fishing boats were killing more dolphins as a byproduct of their efforts to net tuna than they (or U.S. tuna boats) are allowed by the U.S. Marine Mammal Protection Act (MMPA). In September 1991, a dispute resolution panel of the General Agreement on Tariffs and Trade (GATT) ruled tha the embargo, in turn, violated the GATT.

As we noted, this ruling provoked an uproar among environmentalists, since the panel members' expansive reading of GATT rules suggested that a number of national environmental laws and even some international treaties were at odds with GATT rules because they use trade restrictions to protect the global commons. The ruling prompted a heated international debate on the proper role o trade sanctions in environmental policymaking, and created growing pressure Fro environmentalists to "green the GATT." [See "GATT: Global Menace or Potential Ally?" (September/October 1993).]

After Mexico decided against pushing for formal adoption of the panel ruling at GATT in order not to antagonize the United States in the midst of negotiations over the North American Free Trade Agreement, the European Union decided to get in on the act. Several European countries are also prohibited by the MMPA From selling tuna in the United States under provisions of the law that aim to prevent blacklisted countries from simply laundering dolphin-deadly tuna throug other nations. The Europeans disapprove of the MMPA trade provisions, as well a of other U.S. laws that unilaterally impose trade restrictions for environmenta purposes, partially because they view them as part of a more general, deeply-resented, U.S. inclination to "go it alone" in trade matters. Thus, when Mexico failed to press the point at GATT, the EU stepped in to call for the convening of a panel to examine the disputed provisions of the MMPA.

In late May, after many months of deliberations, this second panel issued its report. Unlike the earlier panel, it concluded that there were some circumstances in which countries might be justified in using trade measures to encourage environmental protection beyond their borders. But in terms of the bottom line, the panel reached the same basic conclusion--that key provisions o the U.S. Marine Mammal Protection Act are GATT-illegal.

Now, as the U.S. Congress debates ratification of the Uruguay Round of GATT negotiations, environmentalists are pointing out that the implications of the "Tuna 2" ruling would be far graver if Uruguay Round rules were now in effect. (The agreement is expected to enter into force in early 1995--assuming it is ratified by a sufficient number of countries by then.) Under current GATT rules unanimity is required to adopt panel reports, meaning that the United States retains the option of blocking adoption of the "Tuna 2" report when it is considered by the GATT Council. Under Uruguay Round rules, however, adoption of panel reports will be automatic. Furthermore, under the new rules GATT will hav real teeth, with legally-sanctioned trade retaliation a likely consequence in cases where offending countries refuse to change their laws to bring them in line with panel findings.

The outcome of the protracted tuna-dolphin conflict remains far from clear. The Clinton Administration has expressed its displeasure with the ruling, and its intention to protest the decision on substantive and procedural grounds at the GATT Council. U.S. Trade Representative Mickey Kantor plans to press for the case to be retried through a more open process in which non-governmental groups have full access to information and the right to make arguments of their own. However, the Clinton Administration is keeping silent about whether or not it will block adoption of the panel report should these diplomatic efforts fail. Unfortunately, the United States had little success in persuading other GATT member-countries of the merits of procedural reforms during the Uruguay Round negotiations last year, and there thus seems little reason to expect that Kantor's arguments will prevail this time around.

As with the earlier tuna-dolphin ruling, the findings of the latest report underscore the urgent need to update GATT rules so that they encourage, rather than undermine, efforts to protect the earth's deteriorating natural resource base.