GATT
AND THE PROTECTION OF THE GLOBAL COMMONS: IMPLICATION OF THE TUNA-DOLPHIN
I, II CASES
By
Sakda Phanitcul
At
the April 1994 Marrakech signing of the WTO Agreement, the parties agreed
to establish a WTO committee on trade and development.(89) One of the terms of reference of the above-mentioned committee was to
make appropriate recommendations on whether any modifications of the provisions
of the multilateral trading system are required to enhance positive interaction
between trade and environmental measures, for the promotion of sustainable
development.(90) The committee is scheduled
to report their study to GATT in 1996.
It
is expected that in the next few years, along with the agenda of trade
and labor standard, trade and competition policy, trade and environment
will he seriously negotiated in the WTO.(91)
At
the present moment, most trade lawyers apparently agree with Jackson's
proposal. Jackson proposed at a symposium on trade and environment that
it may be feasible to develop an explicit exception in the GATT/WTO system,
possibly by the waiver process which is reasonably efficient for a certain
list of specified broad-based multilateral treaties.(92) One of the concerns expressed about the Tuna-Dolphin case in GATT
is the implications that it might have for the Montreal Protocol which
authorizes trade sanction measures against even nonsignatories for process,
not product characteristics that violate the norms of the treaty.(93) If the current rules of the GATT are interpreted to exclude exceptions
for the process situation, the Montreal Protocol Measures, except as among
the signatories to the Montreal Protocol, would be contrary to GATT obligations.(94) It may take some time and study to develop the precise wording of an appropriate
amendment(95) or treaty.
_______________________________________________________________
(89)
Jackson, Davey and Sykes, supra note 1, at 590-91.
(90)
Id.
(91)
International Monetary Fund, International Trade Policies: The Uruguay
Round and Beyond, Vol. 1 Principle Issues, Naheed Kirmami, 1994, at 17-9
(92)
Jackson, supra note 17, at 1244. Raymond Mikesell, an economic professor
at University of Oregon, made a very similar proposal to the Western Economic
Association International Annual Conference in San Francisco in 1992.
See Raymond Mikesell, GATT Trade Rules and the Environment, Contemporary
Policy Issues, Volume XI, October 1993, at 14-18.
(93)
Id.
(94)
Id., at 1245.
(95)
Environmentists are critical of Jackson's proposal, arguing that it is
too mild and time-consuming to deal with the urgent need of global environmental
protection. See generally, James Cameron, The GATT and Environment, in
Philippe Sands (edited), GREENING INTERNATIONAL LAW, 1994, at 120-21. |