Professor, Faculty of Law University of Victoria CANADA
1.0 INTRODUCTION
In 1991, a dispute settlement panel established pursuant to the
General Agreement on Tariffs and Trade (GATT) decided that an American
import embargo on Mexican tuna imposed because the Mexicans had not harvested
the tuna in compliance with U.S. standards respecting incidental dolphin
kill was inconsistent with the GATT. The GATT Panel report resulted in
a tidal wave of academic writing, government reports and international
attention on the relationship |between international trade and environment.
While the tidal wave created a trade-and-environment industry which has
led to a better appreciation of and accounting for the environmental consequences
arising from international trade, it has also obscured the principal point
of the U.S.-Mexico Tuna-Dolphin Panel.
The trade-and-environment tidal wave has generally characterized the particulars of the U.S.- Mexico Tuna-Dolphin Panel as a conflict between trade rules and the values and ethics of protecting dolphin. However, the principal point of the 1991 U.S.-Mexico Tuna-Dolphin Panel report was not whether dolphin deserved conservation protection. The principal point was that the GATT Rules prevented the United States from employing trade sanctions because another country's internal laws and practices were not equivalent to unilaterally-created American standards.
The results of the 1991 U.S.-Mexico Tuna-Dolphin Panel have been reinforced by the findings of a 1994 GATT dispute settlement panel which also concluded that U.S. embargoes on tuna designed to force other countries to comply with unilaterally-created U.S. standards on dolphin protection were inconsistent with the GATT.
Respecting international marine living resources, two specific U.S. laws which have led to the employment or threatening employment of embargoes in order to secure foreign compliance with U.S. standards warrant special attention. First are the provisions of the Marine Mammal Protection Act (MMPA) which require a U.S. trade embargo against tuna harvested in a manner inconsistent with U.S. standards regarding incidental dolphin kill. It was provisions of the MMPA that were questioned in the 1991 U.S.-Mexico Tuna-Dolphin Panel and the 1994 U.S.-E.E.C. Tuna-Dolphin Panel. Second is the Pelly Amendment which directs that the United States may employ a trade embargo on fish products coming from a state which is determined to be undermining the effectiveness of the International Whale Convention. The Pelly Amendment is of particular relevance because of the decision by Norway to resume commercial whaling and the threat by the United States of embargoes under the Pelly Amendment against Norway.
While it is the conclusion of this contribution that the two GATT Panels were decided correctly and that use of a trade embargo pursuant to the Pelly Amendment against Norway would be GATT-inconsistent; it is not correct that any use by the United States, or another country, of a trade embargo to further environmental or marine resource protection is inconsistent with the GATT.
Trade considerations do not automatically trump environmental considerations. But neither do environmental considerations automatically trump the rules and obligations that bind countries which are members of the GATT.
The problem with certain U.S. trade embargoes designed to encourage marine living resource conservation and environmental protection is that the goal of the embargoes is to force upon foreign countries the American view of how non-American resources should be protected. Put another way, the problem with certain U.S. trade measures related to transnational resource protection, particularly regarding whales and dolphins, is the unilateral nature of the trade embargo and the inconsistency of U.S. standards which trigger the employment of an embargo with the international or local standard with which the foreign state is complying.
While Americans see their actions on dolphins and whales as providing international resource conservation leadership, foreign countries see the U.S. actions as unjustified bullying and the GATT has determined the American actions to be illegal. Whales and dolphins have achieved almost a religious significance in the United States. As one noted author has written: "A variety of animals are considered sacred and beyond exploitation in different societies, but there are seldom campaigns to force other societies and cultures to take the same view." The U.S. use of trade embargoes to protect whales and dolphins, however, might be considered such a crusade. From the same author:
"States have been willing to accept limitations on ... [harvesting] ... in the name of conservation. But states have not been willing to accept attempts to foreclose harvesting species that they find useful and still abundant."
"The problem in these situations is the pressing of idiosyncratic views and ignoring differing opinions."
