Until recently few individuals realized that international environmental and trade law regimes, which had appeared to many to be on parallel tracks, were actually on a collision course. Then, on September 3, 1991, a three member dispute resolution panel (the Panel) formed by the nations who are signatories, or … contracting parties,” to the General Agreements on Tariffs and Trade (GATT) upheld a challenge by Mexico that an American embargo of Mexican tuna and tuna products harvested from the Eastern Tropical Pacific Ocean (ETP), 2 commenced under the U.S. Marine Mammal Protection Act (MMPA), violated the provisions of GATT.
The Panel’s decision is a flash point for both the environmental and trade law communities. Environmental lawyers understand that a special relationship exists in the ETP between tuna and dolphin that causes schools of tuna to swim with pods of dolphin. Many environmental lawyers are concerned that without the MMPA’s protections, dolphins will be needlessly slaughtered. Moreover, environmental attorneys are concerned about the GATT fate of other important environmental laws. Meanwhile, trade lawyers generally view the decision as the logical extension of free trade concern over measures that can be perceived as “protectionist” If trade law and environmental law are to proceed once again on parallel paths toward their mutual goal of sustainable development, trade lawyers and environmental lawyers must become much more familiar with the legal culture of each other’s fields. This Article is intended to facilitate that process by providing a working understanding of the GATT Panel’s decision.