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The Tuna-Dolphin Case
Globalization101 > Issues in Depth > Environment > The Tuna-Dolphin Case

 Introduction
 Introduction
 Globalization And The Environment
 Are International Trade And Protection Of The Environment Enemies?
 International Environmental Problems And Efforts To Solve Them
 Conclusion
 Conclusion
 Is Sustainable Development The Way Forward?
 Local Perspectives
 Jung-Hoon Kim, Pohang Iron And Steel Company, South Korea
 Glossary
 Glossary
 Select Bibliography
 Suggested Readings
 Suggested Readings
 Environment Quiz
 Quiz

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The Tuna-Dolphin Case

The origin of what became known as the “tuna-dolphin” case was the United States’ Marine
Mammal Protection Act (MMPA), which imposed a ban on imports of tuna from countries that did not What do you
have a conservation program designed to protect dolphins in the tuna-fishing process. Tuna, it turns think?
out, are often found swimming in schools underneath dolphins. In order to catch the tuna,
fishermen used to drag large nets through the water and then pull them up under the tuna.
Should
governments
prioritize trade
in relation to the
environment?

Does one need

to trump the
other?
Dolphins swimming above the tuna would be caught at the same time and die in the nets along with
the tuna. The MMPA therefore required American tuna fishermen to adjust their fishing practices to What would you
avoid such deaths and banned tuna from countries in which dolphin deaths from tuna fishing
exceeded deaths from U.S. tuna fishing by more than 25 percent. As a result, tuna from Mexico, recommend in
Venezuela, Panama, Ecuador, and the tiny Pacific island of Vanuatu were banned in 1990. the Tuna-
Dolphin Case?
Mexico and Venezuela challenged the U.S. action in the dispute resolution system of the GATT and
won their cases in 1991 and 1992. The decision in the Mexico case is considered a key turning point in jurisprudence of the
world trade system, even though it was not officially adopted as a binding decision by the members of the GATT.

Prior to reforms of the Dispute Settlement Process in the Uruguay Round of trade negotiations (1986-1944), adoption of a
dispute panel report by the GATT could be blocked by the country found to be in violation of GATT rules. Thus, many
findings, including the tuna-dolphin panel decision, never took effect. The Uruguay Round reforms reversed this —now, all
panel reports are binding unless a consensus of all WTO members blocks adoption. Mexico and the United States later settled
the dispute through negotiations.

The dispute resolution panel decided that the United States could not justify the MMPA’s ban on Mexican tuna imports for
several reasons.

 First, the panel said that Article XX’s exceptions must be interpreted narrowly so that any one country cannot
undermine the multilateral trade rules.
 Second, the panel said that the United States had not proved that the tuna ban was “necessary,” i.e., that it was
the least-trade restrictive way to protect dolphins, in contrast to, for example, negotiating dolphin-protection
agreements with other countries.
 Third, the panel said that the percentage link to U.S. dolphin deaths made it difficult for Mexican authorities to
predict in advance the acceptable level of Mexican dolphin deaths.
 Finally, the panel said that the United States could not use the Article XX exceptions to regulate natural resources
outside of its borders.

The case thus laid out some of the issues that have continued to frame the debate over the environment and trade. The
panel approached the dispute with a distinct pro-trade bias, analyzing each of the contested points from the perspective of
the effect of the MMPA on free trade. Furthermore, the panel viewed preserving the multilateral free trade system as more
important than any one country’s evaluation of the need to protect the environment. These results should not be too
surprising, however. After all, the GATT panel’s mandate was to interpret the GATT—a trade treaty. The panel evidently
could not find any authority for placing environmental concerns on par with the thrust of the GATT to promote free trade.

In addition, the decision explicitly limited the right of a country to protect environmental resources extra-territorially. The
panel could not find authority within the language of the agreement to allow one country to affect the environmental
resources in another. This should not be surprising, since the prospect of one country taking actions to interfere with the
resources of another country could be abused and lead to innumerable disputes.

Even now, 19 years later, the idea that one country can impose its view of the need for environmental protection on another
country’s resources is highly controversial. In fact, a second dispute arose out of the tuna-dolphin case because the MMPA
also banned tuna and tuna products from third world countries that imported tuna from other countries that did not comply
with the MMPA. The GATT overturned this ban, as well.

Finally, another key issue from this case that continues to affect the debate over environmental protection in a globalized
economy is the contrast between the wealthy United States and its ability to have sophisticated fishing techniques with the
limited resources of the developing countries and related constraints on the affordability of environmental protection tools.
After the GATT decision, the tuna-dolphin dispute was resolved by agreements negotiated between the United States and
the affected countries that called for dolphin protection measures and through a multilateral declaration on the importance
of dolphin conservation. The U.S. Congress later called for a binding agreement to implement the declaration, and the
International Dolphin Conservation Program was established. Some environmentalists, nevertheless, are skeptical that
anything practically beneficial will come of the program.

The United States and Mexico both appealed the panel report and the Appellate Body circulated a new report in May 2012.
The Appellate Body reversed some of the panel’s findings including the decision of the court that the dolphin-safe labeling
provisions were inconsistent with the TBT agreement. The reversal of many of the panel’s findings allowed for the U.S. to
continue with its labeling decision. Further, these findings significantly increase the jurisprudence relating to the TBT
agreement (Mayer Brown, 2012). The decision has led to the need for stronger dolphin safe labeling requirements in dealing
with future such issues.

Was the tuna-dolphin case a victory or a defeat, then, for the environmental movement? On the one hand, the GATT dispute
resolution panel gave priority to free trade over environmental protection (on sound grounds when viewed in the context of
Article XX). On the other hand, the U.S. loss before the panel gave impetus to an internationally agreed-upon action
program. In fact, the International Dolphin Conservation Program could be more effective than a unilateral U.S. law. Yet we
still do not know how effective that program may turn out to be.

In any event, the tuna-dolphin case dramatically raised the stakes in the debate over the relationship between international
trade and the environment because it came at the same time that two major sets of trade negotiations were in high gear-
those to create the North American Free Trade Area (NAFTA) and to finish the Uruguay Round in the GATT and create the
WTO. The tuna-dolphin case therefore became ammunition for both environmentalists and strict believers in American
sovereignty.

* Picture source: www.picapp.com

Next: The Environment and NAFTA

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