It is the purpose of this contribution to briefly review the conclusion that certain U.S. trade embargoes employed to protect international marine living resources would be inconsistent with the GATT. This contribution will also look behind the legal question and explain why most countries are non-supportive and even outraged by certain American trade actions which the United States regard as important weapons in the protection of selected, transnational marine living resources.
2.0 GATT'S NO-EMBARGO RULE AND THE EXCEPTIONS
If the United States were not a member of GATT, it could freely
determine with whom and how to trade. As a founding member of GATT, however,
the United States has agreed to comply by a set of rules and principles
which promote multilateral free trade by restricting the activities of
government which interfere with international commerce. In simple terms,
the GATT, like virtually all international agreements, constrains the independence
or sovereignty of the countries which are members.
Regarding trade embargoes, the fundamental rule of the GATT is Article XI(1), which prohibits GATT-members from imposing quantitative restrictions (quotas) or quantitative prohibitions (embargoes) on imports or exports. Such restrictions are seen as inconsistent with the free flow of goods, the operation of comparative advantage, and an efficient allocation of world resources, all of which are objectives of the GATT rules.
There are numerous exceptions to Article XI. However, no explicit exception exists which permits a state to employ an import embargo to ensure better conservation of a scarce natural resource outside its jurisdiction. The two exceptions in the GATT that are seen as having the potential to justify trade embargoes for transnational environmental purposes are Article XX(b) and (g). Article XX(b) allows governments to impose trade measures that are "necessary to protect human, animal or plant life or health" (emphasis added). Article XX(g) permits governments to utilize trade measures, such as import embargoes, where the measures are "relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption". Both Article XX(b) and (g) are qualified by the requirements that any trade measures taken must not constitute arbitrary or unjustified discrimination and must not be a disguised restriction on trade. The interpretation of Articles XX(b) and (g) was the centre of attention in both the 1991 U.S.-Mexico Tuna-Dolphin Panel and the 1994 U.S.-E.E.C. Tuna-Dolphin Panel.
Another issue before the two GATT Panels was the U.S. argument that its standards on dolphin mortality in tuna harvesting applied equally to American and foreign producers and product (tuna) and, therefore, the trade embargo had to be evaluated under Article III(4), the national treatment principle, rather than under Article XI(1). The national treatment principle, Article III(4), allows for the imposition of regulations on imported products provided the regulation does not discriminate between foreign and domestic products and provided the regulation is not applied in a manner affording protection to domestic production. While prima facie appealing, the two GATT Panels rejected this American argument taking the view that a national treatment issue only arose where a trade measure was triggered by a characteristic of the imported product itself. Here, the U.S. tuna embargo was not tied to a characteristic of the imported product (tuna), but was based on the manner in which the tuna was harvested.
3.0 THE 1991 AND 1994 GATT TUNA-DOLPHIN CASES
3.1 FACTS, PROCESS AND INTERVENTIONS
Pursuant to the Marine Mammal Protection Act (MMPA), in 1990 the
United States imposed an embargo on yellowfin tuna from Mexico because
the Mexican manner of harvesting yellowfin tuna resulted in incidental
loss of dolphin above the standards set in the MMPA. In May 1991, again
pursuant to the MMPA, an embargo was placed on yellowfin tuna from those
"intermediary nations" which could not certify that the tuna
they were exporting to the United States had been captured in accordance
with U.S. standards on dolphin mortality. The intention of the intermediary
nation provision was to prevent the tuna-harvesting-states from evading
the U.S. dolphin standards by transhipping yellowfin tuna through a second
state. France and Italy, amongst others, were subject to the May 1991 yellowfin
tuna embargo. Following litigation in the United States, the intermediary
nation tuna embargo was extended in January 1992 to include, amongst other
states, Spain and the United Kingdom.
Specifically regarding the Mexican situation several facts need to be noted: Mexican fishers were attempting to comply with the requirements of the MMPA; the fishing activities were taking place in either international or Mexican waters (non-U.S. waters); there were no facts to suggest that the dolphin were "American"; dolphin is not an endangered species; and the Mexican fishers were not breaching Mexican law or any international agreement concerning either dolphin protection or tuna harvesting.
