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It has been observed that ‘in every case brought before it to date, the WTO has ruled in favor of corporate interest, striking down national and sub-national legislation protecting the environment and public health at every turn’. Are those decisions legitimate? Let me select some cases to analyze it.
3.2. Evolution of interpretations in selected cases
The relationship between free trade and environmental protection came into the spotlight in 1991 with the tuna-dolphin controversy between Mexico and the US (Tuna-Dolphin I). Under the Marine Mammal Protection Act of US (MMPA), dolphin had been a protected species and the US banned imports of tuna caught using methods that also kill numerous dolphins. This case attracted a great deal of public attention because of the popularity of dolphins. In legal terms, this case started to concern an attempt to preserve a species globally and it was the first case to question the legality of a national use of trade restrictions to influence the environmental policies of other states. In its decision, a dispute settlement panel ruled that the US embargo violated the GATT Article XI (1), which forbids measures prohibiting or restricting imports or exports. It rejected the US arguments that the embargo was justified under GATT Article III on the grounds that this Article permit regulations only relating to ‘like products’ not to the harvesting techniques, which the MMPA concerned. It held that the embargo could not be justified under the Article XX exceptions because the MMPA should not be ‘extrajurisdictional’. However, the panel upheld the US dolphin-safe labeling regulation as a symbol of acknowledging environmental measures. Although the adoption of panel report was blocked by the US government, the decision caused outrage among the environmentalists who treated it as evidence that the GATT would imperil efforts to protect the environment. Now, however, the environmentalists had to address the reality that the unilateral trade/environment measures could not be used to combat the environmental problems in the global commons such as ozone layer depletion, or within the territory of other states such as destruction of rainforest.
Because the Tuna-Dolphin I decision was failed to be formally adopted by the GATT Council, the US was not required to repeal its tuna embargo. In response, the EU brought a second case, Tuna-Dolphin II, against the US, in which the panel again issued decision against the US embargo. However, the decision did make an important concession to environmental interests on a point of principle which was held that states could use trade restrictions to pursue environmental goals outside of their jurisdiction if this were done pursuant to an MEA, yet US blocked adoption of the panel report and the decision never went into force.
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