- Table of Contents -
| Executive Summary |
| The Contractor |
| 1.0 Background and the Issue |
| 2.0 The U.S. Marine Mammal Protection Act (MMPA) |
| 3.0 Introductory Comments on the GATT |
| 4.0 The Application of Article XI or Article III |
| 4.1 Article XI |
| 4.2 Article III |
| 4.3 The Interaction of Article XI and III |
| 4.4 Decisions Dealing with Article XI and III Interaction |
| 4.5 Conclusions on the MMPA Import Moratorium |
| 5.0 The Exceptions to Article XI(1) |
| 5.1 The Article XI(2)(c)(i) Exception |
| 5.2 The Article XX Exceptions - Introductory Paragraph |
| 5.3 The Article XX(b) Exception - Protecting Animal Life |
| 5.4 The Article XX(g) Exception - Resource Conservation |
| 5.5 The Article XX(a) Exception - Public Morals |
| 6.0 The Argument in Direct English |
| 7.0 Summary |
| Bibliography |
Pursuant to sec. 101(a) of the 1972 Marine Mammal Protection Act (MMPA), the United States prohibits the import of harp-seal fur coats from Greenland. Sec. 101(a) extends the import prohibition to all marine mammals and marine mammal products without regard to whether the species in question is an internationally endangered or threatened species. Harp seals are not an internationally endangered or threatened species.
Both the United States and Denmark (Greenland) are parties to the General Agreement on Tariffs and Trade (GATT) which establishes the basic framework and detailed rights and duties for states in their trading relationships.
The question examined in this memorandum is whether the U.S. law prohibiting the importation of marine mammals and marine mammal products, specifically as applied to harp-seal fur coats from Greenland, is consistent with the rules of the GATT.
The answer is that the GATT dictates that import embargoes are prohibited except in limited circumstances. While the United States can freely prohibit its own citizens from producing harp-seal fur coats, this freedom to control what its own citizens produce does not provide a justification for prohibiting the importation of harp-seal fur coats. The exceptions in the GATT that arguably might justify the U.S. action — protection of animal life, protection of public morals or conservation of natural resources — all fail primarily because the United States cannot use trade measures to force its moral or environmental priorities on a foreign state.
The detailed answer to the question is as follows:
ONE: Article XI(1) of the GATT prohibits states from imposing import restrictions on goods from other GATT members. The import moratorium imposed on marine mammal products by sec. 101(a) of the MMPA, as it applies to harp-seal fur coats from Greenland, is inconsistent with Article XI(1) of the GATT.
TWO: Article III(4) of the GATT, which directs that provided an internal measure (law, regulation or policy) applies equally to foreign and like domestic goods that the measure is GATT-consistent, is not applicable. The operation of the MMPA to restrict both foreign and domestic marine mammal products from the American market does not provide a justification for the import moratorium on harp-seal fur coats. The moratorium created by MMPA sec. 101(a) is a border measure and not an internal measure and, therefore, is not a measure which is covered by Article III(4).
THREE: Article XI(2)(c)(i) of the GATT, which permits a state to impose an import restriction on agricultural and fisheries product where the restriction is necessary to enforce a marketing or pricing regime for like domestic product, is not a justification for the harp-seal fur coat embargo. The harp-seal fur coat embargo is an absolute prohibition and Article XI(2)(c)(i) only permits import restrictions. Moreover, there is no marketing or pricing regime for domestic harp-seal fur coats of a kind contemplated by Article XI(2)(c)(i).
FOUR: Article XX(b), which permits a sate to impost an import embargo “necessary to protect human, animal or plant life or health”, does not justify the harp-seal fur coat embargo. The Tuna-Dolphin Panel Decision (1991) and the Tuna-Dolphin Panel Decision (1994) make it clear that Article XX(b) cannot justify an embargo which is directed at protecting animal life in a foreign country and which would only be effective in protecting animal life in a foreign state if that foreign state alters its laws and practices. Para. 5.38 of the 1994 Decision states:
If ... Article XX(b) were interpreted to permit contracting parties to impose trade embargoes so as to force other countries to change their policies within their jurisdiction, including policies to protect living things, and which required such changes to be effective, the objectives of the General Agreement would be seriously impaired.
FIVE: Article XX(g), which permits a state to impose an import embargo “relating to the conservation of exhaustible natural resources”, does not justify the harp-seal fur coat embargo. Applying the same reasoning to Article XX(g) as was applied to Article XX(b), Article XX(g) cannot justify an embargo which is directed at conserving natural resources in a foreign country and which would only be effective if that foreign state alters its laws and practices.
SIX: Article XX(a), which permits a state to impose an import embargo “necessary to protect public moral”, does not justify the harp-seal fur coat embargo. The marine mammal import embargo in the MMPA is part of a legislative scheme for marine mammal conservation and, therefore, is not related to an issue of public morals. However, if the moratorium is related to public morals, the public morality issue arises respecting the harvesting of marine mammals in Greenland. As with Articles XX(b) and (g), Article XX(a) cannot justify an embargo which is motivated by moral outrage for activities taking place in a foreign country. An embargo can only be justified where it is necessary to protect public morals in the United States.
SEVEN: Conclusion - The import moratorium on marine mammals and marine mammal products in sec. 101(a) of the MMPA, as it applies to harp-seal fur coats from Greenland, is inconsistent with Article XI(1) of the GATT and is not justified by any of the exceptions contained in the GATT.
This consultant’s report was done by Associate Professor Ted L. McDorman, Faculty of Law, University of Victoria, P.O. Box 2400, Victoria, British Columbia, Canada, V8W 3H7 (Telephone: 250-721-8181; Fax: 250-721-8146; e-mail: tlmcdorm@uvic.ca). The work was done following correspondence with Georg Blichfeldt and on the basis of understandings contained in that correspondence.
Professor McDorman has undertaken consulting contract work with the Legal Division of the United Nations’ Food and Agriculture Division and with the following departments within the Government of Canada: Fisheries and Oceans; Environment; Transport; and Foreign Affairs and International Trade.
Professor McDorman has been at the University of Victoria since 1986, prior to which he was with Dalhousie University in Halifax, Canada. His primary teaching areas are International Ocean Law and International Trade Law. He has been a visiting professor at the World Maritime University in Malmo, Sweden; the University of Utrecht, The Netherlands; the University of Windsor, Canada; and both Thammasat and Chulalongkorn Universities in Bangkok, Thailand.
Academically, Professor McDorman has over fifty publication credits primarily concentrated on ocean law and policy issues and questions respecting international trade.
Greenland is a major producer of harp-seal fur coats. Harp seals are plentiful in Greenland and are not listed as an endangered or threatened species under the Convention for the International Trade in Endangered Species (CITES). (Lyster, (1985), p. 39). Prima facie there is no conservation reason why harp-seal fur coats should not be treated as a normal, natural-resources-based product in international commerce.
The United States prohibits its citizens from capturing marine mammals
unless special circumstances exist which would justify the granting of
a capture permit. In the same legislation, the United States prohibits
the importation of marine mammals and marine mammal products, again subject
to special circumstances which can lead to the granting by the relevant
authority of an import permit.
Both the United States and Denmark (on behalf of Greenland) are members
of the World Trade Organization which, since January 1995, has had the
institutional responsibility for supervising and monitoring the General
Agreement on Tariffs and Trade (GATT). The GATT is an international agreement
which establishes the basic framework and detailed rights and responsibilities
for states regarding their trading relationships. The United States has
been a contracting party of the GATT since 1948 and Denmark since 1950.
By accepting the GATI, states agree that government measures (laws, regulations
and policies) will be consistent with the obligations created by the GATI.
