"The Tuna Test." (Tuna-Dolphin Dispute)
French, Hilary F., World Watch
In an investigation of the looming conflict between environmental and trade laws, we reported on what has come to be known as the "tuna-dolphin" dispute. The dispute began when the United States imposed an embargo against tuna From Mexico because Mexican fishing boats were killing more dolphins as a byproduct of their efforts to net tuna than they (or U.S. tuna boats) are allowed by the U.S. Marine Mammal Protection Act (MMPA). In September 1991, a dispute resolution panel of the General Agreement on Tariffs and Trade (GATT) ruled tha the embargo, in turn, violated the GATT.
As we noted, this ruling provoked an uproar among environmentalists, since the panel members' expansive reading of GATT rules suggested that a number of national environmental laws and even some international treaties were at odds with GATT rules because they use trade restrictions to protect the global commons. The ruling prompted a heated international debate on the proper role o trade sanctions in environmental policymaking, and created growing pressure Fro environmentalists to "green the GATT." [See "GATT: Global Menace or Potential Ally?" (September/October 1993).]
After Mexico decided against pushing for formal adoption of the panel ruling at GATT in order not to antagonize the United States in the midst of negotiations over the North American Free Trade Agreement, the European Union decided to get in on the act. Several European countries are also prohibited by the MMPA From selling tuna in the United States under provisions of the law that aim to prevent blacklisted countries from simply laundering dolphin-deadly tuna throug other nations. The Europeans disapprove of the MMPA trade provisions, as well a of other U.S. laws that unilaterally impose trade restrictions for environmenta purposes, partially because they view them as part of a more general, deeply-resented, U.S. inclination to "go it alone" in trade matters. Thus, when Mexico failed to press the point at GATT, the EU stepped in to call for the convening of a panel to examine the disputed provisions of the MMPA.
In late May, after many months of deliberations, this second panel issued its report. Unlike the earlier panel, it concluded that there were some circumstances in which countries might be justified in using trade measures to encourage environmental protection beyond their borders. …