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Another Kick at the Can: Tuna/Dolphin II
Published online by Cambridge University Press: 09 March 2016
Summary
The decision of the second GATT panel in theTuna/Dolphin dispute again focuses attention onthe perceived conflict between the goah of trade liberalization andnational and international efforts to protect the earth’s naturalenvironment. The author reviews the reasoning of the panel inTuna/Dolphin II, compares it with that of Tuna/Dolphin I, andconsiders the adequacy of GATT law to deal with environmentalconcerns. Although he criticizes some of the reasoning of the panelsin the two tuna/dolphin cases, the author argues that the reports doprovide — though inferentially — a coherent approach for judging theGATT-legality of environmental trade measures that stem frominternational multilateral agreements.
Sommaire
La décision rendue par le deuxième groupe spécial du GATT dansl’affaire Thons/Dauphins fait ressortir à nouveaule soi-disant conflit entre les buts poursuivis par lalibéralisation du commerce et les mesures nationales etinternationales destinées à protéger l’environnement. L’auteurexamine le raisonnement élaboré par le groupe spécial dans ladeuxième affaire Thons/Dauphins et le compare àcelui de la première affaire. Il se demande ensuite si les règlesjuridiques du GATT sont compatibles avec les préoccupationsenvironnementales. Bien qu’il critique une partie du raisonnementdes groupes spéciaux dans Us deux affairesThons/Dauphins, l’auteur soutient que lesrapports fournissent implicitement une méthode cohérente pourévaluer, à la lumière du GATT, La légalité des mesures commercialesde nature environnementale que l’on retrouve dans plusieursconventions multilatérales internationales.
- Type
- Articles
- Information
- Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 33 , 1995 , pp. 149 - 183
- Copyright
- Copyright © The Canadian Yearbook of International Law/Annuaire canadien de droit international 1995
Footnotes
*
LL.B., LL.M., of the Bar of Ontario. This article is based on asection of an LL.M. thesis that more generally examines thetrade/environment “conflict.” The views expressed in thisarticle are personal and should not be interpreted asrepresenting the views of the government of Canada or of itsDepartment of Natural Resources where the author is employed asa policy analyst.
References
1 See General Agreement on Tariffs and Trade, Oct. 30, 1947, 55 UNTS 194 [hereinafter “GATT”]. GATT has now been replaced by GATT 1994 as part of the Uruguay Round Final Act, MTN/FA, 15 December 1993, which is the package of agreements, decisions, and understandings that constitute the new GATT/ WTO framework.
2 See GATT Dispute Settlement Panel Report United States Restrictions on Imports of Tuna, submitted to the Parties Aug. 16, 1991, reprinted in (1991) 30 I.L.M. 1594. [hereinafter Tuna/Dolphin I] Although it was the practice of GATT not to release panel reports until they had been adopted by the Council, this report was leaked to the public and, following pressure from both Mexico and the United States, the GATT decided to release it officially.
3 In the new World Trade Organization (WTO), the old GATT Council has been replaced by a two-tiered system, involving a General Council, which sits as the Dispute Setdement Body (DSB) when it considers panel reports, and three new councils dealing with trade in goods, trade in services, and trade-related intellectual property matters. In a significant reversal, panel reports are now automatically adopted by the DSB unless there is unanimous agreement not to do so. This differs from the old system, which required unanimity to adopt a panel report, and will raise the stakes considerably for disputes brought before a GATT panel. For a more complete discussion of the new dispute resolution system, see Lowenfeld, A. F., “Remedies Along with Rights: Institutional Reform in the New GATT” (1994) 88 AJIL 477.CrossRefGoogle Scholar
4 Mexico has apparendy pushed for its consideration by the GATT Council: see Charnovitz, S., “Dolphins and Tuna: An Analysis of the Second Panel Report” (1994) 24 ELR: News and Analysis 10567 at 10568, note 8.Google Scholar
5 See, e.g., Goldman, P., “Resolving the Trade and Environment Debate: In Search of a Neutral Forum and Neutral Principles” (1992) 49 Wash, and Lee L. Rev. 1279.Google Scholar
