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GATT AND THE PROTECTION OF THE GLOBAL COMMONS: IMPLICATION OF THE TUNA-DOLPHIN I, II CASES
By Sakda Phanitcul
Jackson further argues that if a nation can prohibit the importation of goods from a poor third world country where the method of production is moderately dangerous to humans, why would a nation not also be able to prohibit the importation of goods produced in an environment that differs in many social or cultural attributes from its own society?(73) Why should one country be able to use its trade laws to depart from the general liberal trade rules of the GATT/WTO system, to enforce its own view of how plant or animal life in the oceans (beyond territorial sea, or other jurisdictorial limits), or to protect the ozone layer.(74) Professor Jackson posits that there is a serious risk that the trading system could get badly bruised by a rush to deal with environmental issues which are viewed as urgent by important segments of the populations in an increasing number of countries.(75) To someone unfamiliar with, or indifferent to, the contribution of economic efficiency and the trading system to postwar economic prosperity, trade measures can be too easily seem to be low cost and readily available tools for pursuing environmental goals.(76) GATT rules place essentially no constraints on the ability of countries to use appropriate policies to protect their environment from damage from domestic production activities or from the consumption of domestically produced or imported products.(77) When the environmental problem is due to production or consumption activities in another country, the GATT rules block the unilateral use of trade measures to dictate change on the environmental policies of other nation.(78) However, GATT rules could never block the adoption of environment policies which have broad support in the world community.(79) This is because in most instances the support of two-thirds of GATT's membership--currently 69 out of 103 countries--is sufficient to amend the rules or grant a waiver.(80) What the GATT rules do constrain is attempts by one or a small number of countries to influence environmental policies in other countries not by persuasion and negotiation, but by unilateral reductions in access to their market.(81)
4. POTENTIAL PROBLEM: GATT VERSUS MULTILATERAL ENVIRONMENTAL TREATIES
Although, the majority of trade lawyers are of opinion that a multilateral treaty is unlikely to violate the GATT rules.(82) One reason why the Tuna-Dolphin Panel invoked such an outcry among environmentalists is that the logic of the decision applies equally to numerous international environmental treaties if they contain import or export restriction and at least seventeen treaties do.(83) One environmentalist of the Earth Island Institute expressed furor and frustration that the Tuna-Dolphin GATT Panel had opened a large can of worms.(84) Under the logic of the Panel ruling, efforts to prevent imports of elephant ivory, whale and other endangered species products, and tropical hardwood could be invalidated.(85) Efforts to implement provisions of the Montreal Protocol on the ozone layer and the Convention on International Trade in Endangered Species (CITES) could be crippled.(86) GATT officials have acknowledge the latent conflicts i.e., the GATT report admits that the availability of Article XX for treaties like the Montreal Protocol is untested, and opines that the discriminatory provisions in such treaties may not be "necessary."(87)
In order to solve this latent conflicts, Epty proposes the creation of a global environmental organization. He visions that in order to make the best environmental policies politically feasible and to defend the long-term interests of all humankind in a healthy biosphere, the world needs GATT-like rules of mutual forbearance to protect the environment and a supporting international body to manage global environmental relations.(88)
(73) Jackson, supra note 17, at 1241.
(75) Jackson Davey and Sykes, supra note 1, at 566.
(79) Chanovitz is critical about Jackson's opinion that GATT rules could never block the adoption of environmental policies which have wide support in the global community. See Charnovitz (1992), supra note 52, at 217.
(80) GATT Article XXV:5 states: "In exceptional circumstances not elsewhere provided for in this Agreement, the CONTRACTING PARTIES may waive an obligation imposed upon a contracting party by this agreement, provided that any such decision shall be approved by a two-thirds majority of the votes cast and that such majority shall comprise more than half of the contracting parties." (emphasis added)
GATT Article XXX:1 states "Except where provision for modification is made elsewhere in this Agreement, amendments to the provisions of Part I of this Agreement or to the provision of Article XXIX or of this Article shall become effective a upon acceptance by all the contracting parties, and other amendments to this Agreement shall become effective, in respect of those contracting parties which accept them, upon acceptance by two-thirds of the contracting parties and thereafter for each other contracting party upon acceptance by it". GATT, supra note 29, at 38, 43.
(81) Jackson Davey and Sykes, supra note 1, at 566.
(82) Esty, supra note 8, at 218. Charnovitz (1992), supra note 52, at 217.
(83) French, supra note 70, at 47.
(84) David Phillips, Dolphins and GATT, in THE CASE AGAINST FREE TRADE: GATT, NAFTA, AND THE GLOBALIZATION OF CORPORATE POWER, Earth Island Press, 1993, at 137.
(87) Charnovitz (1992), supra note 52 at 216.
(88) Esty, supra note 8, at 78-9.