GATTS Tuna - Dolphin Disputes

Often regarded as emblematic of the trade-environment debate, the two General Agreement on Tariffs and Trade (GATT) Tuna-Dolphin Disputes (1991 Tuna-Dolphin I and 1994 Tuna-Dolphin II) were the first to test the legitimacy of using environmentally-unfavourable foreign process and production methods (PPMs) as justification for trade restrictions. The disputes came at a time when trade and environment issues were lurking in the wings of the GATT. Tuna-Dolphin I revolved around a US primary embargo on Mexican tuna caught using purse-seine nets that incidentally trapped a high number of dolphins, while Tuna-Dolphin II centred on a secondary US embargo against countries who re-exported tuna from nations under the US primary embargo. In great part due to the impact of the Tuna-Dolpin cases, the GATT Working Group on Environmental Measures and International Trade — dormant since its inception in 1971 — was reactivated a few months after the first Tuna-Dolphin decision in 1992. Due to the partisan nature of the issues involved in the cases, a three-way divergence of views has developed that has characterised analysis of the disputes. As a result, the readings below tend to fall within either the “environment,” “development,” or “trade” approaches, though environmentalists have proven to be the most prolific writers. “Where an author is coming from” should be borne in mind when reading these articles, as should the date of each publication due to both the 1995 change from GATT to the WTO and whether or not Tuna Dolphin II had been decided. Because of the similarities between the Tuna-Dolphin and Shrimp-Turtle cases, this list should be read in conjunction with that of the latter dispute (Recommended Readings Vol. 1 No. 10).

United States — Restrictions on Imports of Tuna: Reports of the Panel (Tuna-Dolphin I and II)

General Agreement on Tariffs and Trade

These two documents are the GATT dispute settlement panel reports on the two Tuna-Dolphin cases, released on 3 September 1991 and 20 May 1994, respectively. Tuna-Dolphin I was initiated by Mexico pursuant to the United States’ primary embargo on Mexican tuna, while Tuna-Dolphin II was the result of a complaint by the European Union and the Netherlands against the United States’ secondary trade embargo. They represent the first time a GATT panel has ruled on the legitimacy of “process and production methods” as justification for imposing import restrictions. Though the U.S. lost both cases, neither were adopted by the GATT General Council.

Tuna-Dolphin I: 1991. 51pp. DS21/R, Geneva: GATT

Tuna-Dolphin II: 1994. 63 pp. DS29/R, Geneva: GATT

The Tuna-Dolphin Controversy in the Eastern Pacific Ocean: Biological, Economic, and Political Impacts

James Joseph

As Director the the Inter-American Tropical Tuna Commission, James Joseph has produced a pro-environmental and scientifically-based account of the Tuna-Dolphin controversy. The article steers clear of extensive legal analysis of the Tuna-Dolphin disputes within the GATT, instead focusing on how fishing, regional/US policy, and the GATT decisions have affected the tuna fishery and dolphin mortality. The article is an excellent resource for those looking to find extensive historical and scientific background on the state of the tuna fishery in the Eastern Pacific, and includes a number of illustrative tables and graphs.

1994. Ocean Development and International Law, Volume 25, pp. 1 - 30.

The Tuna-Dolphin Controversy, The World Trade Organization, and the Liberal Project to Reconceptualize International Law

Benedict Kingsbury

Kingsbury’s article broaches the Tuna-Dolphin cases from an international relations perspective weighted towards a pro-environment stance. The GATT controversies are used as a case study which Kinsgbury uses “to explore some of the implications of globalization and liberalism for evolving conceptions of the international legal system.” The author pursues this objective by applying five GATT principles to Tuna-Dolphin adjudication. This article would be best for those interested in how the Tuna-Dolphin decisions fit in with the inherent tension between global trade/environment regimes and sovereign states, rather than for readers seeking background factual information on the cases themselves.

1994. Yearbook of International Environmental Law, Volume 5, pp.1 - 40.

Fisheries Conservation and Trade Rules: Ensuring that Trade Law Promotes Sustainable Fisheries

David R. Downes and Brennan Van Dyke

This report by two environmental organisations attempts to resolve the question of how societies in developed and developing countries can effectively achieve both environmental and trade goals. Though the authors argue that countries must retain the power to impose trade measures to protect marine living resources, their ability to do so must be carefully limited according to rules that prohibit protectionist measures. The article discusses a wide range of trade and sustainable development issue areas, focusing on fisheries topics such as Tuna-Dolphin, ecolabelling, standardisation, and a number of multilateral environmental agreements regulating marine con-servation.

