The Judicial Resolution of Conflicts between Trade and the Environment
Posted: 9 Mar 2004
The 1991 Tuna-Dolphin decision by a GATT arbitral panel implied that a variety of domestic environmental laws and international environmental agreements conflicted with international trade law, and that the conflicts would be resolved by trade tribunals biased against environmental concerns. In response, critics proposed moderate reforms to the international trade regime to address environmental concerns. Rather than incorporate the proposals into the World Trade Organization agreements and the North American Free Trade Agreement, however, governments left the conflicts to the trade tribunals that had created them, and at the same time strengthened the tribunals' independence from political control. Environmental critics predicted disaster.
Surprisingly, however, the most important of these tribunals - the WTO Appellate Body - has done what governments failed to do: it has reached a comprehensive resolution of trade/environment legal conflicts that incorporates most of the critics' proposed reforms. This Article argues that the Appellate Body has greened trade jurisprudence not to appease its environmental critics, but to attract political support from governments. While its approach is legally flawed, it is politically defensible and successful in practice; although governments continue to debate trade/environment issues, they have begun to accept, or at least acquiesce in, almost all of the elements of the judicial resolution. As a result, critics and governments may find their way clear to focus their attention on the most fundamental issue underlying the trade/environment debate: how best to reconcile economic growth and environmental protection.
Keywords: environmental law; international law; international trade; international environmental law
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