GATT AND THE PROTECTION OF THE GLOBAL COMMONS: IMPLICATION OF THE TUNA-DOLPHIN I, II CASES

By Sakda Phanitcul^*

Protecting the environment was not a major concern when the General Agreement on Tariff and Trade was drafted in 1947⁽¹⁾. However, since late 1970s it has become an issue of great importance to many trading nations as recognized by one of the drafters of GATT himself.⁽²⁾ The result has been immense tension between the free-trade community and environmentalists, each of whom sees the other as threatening principles they hold dear.⁽³⁾ Often, environmentalists tend to identify liberal trade with environmentally-destructive unrestrained economic growth. Many free traders are largely dismissive of the environmentalists' concerns as either disguised protectionism or irrational fanatism.⁽⁴⁾ The conflict was brought to the forefront in dramatic fashion in September 1991 by the GATT Panel decision in the so-called Tuna-Dolphin case.⁽⁵⁾ Although the panel report was not adopted by the Contracting Parties,⁽⁶⁾ the case received much attention and was the subject of very critical full-page newspaper advertisements in the United States taken out by environmental and other public interest groups.⁽⁷⁾ Unsatisfied that Mexico refused to push its GATT victory in the Tuna-Dolphin case through the adoption by the GATT Council, the European brought its own challenge to the US. MMPA and specifically to the "secondary embargo" provision of the US. Statute which bars tuna imports to the United States from any country engaging in trade with an embargoed country such as in this case,Mexico.⁽⁸⁾ In again finding the US. Tuna ban to be GATT-illegal, the Tuna-Dolphin case II Panel (May, 1994) rested its determination on the element of the unilateral trade restrictions of the United States.⁽⁹⁾ The implication of the Tuna-Dolphin cases I, II Panel Reports is that they throw into doubt all kinds of environmental laws that impose restrictions or penalties on foreign countries, from imported elephant tusks to the Montreal Protocol on ozone layer.⁽¹⁰⁾ Also there was a deep concern in late 1944 in the Clinton Administration that these Panel might undermine the ratification of the WTO Trade Pact by the Congress.⁽¹¹⁾

This paper will examine the conflict of principles between free trade and environmental protection in the Tuna-Dolphin case I, the conclusions of the GATT Panel report , the evaluation of the Panel decision and proposals to harmonize latent conflict between GATT and multilateral environmental treaties.

Part 2

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* LL.B.(Chulalongkorn University), LL.M., Ph.D. Candidate (Kyoto University), LL.M., Ph.D. (University of Washington, Lecturer, Faculty of Law, Chulalongkorn University.

(1) John H. Jackson, William J. Davey and Alan O. Sykes, LEGAL PROBLEMS OF INTERNATIONAL ECONOMIC RELATIONS, 1995, at 559.

(2) Seymour J. Rubin and Thomas R. Graham (edited), ENVIRONMENT AND TRADE, 1982, at ix-x.

(3) See generally, Peter L. Lallas, Daniel C. Esty & David J. van Hoostraten, Environmental Protection and International Trade: Toward Mutually Supportive Rules and Policies, Harvard Environmental Law Review, Volume 16, 1992, Number 2, at 271-274. Thomas J. Schoenbaum, Free International Trade Protection of the Environment, American Journal of International Law, Volume 86, October 1992, Number 4, at 700-704.

(4) Michael J. Trebilcock and Robert Howse, THE REGULATION OF INTERNATIONAL TRADE, 1995, at 331.

(5) Jackson, supra note 1, at 559.

(6) Nevertheless, after the Tuna-Dolphin decision, the U.S. Department of Commerce renewed its determination to negotiate international agreements to protect dolphins. The Bush Administration sought, and the Congress enacted, amendments to the Marine Mammal Protection Act (MMPA) in 1992. This new law, called the international Dolphin Conservation Act (IDCA), authorizes the Secretary of State to enter into international agreements to establish a global moratorium on harvesting tuna through the use of purse seine nets deployed on or encircling dolphins. See Steve Charnovitz, Environmentalism Confronts GATT Rules-Recent Development and New Opportunities, Journal of World Trade, Volume 27, April 1993, at 39.

(7) See, e.g., New York Times, April 20, 1992, at A9.

(8) Daniel C. Esty, GREENING THE GATT; TRADE, ENVIRONMENT, AND THE FUTURE, Institute for International Economics, 1994, at 269.

(9) Id.

(10) The Economist, October 5, 1991, at 31.

(11) See, e.g., The Wall Street Journal, May 23, 1994, at A2.