Introduction
Every state trades with each other on the assumption that it could lead herself to economic growth under the theory of comparative advantage. This idea of liberalized or free trade for economic development is well premised in the General Agreement on Trade and Tariffs (“GATT”) provisions.
One of the important principles of the GATT is reduction of tariffs. Since the tariff measure is too obviously and clearly against the GATT principles, argument on this tariff measure would be less controversial than on the nontariff barriers. Even when a country uses nontariff barriers in a very sophisticated way, it is probably much more difficult and controversial to regulate such an activity. For example, a country would legislate for shielding domestic interests such as, although it is not necessarily confined to, environmental protection. However, as seen in the Tuna/Dolphin case, if such a domestic legislation influences against free trade, it would be challenged and frustrated because it has a “protectionism” effect, as an opposed meaning of free trade. As professor Leebron appropriately indicates in his article, this conflict between trade and environment is one of three post-Uruguay agendas.
The GATT decision on the Tuna/Dolphin case has invoked several issues and voluminous arguments in the area of trade and environment. Above all, this fundamental question of whether trade and environment are incompatible or mutually exclusive each other should be solved, if both free trade and environmental protection are important to prosperity of human life.
In part II of this paper, the Tuna/Dolphin decision will be explained. It is important to understand how and why this case was decided in the GATT framework because this case is the starting point of the topic to be discussed in this paper. The fundamental positions of the free trade regime and environmental protection regime will be explained in parts III and IV, respectively. Then, nature of conflict between the two proponents will be discussed in part V. In part VI of this paper, reasons for irreconciliation are identified and discussed. Then, this paper will focus on how and what type of accommodating efforts have been proposed, argued, and developed to overcome the GATT’s Tuna/Dolphin decision, principally under the US leadership, in part VII. Finally, this paper will eventually try to answer whether free trade and environmental protection can be harmonized each other in part VIII.
The Tuna/Dolphin Case
The United States enacted the Marine Mammal Protection Act (“MMPA”) to protect dolphins from foreign and domestic tuna fishing fleets. The MMPA allows the taking and importation of tuna only if the methods used do not result in the death of more dolphins than occurs through the implementation of the best available safety techniques that are economically and technologically practicable. Since the Mexican tuna fleet’s incidental killing rate of dolphins during tuna harvesting exceeded the limits permitted under the MMPA, the US imposed a ban on imports of tuna from Mexico in violation of the MMPA.
Then, Mexico requested dispute settlement under Article XXIII of the GATT, alleging that the US ban under the MMPA was prohibited by Article XI or internal regulations contravening the national treatment provision of Article III(4). The US argued that the import restrictions were consistent with Article III and Article XX (b) and (g). However, the GATT panel found that the US trade sanction under the MMPA was quantitative restrictions in violation of Article XI, and also rejected the US justifications under Article XX (b) and (g).
This decision has invoked various arguments and voluminous criticisms from environmentalists. At the same time, the decision also provided an opportunity for the free trade regime to accommodate what environmentalists have argued for. In other words, outraged by the decision, environmentalists have struggled with the free trade regime, and have the latter partially comply with what they have advocated. However, it still fails to reach a consensus to solve this controversial issue of reconcilability between the two regimes.
Free Trade “Constitution”
The GATT is the most controlling authority in the international free trade regime. There are three general principles in the GATT. That is, contracting parties are obliged to: (1) extend “most favored nation” (MFN) treatment to imports from other GATT parties ; (2) give imported goods “national treatment” once they have cleared customs and border procedures ; and (3) eliminate quantitative restrictions on imports and exports.
The GATT also contains exceptions in this free trade framework. Article XX lists the ten general exceptions to the GATT principles. The environmental, health and safety exceptions are the most noteworthy and controversial among them, where they read:
“Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:
