By- Gruleen Kaur

This is a very important and attracts lot of attention as it includes provisions explained under Article XX of GATT which stipulates the General Exceptions and the implications for environmental disputes. However, this case does not have any status of legal interpretation of GATT law as the panel report was circulated in 1991, but was not adopted. Thus, the same was settled out of the court.

The United States’ Marine Mammal Protection Act (MMPA) imposes a ban on imports of tuna from countries that did not have a conservation program designed to protect dolphins in the tuna-fishing process. The facts of the case states that in eastern tropical areas of the Pacific Ocean, schools of yellow fin tuna swim beneath schools of dolphins. When tuna is harvested with the help of purse seine nets, dolphins are trapped in the nets which results in their death. So, US had imposed ban on Mexican Tuna imports. The important questions arose were:-

  1. Can one country tell another as to what its environmental regulations should be?
  2. Do trade rules permit action to be taken against the method used in the production of goods?
  3. Mexico contended that the ban is inconsistent with Articles III, XI & XIII and is also violating the objective of its Preamble (Chapeau).

The dispute resolution panel decided the case and contended that US could not justify the ban on Mexican Tuna. They have applied reasonability test and trade restrictive measures to justify their decision and the reasons for the same are as follows:-

  • The US could not use the Article XX exceptions to regulate natural resources outside of its borders.
  • The US could not prove that it was least trade-trade restrictive way to protect dolphins; neither had it initiated dolphin- protection agreements with other countries.
  • It was said that an agreement must not be inconsistent with the Preamble of the Act, i.e., Chapeau.
  • The Panel found that neither the primary nor the intermediary nation embargo was covered under Article III, that both were contrary to Article XI.
  • The panel gave priority to free trade over environmental protection in consonance with the provisions of Article XX(b), (g) or (d) of the GATT.

[1] DS381: United States — Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products

Case Notes

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