The fundamental policy of GATF is to encourage free trade amongst its
adherents. Free trade is encouraged by restraining governments from imposing
laws, regulations and policies which inhibit trade. GATF, like all international
instruments which impose obligations, restricts the sovereignty or independence
of states in the actions they can take.
The question to be examined in this memorandum is whether the U.S. law
prohibiting the importation of marine mammals and marine mammal products,
as specifically applied to harp-seal fur coats from Greenland, is inconsistent
with the rules of the GATT and, therefore, inconsistent with the duty owed
by the United States to Denmark (Greenland) as members of the WTO to only
impose laws and take action in conformity with the wording of the GATT.
In 1972 the United States enacted the Marine Mammal Protection Act (MMPA). [Public Law 92-522; 86 Stat. 1027; codified at 16 U.S.C.A. 1361-1407 (1995)] The MMPA had as one of its specific goals the prohibition of the importation of harp seals and harp-seal fur coats from Canada. (Legislative History, (1972), pp. 4148-9 and 4156) Enhanced control over marine mammal taking by Americans was another principal goal of the legislation. The legislation has been amended several times since 1972 but the fundamental structure and purpose of the law has remained unchanged. There are detailed regulations respecting the implementation of the legislation. [See 50 C.F.R. 216]
Sec. 101(a) (16 U.S.C.A. 1371(a)) creates a moratorium on the taking and importation of marine mammals and marine mammal products. The relevant parts of sec. 101(a) read:
There shall be a moratorium on the taking and importation of marine mammals and marine mammal products, ... during which time no permit may be issued for the taking of any marine mammal and no marine mammal or marine mammal product may be imported into the United States except in the following cases:... (emphasis added)
Moratorium is defined as “a complete cessation of the taking of marine mammals and a complete ban on the importation into the United States of marine mammals and marine mammal products”. (emphasis added) (Sec. 3(8), 16 U.S.C.A. 1362(8)) The moratorium on importation is further enforced by sec. 102(a) (16 U.S.C.A. 1372(a)) which makes it unlawful for any person to use any port, harbour or other place to import marine mammals and for any person to transport, purchase or sell a marine mammal or marine mammal product taken in violation of the legislation.
A number of exceptions exist to the moratorium on taking which allows American interests to circumvent the moratorium. The legislation indicates that the principal means for avoiding the import moratorium is for the Secretary of Commerce to determine that a species or stock is sufficiently healthy to sustain harvesting and that the harvesting is being conducted in a manner consistent with the principles of the MMPA. (Sec. 101(a)(3), 16 U.S.C.A. 1371 (a)(3)) It does not appear that this exemption has been utilized regarding a foreign marine mammal species or stock that would allow marine mammal importation into the United States.
As noted, seals were specifically targeted by the legislation and, therefore, are specifically covered by the term marine mammals. (Sec. 3(6), 16 U.S.C.A. 1362(6)) Marine mammal product is defined as “any item of merchandise which consists, or is composed in whole or in part, of any marine mammal”. (Sec. 3(7), 16 U.S.C.A. 1362(7)) There is no question that a coat made of harp-seal fur would be covered either by the term marine mammal or marine mammal product.
The moratorium on marine mammal importation in sec. 101(a) of the MMPA is mandatory. The moratorium is an import embargo which is not subject to the discretion or waiver of the U.S. government and any of its agencies unless the legislation is complied with strictly.
A fundamental assumption in this memorandum is that harp seals in Greenland are not an internationally endangered or threatened species subject to CITES. If CITES were involved it is my opinion that the trade obligations on parties to CITES would override the obligations that exist under the GATI’ and an American import embargo would be internationally legal. (See McDorman, “The 1991 U.S. - Mexico GATT Panel Report”, pages 483-487.)
The standard approach utilized in analyzing whether a law, regulation or policy (measure) is consistent with the rules of GATI’ is to examine, whether the measure is consistent with one of the fundamental rules of GATT and, if the measure is in breach of a rule, to then determine whether there may exist an exception that permits or justifies a state to impose the measure. This approach will be followed in this memorandum.
It is important to note that in examining the wording of GATT reference is made to GATT Panel Decisions which have explored or applied the relevant wording of the GATT rules and exceptions. GATT Panel Decisions arise from the use by states of the GATT dispute settlement process (now WTO dispute settlement process). GATT Panel Decisions are only binding for the direct parties to a dispute and only become binding when adopted by the GATT Council (now WTO). GATT Panel Decisions need not be accepted or followed by subsequent dispute settlement panels. However, the findings of GATT Panel Decisions are highly persuasive and, therefore, are valuable in examining the application of GATT rules and exceptions.
The two principal GATT rules that need to be examined are Article XI, the prohibition on import and export quantitative restrictions, and Article III(4), the requirement that, respecting laws and regulations affecting the internal sale of goods, foreign goods must be accorded to the same treatment as domestic goods — national treatment.
Under the title “General Elimination of Quantitative Restrictions”, GATT Article XI(1) states:
No prohibitions or restrictions ..., whether made effective through quotas, import or export licences or other measures, shall be instituted or maintained by any contracting party on the importation of any product of the territory of any other contracting party...
Article XI directs that not only are restrictions on the quantity of goods being imported inconsistent with Article XI(1), so also are prohibitions on the import of goods. Thus, an absolute ban on imports would be inconsistent with the wording in Article XI(1).
On its face, the U.S. moratorium on the import of marine mammals and marine mammal products is a breach of Article XI(1).
In the Tuna-Dolphin Panel Decision (1991) and the Tuna-Dolphin Panel Decision (1994)1, an American embargo on tuna imposed pursuant to the 4 MMPA was found to be inconsistent with Article XI(1). The tuna embargo was imposed where fishers from foreign countries did not comply with the dolphin-friendly standards established by the MMPA for tuna harvesting. In both the 1991 and 1994 Decisions, the United States did not contest that the tuna embargo was a breach of Article XI(1). However, the United States argued that Article XI(1) was not the appropriate GATT rule to be applied to the tuna embargo, rather the appropriate GATT rule was in Article III(4).
The purpose of Article III is to enforce the principle that foreign foods, once imported into a state, are to be treated the same as similar domestic goods. Article III is designed to prevent discrimination between foreign and domestic goods once foreign goods have complied with whatever border requirements may exist. Article III(1) sets out that, respecting foreign goods, states should not use internal taxes, internal charges or laws, regulations and requirements affecting internal sale so as to afford protection to domestic production. While Article III(1) provides direction to states, it is Article III(4) which contains the obligation on states respecting national treatment. The key sentence in Article III(4) reads:
The products of the territory of any contracting party imported into the territory of any other 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 affecting their internal sale, offering for sale, purchase, transportation, distribution or use. (emphasis added).
The framework of the GATT that Article XI(1) is to deal with border measures
and Article III with internal measures is partially undermined by an Interpretative
Note appended to Article III, the relevant part of which reads:
Any internal tax or other internal charge, or any law, regulation or requirement 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 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, and is accordingly subject to the provisions of Article III.
The effect of this provision is to permit states to enact internal laws respecting foreign and domestic goods, but have the law apply to the foreign goods at the border. The key to the Interpretative Note appended to Article III is that the law, regulation or requirement enforced at the border must be “of the kind” permitable under Article III, in either words, an internal measure.
Distinguishing whether a law, regulation or requirement is a border measure or an internal measure determines whether Article XI(1) or Article III(4) applies. It has been argued that a significant factor in making the border/internal determination is whether the measure in question applies equally to foreign and domestic products. The contention is that if a measure applies to both foreign and domestic goods then the measure is subject to examination under Article III(4) and not Article XI(1). While the cases noted below provide some support for this proposition, it is my view that equal treatment is secondary to the question of whether the measure is a border or internal measure.
