Everything you're afraid to know
about GATT but need to ask

by Adam M. Roberts
Animal Welfare Institute

 

Originally published in The AV Magazine, October 1994

No longer can animal advocates simply ''know thy enemy" when fighting for the humane treatment of nonhuman animals, for one must now also be wary of foes unexpectedly antagonistic toward animal welfare. Though conflict between trade agreements and animal protective laws seems distant to most who work on behalf of nonhuman animals, the General Agreement on Tariffs and Trade (GATT) demands immediate attention.

New World Order: New Threat To Animals

0n April 15, 1994, the leaders of 117 nations completed the Uruguay Round of negotiations to the GATT, originally created in 1947. The Agreement, unfortunately, has evolved into an intangible economic autocracy of faceless, unelected bureaucrats with the sole purpose of providing its participants, and their goods or services, unrestricted access to foreign markets-even if such trade conflicts with a nation's laws.

Under the existing GATT, when one nation challenges another's law as too trade -restrictive, the losing GATT party has a type of veto power whereby it can refuse to implement the decision of the Panel that ruled on the dispute.

'Me modified Agreement establishes a frightening international World Trade Organization (WTO) with "legal personality " and the misplaced power to force changes to domestic laws, both federal and state, when they conflict with GATT, by imposing retaliatory trade sanctions or imposing financial penalties.

For a decision to be rejected not one, but all member nations must arrive at a consensus to reject a GATT Panel decision. Clearly, the victorious nation will not veto a ruling in its own favor. Under the INTO, U.S. animal protective laws are not only at great risk of foreign challenge, but 'we may also suddenly face financial penalties for enforcing our own democratically enacted laws!

The U.S. Congress must vote on legislation implementing the new GATT and its WTO. This gives us a vital opportunity to educate representatives and senators on the Agreement's hazards in the hope that they will not approve an Agreement which places a burdensome straight-jacket on 40 years of compassionate legislation.

GATT vs. Animal Protective Laws

Contrary to popular public sentiment, under GATT, laws that restrict trade in live animals and their products, or employ sanctions or embargoes to protect individual animals or their species, have been relegated to the status of an "unnecessary obstacle to free trade."

GATT establishes rigid criteria which must be met if a nation's laws that restrict free trade are to be consistent with the Agreement. The general guiding principle is the national treatment or "like product" standard. This concept stipulates that one GATT party can not treat products from another party differently from similar products manufactured by its own citizens.

For instance, the Federal Meat Inspection Act was amended in 1978 to ensure that meat and meat products imported into the U.S. are from livestock slaughtered in accordance with methods permitted under the Federal Humane Slaughter Act. Under GATT, two pieces of meat that are of identical physical quality are "like" products, regardless of killing procedure and the suffering the cows undergo. GATT does not allow differential treatment for meat from a cow killed under torturous conditions with meat from a cow slaughtered with less cruel methods.

Similarly, two cans of supermarket tuna are thought to be identical whether the tuna was caught with rod and reel or in the large scale driftnets which cause the needless slaughter of thousands of dolphins.

It is also a GATT violation to use the "extrajurisdictional" application of a party's law. This is where a party uses its federal or state laws to affect products or life forms outside its national borders. According to a European Commission Report on US. Barriers to Trade and Investment, "T'here is no room in a multilateral trading system for one country imposing its own standards and its own policies on others...."

An example of the extrajurisdictional application of American law is the Wild Bird Conservation Act of 1992 which protects imperiled species of exotic birds listed under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). It allows importation into the U.S. of only birds from countries that have a management program for species conservation and humane treatment of individual birds. Such stipulations will risk being considered discriminatory to a country that can not meet the requirements for compliance as well as an attempt to impose United States' policy on foreign governments.

Under GATT, challenges to the Act will be permitted because birds humanely bred in captivity in the US. could be sold, while imports from a country that fails to meet the law's criteria could not. According to GATT, the inhumanely captured birds would be considered "like" birds.

Among its most vague provisions, GATT mandates that technical regulations shall not create unnecessary obstacles to trade and must "not be more trade-restrictive than necessary to fulfill a legitimate objective" (emphasis added). Although GATT does include protection of animal "life or health" as a legitimate objective, in order to prevent cruelty to animals by restricting the free flow of trade in animals or their parts or products, the U.S. must prove that our law is the least trade restrictive means to achieve the specific goal of anti-cruelty or species preservation.

International agreements such as CITES are considered GATT compatible, thus balancing the regulation of trade and protection of species threatened with extinction. However, while CITES explicitly permits the use of "stricter domestic measures" regarding protection of listed species, under GATT enforcing domestic laws such as the Marine Mammal Protection Act (MMPA), the Wild Bird Conservation Act mentioned abov e, or the Endangered Species Act to enhance species protection would be unnecessarily trade -restrictive.

