Environment And Trade Measures After TheTuna/Dolphin Decision

The recent General Agreement on Tariffs and Trade (GATT) panel decision on United States import restrictions of tuna (tuna/dolphin case)(1) is the leading participant in the current environment and trade drama. This paper will briefly address that decision, and then will turn to the international legislative process, if it may be called that, in the environment and trade field.The GATT panel in the tuna/dolphin case concluded that the United States had acted inconsistently with the GATT by applying import restrictions on tuna caught by methods that kill significant numbers of dolphins.(2) The restrictions violated GATT Article XI, which prohibits most quantitative import or export restrictions. The GATT panel also held that the United States could not justify its action under the GATT Article XX exceptions for measures necessary to protect animal life and for measures relating to the conservation of exhaustible natural resources.(3)I. THE UNILATERAL ALTERNATIVE TO IMPORT RESTRICTIONSThe GATT panel decision is not quite the environmental disaster that some have portrayed it to be. Professor John Jackson's paper points out some of the ways in which the impact of the decision could be softened, including the possible adoption of a GATT waiver that would permit at least some types of unilateral action for environmental protection purposes.(4)Another avenue for possible unilateral action does not seem to be precluded by the panel decision. This is not to say that unilateral action is necessarily the preferred solution. It is only a second-best solution, in the absence of meaningful, cost-efficient and widely accepted multilateral environmental or conservation regulations that are buttressed by some fair and effective form of enforcement mechanism. Regrettably, such multilateral regulations are few and far between at present. Unilateral environmental and conservation measures do not have to be in the form of regulations requiring specific conduct. The United States tuna/dolphin measures were in that form, however, regulating the conduct of American tuna fishing interests and prohibiting certain tuna imports. That is why the GATT panel concluded that they were inconsistent with the GATT Article XI proscription against quantitative import restrictions. But essentially the same goals could be served by domestic taxation. A tax could be devised that would be calibrated to the approximate number of dolphins caught and killed by tuna fishing methods, such as the use of purse seine nets, which are deemed to be unduly destructive of dolphins swimming above or with the tuna. The tax could be applied to the sale of tuna products in the United States, whether the tuna had been caught by fishing boats from the United States or from any other country.To be economically efficient, the tax should bear at least some relation to the marginal value to the world community of the lost dolphins. That value may not be easy to estimate, but precision need not be sought in such matters. If even a close estimate could be made, fishing interests would have an economic incentive to use dolphin-safe fishing methods, as long as the marginal cost of doing so was less than the per-unit tax. Even if fishing interests did not change their methods, at least there would be a public fund from the tax receipts that could be used for dolphin conservation or other environmental goals.Although compatibility with the GATT is not entirely free from doubt, the tax should be held compatible so long as it (a) is imposed directly on products, (b) does not discriminate in favor of American and against foreign fishing interests, and (c) does not discriminate in favor of products of some foreign flagships and against others. The tax should be compatible with GATT even though the tax is geared to tuna "production" processes rather than to characteristics of the tuna.This might seem inconsistent with the GATT tuna/dolphin panel's approach to the United States regulation of imported tuna. …