The U.S. argument in the Tuna-Dolphin Panel Decision (1991) and the Tuna-Dolphin Panel Decision (1994) was that the prohibition on tuna imports was not a border measure captured by Article XI(1), but that the import prohibition was a measure which was the necessary border enforcement of tuna harvesting standards which applied to both foreign and domestic fishers and, therefore, that Article III(4) was the relevant GATT provision. The essence of the U.S. position was that, as long as the same standard was applied to foreign and domestic tuna, any challenge of a measure designed to enforce those standards had to be examined under Article III(4).
Underlying the U.S. posture was the argument that failure to apply Article III(4) would lead to the United States being required to give better treatment to foreign-produced goods than to like goods produced in the United States and that neither foreign nor domestic fishers should be permitted to sell tuna in the United States without complying with the same tuna-harvesting standards.
Both the Tuna-Dolphin Panel Decision (1991) and the Tuna-Dolphin
Panel Decision (1994) rejected the U.S. argument that Article III(4)
was applicable. In para. 5.8 of the 1994 Decision, the Panel concluded
that Article III(4) called for a comparison of the treatment accorded to
domestic and foreign “products” rather than a comparison of policies,
practices or standards for product production in different countries. Since
the tuna embargo was unrelated to the tuna as a product, rather it was
related to the harvest or production of the tuna and the harvesting or
production method did not affect the tuna itself, Article III(4) was determined
not to be applicable.
The Tuna-Dolphin Panel Decision (1991) reached the same conclusion
but looked in more detail at the interaction of Article III(4), the Interpretative
Note to Article III and Article XI(1). At para. 5.9 the Panel commented:
While restrictions on importation are prohibited by Article XI:1, contracting parties are permitted by Article III:4 and the Note Ad Article III to impose an internal regulation on products imported from other contracting parties provided that it: does not discriminate between products of other countries in violation of the most-favoured-nation principle in Article I:1; is not applied so as to afford protection to domestic production, in violation of the national treatment principle of Article III:1; and accords to imported products treatment no less favourable than that accorded to like products of national origin, consistent with Article III:4. (emphasis added)
Moreover, at the end of para. 5.11 the 1991 Panel commented that the Interpretative Note:
... covers ... measures applied to imported products that are of the same nature as those applied to the domestic products, such as a prohibition on importation of a product which enforces at the border an internal sales prohibition applied to both imported and like domestic products. (emphasis added)
Another relevant decision arose under the Canada-United States Free Trade Agreement dispute settlement process 2. In the 1990 Lobster Panel Decision, U.S. legislation which made it unlawful “to ship, transport, offer for sale, sell, or purchase, in interstate or foreign commerce” lobsters under a certain size was challenged by Canada. Canada argued that the legislation amounted to a trade embargo, as it applied to imported lobster, and was, therefore, inconsistent with Article XI(1). The United States took the view, ultimately shared by a majority of the Panel 3, that the appropriate GATT principle to be applied was Article III(4). The central issue, therefore, was whether the U.S. measure fell to be evaluated under Article XI(1) or III(4).
The 1990 Lobster Panel Decision concluded that the U.S. law did not amount to a border measure and, therefore, that Article III(4) rather than Article XI was the appropriate provision for evaluation of the U.S. law. The U.S. law was not determined to be a border measure since the law was not imposed as a condition of entry into the United States or at the time of importation and the law was “not applied exclusively to imported goods without being related in any way to similar” measures applying to domestic goods. (Panel Decision, para. 7.12.4) Underlying the Panel Decision was the U.S. argument that, if undersized lobster from Canada were permitted to be imported, then fishers from Canada would be treated more favourably than American fishers. The Panel decided that the U.S. law was a measure consistent with or like internal measures covered by Article III which, because of the Interpretative Note, could be imposed at the point of importation.
In the 1993 Puerto Rico U.H.T. Milk Panel Decision, another Panel Decision arising from the Canada-U.S. Free Trade Agreement, the Panel was faced again with the question of whether Article XI or III was applicable. The questioned legislation permitted issuance of a licence for the import, sale and distribution of U.H.T. milk when certain standards respecting the product were met. These standards applied to all U.H.T. milk irrespective of source. Licences for U.H.T. milk from Canada had been cancelled and not renewed even though it was argued that the standards that Canada applied to exported milk were equivalent to the newly-required U.S. standards. Canada argued that the U.S. legislation was inconsistent with GATT Article XI(1). The Panel, however, felt that the implementation of the milk standards could not be characterized as a quantitative restriction within the wording of Article XI(1), rather that the U.S. law was a domestic or internal measure and, therefore, subject to Article III. Key in the Panel determination was the fact that a single licence permitted importation, distribution and sales rather than a separate licence or requirement explicitly directed at importation. (Panel Decision, para. 5.8)
The final decision to be noted is the 1992 Canada - Alcoholic Drinks Panel Decision. One aspect of this GATT Panel Decision involved the regulations in certain Canadian provinces that enforced a minimum price for beer. In determining whether these regulations were to be evaluated as possible quantitative restrictions under Article XI(1) or as consistent with the national treatment requirement under Article III(4), the Panel looked at the wording of the Interpretative Note to Article III where reference is made to measures which apply to imported and like domestic products. The Panel decided that: “as the minimum prices were applied to both imported and domestic beer, they fell, according to this Note under Article III”. (Panel Decision, para. 5.28)
It can be argued that sec. 101(a) of the MMPA is designed to ensure
that no marine mammals or marine mammal products either from domestic or
foreign sources enter into U.S. commerce. American citizens cannot produce
harp-seal fur coats or fur coats made of other marine mammals (subject
to permits) and neither can harp-seal fur coats or fur coats made from
other marine mammals be imported into the United States. It can be argued
that allowing importation of harp-seal fur coats would benefit foreign
producers at the expense of potential American-domestic producers. It can
be argued, therefore, that sec. 101(a) of the MMPA, in preventing harp-seal
fur coats from entering the U.S. market, applies equally to foreign and
domestic goods and that Article III(4) is the applicable GATT provision
to examine.
The fact that the MMPA may provide for foreign marine mammal products to
receive treatment equivalent to that given domestic marine mammal products
does not result automatically in the application of Article III(4). Without
the benefit of the decisions noted in the above section of this memorandum,
Edmond McGovern in International Trade Regulation (1986) wrote at page
245:
(W)hile Article III permits internal quantitative measures provided both imported and domestic products are included within their scope, Article XI does not allow such action against domestic goods to justify restrictions imposed at the point of importation.... (emphasis added)
My understanding of this sentence is that equal treatment does not necessarily remove an import prohibition from the realm of Article XI(1). [Also see below at page 17 the material cited from page 743 of John H. Jackson, World Trade and the Law to GATT, (1969).]
Examining the wording of sec. 101(a) of the MMPA, the legislation clearly directs that there is to be a moratorium on importation and that no marine mammal or marine mammal product may be imported into the United States. The character of the legislation is a border measure and not an internal measure. The legislation does not apply a standard of an internal nature to both domestic and like foreign goods such as the lobster size requirements in the 1990 Lobster Panel Decision or the minimum price of beer requirement in the 1992 Canada - Alcoholic Drinks Panel Decision. Moreover, in both these situations the legislation clearly applied to points of internal sale and handling and did not explicitly prohibit importation, although import denial may have been the effect of the legislation. In the 1993 Puerto Rico U.H.T. Milk Panel Decision the import prohibition was linked to internal distribution and sales and, more importantly, linked to the attainment of a recognizable product standard. There was no absolute prohibition of the import of the goods in the 1990 Lobster Panel Decision; the 1993 Milk Panel Decision or the 1992 Canada - Alcoholic Drinks Panel Decision. If the internal standard could be met then the foreign product (lobster, milk or beer) could be imported. Such is not the case under sec. 101(a) of the MMPA for marine mammal products, in particular, harp-seal fur coats.
