Reconcilability between International Free Trade and Environmental Protection:How has the United States responded to the Tuna/Dolphin decision?

Introduction

Every state trades with each other on the assumption that it could lead herself to economic growth under the theory of comparative advantage. This idea of liberalized or free trade for economic development is well premised in the General Agreement on Trade and Tariffs (“GATT”) provisions.

One of the important principles of the GATT is reduction of tariffs. Since the tariff measure is too obviously and clearly against the GATT principles, argument on this tariff measure would be less controversial than on the nontariff barriers. Even when a country uses nontariff barriers in a very sophisticated way, it is probably much more difficult and controversial to regulate such an activity. For example, a country would legislate for shielding domestic interests such as, although it is not necessarily confined to, environmental protection. However, as seen in the Tuna/Dolphin case, if such a domestic legislation influences against free trade, it would be challenged and frustrated because it has a “protectionism” effect, as an opposed meaning of free trade. As professor Leebron appropriately indicates in his article, this conflict between trade and environment is one of three post-Uruguay agendas.

The GATT decision on the Tuna/Dolphin case has invoked several issues and voluminous arguments in the area of trade and environment. Above all, this fundamental question of whether trade and environment are incompatible or mutually exclusive each other should be solved, if both free trade and environmental protection are important to prosperity of human life.

In part II of this paper, the Tuna/Dolphin decision will be explained. It is important to understand how and why this case was decided in the GATT framework because this case is the starting point of the topic to be discussed in this paper. The fundamental positions of the free trade regime and environmental protection regime will be explained in parts III and IV, respectively. