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GATT AND THE PROTECTION OF THE GLOBAL COMMONS: IMPLICATION OF THE TUNA-DOLPHIN I, II CASES
By Sakda Phanitcul
1. THE RELATIONSHIP AND CONFLICTS BETWEEN GATT AND ENVIRONMENTAL PROTECTION
The relationship between international trade and environment are complex and multi-faceted.(12) The basic policy underlying the GATT is to liberalize trade that crosses national boundaries, and to pursue the benefits described in economic theory as "comparative advantage."(13) When nations specialize, they become more efficient in producing a product and possibly also serviecs.(14) If they can trade their products or services for different products or services that other countries specialize in producing, then all parties involved will be better off because countries will not waste resources producing products that other countries can produce more efficiently.(15) The international rules are designed to restrain governmental interference with this type of trade.(16)
There are exceptions to the general theory of liberalizing trade, one of which arises from the problem of "externalities," a concept that is closely associated with environmental protection.(17) If a producer pollutes a stream during its manufacturing process, and there are no laws prohibiting such pollution, then it has imposed an "externality cost" on the world.(18) This concept appears to be one of the most important core dilemmas or policy problems of the relationship between trade and environmental policies.(19)
The conflict between trade rules and environmental protection policies may be categorized into a selected number of key legal and institutional issues as follows: the problem of national treatment and its relation to product standard; the problem of the general exceptions in GATT Article XX; the related problem of the "process-product" characteristics that have been involved in the Tuna-Dolphin cases, and concern with sometimes called the global commons; the intricate and elaborate problem of subsidies; the subject of "competitiveness"; and finally, a certain group of institutional problems related to the GATT/WTO system, including dispute settlement, transparency, and jurisprudence.(20)
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(12) See Trebilcock and Howse, supra note 4.
(13) John H. Jackson, WORLD TRADING SYSTEM : LAW AND POLICY OF INERNATIONAL RELATIONS, 1989, at 8-17.
(17) John H. Jackson, World Trade Rules and Environmental Policies; Congruence or Conflict? Washington and Law Review, Volume 49, Full 1992, at 1231- 35.
(20) See generally, Robert Housman and Durwood Zaelke, Trade, Environment, and Sustainable Development: A primer, Hastings International & Comparative Law Review, Volume 15, 1992, at 537-577. Jackson, supra note 17. Trebilcock and Howse, supra note 4, at 331-334.