The excerpt cited above at page 11 from para. 5.11 of the Tuna-Dolphin Panel Decision (1991) which suggests that a provision which prohibits importation of a product would be covered by Article III(4) if sales of the foreign and similar domestic product were equally prohibited must be approached cautiously. Articles III(4) and (1) refer to measures which affect “internal sale”. To meet this criterion an import prohibition would need to be a necessary extension of an internal sales prohibition which clearly applied equally. An example of this is the legislation in the 1993 Puerto Rico U.H.T. Milk Panel Decision where the import impediment was directly linked to internal distribution and sales in that a single licence covered all three activities. The import embargo in sec 101(a) of the MMPA has no relationship to an internal sales prohibition. While the effect of sec. 101(a) may be to prohibit internal sale of marine mammal products from both foreign and domestic sources, the legislation is clearly not aimed at this purpose.
Professor John H. Jackson in his classic text World Trade and the Law of GATT (1969) endorses the view that equal treatment does not remove an import embargo from the reach of Article XI(l). At page 743 he writes:
If imported goods and domestic goods are treated equally with respect to public health and morals regulation, or any other public regulation, then no breach of GATT is involved. However, the Article XX exceptions may be necessary so that special devices against imports can be used as part of a regulatory scheme. For instance, a prohibition on import of unhealthy goods would probably not be considered “internal regulation” under Article III (even though coupled with internal regulations against sale of the same goods). In fact, such a measure could be within the language of Article XI... ! (emphasis added)
The conclusion reached is that Article III(4) is not the appropriate provision under which the sec. 101(a) import moratorium would be examined. Article XI(1) is the relevant provision and, as noted above, the U.S. moratorium on the importation of the marine mammals and marine mammal products, particularly as it affects harp-seal fur coats from Greenland, is inconsistent with Article XI(l).
Within Article XI allowance is made for situations where quantitative prohibitions and restrictions may be employed by a state. The exception of possible direct relevance to the MMPA import moratorium is Article XI(2)(c)(i) which allows import restrictions on agricultural and fisheries product where like domestic product is subject to marketing or production restrictions. The other exceptions of importance are in Article XX which permit states to impose measures inconsistent with the GATT (such as an import embargo) where the measure is: necessary to protect human or animal life or health; related to conservation of exhaustible natural resources; or necessary to protect public morals.
Article XI(2)(c)(i) reads:
2. The provisions of paragraph 1 of this Article shall not extend to the following:
...
(c) Import restrictions on any agricultural or fisheries product, imported in any form, necessary to the enforcement of governmental measures which operate:
(i) to restrict the quantities of the like domestic product permitted to be marketed or produced, or, if there is no substantial domestic production of the like product, of a domestic product for which imported product can be directly substituted: (emphasis added)
Article XI(2)(c)(i) is an unusual provision in GATT since it specifically permits the employment of quantitative restrictions (quotas) in order to protect domestic producers of agricultural and fishery products. The provision has been the subject of several GATT panel decisions. The 1989 Canada-Ice Cream Panel Decision conveniently summarized both the elements that must exist in order to take advantage of the exception and the burden of proof regarding the elements. Respecting the proof burden, it is upon the claimant to show that all the elements of the provision have been met and GATT exceptions are to be interpreted narrowly.
The 1989 Canada-Ice Cream Panel Decision listed seven conditions that had to be met for use of Article XI(2)(c)(i). The first of these conditions is that “the measure on importation must constitute an import restriction (and not a prohibition)”. (emphasis added) (Panel Decision, para. 62) The other conditions direct that domestic product also must be restricted and that the import restriction must be “necessary to the enforcement of the domestic supply restriction”. The conditions mirror the thrust of Article XI(2)(c)(i) that import restrictions may be used if necessary to protect a domestic marketing or price support system or agricultural or fisheries products.
The acceptance in Article XI(2)(c)(i) of restrictions on imports but not prohibitions of imports is critical. In the 1988 Japan - Restrictions on Agricultural Products Panel Decision measures which prohibited imports were determined not to be “restrictions on imports” and therefore Article XI(2)(c)(i) was determined not to be applicable.
The Article XI(2)(c)(i) exception applies to agricultural and fisheries products in any form. Ice cream and yogurt were found to be agricultural products for the purposes of Article XI(2)(c)(i) in the 1989 Canada - Ice Cream Panel Decision. The Panel concluded that consumers and industry viewed ice cream and yogurt as agricultural products.
Article XI(2)(c)(i) would not be useable by the United States to justify its import moratorium on marine mammals and marine mammal products. First, it is not clear if marine mammals are covered by the wording “agricultural or fisheries product”. The question of whales being covered by this provision was raised during the negotiations on the Article but no decision was made. (Guide to GATT Law and Practice, (1994), p. 302) If seals were included, then seal fur coats would also be covered since consumers and industry clearly link seal fur coats with seals. The best view of this issue is that seals and seal fur coats would be covered by the term “agricultural or fisheries product”. Second, and of greater importance, the U.S. measure is clearly a prohibition and not a restriction. Article XI(2)(c)(i) only allows restrictions, thus the import moratorium does not meet the criteria of the exception. Third, while as a factual matter U.S. supply controls exist on marine mammals, the controls are not truly for the purposes of supply or price regulation for the marketing or production of marine mammals or marine mammal products. Therefore, the import embargo is not necessary to the enforcement of domestic supply restrictions.
The conclusion is that Article XI(2)(c)(i) is not available as a justification for the U.S. import embargo on harp-seal fur coats from Greenland.
Article XX is titled “General Exceptions” and provides a listing of exceptions which can justify departure from GATT rules. GATT panels examining Article XX have emphasized that the exceptions are to be construed narrowly and that the burden of showing that the conditions in the exceptions have been met is on the state claiming that an exception applies. The structure of Article XX is that there is an introductory paragraph which contains two conditions which are applicable to the ten listed specific exceptions. Compliance with Article XX requires that a claimant meet the conditions contained in the specific exception being relied upon as well as the two conditions created in the Article XX introductory wording. The introductory wording to Article XX reads:
Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction in international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures: ...
The two conditions created by this wording are that any measure taken not constitute “arbitrary or unjustifiable discrimination between countries” and that the measure not be “a disguised restriction on international trade”.
The MMPA sec. 101(a) import moratorium meets the first of these conditions. The import embargo applies to all marine mammals and marine mammal products and, therefore, does not discriminate against specific countries or sources.
The second condition, that the measure not be “a disguised restriction on international trade”, is capable of differing interpretations. This condition could be met simply by the measure in question having been properly publicized and being a recognized trade measure, such as an embargo. The 1982 United States - Tuna Import Panel Decision suggested that the second condition was met where the U.S. tuna import embargo “had been taken as a trade measure and publicly announced as such”. (Panel Decision, para. 4.8) MMPA sec. 101(a) would meet this interpretation of not being a disguised restriction on international trade.
A different approach to the second condition was used in 1989 Canada’s Landing Requirement For Salmon Panel Decision, a panel report issued under the Canada-United States Free Trade Agreement. The principal issue in dispute was whether the Canadian requirement that all salmon caught in Canadian waters had to be landed in Canada was a conservation measure which fit the Article XX(g) exception respecting conservation of exhaustible natural resources. The 1989 Salmon Panel felt that in examining “disguised” it was necessary to determine if a particular measure had as its true purpose one of the goals set out in the listed exceptions. Respecting the “disguised” condition of Article XX, at para. 7.04 the Panel stated:
(T)he prohibition against “disguised” restrictions on international trade stated in the preamble to Article XX is in essence just the opposite face of the requirement in paragraph (g) that trade-restricting conservation measures must in fact have a true conservation purpose.
