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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.
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(89) Jackson, Davey and Sykes, supra note 1, at 590-91.
(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.
(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.