GATT
AND THE PROTECTION OF THE GLOBAL COMMONS: IMPLICATION OF THE TUNA-DOLPHIN
I, II CASES
By
Sakda Phanitcul
In
light of the Article III (1) and III (4) and Note Ad Article III, the
GATT Panel determined that the provisions dealt only with measures affecting
the product (emphasis added) being treated.(35) This conclusion was based on the wording of the provisions, such as Article
III (4), where it is stated that imported products are to be accorded
no less favorable treatment like domestic products are accorded by internal
laws.(36) Article III (1) which contains
the general principle of national treatment, refers to the application
of internal laws affecting products and requires that such regulations
on products are not to be applied to protect domestic production.(37) Similarly, Note Ad Article III covers only measures applying to imported
products.(38) The Panel also considered
two previous panel decision dealing with Article III (2) and (4),(39) and concluded that the national treatment provisions envisioned a comparison,
"between the measures applied to imported products and the measures
applied to like domestic products."(40) Finally, the Panel noted a 1970 Working Panel Report on Border Tax Adjustment(41) which concluded that border tax adjustments could be applied only for
those taxes directly borne by the product not for those borne indirectly
by the product.(42) Based on these analysis
the Panel concluded that the provisions of the MMPA dealing with imported
Mexican tuna were not internal measures covered by Note Ad Article III,
since the regulations did not affect the tuna as a product.(43)
Having
rejected the US. argument with respect to the application of national
treatment, the Panel determined that the US. ban of Mexican tuna was inconsistent
with Article XI (1), which prohibits quantitative restrictions. The United
States, however, relied upon two exceptions to justify the violation of
Article XI (1): Article XX (b), respecting the protection of animal life,
and Article XX (g), respecting conservation of exhaustible natural resources.(44)
Part
5
_______________________________________________________________
(35) U.S.-Mexico GATT Panel, supra note 21, at 1603. Professor Jackson
carefully pointed out that a key point in the panel's decision is that
the U.S. is not regulating a product but the method of obtaining that
product, i.e., that the regulations are not on tuna, but on the method
of catching tuna. He further noted that if the panel reached the other
conclusions, the case would be a simple one. The U.S. would simply be
applying a nondiscriminatory product standard at the border, as it is
permitted to do pursuant to the Note Ad to Article III. However, once
the panel determined that the U.S. was trying to distinguish between identical
products (emphasis added) (tuna caught by U.S. fishing boats and tuna
caught by Mexican fishing boats) on the basis of the production process (emphasis added), then the Note Ad to Article III was not applicable and
the U.S. was violating article XI with its import ban on Mexican tuna.
The approach to the like product issue has long been followed to GATT.
In Belgian Family Allowances, GATT, 1st Supp. BISD 59-62 (1953)
(Panel report adopted Nov. 7, 1952), a GATT panel was faced with a Belgian
law that levied a charge on foreign goods purchased by public authorities
when those goods originated in a country whose system of family allowances
did not meet specific requirements. Since the charge was collected after
importation and oniv on products purchased by public bodies for their
own use, the Panel considered it an internal charge subject to the MFN
requirement of Article 1. The case is important because it represents
an early GATT decision that discrimination on the basis of how products
are produced is not permitted, only discrimination between different products.
See Jackson, Davey and Sykes, supra note 1, at 585-86.
One of a very useful article on the issue of product standard and process
standard was written by Paul Bousquet and Kenneth Berlin. Environment
and Trade: The question of Standard, Environmental Law, American Bar
.Association. Spring/Summer 1993. Voiume 12, Number 2, at 3-5. They carefully
pointed out that there are several practical difficulties and policy matter
for a country to impose process standard on other trading partners while
it is possible to harmonize product standard internationally.
(36)
Id. at 1616.
(37)
Id.
(38)
Id.
(39)
The first panel report involved a differential internal tax imposed by
the United States. In interpreting Article III (2), the panel concluded
that the obligation was to establish "competitive conditions for imported
products in relation to domestic products." United States - Taxes on
Petroleum Lind Certain Imported Substance, 34 GATT BISD Supp. 136,
158 (1988). The second report involved a U.S. law which created a special
administrative process for dealing with foreign products alleged to infringe
U.S. patent law. The panel examined Article III(4) and determined that
the wording "treatment no less favourable" called for equality of opportunity
for foreign products. United States - Section 337 of the tariff Act
of 1930, 36 GATT BISD Supp. 345, 386-87 (1990). Both cases were cited
in Mcdorman, supra note 12, at note 43.
(40) U.S.-Mexico GATT Panel, supra note 21, at 1618.
(41) Border Tax Adjustments, 18 GATT BISD Supp. 97 (1972).
(42) U.S. -Mexico GATT Panel, supra note 21. at 1618.
(43)
Id.
(44)
In practice, however, the application of paragraph (b) often overlaps
with that of paragraph (g) on the conservation of exhaustible resources.
See Edmond McGovern, INTERNATIONAL TRADE REGULATION, 1995, AT 13.11-1. |