Mexico, a member of GATT since 1986, complained that the U.S. embargoes of yellowfin tuna were inconsistent with rticle XI(1) of the GATT. Under the dispute settlement regime of the GATT, no state can be forced to have its trade measures subjected to third party scrutiny, although where serious disputes arise the panel process, a quasi-adjudicative procedure, is almost always accepted by the disputants. The United States accepted that a GATT dispute settlement panel was the appropriate way to deal with the Mexican complaint.
In addition to the United States and Mexico, eleven countries made representations to the 1991 GATT Panel. None of the eleven, which included Australia, Canada, the European Community, Norway and Japan, supported the U.S. position. In the end the U.S.-Mexico Tuna-Dolphin Panel also did not accept the U.S. position, finding that the U.S. embargoes under the MMPA on Mexican yellowfin tuna and on yellowfin tuna from intermediary states were GATT illegal.
Decisions of GATT dispute settlement panels do not become legally binding on disputants until the panel reports are adopted by the GATT Council. Adoption of the U.S.-Mexico Tuna-Dolphin Panel was not actively pursued by Mexico because of the impending conclusion with the United States of the North America Free Trade Agreement (NAFTA) and the political outcry in the United States against the decision of the 1991 GATT Panel. The United States attempted to overcome the decision of the GATT Panel through revisions to regulations of the Inter-American Tropical Tuna Commission (IATTC) to reduce or eliminate dolphin mortality and revisions to the MMPA effectuated by the International Dolphin Conservation Act of 1992.
When it became clear that Mexico was not going to press for adoption by the GATT Council of the U.S.-Mexico Tuna-Dolphin Panel, the European Comunity commenced the formal GATT dispute settlement process which ultimately led to the 1994 U.S.-E.E.C. Tuna-Dolphin Panel report. The European Community was particularly concerned about the U.S. tuna embargo imposed against intermediary states, but the entire issue of embargoes on yellowfin tuna triggered by non-compliance with dolphin mortality standards imposed under the MMPA was revisited. None of the six intervening states in the 1994 U.S.-E.E.C. Tuna-Dolphin Panel, Australia, Canada, Japan, New Zealand, Thailand or Venezuela, supported the position of the United States. The 1994 GATT Panel was the equivalent of an appeal of the 1991 GATT Panel report. The appeal was upheld -- the 1994 GATT Panel concluded that the MMPA embargoes were inconsistent with U.S. GATT obligations.
3.2 THE PANEL DECISIONS
Both the 1991 and 1994 GATT Panels took the view that Article XI(1)
was applicable to the U.S. tuna embargoes, and therefore, the core of both
the GATT Panel decisions was the application of Article XX(b) and (g),
the exceptions to Article XI(1).
3.2.1 THE U.S.-MEXICO TUNA-DOLPHIN PANEL
The U.S.-Mexico Tuna-Dolphin Panel took the view that for
a trade embargo to fit the health exception, Article XX(b), or the scarce
resource exception, Article XX(g), the health or resource interest being
protected had to be in the country taking the measure. In the case of Article
XX(b), the Panel took the view that the original drafters of the exception
were only concerned with the "life or health of humans, animals or
plants within the jurisdiction of the importing country". Regarding
Article XX(g), the Panel felt that the provision was aimed at protection
of scarce natural resources within a country's jurisdiction and
thus, the provision did not justify measures designed to regulate natural
resource activities outside a country's jurisdiction.
The principal reasoning of the 1991 GATT Panel is conveniently condensed in two virtually identical paragraphs, one dealing with Article XX(b), the other Article XX(g): The Panel considered that if the broad interpretation of Article XX(b) suggested by the United States were accepted allowing trade embargoes to protect health and resources outside the jurisdiction of the United States, each contracting party could unilaterally determine the life or health policies from which other contracting parties could not deviate without jeopardizing their rights under the General Agreement. The General Agreement would then no longer constitute a multilateral framework for trade among all contracting parties but would provide legal security only in respect of trade between a limited number of contracting parties with identical internal regulations.
