Reconciling International Trade WithPreservation Of The Global Commons: CanWe Prosper And Protect?

I. INTRODUCTIONThrough the ages, people have reached beyond their own borders to obtain essential, valued, or exotic materials. Today's surer communications and larger trade and capital movements have greatly enlarged this process, quickened its pace, and endowed it with far-reaching ecological implications.(1)A series of global environmental crises--ozone depletion, climate change, deforestation, species loss--has moved international environmental issues from the periphery to the center of the world political stage. The recent "Earth Summit" in Rio de Janeiro, Brazil, which focused on many of these issues, was the largest meeting of heads of state in history.(2) As a result of this attention, international environmental treaties and regimes have been proliferating at an astonishing rate.(3)However, one of the areas that has been largely ignored--until recently--is the multifaceted relationship between international trade and the global environment.(4) One of the most controversial issues within this area is the use of trade barriers(5) to protect the "global commons"--those areas or resources outside the jurisdiction of any nation or group of nations, such as the high seas, the atmosphere, and outer space.(6) Such "green" trade barriers are becoming increasingly common. For example, this nation forbids the importation of tuna caught in a manner that causes excessive dolphin deaths.(7) Similarly, nations that have signed the Montreal Protocol have agreed to reduce their use of ozone depleting chemicals and to refrain from trade in such chemicals with nations that have not become parties to this treaty.(8) To protect marine life, the United States and other nations limit the importation of fish caught in driftnets.(9)These green trade barriers starkly present the conflict between the imperative of environmental protection--as recognized by a growing body of international environmental law(10)--and the prohibition of such barriers in international trade law. The barriers raise difficult questions: can nations restrict international trade to protect the global commons? If so, under what conditions? To date, no international tribunal has developed a framework for determining which such barriers are permissible. This article represents an attempt to provide such a framework, focusing on the "tuna/dolphin" dispute between the United States and Mexico as a paradigmatic example of this issue.The framework developed below is based on a careful balancing of the underlying interests at stake. International trade rules serve three primary interests: economic efficiency, sovereignty, and international political harmony.(11) These trade interests must be weighed against the interest every nation has in preserving our atmosphere, oceans, and other global commons resources which are essential for human survival. To do so, I propose a balancing test that involves examination of several factors: the nature and strength of the environmental interest being protected, whether the measure favors domestic over foreign products, or discriminates among foreign nations, and whether the measure is related to and proportionate to the environmental goal.(12)This framework can be utilized by bodies that adjudicate disputes involving the tensions between trade and the environment, such as the General Agreement on Tariffs and Trade (GATT)(13) and the European Court of Justice (ECJ).(14) It could also guide negotiators in pending international environmental and international trade negotiations. Finally, it could profitably be used by domestic legislators as they consider the imposition of future green trade barriers.II. THE TUNA/DOLPHIN DISPUTEA. BACKGROUNDThe most prominent example of the tension between the interest in liberalized trade(15) and the interest in protecting a global commons resource is the tuna/dolphin dispute between the United States and Mexico considered by a GATT dispute resolution panel. …