6 See, e.g., Mayer, D. & Hoch, D., “International Environmental Protection and the GATT: The Tuna/Dolphin Controversy” (1993) 31 Am. Bus. L.J. 187 at 191.CrossRefGoogle Scholar
7 Interestingly, Steve Charnovitz believes that environmentalists pose a greater threat to GATT than GATT does to the environment. He has written, “[t]he latent threat to the world economy is not what GATT may do to the environment, but rather what environmentalists may do to the GATT.” See Charnovitz, S., “The Environment vs. Trade Rules: Defogging the Debate” (1993) 23 Env’l L. 475 at 488.Google Scholar
8 Some commentators have asserted that the impact of GATT on environmental protection will contìnue to be minimal, and point to the paucity of disputes that have arisen in the GATT context relating to environmental measures. They also point to the comment by the Tuna/Dolphin I panel that GATT, “imposes few constraints on a contracting party’s implementation of domestic environmental policies.” See, e.g., Sorsa, P., “The General Agreement on Tariffs and Trade (GATT),” in Kirton, J. and Richardson, S. (eds), Trade, Environment and Competitiveness: Sustaining Canada’s Prosperity 181 at 182 (Ottawa: NRTEE, 1992)Google Scholar; Petersmann, E.-U., “International Trade Law and International Environmental Law: Prevention and Settlement of International Environmental Disputes in GATT” (1993) 27 J. World T. 43 at 77–78CrossRefGoogle Scholar. Others disagree, pointing to the global scale of many environmental problems and the threat that GATT poses to any environmental initiatives outside national boundaries, or that require international cooperation. See, e.g., Brown Weiss, E., “Environment and Trade as Partners in Sustainable Development: A Commentary” (1992) 86 AJIL 728 at 733.CrossRefGoogle Scholar
9 The trade/environment debate has generated an overwhelming volume of scholarly comment. See, inter alia, Jackson, J., “World Trade Rules and Environmental Policies: Congruence or Conflict?” (1992) 49 Wash. & Lee L. Rev. 1227Google Scholar; Schoenbaum, T. J., “Free International Trade and Protection of the Environment: Irreconcilable Conflict?” (1992) 86 AJIL 700CrossRefGoogle Scholar; Skilton, T. E., “GATT and the Environment in Conflict: The Tuna-Dolphin Dispute and the Quest for an International Conservation Strategy” (1993) 26 Cornell IntT LJ. 455Google Scholar; and Black, D. J., “International Trade v. Environmental Protection: The Case of the Embargo on Mexican Tuna” (1992) 24 Law & Pol’y Int’I Bus. 123.Google Scholar
10 Steve Charnovitz has pointed out that “[although there are some important disagreements about values that separate the different sides of the debate, much of the conflict may result from misunderstandings.” He has also asserted that “[t]here is no easy way to characterize the sides of the debate” because environmentalists may also consider themselves as trade proponents and trade experts usually also see themselves as being sensitive to environmental concerns. See Charnovitz, supra note 7 at 490.
11 The conclusion of the Uruguay Round did bring certain changes to the WTO/GATT organizational framework that could be interpreted as progress in the quest for a reconciliation of the apparent conflict, as well as the insertion of a statement on sustainable development in the preamble to the Marrakesh Agreement establishing the WTO. However, none of this has brought about any real change so far, although it must be conceded that at the time of writing the new framework has been in force for less than one year.
12 See GATT Dispute Settlement Panel Report, United States Restrictions on Imports of Tuna, as reprinted in (1994) 33 I.L.M. 839 [hereinafter Tuna/Dolphin II].
13 For a discussion of the role of GATT panels in the creation of international trade law, see Hallstrom, Par, The GATT Panels and the Formation of International Trade Law (Stockholm: Juristforlaget, 1994).Google Scholar
14 For a more complete review of the facts, see Tuna/Dolphin I, supra note 2 at 1598-1601, paras 1.1–2.12.
15 The countries subject to the primary embargo were, at various times, Mexico, Vanuatu, Ecuador, Panama, and Venezuela. The embargo extended to all yellowfin tuna taken with purse seine nets in the ETP. The intermediary nations affected by the embargo included, at various times, Costa Rica, France, Italy, Japan, Panama, Canada, Colombia, Ecuador, Indonesia, Korea, Malaysia, the Marshall Islands, Netherlands Antilles, Singapore, Spain, Taiwan, Thailand, Trinidad and Tobago, and the United Kingdom.