The 1991 Panel stated that pursuant to the GATT "a contracting party may not restrict imports of a product merely because it originates in a country with environmental policies different from its own". It is this statement that was seen by environmentalists as one of the biggest problems with the 1991 GATT Panel report. However, even the normally environmentally-sensitive Nordic countries indicated that a country is not free "to require that imported products [be] produced as cleanly abroad as at home." Any other conclusion reached by the GATT Panel would allow certain countries to dictate to others what internal standards must exist and enforce their views with trade sanctions, and this would clearly be an invasion of a foreign country's sovereignty. Moreover, as the Panel observed, any other conclusion would permit trade only between countries with identical regulations, and this would amount to a dismantling of the GATT.
3.2.2 THE U.S.-E.E.C. TUNA-DOLPHIN PANEL
The restriction read into Article XX(b) and (g) by the 1991 U.S.-Mexico
Tuna-Dolphin Panel that the living resource or health being protected
had to be in the country employing the embargo was forcibly argued by the
European Community before the 1994 GATT Panel as the proper interpretation
of Article XX(b) and (g). The U.S.-E.E.C. Tuna- Dolphin Panel, however,
did not accept the principal rational of the 1991 GATT Panel decision.
The 1994 GATT Panel took the view that the wording of Article XX(b) and
(g) did not specifically restrict their application to situations where
the living resources or environment had to be in the territory of
the state employing the embargo.
Despite the easy application and convient logic of the location restriction for Article XX(b) and (g), the 1994 GATT Panel was correct to reject it as a limitation. The essence of the complaint about the U.S. embargo was not that the dolphin standards for tuna capture applied in non-American waters, but that the embargo imposed U.S. dolphin mortality standards on non-Americans harvesting tuna in non-American waters. As the 1994 GATT Panel made clear, GATT rules do not prevent American laws from applying to Americans harvesting living resources in non-American waters, which might be the case if resource location were the principal criteria. Having rejected that a location limitation was part of Article XX(b) and (g), the 1994 GATT Panel turned to a detailed examination of the two provisions.
Respecting Article XX(g), the GATT Panel examined whether both the purpose and effect of the tuna embargo were to ensure the effectiveness of restrictions imposed by the United States on its own fishers regarding dolphin conservation. Article XX(g) creates an exception to Article XI(1) if the embargo is tied to the effectiveness of domestic restrictions. The 1994 GATT Panel concluded that the tuna embargo "could not, by itself, further the United States conservation objectives", rather the only way the tuna embargo would be effective in protecting dolphin was if affected foreign states altered their laws and practices. The Panel concluded that the tuna embargoes "were taken so as to force other countries to change their policies with respect to persons or things within their own jurisdiction." While Article XX(g) did not provide a clear answer whether such a measure fit within its wording, the GATT Panel concluded:
"(T)hat measures taken so as to force other countries to change their policies, and that were effective only if such changes occurred, could not be primarily aimed either at the conservation of an exhaustible natural resource, or at rendering effective restrictions on domestic production or consumption, in the meaning of Article XX(g)".
Respecting Article XX(b), the 1994 GATT Panel examined whether the tuna embargo was "necessary", in that there was no reasonable alternative for the protection of dolphins. As in the examination of the application of Article XX(g), the GATT Panel took the view that the U.S. tuna embargo would achieve its desired conservation effect only if the foreign state altered its laws and practices and that the goal of the U.S. embargo was to "force" such changes.
"The Panel concluded that measures taken so as to force other countries to change their policies, and that were effective only if such changes occurred, could not be considered 'necesssary' for the protection of animal life and health in the sense of Article XX(b)".