This approach to “disguised” is the questioning of the bona fides or genuiness of the purpose of the measure. This interpretation of “disguised” is consistent with comments made during the negotiations on the wording of Article XX when fear was expressed that embargoes stated to be for one of the purposes listed in Article XX might operate as indirect protectionist measures. (Guide to GATT Law and Practice, (1994), p. 519) The applicable adage is - one cannot do indirectly what one cannot do directly.
There is little guidance, however, as to how one should apply the genuineness approach to “disguised” in a specific situation. In the 1989 Canada’s Landing Requirement For Salmon Panel Decision, the Canada-U.S. Free Trade Panel examined whether the landing requirement had a genuine conservation purpose by seeking to determine if the measure had a conservation rationale and whether the measure would have been employed if the cost were to be borne by Canadians. (Panel Decision, para. 7.09) Ultimately, the Panel decided that the landing requirement for all salmon and herring was not necessary for conservation purposes and, therefore, that the landing requirement was a disguised impediment to international trade.
The purpose of the import moratorium in sec. 101(a) of the MMPA is to deal with marine mammals and marine mammal products. The “genuineness” of this purpose is difficult to dispute. The embargo does not result in protection of American producers of marine mammal products. It could be suggested that the embargo on harp-seal fur coats results in a protected market for other types of fur coats. However true this may be, it is clear that the purpose of the marine mammal product import moratorium is directed at marine mammals themselves and is not a “disguised” restriction on international trade.
The MMPA marine mammal moratorium meets either of the two approaches to the second condition of the Article XX introduction, and as noted, the import moratorium also meets the first condition in the Article XX introduction respecting non-discrimination.
States are permitted to employ trade embargoes and other measures inconsistent with the principal rules of the GATT where the embargo or measure complies with the conditions in the Article XX introduction and the embargo or measure is “(b) necessary to protect human, animal or plant life or health”. The principal purpose of Article XX(b) is to permit states to impose embargoes and other trade measures necessary to protect the life and health of their human, animal and plant populations. Import embargoes on toxic waste, diseased meats or untested pharmaceuticals would all be justified by Article XX(b).
Notwithstanding that Article XX exceptions are to be interpreted narrowly, states can be expected to be given a high degree of discretion as to what is necessary to protect the life and health of their populations.
The marine mammal product import moratorium in sec. 101(a) of the MMPA, however, is not connected to protection of marine mammals (or human health or life) in the United States. Particularly as regards harp-seal fur coats, the import embargo does not have as its purpose the protection of harp seals or related species in the United States. Hence, the issue is whether Article XX(b) is applicable where an import embargo is designed, or has the effect, of protecting the health or life of animals outside the territory of the state imposing the embargo.
This question was dealt with by both the Tuna-Dolphin Panel Decision (1991) and the Tuna-Dolphin Panel Decision (1994). Part of the U.S. argument is those decisions was that the tuna embargo was necessary to protect dolphin wherever they were found and that Article XX(b) was applicable to justify such an embargo. Both Panels decided, however, that Article XX(b) was not applicable in the specific situation of the tuna embargo imposed by the United States under the MMPA.
A widely held view of the interpretation of Article XX(b) used to be that the animal life (as well as human and plant health and life) being protected by a trade embargo had to be in the country imposing the measure. (See: Tuna-Dolphin Panel Decision (1991), at para. 5.26 and McDorman, “The GATT Consistency of U.S. Fish Import Embargoes”, (1991), p. 520.) Despite the easy application and logic of this approach to Article XX(b), the explicit geographic approach is not sustained by the precise wording of Article XX(b) which makes no reference to the locale of the animal life being protected. The Tuna-Dolphin Panel Decision (1994) specifically rejected that an explicit geographic limitation should be read into Article XX(b). (Panel Decision, para. 5.31)
Para. 5.29 of the Tuna-Dolphin Panel Decision (1994) sets out the analytic steps for dealing with Article XX(b):
First, it had to be determined whether the policy in respect of which these provisions were invoked fell within the range of policies referred to in these provisions, that is policies to protect human, animal or plant life or health;
Second, it had to be determined whether the measure for which the exception was being invoked - that is the particular trade measure inconsistent with the obligations under the General Agreement - was necessary to protect human, animal or plant life or health; (Emphasis in original)
In the 1994 Decision, the Panel concluded respecting step one that the tuna embargo was tied to the protection of dolphins and that the policy which was being pursued by the embargo was one which fell within the range of policies covered by Article XX(b). A similar argument that the policy of the sec. 101(a) marine mammal product import embargo was to protect the life and health of harp seals (or other marine mammals) would also fit the range of policies covered by Article XX(b), hence step one of the analysis would be met.
Respecting the second step, the Tuna-Dolphin Panel Decision (1994) looked at the relationship between the trade embargo and the conservation policy being promoted by the trade embargo in order to determine if the embargo was “necessary” for the protection of dolphins. At para. 5.37, the Decision states:
The Panel observed that, ... the prohibition on imports of tuna into the United States ... could not possibly, by itself, further the United States objective of protecting the life and health of dolphins. The ... embargo could achieve its desired effect only if it were followed by changes in policies and practices in the exporting countries. ... (T)he Panel observed that ... the ... embargoes on tuna were taken by the United States so as to force other countries to change their policies with respect to persons or things within their own jurisdiction, since the embargoes required such changes in order to have any effect on the protection of the life or health of dolphins. (emphasis added)
Not surprisingly, given the characterization of the U.S. tuna embargo as an attempt to force other countries to adopt U.S. standards, the Panel concluded, at para. 5.39:
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 “necessary” for the protection of animal life or health in the sense of Article XX(b).
Despite the convoluted reasoning of the Tuna-Dolphin Panel Decision (1994) and its explicit rejection of the geographic limitation on Article XX(b), the result is equivalent to a geographic limitation. This is clear in para. 5.38:
If Article XX(b) were interpreted to permit contracting parties to deviate from ... the General Agreement by taking trade measures to implement policies within their own jurisdiction, including policies to protect living things, the objectives of the General Agreement would be maintained. If however Article XX(b) were interpreted to permit contracting parties to impose trade embargoes so as to force other countries to change their policies within their jurisdiction, including policies to protect living things, and which required such changes to be effective, the objectives of the General Agreement would be seriously impaired. (emphasis added)
Article XX(b), therefore, cannot be relied upon where an embargo is designed to or has the effect of imposing (or forcing) one state’s desired policies regarding protection of animal life into the internal affairs of another state.
Applying the above second step to the U.S. import moratorium on harp-seal fur coats one must conclude the same as the Tuna-Dolphin Panel Decision (1994). The import prohibition, by itself, will not further the objective of protecting harp seals. This desired effect could only be achieved if Greenland were to change its internal policies and practices respecting harp seals. An import embargo adopted to force change in another country the goal of which, harp seal protection, can only be effective if such changes are made, cannot be considered “necessary” for harp seal protection.
The conclusion is that the U.S. marine mainmal product import moratorium in sec. 101(a) of the MMPA as it applies to harp-seal fur coats is not justified by the Article XX(b) exception in the GATT.
States are permitted to employ trade embargoes and other measures inconsistent with the principal rules of the GATT where the embargo or measure complies with the conditions in the Article XX introduction and the embargo or measure is “(g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption.” The principal purpose of Article XX(g) is to permit states to impose trade measures which assist in the conservation of their exhaustible natural resources. This provision is the only one in GATT which deals specifically with environmental matters and was negotiated at a time (1940s) before environmental awareness was acute.
