GATT
AND THE PROTECTION OF THE GLOBAL COMMONS: IMPLICATION OF THE TUNA-DOLPHIN
I, II CASES
By
Sakda Phanitcul
1.
THE RELATIONSHIP AND CONFLICTS BETWEEN GATT AND ENVIRONMENTAL PROTECTION
The
relationship between international trade and environment are complex and
multi-faceted.(12) The basic policy underlying
the GATT is to liberalize trade that crosses national boundaries, and
to pursue the benefits described in economic theory as "comparative
advantage."(13) When nations specialize,
they become more efficient in producing a product and possibly also serviecs.(14) If they can trade their products or services for different products or
services that other countries specialize in producing, then all parties
involved will be better off because countries will not waste resources
producing products that other countries can produce more efficiently.(15) The international rules are designed to restrain governmental interference
with this type of trade.(16)
There
are exceptions to the general theory of liberalizing trade, one of which
arises from the problem of "externalities," a concept that is
closely associated with environmental protection.(17) If a producer pollutes a stream during its manufacturing process, and
there are no laws prohibiting such pollution, then it has imposed an "externality
cost" on the world.(18) This concept
appears to be one of the most important core dilemmas or policy problems
of the relationship between trade and environmental policies.(19)
The
conflict between trade rules and environmental protection policies may
be categorized into a selected number of key legal and institutional issues
as follows: the problem of national treatment and its relation to product
standard; the problem of the general exceptions in GATT Article XX; the
related problem of the "process-product" characteristics that have been
involved in the Tuna-Dolphin cases, and concern with sometimes
called the global commons; the intricate and elaborate problem of subsidies;
the subject of "competitiveness"; and finally, a certain group of institutional
problems related to the GATT/WTO system, including dispute settlement,
transparency, and jurisprudence.(20)
Part
3
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(12)
See Trebilcock and Howse, supra note 4.
(13)
John H. Jackson, WORLD TRADING SYSTEM : LAW AND POLICY OF INERNATIONAL
RELATIONS, 1989, at 8-17.
(14)
Id.
(15)
Id.
(16)
Id.
(17)
John H. Jackson, World Trade Rules and Environmental Policies; Congruence
or Conflict? Washington and Law Review, Volume 49, Full 1992, at 1231-
35.
(18)
Id.
(19)
Id.
(20)
See generally, Robert Housman and Durwood Zaelke, Trade, Environment,
and Sustainable Development: A primer, Hastings International & Comparative
Law Review, Volume 15, 1992, at 537-577. Jackson, supra note 17.
Trebilcock and Howse, supra note 4, at 331-334. |