Of Tuna and Treaties
by Kathy Pharr

The next time you're in the grocery store, check the label on a can of tuna. If it reads "dolphin safe," you're witnessing the conflict between international trade and environmental law.

"It's only been in the past three years that trade and the environment have come together," said law professor Tom Schoenbaum, director of the UGA School of Law's Dean Rusk Center for International and Comparative Law. "Before the tuna/dolphin dispute, international trade was perceived as completely separate from environmental questions. If you worked in one field, you didn't work in the other."

The change was triggered when the United States, reacting to the drowning of dolphins entangled in the nets of Southeast Pacific fishermen, adopted a ban on tuna harvested through dolphin-threatening techniques. A dispute resolution panel of the General Agreement on Tariffs and Trade (GATT) found the United States in violation of its international free trade obligations. Under GATT rules, countries cannot restrict free trade in products unless the product is unsafe to humans. And in a rapidly shrinking world, environmental protection is beginning to make waves in international trade disputes.

"Trade no longer stops at the border. Now it affects the internal laws and regulations of other countries," Schoenbaum said. "It's a question of making exceptions. Free trade is a value, but not a value that is limitless. At the same time, you have to realize that there are some instances where environmental protection is an excuse for protectionism. It's a question of how to draw the line."

Unlike many other legal scholars, Schoenbaum has studied both environmental law and international trade law extensively. Recently he has been poring over the 22,000-page legal document that establishes the new World Trade Organization (which replaces the GATT) and the 5,000-page text of the North American Free Trade Agreement (NAFTA).

"International lawmaking is very difficult because it's so entwined with international politics," Schoenbaum said. "There is no international legislature. You build the laws on prior experience, but mainly they are the result of international diplomatic relations. It's an enormous process of consensus- making which often takes years.

"The legal research process involves gathering sources of law, analyzing and synthesizing the information, and discussing theories with government officials, scholars and writers all over the world," he said.

Although the tuna/dolphin dispute still has not been resolved, Schoenbaum predicts that ongoing negotiations will soon result in a decision favorable for the United States. Mexico, which originally petitioned the GATT panel, is now showing flexibility following the passage of NAFTA.

"American values and ideas pass into the international legal order through American influence," he said. "The United States has the largest influence of any country. However, the United States doesn't have the only influence. We must work with other countries and accommodate their interests and values."

Because of his widely acknowledged expertise in both international trade and environmental law, Schoenbaum is consulted regularly by state, national and international policy makers. As author of the pre-eminent casebook on environmental law and a three-volume treatise, Admiralty and Maritime Law, he is notably qualified to provide such counsel. His economic and environmental impact report on NAFTA, which proved to be a powerful lobbying tool for its passage, was lauded by Sen. Sam Nunn as "the best analysis I have seen done on the subject."

Schoenbaum said he expects that another U.S. trade law eventually will be challenged in the international arena: a 1990 ban on the export of raw logs from certain West Coast states. The justification for the law, according to Congress, was conservation.

"If you look at what is actually happening, it's really an export ban that has no basis in conservation. It's protectionist," Schoenbaum said. "The object of that lumber law was to create jobs for industries that process the logs. While that may seem like a great idea at first, you have to realize the consequence of the action -- other countries will do it to us, and several have already. Indonesia and the Philippines, just to name a few, have passed the same law."

Schoenbaum has worked to develop trade regulations for protecting endangered species and the ozone layer, and for deciding whether a country may ban a product because it objects to how it is made.

"My personal conclusions are that we have to find a way for international treaties to be upheld; that there is a proper scope for unilateral action to protect resources like dolphins, but we have to find a way to restrain unilateral action generally; and we have to find a way to adopt minimum environmental, labor and human rights standards without imposing U.S. values on the rest of the world," he said.

Those are tall orders.

"International trade attorneys and environmental attorneys aren't enemies," Schoenbaum said. "Both sides of their arguments have positive values and need to be protected. What we must do is rationalize where they come into conflict."