ABSTRACT

Figure 40.1 International conventions on the environment 1982-2006 656 Figure 40.2 The International Tropical Timber Organization (ITTO) (1985) 659 Figure 40.3 The World Economic Outlook of the IMF 665

GATT and the Tuna-Dolphin case (1991)

By the end of the 1980s the GATT was confronted with the conflict between free trade policies and environmentally-friendly regulations. Unlike the OECD, which had determined the ‘polluter pays’ principle in 1972 (see §32.5), and the EEC, which had included this principle in its Single European Act in 1986, the GATT had not been sensitive to views on the environment. It had been set up to promote free trade and to remove any tariffs, restrictions and other trade barriers. Advocates of free trade regarded environmental regulations as veiled protectionism and the GATT therefore opposed trade rules which told other states how to deal with the environment. The US, for instance, could not embargo tuna products from Mexico simply because Mexican regulations on the way tuna was fished did not conform to US rules. The US Marine Mammal Protection Act banned the import of tuna caught with nets that killed dolphins (which generally swim above schools of tuna) in excess of certain US standards, unless the exporting state had regulations comparable to the US Act. In 1991 Mexico, as a fish-exporting state, complained about the US regulations under the GATT dispute settlement procedure, supported by other states which handled the tuna en route from Mexico to the US. The GATT Panel ruled that a state is not allowed to enforce its domestic laws in another

state. Director-general Arthur Dunkel argued that the US government should supply Mexico with better fishing nets, which he regarded as a useful form of development aid, as that would result in saving dolphins’ lives and in fair competition between Mexican and US vessels. However, the implication of the GATT Panel’s report was that in practice the GATT was able to challenge national environmental regulations. GATT Panels also ruled in cases of tropical timber (Indonesia) and lead (Canada). Because the Panel’s report of 1991 was not ‘adopted’, as was required in the GATT procedure (the US and Mexico settled ‘out of court’), it did not receive legal status. But the Tuna-Dolphin case attracted a lot of attention and stimulated the debate on whether GATT and the Uruguay Round should pay more attention to the protection of the environment.