The 1994 U.S.-E.E.C. Tuna-Dolphin Panel concluded, therefore, that neither Article XX(b) nor (g) were available to protect the U.S. tuna embargoes and thus the tuna embargoes employed under the MMPA to conserve dolphin were inconsistent with Article XI(1). The 1994 GATT Panel report was presented to the GATT Council in the Summer of 1994. A decision on adoption of the U.S.-E.E.C. Tuna-Dolphin Panel was deferred and it remains uncertain whether the United States will permit adoption of the report and the consequent necessity to change its laws.
3.2.3 CONCLUSION
The 1994 U.S.-E.E.C. Tuna-Dolphin Panel decision has a clarity
that is lacking in the 1991 U.S.-Mexico Tuna-Dolphin Panel decision.
The 1994 GATT Panel makes it clear that embargoes designed to force other
countries to adopt laws and practices compatible with American-created
environmental standards are inconsistent with the GATT. The repeated emphasis
in the 1994 GATT Panel on the United States goal of forcing other countries
to adopt U.S. standards ensures that the GATT will not tolerate unilateral
bullying.
If Article XX were interpreted to permit contracting parties to deviate from the obligations of the General Agreement by taking trade measures to implement policies, including conservation policies, within their own jurisdiction, the basic objectives of the General Agreement would be maintained. If, however, Article XX were interpreted to permit contracting parties to take trade measures so as to force other contracting parties to change their policies within their own jurisdiction, including conservation policies, the balance of rights and obligations among contracting paries, in particular the right of access to markets, would be seriously impaired. Under such an interpretation the General Agreement could no longer serve as a multilateral framework for trade among contracting parties.
4.0 COMING TO TERMS WITH THE TUNA-DOLPHIN DECISIONS
To understand the decisions of the U.S.-Mexico Tuna-Dolphin
Panel and the U.S.-E.E.C. Tuna-Dolphin Panel, it is necessary
to strip away the emotion-laden "Flipper factor". When this is
done, what the GATT Panels were faced with was an American trade measure
unilaterally employed because a foreign country did not meet standards
defined solely by the United States regarding activities taking place outside
the United States. There is an unquestioned congruency between this situation
and the potential employment by the United States of embargoes under the
notorious U.S. trade law Section 301. Pursuant to Section 301, the United
States can unilaterally determine whether foreign government polices are
"unjustifiable", "unreasonable" or "discriminatory"
and, as a consequence, burden U.S. exports. If these flexible criteria
are met, the U.S. law permits the imposition of trade embargoes against
the offending country. Section 301 is not concerned with the international
legality, domestic legality or legitimacy of the foreign state's act. All
Section 301 is concerned with is whether the foreign government activity
complies with U.S. standards of acceptability. The high-handed, bully-like
tactics of Section 301 have been described as "aggressive unilateralism"
and have been universally condemned. The obvious similarity between the
use of unilateral embargoes under the MMPA and the potential use of embargoes
under Section 301 compelled the GATT Panels to reach their conclusions.
The "aggressive unilateralism" of the U.S. tuna embargoes explains the lack of sympathy for U.S. arguments that the motive for the embargo, protection of dolphin, was pure. American arguments that the environmental ends justify the illegal means will receive thunderous applause from some quarters both inside and outside the United States. The international community, beyond the environmental constituency, is justifiably worried about the potential implications of the United States assuming the role of dolphin-cop, using its trade muscle to impose made-in-America standards to activities outside the United States that have no impact in the United States. The obvious concern is that the imposition of trade sanctions by the United States because foreign countries have different laws, values and needs, justified by American cries of resource conservation, fair trade and a level playing field, really means that everyone must comply with the U.S. view of the world in order to trade with the United States. That such trade bullying is unacceptable to non-Americans cannot be surprising.
5.0 PERMITTED TRADE MEASURES FOR MARINE LIVING RESOURCE PROTECTION
While great polemics and politics, it is simply erroneous that
the U.S.-Mexico Tuna- Dolphin Panel and the U.S.-E.E.C. Tuna-Dolphin
Panel imply or state that all trade embargoes to protect marine living
resources are inconsistent with the GATT or, more broadly, that trade values
will always triumph over environmental values. The GATT Panel decisions
must be confined to their facts: the tuna harvesting techniques were not
breaching any internationally agreed standard; the United States was attempting
to impose its standards on foreign countries; and the dolphin were not
in any way "American". The GATT Panel decisions were simply cases
of American trade "aggressive unilateralism" being resisted.
