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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)
(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.
(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.
(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.