16 For a vivid, first-hand description of the methods used to catch yellowfin tuna in the Eastern Tropical Pacific, and the impact that these methods had on dolphins, see Brower, K., “The Destruction of Dolphins” (1989) 263 The Atlantic Monthly 35.Google Scholar
17 P.L. 92–522, 86 Stat. 1027, as amended by P.L. 100–711, 102 Stat. 4755 (1988) and P.L. 101–627, 104 Stat. 4467 (1990), codified as 16 U.S.C, paras 1361–1421(h).
18 The MMPA underwent a number of amendments following its enactment, but the key changes occurred in 1988, when the United States imposed requirements on foreign fishing vessels not to exceed by more than 1.25 times the number of dolphin actually taken by the United States fishing fleet in the ETP. See Section 101(a)(2)(B).
19 The United States only enforced its own legislation following a court order issued by a federal court in Earth Island Institute v. Mosbacher, 746 F. Supp. 964 (Cal. 1990), 929 F.2d 1452 (9th Cir. 1991), a case brought by an environmental group.
20 Art. III provides, in part, that “regulations and requirements affecting the internal sale, offering for sale, purchase, transportation, distribution or use of products … should not be applied to imported or domestic products so as to afford protection to domestic production “(Art. III: 1).
The products of the territory of any contracting party imported into the territory of another contracting party shall be accorded treatment no less favourable than that accorded to like products of national origin in respect of all laws, regulations and requirements” (Art. 111:4).
21 Tuna/Dolphin I, supra note 2 at 1603, para. 3.16. For good measure, Mexico went on to argue, rather weakly, that the MMPA requirement was not even a PPM because its purpose was to protect dolphins, not to regulate the production of tuna as such: para. 3.17.
22 Ibid., 1601, paras 3.1–3.5
23 Ibid., 3.19.
24 Art. I:1 states in part that:
With respect to customs duties and charges of any kind … and with respect to all matters referred to in paragraphs 2 and 4 of Art. Ill, any advantage, favour, privilege or immunity granted by the contracting party to any product originating in or destined for any other country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other contracting parties.
25 Tuna/Dolphin I, supra note 2 at 1617, para. 5.9.
26 Annex 1, (1969) 4 BISD 62 at 63. The Ad Art. III states:
Any internal tax or other internal charge, or any law, regulation or requirements of the kind referred to in paragraph 1 which applies to an imported product and to the like domestic product and is collected or enforced in the case of the imported product at the time or point of importation, is nevertheless to be regarded as an internal tax or other internal charge, or a law, regulation or requirement of the kind referred to in paragraph 1 [of Art III], and is accordingly subject to the provisions of Art. III [emphasis added].
27 See Doc. L/3464, BISD (18th Supp.), adopted on Dec. 2, 1970, 97.
28 Ibid., 100, para. 14 [emphasis inserted in quote provided in Tuna/Dolphin I, supra note 2, at 1618, para. 5.13].
29 Ibid.
30 Tuna/Dolphin I, ibid., 1618, paras 5.14–5.15. Emphasis in the original.
31 See, e.g., Spracker, S. M. and Lundsgaard, D. C., “Dolphins and Tuna: Renewed Attention on the Future of Free Trade and Protection of the Environment” (1993) 18 Col.J. of Env’l L. 385 at 395-96Google Scholar; Charnovitz, supra note 4 at493. But see Jackson, supra note 9, at 1242–43.
32 See Charnovitz, S., “Green Roots, Bad Pruning: GATT Rules and Their Application to Environmental Trade Measures” (1994) 7 Tulane Env’l L.J. 299 at 307Google Scholar; GATT, Canada: Administration of the Foreign Investment Review Act, BISD (30th Supp.), adopted Feb. 7, 1984, 140 at 162, para. 5.14; and GATT, Canada: Import, Distribution and Sale of Certain Alcoholic Drinks by Provincial Marketing Agencies, BISD (39th Supp.), adopted Feb. 18, 1992, 27 at 84, para. 5.28.
33 See the arguments put forward by the United States and Mexico in Tuna/ Dolphin I, supra note 2 at 1602, paras 3.11-3.12.
34 Ibid., 1618, paras 5.17–5.18. The panel duly noted in para. 5.18 that the United States, “did not present to the Panel any arguments to support a different legal conclusion regarding Art. XI.”
35 Ibid., 1601–2, paras 3.6–3.9. The United States also sought to rely on Art. XX(d), but those arguments were rejected for reasons not germane to this paper. See infra note 55.
