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1 Ind. J. Glob. Legal Stud. 273 (1994)


The United States has enviable domestic environmental protection laws. However, good domestic environmental protection raises two concerns: effectiveness and competitiveness. In response to these two problems of environmental protection—effectiveness and competitiveness—members of Congress introduced over thirty bills in 1990 to amend U.S. trade laws. The bills were designed to either press other states to adopt environmental protection standards similar to the United States own or to at least minimize the competitive disadvantage for U.S. business inherent in U.S. regulations. The bills took one of two approaches: either they aimed at restricting access to U.S. markets for those states failing to honor international environmental commitments, or they levied duties on imports from states failing to protect the environment.

Most of these bills faded from the scene, but several statutes in the environmental area already include such measures. The Marine Mammal Protection Act (MMPA) was adopted in 1972 and amended in 1987, 1988, and 1992. The MMPA prohibits the killing of marine mammals except in a few circumstances, including those incidental to commercial harvesting of fish. The Act also tries to ensure the effectiveness of the protection measures and limit the potential for creating competitive disadvantage for U.S. fishermen by forbidding the import into the United States of fish caught by fishermen from countries that do not protect marine mammals. Following a lawsuit to enforce the MMPA, the United States imposed an embargo on imports of tuna caught by Mexican fishermen. Mexico argued that the embargo violated the General Agreement on Tariffs and Trade (GATT) and took the United States to a GATT dispute resolution panel in Geneva to press this view. The panel agreed with Mexico and the United States withdrew the embargo.

The GATT panel could have reached the opposite decision within the parameters of the GATT if environmental protection had been a priority. But it is clear that the panel was more concerned about protecting the integrity of the international trading rules from unilateral actions. This concern—whether the United States or others can lawfully take unilateral action to protect the environment—is the topic of this paper.

Unilateral actions are lawful under public international law. Under the customary international law doctrine of countermeasures, states may take otherwise unlawful action in response to prior unlawful action as long as the response is necessary and proportional. Thus, the United States may continue to take action against environmental breaches through trade measures that violate the GATT when it can show that it is responding to an unlawful action and the measure is necessary and proportional.

The article will begin with an explanation and assessment of the use of countermeasures to enforce international environmental protection. It will then argue that the MMPA authorizes a lawful countermeasure, despite the GATT decision. The article will further argue that countermeasures, even with their acknowledged deficiencies, are nevertheless lawful and can play a role in international environmental protection and in meeting concerns of effectiveness and competitiveness.


Reprinted with permission of Indiana Journal of Global Legal Studies.



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