Notwithstanding that Article XX exceptions are to be interpreted narrowly, states can be expected to be given a high degree of discretion as to what laws and policies may be adopted to protect and enhance their environments. Para. 7.05 of the 1989 Canada’s Landing Requirement For Salmon Panel Decision, a panel report issued under the Canada-United States Free Trade Agreement, summarized the scope to be given environmental policies under Article XX(g):
The Panel recognized that Article XX(g) exists to ensure that the provisions of the GATT do not prevent governments from pursuing their conservation policies. The Panel was conscious ... of the need to allow governments appropriate latitude in implementing their conservation policies. It was not the intention of Article XX(g) to allow trade interests of one state to override the legitimate environmental concerns of another.
The marine mammal product import moratorium in sec. 101(a) of the MMPA, however, is not connected to conservation of marine mammals in the United States. Particularly as regards harp-seal fur coats, the import embargo does not have as its purpose the conservation of harp seals or related exhaustible natural resources in the United States. Hence, as with Article XX(b), the issue is whether Article XX(g) is applicable where an import embargo is designed, or has the effect, of conserving marine mammals (harp seals) outside the territory of the state imposing the embargo.
This question was dealt with in both the Tuna-Dolphin Panel Decision (1991) and the Tuna-Dolphin Panel Decision (1994) in which the United States argued that the Article XX(g) exception justified its tuna embargo. Both Panels rejected the American argument. The 1994 Decision declined to adopt the inclusion of an explicit geographic limitation into Article XX(g) which would have restricted its availability to the situation where the natural resources being conserved had to be in the state employing the trade measure. As with Article XX(b), the 1994 Decision created a two-step analysis for examining the application of Article XX(g). The analysis, as set out at para. 5.12, reads 4 :
First, it had to be determined whether the policy in respect of which these provisions were invoked fell within the range of policies to conserve exhaustible natural resources.
Second, it had to be determined whether the measure for which the exception was being invoked - that is the particular trade measure inconsistent with the obligations under the General Agreement - was “related to” the conservation of exhaustible natural resources, and whether it was made effective “in conjunction” with restrictions on domestic production or consumption. (Emphasis in original)
In the Tuna-Dolphin Panel Decision (1994), the Panel concluded that the tuna embargo was related to the conservation of dolphins and, therefore, met the requirements of step one. A similar argument that the policy of the sec. 101(a) marine mammal product import embargo is to conserve natural resources would also fit the range of policies covered by Article XX(g), hence step one of the analysis would be met.
Respecting the second step, the Tuna-Dolphin Panel Decision (1994) relied on the interpretation of Article XX(g) from the 1988 Canada - Unprocessed Salmon Panel Decision. The issue in the 1988 Decision was whether a Canadian law preventing the export of unprocessed salmon met the requirements of Article XX(g). The 1988 Decision concluded that the Canadian measure did not meet the requirements of Article XX(g). The 1988 Decision explained that Article XX exceptions were to be interpreted narrowly. Consequently, the requirement in Article XX(g) that the trade measure had to be “relating to conservation” meant that the trade measure had to be “primarily aimed” at the conservation of natural resources.
Using virtually identical wording as respecting the second step of the Article XX(b) analysis, dealing with Article XX(g) the Tuna-Dolphin Panel Decision (1994) at para. 5.24 states:
The Panel observed that, ... the prohibition on the imports of tuna into the United States ... could not possibly, by itself, further the United States conservation objectives. The ... embargo could achieve its desired effect only if it were followed by changes and practices in exporting countries. ... (T)he Panel observed that ... the ... embargoes on tuna implemented by the United States were taken so as to force other countries to change their policies with respect to persons and things within their own jurisdiction, since the embargoes required such changes in order to have any effect on the conservation of dolphin.
Similar to the conclusions reached as regards Article XX(b), the Tuna-Dolphin Panel Decision (1994) concluded at para. 5.27 respecting Article XX(g) that measures taken to force changes in other countries were not “primarily aimed” at the conservation of natural resources. The Panel, in para. 5.26 again using almost the exact wording as noted above from para. 5.38 as regards Article XX(b), (see above page 27) effectively endorsed a geographic limitation for employment of Article XX(g). Hence, Article XX(g) cannot be relied upon where an embargo is designed or has the effect of imposing (or forcing) one state’s desired conservation policies into the internal affairs of another state.
Applying the above second step to the U.S. import moratorium on harp-seal
fur coats one must conclude the same as the Tuna-Dolphin Panel Decision
(1994). The import prohibition, by itself, will not further the objective
of conserving harp seals. This desired effect can only be achieved if Greenland
were to change its internal policies and practices respecting harp seals.
An import embargo adopted to force change in another country the goal of
which, harp seal conservation, can only be effective if such changes are
made, cannot be considered as “primarily aimed” at conservation
of harp seals.
The conclusion is that the U.S. marine mammal product import moratorium
in sec. 101(a) of the MMPA as it applies to harp-seal fur coats is not
justified by the Article XX(g) exception to the GATT.
States are permitted to employ trade embargoes and other measures inconsistent with the principal rules of the GATT where the embargo or measure complies with the conditions in the Article XX introduction and the embargo is “(a) necessary to protect public morals”. The principal purpose of Article XX(a) is to permit states to impose embargoes and other trade measures to keep material deemed to be offensive from entering the state. McGovern, in his text International Trade Regulation (1986) at page 400, notes that American and European Union embargo practices associated with Article XX(a) primarily involve obscene materials. Vinod Rege (1994), at page 117, footnote 20, suggests that religious considerations may allow India to prohibit the import of beef and Islamic countries to prohibit the import of pork under Article XX(a).
It is difficult to sustain an argument that the MMPA is a law designed to deal with issues of public morals and, therefore, that the sec. 101(a) import moratorium is within the range of coverage of Article XX(a). While there is little doubt that moral outrage motivated much of the MMPA, the legislation is primarily a law related to marine mammal conservation. As Professor Coggins has written:
The legislative history of the MMPA reflects a general agreement on the goal of marine mammal conservation but considerable conflict over the best or most feasible methodology. “Extremist preservationists” advocated a total moratorium on all killing of marine mammals and a total ban on importation of any product made therefrom. Representatives of entities with an economic interest in exploitation of marine mammals were joined by various federal agencies and resource-oriented biologists in calling for a “scientific management” approach calculated to provide an “optimum sustainable yield”.
The final enactment was a compromise between and blend of those approaches. Congress ... clamped an absolute ban on killing or importing all marine mammals for an indefinite period. Congress then gave the administrators various discretionary powers to relax that ban when circumstances warranted. (Coggins, (1975), pp. 15-16)
Moreover, it is difficult to give credence to the argument that in the United States marine mammal protection is an equivalent component of “public morals” as the Hindu religion in India or the Islamic religion in a country like Saudia Arabia.
It could be argued, however, that the intent of the MMPA respecting
resource conservation should be either ignored or that the reality is that
the import prohibition is an issue of public morals and that Article XX(a)
might be applicable.
Based on the commentary of John H. Jackson, World Trade and the Law
of GATT (1969) at pages 741-745, it appears that the wording of Article
XX(a) derived from an American proposal. Jackson, at page 741 footnote
3, refers to several U.S. bilateral commercial agreements which contained
the wording “public morals”. For example, Article XVII from the
1942 United States-Mexico Agreement reads:
Nothing in this Agreement shall be construed to prevent the adoption or enforcement of measures:
(a) imposed on moral and humanitarian grounds;
This wording provides a broad exception for any import or other trade measure imposed for any moral or humanitarian reason. It could be argued that Article XX(a) should be interpreted in light of and to be consistent with the broad American treaty wording which was the precedent for Article XX(a).