1998. 61 pp. Washington: Report by Greenpeace and the Centre for International Environmental Law.

The GATT, U.S. Law and the Environment: A Proposal to Amend the GATT in Light of the Tuna/Dolphin Decision

Matthew Hurlock

Using the Tuna-Dolphin I dispute as a case study, Matthew Hurlock’s work is a thorough, legally-based analysis of the clash between US environmental policy approaches and the GATT. This is an ideal source for readers interested in exploring the US position and international legal context surrounding the first dispute. Coming from an overtly environmental perspective, Hurlock provides an in-depth discussion of the GATT exceptions pertaining to the environment under Article XX. He concludes that the first Tuna-Dolphin decision “makes clear the need to amend the GATT to make it responsive to the relationship between environmental protection and economic development.”

1992. Columbia Law Review, Volume 92, Number 8, pp. 2098 - 2161.

The Tuna/Dolphin Controversy: Can the GATT Become Environment-Friendly?

Stephen J. Porter

As the title suggests, this article seeks to find ways to use trade sanctions in order to advance legitimate environmental goals. It draws out the particulars of the first Tuna-Dolphin controversy, provides historical context, outlines both the Mexican and American positions, and reviews and criticises the panel report itself. Like other articles in this series, Porter’s work approaches the Tuna-Dolphin controversy from both a legal and environmental background. His informed analysis takes account of the relevance of the trade regime’s constraints on panel processes, and proposes that the GATT integrate scientific expertise into dispute settlement to assist in determining whether trade barriers serve valid environmental purposes.

1992. Georgetown International Environmental Law Review, Volume V, pp. 91 - 116.

Green Protectionism: Does the End Justify the Means?

Cristina Hernández

Adding an important development-oriented perspective to the first Tuna-Dolphin decision, Cristina Hernández highlights some of the characteristics of the problem of “green protectionism”. A substantial portion of her paper is dedicated to discussing environmental arguments which risk being used by protectionist commercial interests. She uses the first Tuna-Dolphin dispute as a case study to illustrate how the environment can be harnessed by protectionist interests to forward their own causes, concluding that international cooperation in these matters is the preferred solution.

1993. Striking a Green Deal: Europe’s Role in Environment and South-North Trade Relations, EDRC and InterEdit S. A., pp. 9 - 16.

In the Wake of Tuna II: New Possibilities for GATT-Compliant Environmental Standards

Paul J. Yechout

In a comprehensive and concise manner, Paul Yechout outlines the history surrounding both Tuna-Dolphin disputes and provides a summary of panel proceedings and outcomes for each case. Yechout’s somewhat environmental, legally-based article is ideal for those wishing to uncover some of the more factual aspects of both cases. He draws attention to how the ruling on the second Tuna-Dolphin case could be seen to have eliminated a substantial barrier to reconciling the goals of trade and environmental protection in the GATT by acknowledging dolphin conservation as a legitimate objective to conserve an exhaustible natural resource.

1996. Minnesota Journal of Global Trade, Volume 5, pp. 247 - 275.

GATT and the Environment in Conflict: The Tuna-Dolphin Dispute and the Quest for an International Conservation Strategy

Thomas E. Skilton

Skilton’s article examines the implications of the Tuna-Dolphin I GATT Panel Report for US environmental policy and proposes an international conservation strategy that would reflect the Panel’s concerns and be consistent with the GATT. Approaching the dispute from a legal-policy perspective, this note provides readers with clear explanations of the history, process, and repercussions surrounding the GATT panel decision. The author concludes that Tuna-Dolphin I illustrates a serious shortcoming in the GATT dispute settlement system, placing Skilton clearly in the environmental camp.

1993. Cornell International Law Journal, Vol. 26, pp. 455 - 494.

Institutional Misfits: the GATT, the ICJ and Trade-Environment Disputes

Jeffrey L. Dunoff

This article provides a well-argued account of the need to transfer trade-environment disputes (like Tuna-Dolphin) to an institution separate from the GATT/WTO that can advance both economic development and environmental protection. The author recognises the tendency of the trade regime to subordinate environmental interests to trade interests when the two come into conflict, and discusses the viability of other adjudicatory options such as the International Court of Justice. An excellent source for those interested in the intersection between the international trade and environmental regimes.

1994. Michigan Journal of International Law, Vol 15, pp. 1043 - 1128.