## Facts

- The United States implemented import restrictions under the Marine Mammal Protection Act of 1972 (as amended) to reduce incidental dolphin mortality from purse-seine fishing for yellowfin tuna in the Eastern Tropical Pacific.
- U.S. domestic rules limited dolphin kills by U.S. fleets and restricted marketing of tuna caught in violation of those rules.
- The United States conditioned market access for foreign-caught tuna on foreign fleets using “comparable” dolphin-protection measures and meeting specified dolphin mortality-rate benchmarks.
- The United States imposed (1) a primary embargo on tuna imports from countries failing those standards and (2) a secondary (intermediary-nation) embargo on countries re-exporting tuna from targeted countries unless they restricted such imports themselves.
- Mexico, a major producer of the relevant tuna, challenged the embargoes under GATT 1947 dispute settlement; the panel report was circulated in 1991 but not adopted by the GATT Council.

## Issues

1. Whether the tuna embargoes were permissible border enforcement of internal regulations under GATT Article III (and the Note Ad Article III) or prohibited quantitative restrictions under Article XI:1.
2. Whether the primary and secondary embargoes violated GATT Articles XI:1 and XIII.
3. Whether the measures, if inconsistent with GATT obligations, were justified under Article XX(b) (animal life or health) or Article XX(g) (conservation of exhaustible natural resources), given their focus on foreign production methods and conduct outside U.S. territory.

## Decision

- The panel found the primary and intermediary-nation embargoes constituted import prohibitions/quantitative restrictions inconsistent with Article XI:1.
- The panel rejected the U.S. characterization of the measures as internal regulations under Article III:4 enforceable at the border; the measures targeted harvesting methods rather than tuna “as such.”
- The panel concluded the intermediary-nation embargo also raised inconsistency concerns under Article XIII governing nondiscriminatory administration of quantitative restrictions.
- The panel held the embargoes were not justified under Article XX(b) or Article XX(g).
- The panel recommended that the United States bring its measures into conformity with GATT; the report was not adopted.

## Legal Principles

- Measures that condition importation on how a product is produced, rather than regulating the product itself, may fall outside Article III’s internal-regulation discipline and be treated as quantitative restrictions under Article XI:1 when implemented as import bans.
- Article XI:1 broadly prohibits import prohibitions or restrictions other than duties, taxes, or charges, including those made effective through licensing or other measures.
- Article XX(b) requires that a measure be “necessary” to protect animal life or health; necessity analysis considers whether reasonably available, less trade-restrictive alternatives exist (including cooperative or multilateral approaches).
- Article XX(b) and XX(g) do not authorize unilateral trade restrictions designed to compel other countries to change their environmental policies or production methods as a condition of market access.
- Article XX(g) covers measures relating to conservation of exhaustible natural resources only when implemented consistently with its conditions, including being made effective alongside domestic restrictions; conditioning imports on foreign policy choices was treated as outside the provision’s scope as applied.
- Secondary (intermediary-nation) embargoes that pressure third countries to adopt import bans can implicate Article XIII’s nondiscrimination requirements for quantitative restrictions.

## Conclusion

The panel concluded that the U.S. tuna embargo scheme operated as prohibited quantitative restrictions under GATT Article XI (and, as applied through intermediary-nation controls, conflicted with Article XIII) and that the measures were not saved by the general exceptions in Article XX(b) or XX(g) because they sought to condition market access on foreign harvesting methods and policy choices rather than regulate the product itself.


United States—Restrictions on Imports of Tuna (Mex.), DS21/R, 39S/155 (GATT Panel 1991)