## Facts

- The United States enacted the Marine Mammal Protection Act (MMPA), which set standards for catching yellowfin tuna in parts of the Pacific Ocean to reduce incidental dolphin deaths associated with certain fishing methods.
- The MMPA tied access to the U.S. market to whether the exporting country could certify that its tuna fleet’s dolphin-protection measures and resulting dolphin mortality levels were comparable to those required of U.S. vessels.
- The U.S. scheme included a “primary” embargo barring imports of tuna and tuna products from countries that did not meet the U.S. comparability and mortality requirements for tuna fishing in the Eastern Tropical Pacific.
- The scheme also included a “secondary” embargo aimed at tuna and tuna products exported from intermediary countries if those products were made from tuna harvested in a country subject to the primary embargo.
- Mexico challenged these restrictions under the General Agreement on Tariffs and Trade (GATT), arguing that the United States could not use trade restrictions to apply its domestic environmental rules to fishing activity occurring in other countries’ waters.
- Mexico requested GATT consultations and then sought a panel under GATT dispute settlement procedures; the panel circulated its report in 1991, and it was not adopted by the GATT Council.
- The dispute also addressed U.S. “dolphin-safe” labeling provisions, which were separate from the import prohibitions.

## Issues

1. Whether the U.S. primary and secondary tuna embargoes were prohibited quantitative restrictions inconsistent with GATT Article XI:1.
2. If the embargoes violated Article XI:1, whether they were justified under GATT Article XX(b) as “necessary” to protect animal life or health (dolphins).
3. If the embargoes violated Article XI:1, whether they were justified under GATT Article XX(g) as measures relating to conservation of an exhaustible natural resource and made effective in conjunction with domestic restrictions.
4. Whether a GATT member may condition import access on another member’s fishing methods and regulatory program where the imported tuna is physically the same product.
5. Whether U.S. “dolphin-safe” labeling rules, as presented to the panel, breached GATT obligations.

## Decision

- The panel found the U.S. import prohibitions operated as quantitative restrictions and were inconsistent with GATT Article XI:1.
- The panel rejected justification under Article XX(b), concluding the embargoes were not shown to be “necessary,” including because the United States had options that could protect dolphins with less restriction on trade, such as seeking cooperative arrangements.
- The panel also reasoned that Article XX(b) does not permit a member to condition market access on another member adopting, or administering, a particular policy or regulatory program within its own jurisdiction.
- The panel rejected justification under Article XX(g), finding that the measures were structured to control fishing conduct outside U.S. jurisdiction through import bans, rather than to conserve through trade measures applied in a manner consistent with Article XX(g)’s requirements.
- The panel treated the secondary embargo as part of the same restriction scheme and likewise found it inconsistent with GATT disciplines.
- On the “dolphin-safe” labeling issue, the panel viewed the labeling approach before it as voluntary and did not find, on the record presented, that it amounted to a GATT violation.
- The report was circulated but not adopted.

## Legal Principles

- GATT Article XI:1 prohibits import prohibitions and restrictions other than duties, taxes, or other charges; measures that make import eligibility depend on the exporting country’s regulatory program and results can fall within Article XI:1.
- Article XX(b) requires a showing that a measure is “necessary” to protect life or health; this entails assessing whether reasonably available alternatives exist that would achieve the chosen level of protection with less restriction on trade.
- Article XX(b) does not authorize trade restrictions used to require other GATT parties to change their internal policies as a condition for access to the importing member’s market.
- Article XX(g) requires that a measure relate to conservation and be made effective in conjunction with domestic restrictions; it does not allow import bans designed to control production methods taking place in another country’s jurisdiction.
- For purposes of basic GATT disciplines, products that are the same as goods may not be treated differently solely based on how they were produced, absent a valid defense under Article XX.
- A voluntary labeling scheme, without more, may be treated differently from an import ban when assessing whether it restricts trade in a manner prohibited by the GATT.
- A non-adopted GATT panel report has no binding legal effect within the GATT dispute settlement framework, though it is often cited for its reasoning.

## Conclusion

The panel concluded that the U.S. MMPA tuna import embargoes—both primary and secondary—were quantitative import restrictions inconsistent with GATT Article XI:1 and were not saved by Article XX(b) or XX(g) because they conditioned access to the U.S. market on foreign fishing methods and regulatory choices; the panel did not find a GATT breach based on the voluntary “dolphin-safe” label record before it, and the report was circulated but not adopted.


GATT Dispute Settlement Panel Report on United States Restrictions on Imports of Tuna (Tuna-Dolphin I), 30 I.L.M. 1594, 1598 (1991)