36 Ibid., 1619, para. 5.24.
37 Ibid.
38 Ibid., 1620, para. 5.25.
39 Ibid., para. 5.26.
40 Ibid., para. 5.27.
41 Ibid., paras 5.26–5.28.
42 See, e.g., McDonald, J., “Greening the GATT: Harmonizing Free Trade and Environmental Protection in the New World Order” (1993) 23 Env’l L. 397 at 434–35Google Scholar. This point will be addressed in more detail below.
43 See infra, note 52.
44 Tuna/Dolphin I, supra note 2, at 1620, para. 5.28.
45 Ibid., 1620, para. 5.30. The term “primarily aimed at” stems from an earlier GATT report that had elaborated on the meaning of the terms “relating to” and “in conjunction with.” See GATT, Canada — Measures Affecting Exports of Unprocessed Herring and Salmon, BISD (35th Supp.), adopted Mar. 22, 1988, 98.
46 Ibid., 1621, paras 5.31–5.33.
47 Ibid., para. 5.31.
48 Ibid., para. 5.33.
49 Ibid., 1620, para. 5.27.
50 See, e.g., Charnovitz, S., “Environmental Trade Measures: Multilateral or Unilateral?” (1993) 23 Env’l Pol’y & L. 154 at 154Google Scholar, col. 1, who has written that “the choice between multilateralism and unilateralism is, in many respects, a false one.” See also Anderson, B., “Unilateral Trade Measures and Environmental Protection Policy” (1993) 66 Temple L. Rev. 751 at 784.Google Scholar
51 See, e.g., Jackson, supra note 9, at 1241.
52 Mexico decided not to press for the adoption of the report because at the time it was engaged in NAFTA negotiations, and it feared that United States environmental groups would pressure Congress to reject any deal if the Tuna/Dolphin I panel report was officially adopted by the GATT Council. In fact, following the release of the panel report in Tuna/Dolphin I, Mexico was one of the parties to a multilateral agreement to take steps to protect dolphins in the ETP. See Agreement ofJune 1992 for the Reduction of Dolphin Mortality in the Eastern Pacific Ocean, reprinted in (1994) 33 I.L.M. 936. See also Charnovitz, supra note 50, at 154, col. 2.
53 Tuna/Dolphin II, supra note 12 at 889, para. 5.8 [emphasis in original].
54 Ibid., 889–90, para. 5.9.
55 The United States also sought to rely on Art. XX(d) in its arguments for upholding the intermediary embargo, but the panel found that Art. XX(d) was only available if the laws or regulations (in this case the regulation mandating the primary embargo) that formed the basis for the impugned measures were otherwise consistent with GATT. Because the panel had found that the primary embargo violated Art. XI, it found that Art. XX(d) arguments were not available to the United States. See Ibid., 898, paras 5.40–5.41.
56 See, e.g., Esty, D., Greening the GATT: Trade, Environment, and the Future (Washington, DC: Institute for International Economics, 1994).Google Scholar
57 Tuna/Dolphin II, supra note îa at 853, para. 3.15 et passim.
58 Ibid., 871, para. 3.75. According to the Community, the United States had failed to exhaust other options reasonably available to it to achieve its policy goal through means consistent with GATT, such as an international agreement Furthermore, it was not “necessary” to protect dolphins because the number of incidental dolphin deaths represented “much less than 1 percent of the total dolphin population in the eastern tropical Pacific.”
59 Ibid., 867, para. 3.53. The Community cited the “unpredictable conditions” caused by the uncertainty of the actual United States rates of incidental dolphin deaths in determining the allowable Mexican rates, as precluding the possibility that the measures could be “primarily aimed” at the conservation of exhaustible natural resources. The Community also questioned whether dolphins could even be considered as a natural resource “in any economic sense of the word” (ibid, at 867, para. 3.52).
60 Ibid., 852–73, paras 3.7–3.83.
61 Ibid., 853–61, paras 3.15–3.34.
62 Ibid., 893, para. 5.20, and at 896, para. 5.33.
63 Ibid., 890–91, para. 5.12.
64 Ibid., 892–93, para. 5.20.
65 Ibid., 891, para. 5.15.
66 Ibid., para. 5.16.
68 Ibid., 892–93, para. 5.20.
68 A previous GATT panel had interpreted the “relating to” and “in conjunction with” requirements in Art. XX(g) as meaning “primarily aimed” at the conservation of the resource, and “primarily aimed” at rendering effective the restrictions on domestic production or consumption. See the GATT panel report, Canada — Measures Affecting the Exports ofUnprocessed Herring and Salmon, BISD (35th Supp.), adopted Mar. 22, 1988, 98 at 114, para. 4.6. [hereinafter the Herring/Salmon case] The panel in Tuna/Dolphin II, following the lead of the panel in Tuna/ Dolphin I, adopted this interpretation. See ibid., 893, para. 5.22.
