¹ Pub. L. No. 92-522, §2, 86 Stat. 1027 (1972), 16 U.S.C. §§1361–1362, 1371–1384, 1401–1407 (1988), amended by Fishery Conservation Amendments of 1990, Pub. L. No. 101-627, 104 Stat. 4436, 4467 (1990). Implementing regulations are codified at 50 C.F.R. pt. 216 (1990). Mexico also criticized the application to Mexican tuna of the Dolphin Protection Consumer Information Act, §901, Pub. L. No. 101-627, 104 Stat. 4465–67 (1990), 16 U.S.C. §1685. This law prohibits the use of labels including the term “Dolphin Safe,” or any similar term, if the tuna was harvested in the Eastern Tropical Pacific using purse-seine nets unless certain specified conditions are met, or if the tuna was harvested on the high seas using driftnets.

² See, e.g., GATT—Mexico Agrees to Defer Action on Complaint on U.S. Tuna Embargo, 8 Int’l Trade Rep. (BNA) 1351 (Sept. 18, 1991). According to a spokesman for the United States Trade Representative, Mexico agreed not to pursue this action—to present the panel decision to the Council of GATT for adoption—for an indefinite period. This agreement was made during the annual meeting of the U.S.-Mexico Binational Commission on September 9, 1991. On September 27, 1991, the Government of Mexico placed a full-page advertisement in the New York Times announcing the implementation of a comprehensive dolphin protection plan, backed by criminal penalties. N.Y. Times, Sept. 27, 1991, at A13. President Salinas de Gortari flew to California to announce the plan. This volte-face has been explained by reference to the importance to Mexico of achieving a free trade agreement with the United States. By desisting from its complaint before the GATT, Mexico can limit the ability of environmentalists to use this episode to show how free trade could reduce the effectiveness of U.S. environmental policy. See, e.g., Economist, Oct. 5, 1991, at 31.

³ The use of the term “extraterritorial” implies a judgment that the United States was extending the scope of its laws beyond its territorial borders. In this case, the United States argued that it was merely applying its laws at its borders, to block imports of goods when the production of those goods is inconsistent with U.S. policy goals. The question of jurisdictional scope should not be evaded by reference to whether the application of law is extraterritorial or not, as both questions are equally difficult to answer.

⁴ See, e.g., Mitchell & Adcock, A Decision That Rocks the Boat, L.A. Times, Sept. 23, 1991;, at B5; Inside U.S. Trade, Sept. 6, 1991, at 1.

⁵ Fin. Times (London), Oct. 9, 1991, at 3, col. 1.

⁶ For a description of the facts and citations to other sources regarding the facts, see Note, Exploitation on Porpoise: The Use of Purse Seine Nets by Commercial Tuna Fishermen in the Eastern Tropical Pacific Ocean, 17 Syracuse J. Int’l L. & Com. 267 (1991).

⁷ On the background and operation of the MMPA and other U.S. legislative measures regarding fish import embargoes, and a discussion of certain aspects of their consistency with GATT, see McDorman, The GATT Consistency of U.S. Fish Import Embargoes to Stop Driftnet Fishing and Save Whales, Dolphins and Turtles, 24 Geo. Wash. J. Int’l L. & Econ. 477 (1991).

⁸ See Earth Island Institute v. Mosbacher, 746 F.Supp. 964, 967 (N.D. Cal. 1990), 929 F.2d 1449 (9th Cir. 1991).

⁹ 16 U.S.C. §1371(a)(2)(B) (1988).

¹⁰ Regulations Governing the Importation of Tuna Taken in Association with Marine Mammals (interim final rule), 54 Fed. Reg. 9438 (1989); Taking and Importing of Marine Mammals Incidental to Commercial Fishing Operations (final rule), 55 Fed. Reg. 11,921 (1990).

¹¹ 16 U.S.C. §§1373, 1382 (1988).

¹² Marine Mammal Protection Act Amendments of 1988, Pub. L. No. 100-711, §4(a), 102 Stat. 4755, 4765.

¹³ Earth Island Institute, 746 F.Supp. at 973.

¹⁴ Id.