The wording of Article XX(a), however, is significantly different from the above American treaty clause by requiring that a trade measure must be “necessary to protect public morals”. It is not enough that the motive for a measure is moral outrage or that there exists moral or humanitarian grounds for the action. Interpreting Article XX(a) in a way to permit import measures simply because one country is morally offended by the internal activities of another country is: (i) inconsistent with the plain meaning of the words in Article XX(a); (ii) would create a very broad exception to the GATT and Article XX exceptions are to be interpreted narrowly; and (iii) would result in the moral values of one country being forced through the use of trade measures onto another country. Concerning the third point, the reasoning in the Tuna-Dolphin Panel Decision (1994) that countries cannot use trade measures to force other countries to adopt internal laws to protect animal life or conserve natural resources would also apply to Article XX(a). It is to be noted that Article XX(a) is usually considered in conjunction with Article XX(b) (see for example Jackson, (1969), p. 743) and, therefore, the approach to Article XX(b) should also be applied to Article XX(a).
As previously noted, it was moral outrage with the Canadian harp seal hunt in the early 1970s which played a prominent role in the United States adopting the marine mammal and marine mammal product import embargo. It should also be noted that the sec. 101(a) moratorium applies to domestic taking of marine mammals and foreign imports, thus indicating that it is the taking or harvesting of marine mammals either domestically or foreign which is the main thrust of the legislation. Moreover, sec. 102(b) (16 U.S.C.A. 1372(b)) makes it unlawful to import marine mammals which were pregnant, nursing or less than eight months old at the time of taking, or were “taken in a manner deemed inhumane..”. This provision reinforces the view that the moral outrage motivating the moratorium is directed at the taking or harvesting of marine mammals in a foreign country. To the extent that public morals are relevant to the MMPA marine mammal import moratorium, the public morals concern is with the taking of marine mammals in a foreign state. The import embargo in sec. 101(a) of the MMPA, as it applies to harp-seal fur coats from Greenland, cannot be justfied under Article XX(a) based upon moral outrage at the taking of the seals in Greenland.5
However, it might be argued that the presence of marine mammals or marine mammal products in the United States would be offensive to American public morals and, therefore, that the import prohibition is “necessary to protect public morals”. It is worth repeating that Article XX exceptions are to be interpreted narrowly and the state seeking to rely on an exception has the burden of showing that all the conditions of the exception have been met. The mere assertion that a trade measure is for the protection of public morals does not satisfy the conditions of Article XX(a). The United States would need to show: (i) that the presence of marine mammal products in the United States would harm public morals or was an issue of public morality; and (ii) that marine mammal import embargo was necessary to protect those morals.
Undermining the success of the United States showing that the presence of marine mammals or marine mammal products in the United States harms public morals or is an issue of public morality are the numerous provisions of the MMPA which have allowed exceptions to the moratorium on domestic taking of marine mammals. Marine mammals and marine mammal products are present in the United States without a noticeable influence on public morals. Further undermining a U.S. claim that the presence of harp seal fur coats would harm public morals is the robust American fur industry and fur market which relies on other animals.
However, if the United States can show that the marine mammal product import moratorium in sec. 101(a) of the MMPA is of a public morals character such that the mere presence of marine mammals is inconsistent with public morals, then the final condition for Article XX(a) that the trade measure must be necessary to protect public morals would need to be met.
“Necessary” is used in both Article XX(b) and (d) and the 1990 Thailand - Cigarettes Panel Decision indicated at para. 74 that the meaning should be the same in the two clauses. The meaning of “necessary” in Article XX(a), therefore, should be consistent with that of the term “necessary” in Article XX(b) and (d). The accepted meaning for “necessary” is that no alternative existed. (See Tuna-Dolphin Panel Decision (1994), para. 5.35) If the presence of marine mammal products is against public morals, then there would appear to be no alterntive but to ban their importation, thus the criterion of necessary in Article XX(a) would be met.
However, the conclusion is that the U.S. marine mammal product import prohibition in sec. 101(a) of the MMPA as it applies to harp-seal fur coats is not justified by the Article XX(a) exception to GATT because the MMPA is not legislation of a character which is covered by the Article XX(a) “public morals” exception. If the MMPA import embargo were within the scope of Article XX(a) measures, the exception cannot be used to allow one country to utilize trade measures to enforce its public morals on another country. Finally, there is no validity in the argument that the mere presence of harp-seal fur coats in the United States is an issue of public morals.
The harp seal is not an internationally recognized endangered or threatened species. However, can the United States prohibit the importation of goods, harp-seal fur coats, because it is offended by the production of the goods? Does it matter that the United States prevents its own citizens from producing the goods?
The international trade regime set out in the GATT, to which both the United States and Denmark (Greenland) are parties, dictates that import embargoes are prohibited except in limited circumstances. While the United States can freely prohibit its own citizens from producing harp-seal fur coats, this freedom to control what its own citizens produce does not provide a justification for prohibiting the importation of harp-seal fur coats. Distaste for a product, even if enforced against potential domestic producers, is not within any of the exceptions to the GATT “no-import-prohibition” rule. The exceptions that arguably might justify the U.S. action — protection of animal life, protection of public morals or conservation of natural resources — all fail primarily because the United States, or any other state, cannot use trade measures to force its particular moral or environmental priorities on a foreign country.
The conclusion is that the U.S. import embargo on harp-seal fur coats is inconsistent with the GATT and the U.S. legislation, to the extent it covers harp-seal fur coats, should be changed to bring it into conformity with America’s GATT obligations.
ONE: Article XI(1) prohibits states from imposing import restrictions on goods from other GATT members. The import moratorium imposed on marine mammal products by sec. 101(a) of the MMPA, as it applies to harp-seal fur coats from Greenland, is inconsistent with Article XI(1) of the GATT.
TWO: Article III(4), which directs that provided an internal
measure (law, regulation or policy) applies equally to foreign and like
domestic goods that the measure is GATT-consistent, is not applicable.
The operation of the MMPA to restrict both foreign and domestic marine
mammal products from the American market does not provide a justification
for the import moratorium on harp-seal fur coats. The moratorium created
by MMPA sec. 101(a) is a border measure and not an internal measure
and, therefore, is not a measure which is covered by Article III(4).
THREE: Article XI(2)(c)(i), which permits a state to impose an import
restriction on agricultural and fisheries product where the restriction
is necessary to enforce a marketing or pricing regime for like domestic
product, is not a justification for the harp-seal fur coat embargo. The
harp-seal fur coat embargo is an absolute prohibition and ARticle XI(2)(c)(i)
only permits import restrictions. Moreover, there is no marketing or pricing
regime for domestic harp-seal fur coats of a kind contemplated by Article
XI(2)(c)(i).
FOUR: Article XX(b), which permits a state to impose an import embargo “necessary to protect human, animal or plant life or health”, does not justify the harp-seal fur coat embargo. The Tuna-Dolphin Panel Decision (1991) and the Tuna-Dolphin Panel Decision (1994) make it clear that Article XX(b) cannot justify an embargo which is directed at protecting animal life in a foreign country and which would only be effective in protecting animal life in a foreign state if that foreign state alters its laws and practices. Para. 5.38 of the 1994 Decision states:
If ... Article XX(b) were interpreted to permit contracting parties to impose trade embargoes so as to force other countries to change their policies within their jurisdiction, including policies to protect living things, and which required such changes to be effective, the objectives of the General Agreement would be serious impaired.
FIVE: Article XX(g), which permits a state to impose an import embargo “relating to the conservation of exhaustible natural resources”, does not justify the harp-seal fur coat embargo. Applying the same reasoning to Article XX(g) as was applied to Article XX(b), Article XX(g) cannot justify an embargo which is directed at conserving natural resources in a foreign country and which would only be effective if that foreign state alters its laws and practices.