69 The Tuna/Dolphin II panel found that “primarily aimed” meant not only the objective of the measure in question, but also its effect. In other words, a measure could only be considered “primarily aimed” at the conservation of a resource if it was effective. It may be inferred, however, from the panel’s remarks about the effectiveness of the measure having to rely on other countries changing their policies and practices, that the panel did not believe that the dramatic decline in the incidence of dolphin mortality in the ETP since the inception of the United States measures could be a true indicator of the effectiveness of the measure by itself: Ibid., 893, para. 5.22.
70 Ibid., 893–94, Paras 5.23–5.24.
71 Ibid., 894, para. 5.27.
72 See, e.g., Thaggart, H.L., “A Closer Look at the Tuna-Dolphin Case: ‘Like Products’ and ‘Extrajurisdictionality’ in the Trade and Environment Context” in Demaret, P. et al. (eds), Trade and the Environment: The Search for Balance, Vol. 1, 69 (London: Cameron May, 1994).Google Scholar
73 See, however, Jackson, supra note 9 at 1242–44, who says that the rejection of PPMs can be inferred from GATT as a whole, and on the basis of policy considerations.
74 See Charnovitz, supra note 4 at 10573.
75 Ibid.
76 The panel stated that “Article III covers only those measures that are applied to the product as such.” A PPM-based standard that relates direcdy to product characteristics meets this requirement. See Tuna/Dolphin I, supra note 2, at 1618, para. 5.14.
77 Tuna/Dolphin I, ibid.
78 For the remainder of this article, the term PPMs will refer to non-product-characteristic-based production and processing methods; that is, PPMs that do not affect the final characteristics of a product.
79 See Charnovitz, supra note 4 at 10577.
80 Ibid.
81 Much effort has gone into an examination of GATT negotiating history to establish whether the contracting parties intended Art. Ill to encompass the use of PPMs, but that examination has yielded litde direct evidence that PPMs were intended to be included. Conversely, there is litde direct evidence that they were meant to be excluded. See Charnovitz, ibid., 10577; but see also Jackson, supra note 9.
82 See Charnovitz, supra note 32; Thaggart, supra note 72; but see also Sorsa, supra note 8, for a contrary view.
83 This argument has not been adequately addressed by proponents of the inclusion of PPMs as relevant criteria in the “likeness” determination under Art. III. See, e.g., Jackson, supra note g at 1242–43. Charnovitz acknowledges this difficulty but does not address it in detail; see Charnovitz, ibid., 322.
84 See Esty, supra note 56 at 24.
85 Rejecting PPMs as determinants of “likeness” may make it more difficult in some cases for GATT/WTO members to protect the environment. This is the fundamental tension between GATT and environmental protection. Also, with the new dispute settlement mechanism, which includes the possibility of using expert advisory bodies to assist panels in making factual determinations, such an exercise may be made simpler. This fact, however, does not alter the problem of the vacuum that exists in the rules for adjudicating these conflicts.
86 In using this term, I am referring to those academics and commentators who favour interpreting GATT to make it more amenable to the perceived needs of those who are making efforts to protect the natural environment.
87 Charnovitz, supra note 4 at 10577 asserts that consumer attitudes affect the “likeness” determination.
88 If “likeness” is to be determined by consumer preference, this creates the prospect of a single imported product changing from being “like” to “unlike” and vice versa, as consumer preferences shift over time and for reasons that may be completely unrelated to environmental factors.
