Branches of international environmental law - Introduction to International Environmental Law - page 137

of international law that have their own judicial or arbitration bodies. The risk
is that their interpretation of international law can be overly biased in favour
of one particular value set, such as free trade, or they can consider themselves
so autonomous that they are not willing to apply the principles of general
international law at all.
The World Trade Organization (WTO) as an example of a branch
of international law
The free trade regulatory system under the World Trade Organization (WTO)
is an excellent example of a branch of international law. All states seeking
WTO membership are bound to accept the compulsory jurisdiction of the
dispute settlement body. Relatively unusually in international law, WTO
members are able to take their disputes to a dispute settlement panel even
without the other party's consent. If a party is dissatisfi ed with the panel's deci-
sion, it can appeal to the Appellate Body. Although there are a huge number
of international environmental treaties, violation rarely results in any kind of
legal action. However, if a state acts in the interests of the environment, it may
well be accountable for violating the WTO free trade regulation.
The dispute settlement procedures of the WTO's predecessor, the GATT,
did not give much consideration to environmental issues, although this would
theoretically have been possible according to its rules.
In the Tuna/Dolphin I case of 1991 the United States banned the import of Mex-
ican tuna products because the Mexicans used nets that the USA had prohibited
on board US-registered vessels or in the US EEZ; US law only permitted fi shing
nets that would not harm dolphins; and by extension, the US refused to import
tuna from states that did not uphold equivalent standards.
Mexico took the USA to the GATT dispute settlement proceedings with
the end result that the US ban on import was deemed illegal. According to the
GATT Panel, the USA was applying the restrictions of its own domestic law to
other member states, which was against the GATT rules. The USA appealed to
the exception in GATT Article XX ((b) and (g)): the ban was necessary to pro-
tect exhaustible natural resources or animal life. The GATT Panel decided that
this exception only justifi ed dolphin protection by the USA in its own EEZ, not
in the maritime zones of other member states or on the high seas.
As a result of the GATT Panel's reasoning, it seemed that there was no incen-
tive for a member state to impose a unilateral import ban in order to protect
shared natural resources or the environment beyond their own state jurisdiction.
Many international environmental law scholars at the time viewed these panels
as consisting mainly of international trade lawyers; the panel members regarded
the GATT rules as a virtually autonomous regime with its main objective being
the defence and development of free trade, with minimal reference to principles
from other areas of international law.