## Facts

- The dispute concerned U.S. import restrictions adopted under the Marine Mammal Protection Act of 1972 (MMPA) and implementing regulations aimed at reducing incidental dolphin mortality from purse-seine tuna fishing in the Eastern Tropical Pacific (ETP).
- U.S. law limited dolphin “taking” by U.S. vessels and conditioned market access for foreign tuna on “comparable” dolphin-protection standards and certifications.
- The measures included (1) primary embargoes on tuna and tuna products from countries whose fleets did not meet U.S.-defined dolphin mortality limits and (2) secondary embargoes targeting imports from intermediary countries that imported tuna from non-complying countries.
- The restrictions were process-based: eligibility to export tuna to the U.S. depended on harvesting methods and the exporting country’s regulatory practices, not on the physical characteristics of tuna.
- The European Economic Community (EEC) challenged these restrictions under GATT 1947 dispute settlement procedures; a panel report issued on June 16, 1994, but was not adopted by the GATT Council.

## Issues

1. Whether the U.S. primary and secondary tuna embargoes and related certification requirements were prohibited quantitative restrictions under GATT Article XI:1.
2. Whether the measures were justified under GATT Article XX(b) as necessary to protect animal life or health (dolphins).
3. Whether the measures were justified under GATT Article XX(g) as relating to the conservation of an exhaustible natural resource and applied in conjunction with domestic restrictions.
4. Whether a contracting party may condition imports on other countries’ environmental policies and non-product-related production methods occurring outside the importing party’s jurisdiction.

## Decision

- The panel found the U.S. primary and secondary embargoes constituted prohibitions or restrictions on imports inconsistent with GATT Article XI:1.
- The panel rejected justification under Article XX(b), concluding the measures impermissibly sought to enforce U.S. conservation standards on fishing conduct and policies outside U.S. jurisdiction and were not shown to be “necessary” in the relevant GATT sense.
- The panel rejected justification under Article XX(g), reasoning that the measures were not permissible conservation measures as applied because they operated as unilateral pressure to change other countries’ policies concerning resources beyond U.S. jurisdiction.
- The panel concluded the EEC suffered nullification or impairment of GATT benefits due to the U.S. measures.
- The report was not adopted; no binding recommendations took effect under the GATT 1947 system.

## Legal Principles

- GATT Article XI:1 broadly prohibits import prohibitions or restrictions other than duties, taxes, or charges, including restrictions implemented through licensing and certification schemes that effectively deny market access.
- Article XX(b) requires a demonstrated necessity relationship between the measure and protection of life or health; it does not authorize open-ended use of trade restrictions to compel other members to conform their external conduct or regulatory policies to the importing member’s standards.
- Article XX(g) may address conservation of exhaustible natural resources, but the exception was interpreted to exclude unilateral import restrictions aimed at enforcing conservation policies with respect to resources and conduct outside the member’s jurisdiction.
- Conditioning imports on non-product-related process and production methods, particularly when linked to foreign governmental policies and extraterritorial conduct, was treated as incompatible with the product-focused structure of GATT obligations and exceptions in this dispute.
- The panel favored cooperative, multilateral approaches to transboundary environmental problems over unilateral trade embargoes as a means of conservation enforcement.

## Conclusion

The panel concluded that U.S. tuna embargoes tied to foreign dolphin-protection practices were quantitative import restrictions barred by GATT Article XI and were not saved by Articles XX(b) or XX(g) because they functioned as unilateral, extraterritorial policy enforcement; however, the report was never adopted and therefore did not become binding within the GATT 1947 framework.


United States—Restrictions on Imports of Tuna (Tuna-Dolphin II), 33 I.L.M. 839 (GATT Panel 1994)