89 See Tuna/Dolphin II, supra note 12 at 889–90, para. 5.9.
90 For a general discussion, see Krugman, P. R. and Obstfeld, M., International Economics: Theory and Policy (Boston: Scott, Foresman and Co., 1988)Google Scholar. For a critique of the role of the doctrine of comparative advantage as a justification for the treatment given to ETMs by the GATT, see Snape, W. J. III & Lefkovitz, N. B., “Searching for GATT’s Environmental Miranda: Are ‘Process Standards’ Getting ‘Due Process?’” (1994) 27 Cornell Int’l L.J. 777 at 799–803.Google Scholar
91 See, e.g., GATT, Trade and the Environment, GATT Doc. 1529, Feb. 13, 1992, reprinted in GATT, International Trade, Vol. 1, 90–91 (Geneva, 1992). An important distinction must be made, however, between environmental impacts with purely local effects and environmental impacts with cross-border or “spill-over” effects, or global effects. See, e.g., Bhagwati, J., “Trade and the Environment The False Conflict” in Zaelke, D. et al. (eds), Trade and the Environment: Law, Economics and Policy 159 (Washington, DC: Island Press, 1993).Google Scholar
92 See the arguments of the European Community in Tuna/Dolphin II, cited infra note 93. If the issue does not turn on conservation, it could be characterized as a competitiveness problem, with United States tuna fishermen not wanting to compete with the Mexican “free riders.” Yet, how detrimental is the competitiveness factor if studies show that environmental compliance is, on average, 1–2 per cent of production costs? Can it be demonstrated that the United States tuna fleet incurs significandy higher costs as a result of having to employ different tuna fishing methods?
93 Tuna/Dolphin II, supra note 12 at 871, para. 3.75.
94 See, e.g., Chase, B. F., “Tropical Forests and Trade Policy: The Legality of Unilateral Attempts to Promote Sustainable Development Under the GATT” (1994) 17 Hastings Int’l & Comp. L. Rev. 349Google Scholar, who, in discussing the Austrian effort to persuade Malaysia to develop a sustainable development approach to its forestry industry, brings out effectively the complexities inherent in countries trying to achieve global environmental objectives through unilateral trade measures.
95 Contrast this with Steve Charnovitz’s argument, supra note 4 at 10576, that GATT panelists should not be able to rewrite the rules to match their individual policy preferences. The question arises, whose policy preferences should they rely on when “rewriting” the rules?
96 See, e.g., Charnovitz, supra note 7; Esty, supra note 56.
97 It has also been proposed by some commentators that an explicit exception should be added that refers to measures relating to the environment, as well as an exception for trade measures relating to an international environmental agreement.
98 Tuna/Dolphin II, supra note 12 at 890, para. 5.12.
99 Charnovitz has examined the historical background of the clause in his article, “Exploring the Environmental Exceptions in GATT Art. XX” (1991) 25:5 J. of World Trade 37. He argues that not only does the historical record support the view that Art XX was meant to include ETMs — as opposed to sanitary measures only — but also that GATT panels have put an unduly restrictive meaning on Art. XX(b), thus making it far too difficult to justify even legitimate ETMs as allowable exceptions to the GATT. Professor Jackson takes issue with Charnovitz’s reliance on drafting and negotiating history, describing these tools as merely, “ancillary means of interpreting treaties”: see Jackson, supra note 9 at 1241.
100 GATT, United States — Section 337 of the Tariff Act of 1930, BISD (36th Supp.), adopted Nov. 7, 1989, 345 [hereinafter the Section 557 case].
101 Art. XX(d) relates to measures that are “necessary to secure compliance laws or regulations which are not inconsistent with provisions of this Agreement, including those relating to … the protection of patents.”
102 The Section 337 case, supra note 100 at 392, para. 5.26 (emphasis added).
103 GATT, Thailand — Restrictions on Importation of and Internal taxes on Cigarettes, BISD (37th Supp.), adopted Nov. 7, 1990, 200 at 223, para. 74 [hereinafter the Thai Cigarette case].
104 Ibid.
105 See, e.g., Charnovitz, supra note 99 at 49.
106 See Tuna/Dolphin I, supra note 2 at 1619, para. 5.22, citing two previous GATT panel reports that had been adopted: Canada — Administration of the Foreign Investment Review Act, BISD (30th Supp.), adopted Feb. 7, 1984, 140 at 164, para. 5.20, and United States — Section 337 of the Tariff Act, BISD (36th Supp.), adopted Nov. 7, 1989, 345 at 393, para. 5.27.