Not all trade measures connected to protection of marine living resources
or the environment will be either GATT illegal or perceived as unacceptable
by the world community.
First, and most obviously, countries can utilize trade measures to protect marine living resources subject to their jurisdiction. More generally, the GATT imposes few constraints on policies and practices designed to protect one's domestic environment. The only qualification is that a trade measure must be for a bona fide environmental purpose and not a disguised trade measure.
It can be argued that some resources or environmental concerns are part of the global commons, and therefore, it is impossible to demarcate between domestic resources and non-domestic resources. Alternatively, it may be argued that one country's activities regarding the global commons may directly affect another country's use or enjoyment of the global commons. Based on this characterization of certain international environmental issues, it is argued that a trade measure to protect the global commons is directly, or at least indirectly, protecting the natural resources or health in the embargoing state. However, by definition the global commons is multilateral and requires a community approach to commons protection. The way to deal with the global commons is through international agreement and arrangements and not by one country unilaterally imposing its standards on all global-commons-users and enforcing its values and perspectives with trade embargoes. The international community cannot be expected to be very accepting of the "I know best" approach, backed up with threats and punishment.
Where international environmental treaties and arrangements exist for dealing with the global commons, one can expect GATT to be less of a problem. Thus, the second situation where trade measures connected to protection of marine living resources will be neither GATT illegal, nor perceived as unacceptable, is where an international treaty explicitly permits the employment of trade measures as a means to protect marine living resources or the environment. An example is the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). The Convention explicitly requires embargoes on trade of endangered species. Another example would be the trade embargoes demanded by the Montreal Protocol on Substances that Deplete the Ozone Layer. While there is prima facie inconsistency with the GATT, these treaties must be given priority over potentially conflicting GATT obligations. It has even been suggested that widely- accepted international environmental documents which do not have the force of law, but which explicitly recognize that trade measures can be employed as part of an international regime for the global commons or for enhancement of environment and resource protection, should override potentially conflicting GATT obligations.
A third situation where trade measures connected to protection of the marine living resources would be acceptable is where international environmental treaties or marine living resource treaties which establish standards are breached. Trade embargoes imposed as countermeasures or reprisals for the breach of a treaty must be given priority over potentially conflicting GATT obligations. As a matter of international law and comity, only those countries explicitly bound by the international environmental or ocean resource protection standards can utilize or be subject to enforcement embargoes.
Note has already been made of possible changes to the GATT that could give a greater emphasis to environmental concerns. It is highly unlikely or even desirable that changes will be made to the GATT which would permit a country to use trade embargoes to impose environmental standards divorced from internationally-accepted practices on foreign activities.
6.0 THE PELLY AMENDMENT AND WHALES
The relationship between trade and international marine living
resource conservation was recently brought again to centre stage by the
possibility of a U.S. trade embargo against fish products from Norway because
of Norway's decision to return to limited, commercial whaling. Pursuant
to the 1979 Packwood-Magnuson Amendment to the Fishery Conservation and
Management Act (FCMA), the U.S. Secretary of Commerce determined that Norway
was diminishing the effectiveness of the International Whaling Convention.
The U.S. President, under the Pelly Amendment, had the discretion whether
to impose trade sanctions. The legislation specifically requires that any
import prohibition must be consistent with the GATT. In the end, President
Clinton opted not to employ a trade sanction against Norway preferring
to engage in a continuing dialogue with Norway.
