GD/239
United States - Restrictions on Imports of Tuna
Other titles
US Tuna (Mexico) (Source: GATT Analytical Index)
Products at Issue
| Products at issue |
Tuna
|
| Type of product |
Non-agricultural
|
| Product sub-type |
Fish and fish products
|
Related disputes
| GATT | |
| WTO |
Key legal aspects
| Legal basis |
|
| Claims raised |
|
| Defences raised |
|
Adjudicators
| Type | Panel |
| Chairperson | András Szepesi (Hungary) |
| Other members | Rudolf Ramsauer (Switzerland), Elbio Rosselli (Uruguay) |
| No of Pages (total / legal reasoning) | 51 |
|
|
|
|
|
|
Timeline
| Request for consultations |
|
| Request for establishment | |
| Establishment | |
| Composition | |
| Report |
Outcome
| Outcome of the proceedings |
Report issued
|
| Additional Info | C/M/246 (23/11/1990) Minutes of Council Meeting (07/11/1990) Mexico informed that it had formally requested consultations on 05/11/1990C/M/255 (10/04/1992) Minutes of Council Meeting (18/03/1992) Given the uncertainties with regards to Panel Report DS21/R [not yet adopted] the EEC had requested consultations (DS29/1 11/03/1992). US working on legislative proposals. DS21/R (16/08/1991) United States - Restrictions on Imports of Tuna - Report of the Panel: The Panel found the Note Ad Article III covered only those measures that were applied to the product as such. The Marine Mammal Protection Act (MMPA) regulated the domestic harvesting of yellowfin tuna to reduce the incidental taking of dolphins but could not be regarded as being applied to tuna products as such because it would not directly regulate the sale of tuna and could not possibly affect tuna as a product. Therefore, the Panel found that the import prohibition on certain yellowfin tuna and certain yellowfin tuna products of Mexico and the provisions of the MMPA under which it was imposed did not constitute internal regulations covered by the Note Ad Article III. The Panel further concluded that, even if the provisions of the MMPA enforcing the tuna harvesting regulations (in particular those providing for the seizure of cargo as a penalty for violation of the Act) were regarded as regulating the sale of tuna as a product, insofar as Article III:4 called for a comparison of the treatment of imported tuna as a product with that of domestic tuna as a product, regulations governing the taking of dolphins incidental to the taking of tuna could not possibly affect tuna as a product. The Panel further found that the direct import prohibition on certain yellowfin tuna and certain yellowfin tuna products from Mexico and the provisions of the MMPA under which it was imposed were inconsistent with Article XI:1. With respect to Article XX(b), the Panel found that the concerns of the drafters had focused on the use of sanitary measures to safeguard life or health of humans, animals or plants within the jurisdiction of the importing country. Moreover, even if Article XX(b) were interpreted to permit extra-jurisdictional protection of life and health, the US measures would not meet the requirement of necessity because the US had not demonstrated that it had exhausted all options reasonably available to it to pursue its dolphin protection objectives through measures consistent with the General Agreement, in particular through the negotiation of international cooperative arrangements, which would seem to be desirable in view of the fact that dolphins roam the waters of many states and the high seas. Furthermore, the particular measure chosen by the United States could not be considered to be necessary within the meaning of Article XX(b), given that the US had linked the maximum incidental dolphin taking rate which Mexico had to meet during a particular period in order to be able to export tuna to the United States to the taking rate actually recorded for United States fishermen during the same period. Consequently, the Mexican authorities could not know whether, at a given point of time, their policies conformed to the US dolphin protection standards. With regard to Article XX(g), the Panel considered that, if its extra-jurisdictional interpretation were accepted, each contracting party could unilaterally determine the conservation policies from which other contracting parties could not deviate without jeopardizing their rights under the General Agreement. In any event, the Panel recalled that the measure linked the maximum incidental dolphin-taking rate which Mexico had to meet to the taking rate actually recorded for US fishermen during the same period. The Panel considered that a limitation on trade based on such unpredictable conditions could not be regarded as being primarily aimed at the conservation of dolphins. The Panel further noted that the MMPA required that the US authorities implement a prohibition on imports of yellowfin tuna and yellowfin tuna products from "intermediary nations", and that the United States was refusing entry to yellowfin tuna unless the importer declared that no yellowfin tuna or yellowfin tuna product in the shipment were harvested with purse-seine nets in the ETP by vessels of Mexico. The Panel found that these measures and the provisions of the MMPA mandating such an embargo were import restrictions or prohibitions inconsistent with Article XI:1. The Panel recalled its findings with regard to the consistency of the direct embargo with Articles XX(b) and XX(g), and found that the same considerations applied to the "intermediary nations" embargo. Regarding Article XX(d), the Panel noted that the United States had argued that the "intermediary nations" embargo was necessary to support the direct embargo because countries whose exports were subject to such an embargo should not be able to nullify the embargo's effect by exporting to the United States indirectly through third countries. The Panel found that, given its finding that the direct embargo was inconsistent with the General Agreement, the "intermediary nations" embargo and the provisions of the MMPA under which it was imposed could not be justified under Article XX(d) as a measure to secure compliance with "laws or regulations not inconsistent with the provisions of this Agreement". With regard to the labelling provisions of the Dolphin Protection Consumer Information Act (DPCIA), the Panel noted that the title of Article IX is "Marks of Origin" and its text refers to marking of origin of imported products; moreover, Article IX did not contain a national-treatment but only a most-favoured-nation requirement, which indicated that the provision was intended to regulate marking of origin of imported products but not marking of products generally. Therefore, the labelling provisions of the DPCIA did not fall under Article IX:1. Finally, with regard to Article I:1, the Panel noted that the harvesting of tuna by intentionally encircling dolphins with purse-seine nets was practiced only in the Eastern Tropical Pacific (ETP) because of the particular nature of the association between dolphins and tuna observed only in that area. Insofar as, under US customs law, the country of origin of fish was determined by the country of registry of the vessel that had caught the fish and not the geographical area where the fish was caught, the labelling regulations governing tuna caught in the ETP applied to all countries whose vessels fished in this geographical area and thus did not distinguish between products originating in Mexico and products originating in other countries. The Panel found for these reasons that the tuna products labelling provisions of the DPCIA relating to tuna caught in the ETP were not inconsistent with Article I:1 of the General Agreement. C/M/256 (29/05/1992) Minutes of Council Meeting (30/04/1992) CP supported adoption of Panel Report DS21/R, US working on legislative proposals. C/M/257 (10/07/1992) Minutes of Council Meeting (19/06/1992) US working on legislation regarding Panel Report DS21/R. EEC formally requested the establishment of a panel (DS29/2), US not in a position to agree to the request at the meeting. Venezuela hoped the US would be in a position to allow adoption of the Panel Report DS21/R at the next Council meeting. |