SIX: Article XX(a), which permits a state to impose an import embargo “necessary to protect public morals”, does not justify the harp-seal fur coat embargo. The marine mammal import embargo in the MMPA is part of a legislative scheme for marine mammal conservation and, therefore, is not related to an isue of public morals. However, if the moratorium is related to public morals, the public morality issue arises respecting the harvesting of marine mammals in Greenland. As with Articles XX(b) and (g), Article XX(a) cannot justify an embargo which is motivated by moral outrage for activities taking place in a foreign country. An embargo can only be justified where it is necessary to protect public morals in the United States.
SEVEN: Conclusion - The import moratorium on marine mammals and marine mammal products in sec. 101(a) of the MMPA, as it applies to harp-seal fur coats from Greenland, is inconsistent with Article XI(1) of the GATT and is not justified by any of the exceptions contained in the GATT.
1982 United States - Prohibition of Imports of Tuna and Tuna Products from Canada, GATT, Basic Instruments and Selected Documents, (BISD), 29th Supp., 91-109.
1988 Canada - Measures Affecting Exports of Unprocessed Herring and Salmon, GATT, BISD, 35th Supp., 98-115.
1988 Japan - Restrictions on Imports of Certain Agricultural Products, GATT, BISD, 35th Supp., 163-245.
1989 Canada - Import Restrictions on Ice Cream and Yoghurt, GATT, BISD, 36th Supp., 68-93.
1990 Thailand - Restrictions on Importation of and Internal Taxes on Cigarettes, GATT, BISD, 37th Supp., 200-228.
1991 United States - Restrictions on Imports of Tuna. [This GATT Panel Decision has not been adopted by the GATT Council. It is, therefore, not binding on the parties to the dispute. As it has not been adopted by the GATT Council, it is not available in the official GATT publication for decisions (BISD).] The Panel Decision is reprinted in (1991), 30 International Legal Materials 1594-1623.
1992 Canada - Import Distribution and Sale of Certain Alcoholic Drinks by Provincial Marketing Boards, GATT, BISD, 39th Supp., 27-90.
1994 United States - Restrictions on Imports of Tuna. [This GATT Panel Decision has not been adopted by the GATT/WTO Council. It is, therefore, not binding on the parties to the dispute.] The Panel Decision is reprinted in (1994), 33 International Legal Materials 842-903.
1994 United States - Taxes on Automobiles. [This GATT Panel Decision has not yet been adopted by the GATT/WTO Council. It is, therefore, not binding on the parties to the dispute.] The Panel Decision is reprinted in (1994), 33 International Legal Material 1397-1457.
1989 Canada’s Landing Requirement For Pacific Coast Salmon and Herring, (16 October 1989), (1990), 1 Trade and Tariff Reports (Canada) 237-276.
1990 Lobsters From Canada, (25 May 1990), (1991), 2 Trade and Tariff Reports (Canada) 72-157.
1993 Puerto Rico Regulation on the Import, Distribution and Sale of U.H.T. Milk from Quebec, (3 June 1993), 5 World Trade Materials 53-78.
Legislative History, Marine Mammal Protection Act of 1972, in 1972 U.S. Code Congressional and Administrative News, 4144-4191.
GATT, Analytic Index: Guide to GATT Law and Practice, 6th edition, (1994), 1082 p.
Secondary Material (Books and Articles)
Charnovitz, Steve, “Free Trade, Fair Trade, Green Trade: Defogging the Debate” (1994), 27 Cornell International Law Journal 459-525.
Coggins, George Cameron, “Legal Protection For Marine Mammals: An Overview of Innovative Resource Conservation Legislation” (1975), 6 Environmental Law 1-59.
Jackson, John H., World Trade and the Law of GATT (New York: Bobbs-Merrill, 1969), 948 p.
Jackson, John H., The World Trading System (Cambridge, Mass.: MIT Press, 1989), 417 p.
Klabbers, Jan, “Jurisprudence in International Trade Law: Article XX of GATT” (1992), 26 No. 2 Journal of World Trade 63-94.
Lyster, Simon, International Wildlife Law (Cambridge: Grotius Publications, 1985), 470 p.
McDorman, Ted L., “Dissecting the Free Trade Agreement Lobster Panel Decision” (1991), 18 Canadian Business Law Journal 445-458.
McDorman, Ted L., “The GATT Consistency of U.S. Fish Import Embargoes to Stop Driftnet Fishing and Save Whales, Dolphins and Turtles” (1991), 24 George Washington Journal of International Law and Economics 477-525.
McDorman, Ted L., “Protecting International Marine Living Resources with Trade Embargoes: GATT and International Reaction to U.S. Practices” in G. Blichfeldt, ed. Additional Essays on Whales and Man (Reine i Lofoten, Norway: High North Alliance, 1995), pp. 21-28.
McDorman, Ted L., “The 1991 U.S.-Mexico GATT Panel Report on Tuna and Dolphins: Implications for Trade and Environment Conflicts” (1992), 17 North Carolina Journal of International Law and Commercial Regulation 461-488.
McGovern, Edmond, International Trade Regulation (Exeter: Globefield Press, 1986), 629 p.
Paterson, Robert K. and Martine N.N. Band, International Trade and Investment Law in Canada (Toronto: Carswell, 2nd ed., 1994), looseleaf.
Rege, Vinod, “GATT Law and Environment - Related Issues Affecting the Trade of Developing Countries” (1994), 28 No. 3 Journal of World Trade, 95-169.
Footnotes:
1 Neither of these two GATT Panel Decisions have been adopted by the GATT or WTO Council. As a technical matter, therefore, neither of these decisions are binding on the parties to the dispute. Unadopted GATT Panel Decisions usually are not as valuable as adopted Decisions in Interpreting GATT wording. However, the Tuna-Dolphin Panel Decision (1991) and (1994) are of unquestioned relevance to the facts being examined in this memorandum. Moreover, in Guide to GATT Law and Practice (1994), a publication of the GATT Legal Secretariat, extensive reference is made to the two Tuna-Dolphin Decisions.
Back to the text2 Both the Canada-United States Free Trade Agreement and the North American Free Trade Agreement adopted, with minimal change, Articles III, XI and XX of the GATT. Some of the disputes that have arisen under these Agreements have required careful examination and application of GATT wording. It is unclear, however, that importance or relevance should be given to dispute settlement decisions under the Canada-U.S. Free Trade Agreement or the North American Free Trade Agreement (NAFTA) in the interpretation of GATT rules and exceptions. No GATT Panel Decision has yet referred to panel decisions fromt he regional dispute settlement processes. However, the three panel decisions referred to in this memorandum, the 1990 Lobster Panel Decision; the 1989 Canada’s Landing Requirement for Salmon Panel Decision; and the 1993 Puerto Rico U.H.T. Milk Panel Decision involved interpretation and application of GATT rules and exceptions relevant to this memorandum and must be considered as a valuable source of understanding of GATT provisions.
3 The 1990 Lobster Panel Decision was a 3-2 decision with the majority formed by the three American panelists. The dissenting Canadian panelists accepted the Canadian characterization of the U.S. law as a violation of Article XI(1) of the GATT.
4 This analytic framework for Articl XX(g) was subsequently adopted and applied in the 1994 United States - Taxes on Automobiles Panel Report, see paras. 5.56 - 5.66.
5 Vinod Rege (1994) , at page 117, has written:
[The European Union] has recently banned imports of furs if animals are caught with leg-hold traps, which many people ... believe to be a cruel and inhumane method of catching fur-bearing animals. The United States has a number of laws allowing imports to be restricted unless exporting countries follow conservation policies similar to those of the United States.
The standards used for the imposition of such trade measures are generally not based on scientific principles, but reflect the “value” preference of the communities in the importing countries. ... Such types of measures amount to the imposition of values by the importing countries on the exporting countries and are not justifiable under the general exceptions provided in Article XX of the General Agreement.