Norway is not the classic rogue country. In keeping with Norway's long-standing commitment to environmentalism, it based its decision to resume limited, commercial whaling on the findings of the Scientific Committee of the International Whaling Commission (IWC). In what is becoming increasingly common on both the domestic and international level, in determining whether to extend the existing moratorium on commercial whaling, the IWC appeared to side with politics and emotional blackmail over the findings of its own scientists. Norway, unhappy with this perceived unreasoned outcome, but consistent with its law-abiding manner, elected to utilize the provisions of the Whaling Treaty to "opt out" of the moratorium resolution. Norway's decision to renew commercial whaling, therefore, is unquestionably legal under the International Whaling Convention and is scientifically and rationally supportable by the findings of the IWC Scientific Committee.
Despite Norway's legal and scientifically-justifiable action to resume limited commercial whaling, the United States might have imposed trade measures against Norway. Several difficulties would have existed with possible U.S. action. First, the International Whaling Convention does not explicitly require or allow the use of trade embargoes. Second, the situation would have been one of embargoing product A because the U.S. does not like an internationally legal, domestic policy of Norway. Third, any captured whales were completely unconnected to the United States as the Norwegian whaling takes place primarily in Norwegian waters. Fourth, as no international treaty was being breached, an imposed embargo could not be tied to the breach of an international agreement. It would be difficult to sustain the argument that GATT should be overridden by whale considerations where the Whale Treaty does not contemplate use of trade measures and no breach of the Treaty was taking place. The cry of protecting the global commons rings a bit hollow when the alleged rogue state is acting consistent both with science and the multilateral treaty designed to deal with the global commons. It is even more difficult to sustain any argument that an embargo would be consistent with the Article XX exceptions of the GATT since clearly any embargo would be designed to deal with production questions in Norway, and, unquestionably, the situation would be one of the United States imposing or forcing its standards on another state.
Hence, in the case of Norway's resumed commercial whaling leading to a trade embargo by the United States, any such embargo would be GATT illegal. The Pelly Amendment prohibits employment by the United States of a GATT-illegal trade sanction, thus no embargo is employable against Norway - threats notwithstanding.
7.0 CONCLUSION
The focus of this contribution has been on the general issue of
U.S. trade embargoes designed to protect and conserve marine living resources.
Where the ocean resources are subject to American jurisdiction, little
doubt arises about either the GATT legality or international political
acceptability of trade measures designed to protect the resources. The
legal and political difficulties arise where the United States decides
to utilize trade measures to force conservation of marine living resources
by foreign countries.
Where a U.S. trade action is taken pursuant to an international treaty or consensus explicitly allowing the trade measure in order to protect marine living resources, no problem arises. Moreover, where a U.S. trade action is taken to remedy a violation of an international conservation agreement by a treaty participant, the trade measure may be no problem. The concern is with the employment of trade embargoes to protect non-American ocean living resources where the United States unilaterally determines the standards that have to be met and the alleged-offending country has not breached any international agreement or standards. However noble the motive, the unilateral action is inconsistent with U.S. obligations under GATT, as is clear from the 1991 U.S.-Mexico Tuna-Dolphin Panel and the 1994 U.S.-E.E.C. Tuna-Dolphin Panel. Such U.S. action constitutes an unwarranted invasion of the sovereignty of another state. Interference with decision- making in foreign countries is an American pastime and while such activity may "play in Peoria", it cannot be expected to be well received outside the United States.
The more fundamental difficulty between international environmental protection and values and GATT is akin to a collision between a brick and putty. The brick is GATT, a widely-accepted international treaty with clearly delineated rules by which states adhere and, moreover, which contains an efficient dispute settlement process. The putty is international environmental law and treaties, few of which are widely-accepted and fewer of which contain clearly delineated rules and standards or a usable dispute settlement process. In the case of conflict between GATT obligations and international environment considerations, it is not surprising, therefore, that GATT comes out ahead. It is not a conflict of personal values, but a conflict of rules and values as prioritized by governments, since it is governments which enter into international arrangements and the governments of the world have indicated they favour trade over environment. It is being increasingly argued that the problem in trade and environment conflicts is not GATT, but that international environmental obligations remain weak and underdeveloped. The way to solve trade and environment conflicts, therefore, is not to condemn GATT but to solidify or concretize international environmental obligations. The examples of CITES and the Montreal Protocol show the way.
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