GATT
AND THE PROTECTION OF THE GLOBAL COMMONS: IMPLICATION OF THE TUNA-DOLPHIN
I, II CASES
By
Sakda Phanitcul
3.
EVALUATION OF THE PANEL REPORT
The
1991 GATT ruling striking down a US. embargo on the import of certain
species of yellowfin tuna highlighted the growing tension between free
trade and the environment. The United States and environmentalists around
the world were highly critical of the GATT Panel's decision.(62) While it received warm welcome by the majority of the GATT legal experts
and a vigorous defense by the GATT Secretariat.(63) One GATT commentator even predicted accurately that the finding of the
GATT Panel would be against the United States on the main issue.(64) However, the Panel decision raise important questions about the manner
in which international trade law can operate to constrain states by limiting
their abilities to take action to protect the environment and natural
resources outside their jurisdictions.
Jackson,
the leading authority on GATT, strongly defends the decision of the Panel
in Tuna-Dolphin case.(65) He argues
that Article XX has not been interpreted to allow a government to impose
regulations to protect the life or health of humans, animals, or plants
that exist outside of the government's own territorial borders. The problem
of interpretation of Article XX is the typical slippery slope danger,
combined with the concern that powerful and wealthy countries will impose
their own views regarding environmental or other social or welfare standards
on other parts of the world, even where such views may not be entirely
appropriate.(66) Particularly many trading
nations, both developed and developing ones, have deep concerns over the
unilateral trade measures taken by the United States since its adoption
of the aggressive international economic policy by the Reagan Administration
in 1985.(67) These unilateral trade measures
were further strengthened when the US. Congress amended section 301 even
more substantially in the 1988 Omnibus Trade and Competitiveness Act.(68) Many trade specialists coined the term "aggressive unilateralism"
in response to the "super" and "special" variants
of section 301 created by Congress in the 1988 Trade Act. Bhagwati looks
at aggressive unilateralism in the United States as the parallel with
Britain at the end of the nineteen century when the giant's diminution
produced a protectionist backlash.(69) The
rise in Britain during the 1870s and 1880s of the National Fair Trade
League, the National Society for the Defense of British Industry and the
Reciprocity Fair Trade Association are event that make the American sentiments
and actions of the last decade easier to comprehend.(70) The growing concern of the global community over unilateralism was carefully
observed by at least two commentators. Dunoff noted: "The Tuna-Dolphin dispute has attracted considerable international attention. Australia,
Canada, the European Community (representing twelve member states), Indonesia,
Japan, Korea, Norway, the Philippines, Senegal, Thailand and Venezuela
all field submissions with the dispute resolution panel in this action."(71) McDorman observed: "Finally, it should be noted that not one of the
eleven countries making representations to the GATT Panel sided with the
US. arguments.(72)
Part
8
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(62)
Hamilton Southworth, III, GATT and the Environmental--General Agreement
on Tariffs and Trade, Trade and the Environment, GATT Doc. 1529 (Feb.
13, 1992), 32 Virginia Journal of International Law 1997 (1992); at 999.
(63)
Trebilcock and Howse, supra note 4, at 346.
(64)
Ted L. McDorman, The GATT Consistency of U.S. Fish Import Embargo to
Stop Driftnet Fishing and Save Whales, Dolphins and Turtles, 24 George
Washington Journal of International Law & Economics 477, 490-95, 511-25.
(1991).
(65)
Jackson, Davey and Sykes, supra note 1, at 566 and Jackson, supra note 17, at 1240-41.
(66)
Id.
(67)
Thomas O. Bayard and Kimberly Ann Elliott, RECIPROCITY AND RETALIATION
IN U.S. TRADE POLICY, Institute for International Economics, 1994,
at 16.
(68)
Id., at 29.
(69)
Jagdish Bhagwati, Aggressive Unilateralism: An Overview, in Philip
King (edited), INTERNATIONAL ECONOMICS AND INTERNATIONAL ECONOMIC POLICY
: A READER, 1995, at 92-3. The evolution of protectionism reflecting
in the U.S. trade acts since the late 1960s was well described by the
acclaimed GATT scholar, Hudec. See Robert E. Hudec, ENFORCING INTERNATIONAL
TRADE LAW: THE EVOLUTION OF THE MODERN GATT LEGAL SYSTEM, 1993, at
107-9.
(70)
Id.
(71)
Jeffrey L. Dunoff, Reconciling International Trade with Preservation
of the Global Commons: Can We prosper and Protect?, Washington And
Lee Law Review, Volume 49, Fall 1992, Number 4, at 1410. The author do
agree with Hilary F. French that the Tuna-Dolphin GATT Panel failed
to distinguish between issues of purely national concern (protectionism)
and those designed to protect the global commons. However, the deep concern
that environmental protection can be utilize as another justification
for protectionist trade measure is also of equal importance. See Hilary
F. French, COSTLY TRADEOFFS, RECONCILING TRADE AND THE ENVIRONMENT,
1993, at 45.
(72)
McDorman, supra note 32, at 474, U.S.-Mexico GATT Panel, supra note 21, at 1610-16. |