38 Ocean & Coastal L. Memo 1 (1992)

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Ocean and Coastal




               Law Memo


Issue 38 March  1992


Recent Developments in Ocean and Coastal Law, 1991


International Developments

I.  GATT   Ruling

    The panel on General Agree-
ment on Tariffs and Trade
(GATT)  ruled against the U.S. on
the United States' first trade
embargo enforced under the
Marine Mammal   Protection Act
(MMPA)   and the Pelly Amend-
ment.  The embargo was imposed
on Mexican and Venezuelan tuna
under the MMPA   and the Pelly
Amendment   because both coun-
tries exceeded U.S. limits on
incidental take of dolphins during
tuna operations. The Secretary of
Commerce  was forced to impose
sanctions. See Earth Island Insti-
tute v. Mosbacher, 929 F.2d 1449
(9th Cir. 1991), reported in this
memo.  Under  the Pelly Amend-
ment, fish product embargoes may
be placed on nations engaging in
activities that diminish the
effectiveness of international
conservation agreements.

    The GATT  panel, serving as
an international body since 1948,


articulates agreed rules for inter-
national trade that reduce trade
barriers and promote internation-
al relations. The GATT panel
held that the U.S. embargo acted
as a quantitative restriction on
importation and violated GATT.

   The  dispute process is still
underway and the implications of
the GATT  ruling are unclear. If
the ruling is adopted by GATT
members, GATT   requires the
offending country to announce a
schedule to comply with the
ruling or, if compliance is impos-
sible, compensate the country for
the violation. The U.S. Congress
has expressed reluctance to amend
the MMPA   to comply with the
ruling. There is also discussion of
possibly amending GATT. For an
excellent article examining GATT
consistency with U.S. fishing laws,
see McDorman,  The GATT  Con-
sistency of U.S. Fish Import
Embargoes to Stop Driftnet
Fishing and Save Whales, Dol-
phins, and Turtles, 24 Geo.
Wash. J. Int'l L. & Econ. 477-525
(1991).


II. High  Seas Driftnets

A.  The WelUington Convention

    In developments concerning
high seas driftnets, the U.S.
Senate ratified the Convention for
Prohibition of Fishing with Long
Driftnets in the South Pacific,
commonly  known  as the Welling-
ton Convention. See Convention,
opened for signature Nov. 29,
1989, 29 I.L.M. 1449. The
Wellington Convention prohibits
driftnet fishing in the South
Pacific Ocean and further bans
transshipments of driftnet catches
in waters within the South Pacific.
By becoming a party to the Con-
vention, the U.S. will prohibit
driftnet fishing in all areas of the
U.S. Exclusive Economic Zone
(EEZ)  within the Convention
Area and forbid U.S. nationals
from fishing with driftnets in the
vicinity. The obligation will apply
to the U.S. EEZ around Ameri-
can Samoa  and certain unincorpo-
rated U.S. islands.


Distributed by: Oregon State University Extension * Sea Grant Program    Corvallis OR

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