Dalhousie Journal of Legal Studies


John Bogardus


The General Agreement on Tariffs and Trade (GATT) has governed the trading rules between its contracting parties since its inception in 1947. The Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations was signed in Marrakesh on April 15, 1994. The Final Act called for the creation of the World Trade Organization (WTO) which came into being on January 1, 1995. The raison d'être of the WTO is to eliminate barriers of any sort that have an adverse impact upon trade between WTO contracting parties. Environmental leaders are concerned that an effective technique for promoting environmental ends, namely the threat or imposition of trade barriers, will no longer be available. The goals of development and sustainability have therefore come into direct conflict in the international arena. While this conflict had been developing over a long period of time, the release in 1991 of the GATT panel decision in the infamous Tuna/Dolphin case served to define the parameters of the debate. In light of the Tuna/Dolphin case, the GATT became an enemy. Worldwide, environmental groups moved quickly to make their concerns known. Domestic leaders, particularly in the US and the European Union (EU), came under considerable pressure to make the environment a central topic of the ongoing Uruguay Round of Trade Negotiations. This pressure was in part successful; environmental concerns made it into the Final Act in the form of the Decision on Trade and Environment. As a function of this resolution, a Committee on Trade and Environment was formed and shall report its initial findings and recommendations to the first biennial meeting of the Ministerial Conference, set to occur in 1996. Currently, there exist provisions in the GATT that can be interpreted alternately to permit or exclude various environmental trade restrictions. It is accepted that the provisions allowing for non-protectionist environmental trade measures (ETMs) should be maintained. Instead, the committee shall focus on resolving the debate between proponents of the status quo and those who believe that there should be allowances for the "extrajurisdictional" application of ETMs. This paper shall serve as an exposition of the arguments for and against the extrajurisdictional application of ETMs. Potential compromises, along with possible and probable outcomes, shall be explored through an analysis of the permitted and prohibited types of ETMs. It is hoped that the following discussion contributes to a clearer understanding of the issues and fosters future accord.

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Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 License.