107 McCaskill, A., “Dangerous Liaisons: The World Trade Organization and the Environmental Agenda” in Christie, K. H. (ed.), New Directions: Environment, Labour and the International Trade Agenda 93 at 97 (Ottawa: Carleton University Press, 1995)CrossRefGoogle Scholar. After all, she continued, “it is difficult to understand why it should be permissible to apply measures that are more trade restrictive than necessary” (emphasis in the original).
108 In the Section 337 case, supra note 100 at 393, para. 5.26, the panel made it clear that Art XX(d) (and by extension XX(b)) did not require the GATT member to change, “its desired level of protection of [the] law [in question].” The test as enunciated in that panel report, does not require a proportionality test to weight the costs against the benefits; it merely requires that the measure chosen be carefully tailored so as to achieve the objective without unnecessarily restricting trade.
109 Tuna/Dolphin I, supra note 2 at 1620, para. 5.28.
110 See Charnovitz, supra note 4 at 10571.
111 In fact, the GATT itself, in its much maligned report on trade and the environment, supra note 94 at 24–25, appears to reject the possibility of even ETMs in multilateral international agreements meeting GATT requirements, but later in its report it seems to take a more positive view of ETMs as instruments for achieving international environmental objectives: supra note 94 at 35-36. Also, the now defunct GATT Group on Environmental Measures and International Trade, in its second report to the GATT Council, also seems to express reservations about the GATT-consistency of ETMs in international environmental agreements, although its tone is more cautious and ambivalent. See GATT, Report by Ambassador H. Ukawa (Japan), Chairman of the Group on Environmental Measures and International Trade, to the 49th Session of the Contracting Parties, Doc. L/7402, Feb. 2, 1994 at 3-8.
112 See, e.g., McDonald, supra note 4, at432-33; Lallas, P. L. et al., “Environmental Protection and International Trade: Toward Mutually Supportive Rules and Policies” (1992) 16 Harv. Env’l L. Rev. 271 at 284-85.Google Scholar
113 See, e.g., Art. XX(e), which allows measures, “relating to the products of prison labour.”
114 Arguably, that is what the United States achieved, because Mexico decided not to pursue the adoption of the panel report in the GATT Council.
115 See Canada — Measures Affecting the Exports of Unprocessed Herring and Salmon, BISD (35th Supp.), adopted Mar. 22, 1988, 98; and UnitedStates—Prohibitions of Imports of Tuna and Tuna Products from Canada, BISD (29th Supp.), adopted Feb. 22, 1982, 91.
116 Tuna/Dolphin II, supra note 12 at 893, paras 5.20, 5.33. Curiously, the panel, agreeing that Art. XX(b) was wide enough to cover extrajurisdictional measures, made reference to the United States pursuing its policy within its jurisdiction and over its nationals and vessels. This would clearly be irrelevant in this context, given that the focus of the measure was the conservation of dolphins located outside United States jurisdiction.
117 Supra notes 100 and 103.
118 Tuna/Dolphin II, supra note 12 at 897, paras 5.36, 5.37.
119 Ibid., para. 5.38.
120 Ibid. at 897–98, paras 5.38, 5.39.
121 Supra note 68.
122 This interpretation is adopted from two previous GATT panel reports. See GATT panel report in Canada — Administration of the Foreign Investment Review Act, supra note 32 at 164, para. 5.20; GATT panel report in United States — Section 337 of the Tariff Act of 1930, BISD (36th Supp.), adopted Nov. 7, 1989, 345 at 393. para. 5.27.
123 Tuna/Dolphin II, supra note 12 at 894, para. 5.26.
124 Ibid., para. 5.27.
125 Although reference is made only to the panel’s findings with regard to Art. XX(g), substantially the same reasoning was followed to invalidate the arguments of the United States government under the Art. XX(b) exception. See Tuna/Dolphin II, ibid., 895–98, paras 5.28–5.39.
126 See Charnovitz, supra note g8 at 47-48.
127 See GATT, United States — Prohibition of Imports of Tuna and Tuna Products from Canada, BISD (agth Supp.), adopted Feb. 22, 1982, gi at 108, para. 4.8 [hereinafter the U.S.-Canada Tuna case].
128 Professor Jackson calls the preamble requirements a “softened measure of ‘national treatment’ and MFN obligations”: see Jackson, supra note 9 at 1240.
129 Charnovitz suggests that this was the original intent behind the preamble requirements when the GATT was negotiated: supra note g8 at 47. It also assumes that the ETMs failed the test under Article III. A PPM-based measure would probably fall into this category.