¹⁵ 16 U.S.C. §1371(a)(2)(B)(1988).

¹⁶ Taking and Importing of Marine Mammals, 56 Fed. Reg. 12,367 (1991).

¹⁷ 929 F.2d at 1453. On January 9, 1992, the district court enjoined the import of tuna from Mexico, Venezuela and Vanuatu, and 27 intermediary countries. N.Y. Times, Jan. 19, 1992, §4, at 5, col. 1.

¹⁸ Canada—Administration of the Foreign Investment Review Act, GATT, Basic Instruments and Selected Documents, 30th Supp. 140, 162 (1986) [hereinafter BISD]. It is worth quoting the panel’s statement:

The Panel shares the view of Canada that the General Agreement distinguishes between measures affecting the “importation” of products, which are regulated in Article XI:1, and those affecting “imported products”, which are dealt with in Article III. If Article XI:1 were interpreted broadly to cover also internal requirements, Article III would be partly superfluous.

Thus, that panel declined to apply Article XI(1) to measures that do not prevent the importation of goods as such.

¹⁹ The panel accepted this principle more explicitly in connection with its comments on the secondary embargo of “intermediary” countries: “The Panel found that since the United States domestic regulations on tuna harvesting were not applied to tuna as a product, the ‘intermediary nations’ embargo did not fall within the scope of the Note Ad Article III, and was therefore a quantitative restriction subject to Article XI.” No. DS21/R at 48, para. 5.35 [hereinafter Tuna Panel Report].

²⁰ Id. at 41, para. 5.15.

²¹ Id. at 42, para. 5.16.

²² GATT Article XI(2Xc)(i) could be read to provide a basis for an exemption within Article XI. However, the U.S. prohibitions would not have qualified for this exemption, as it is only available for import limits, not complete prohibitions. Canada—Import Restrictions on Ice Cream and Yoghurt, GATT, BISD, supra note 18, 36th Supp. (1990). See also McDorman, supra note 7, at 513–15.

²³ The relevant portions of Article XX provide:

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 on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures …

(b) necessary to protect human, animal or plant life or health; …

(g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption. …

General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. (5), (6), TIAS No. 1700.

²⁴ Tuna Panel Report, supra note 19, at 44, para. 5.22.

²⁵ GATT, BISD, supra note 18, 37th Supp. 200, 222–23 (1990). This panel in turn referred to the report of the panel on United States—Section 337 of the Tariff Act of 1930, id., 36th Supp. 345 (1990), summarized in 84 AJIL 274 (1990).

²⁶ Tuna Panel Report, supra note 19, at 45, para. 5.27.

²⁷ Mar. 6, 1973, 27 UST 1087, TIAS No. 8249, 993 UNTS 243.

²⁸ GATT, BISD, supra note 18, 35th Supp. 98, 114 (1988).

²⁹ Tuna Panel Report, supra note 19, at 47, para. 5.31.

³⁰ Id. at 50, para. 6.2. The panel indicated the limitations of its terms of reference, and of the General Agreement itself.

³¹ Additional issues would be raised if the U.S. import prohibitions were authorized or demanded by an international agreement like CITES. See McDorman, supra note 7, at 508. These issues would involve the difficult problem of how to address conflicts between GATT obligations and other international law obligations.

³² It would take a significant legislative analysis and negotiation process to make this determination, as it requires complex mediation among competing values, in the international context where different countries have different values. Such mediation may be required even within the group of values relating to resources and the environment. For example, it was argued by Venezuela that the Inter-American Tropical Tuna Commission had recommended that fishermen fish mature tuna stocks so as to conserve tuna resources. The mature tuna are the ones that associate with dolphins. Of course, this does not mean that dolphin-safe techniques cannot be used to fish for mature tuna, but dolphin-safe techniques would not need to be used if fishermen sought less-mature tuna. Thus, fishermen could reduce their dolphin kill rate by fishing for less-mature tuna.

³³ Application of the substantive restrictions of Article XI instead of, or in addition to, Article III would ordinarily invalidate domestic rules that have the result of excluding foreign goods, even when they are applied without discrimination.

³⁴ Note 5 supra.