Searching for GATT\u27s Environmental Miranda

While the clairvoyant may have anticipated it earlier, the policy struggle between environmental protection and liberal trade effectively began in August 1991. That month, as has been recounted numerous times, a General Agreement on Tariffs and Trade (GATT) arbitral panel declared that provisions of the U.S. Marine Mammal Protection Act (MMPA) were contrary to existing GATT rules. Although the panel\u27s decision had several distinct legal elements, the crux of the dispute brought by the government of Mexico-and the basis of the panel\u27s decision-was the U.S. executive\u27s mandate to ban the importation of certain tuna caught by a fishing technique that kills and maims dolphins. Today, this tuna/ dolphin decision has come to characterize the entire debate over trade and environment. This paper analyzes the GATT\u27s fear of legitimizing trade-based production and process methods (PPMs) by dissecting the pertinent facts of the two tuna/dolphin cases, analyzing the GATT\u27s jurisprudence on GATT Articles III and XX, examining the rather ugly philosophical underbelly of the free trade system, and presenting a new vision for sustainable development in an interdependent world economy