Another example where international agreements can subvert wise application of U.S. law to protect animals is the application of the Pelly Amendment to the 1967 Fisherman's Protective Act. Pelly enables t he President to embargo wildlife and wildlife products from nations that have diminished the effectiveness of international conservation agreements such as CITES. To his credit, President Clinton is the first President to invoke the Pelly Amendment by sanctioning Taiwan for its continued trafficking in tiger and rhinoceros products. Should this action be taken against a GATT party, such as China, for a similar breach, the legitimacy of such unilateral actions surely would be challenged under GATT.

 

Just When You Thought The Animals Were Safe...

Surprisingly, there are exceptions to imperial GATT law. Countries are entitled to adopt and enforce measures "necessary to protect human, animal or plant life or health;" or "relating to the conservation of exhaustible natural resources...." While this appears to allow the U.S. to maintain and apply laws that it considers necessary to protect animal life and natural resources there are numerous qualifications accompanying these exceptions.

Laws must not be "applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail" (emphasis added). Moreover, laws must be based on "scientific principles." Historically, trade officials have not considered protection based on humane laws justifiable when mediating GATT disputes, and not surprisingly, no mention of ethical considerations surface in the GATT text.

The U.S. has had opportunity to use these exceptions when the MMPA was twice challenged. The notorious tuna-dolphin cases decided by GATT dispute -resolution panels - comprised of unelected, unaccountable "tradeocrats" with no interest in defending animal protection measures -highlight the difficult defense of compassionate laws.

In "Tuna-dolphin I," Mexico challenged the MMPA's tuna embargo provisions which prohibited importation of tuna products from countries whose fishing fleets killed exorbitant numbers of dolphins in the Eastern Tropical Pacific. The Panel decided that the MMPA arbitrarily discriminated against Mexican tuna products which are otherwise identical to U.S. tuna products. The Panel also ruled that the U.S. embargo attempted to protect species outside our territorial boundaries and therefore was inconsistent with GATT.

"Tuna-dolphin II," brought by the European Union (EU), focused on the U.S. secondary embargo of tuna products from nations who continue to import tuna from Mexico. The Panel ruled that the MMPA is not " necessary" to protect dolphins since international obligations such as CITES protect species threatened with population decline or extinction. The MMPA tuna embargo, especially applied unilaterally, was considered too trade -restrictive by the GATT Panel. If the new GATT, with its undemocratic WTO, is approved by Congress, the MMPA and other animal protective laws are doomed.

GATT Math and the Lowest Common Denominator

In an attempt to "harmonize standards, international obligations to GATT and international treaties or equivalent agreements are paramount to domestic law. In many cases, U.S. law will be stronger than international standards. Thus, the chances that harmonization will lower our high standards is much greater than the possibility that countries with little environmental or animal protection will have their standards raised.

This reliance on international standards is inherently problematic given the different levels of animal protection and public support for such protection in countries around the world. One example is the use of the leghold trap.

Though we are still fighting to pass federal legislation in the U.S. banning the use of the barbaric steel- jaw, leghold trap, on January 1, 1996, the European Union is scheduled to enforce a regulation banning imports of the fur of 13 species from countries that have not prohibited use of the trap or met "internationally agreed humane trapping standards." Canada has begun a GATT consultation with the EU because of its interest in continuing to use this agonizingly painful device.

Canadians consider the regulation arbitrarily selective in the species covered; not necessary for the conservation of threatened and endangered species; and based on production methods rather than the product itself, in addition to over a dozen other objections.

The National Trappers Association and the Congressional Sportsmen's Caucus have urged U.S. Trade Representative, Mickey Kantor, to join Canada in its GATT action. Though so far resisting, there is no assurance that the US. will not cave in to the pressure by the vested user interests.

Also at risk is the European Union's moratorium on the use of recombinant bovine growth hormones (rBGH) used to increase the milk production of dairy cows at the expense of the health of the injected cows and potentially the humans who consume their milk. If the EU rejects milk from the United States, where the FDA mistakenly has decided rBGH poses no significant health risk to cows or consumers, the U.S. can bring a GATT challenge to force the EU to accept our tainted milk.

Take Action Now

So what can compassionate persons do to make GATT a promoter of animal protection rather than the reverse? Everyone must write to her or his representative and senators expressing outrage at an agreement that gives us so little voice, and urge the rejection of the disastrous WTO. Also, the Office of the United States Trade Representative and President Clinton must hear these concerns. Urge that GATT-implementing legislation be passed only with specific language that assures U.S. animal protection and conservation laws will remain intact, no matter what the outcome of foreign challenges.

The GATT system of trade allows the U.S. democracy to be threatened by a foreign bureaucracy into which the people of the U.S. have no input. It is time for us to take charge and make our voices heard. The humane legislation to which the U.S. has been committed for decades does not have to be the price we pay for free trade. Now that we have discovered a new enemy in the WTO, we must not ignore our responsibility to fight it with the same vigor we battle others who sacrifice animal protection for financial gain.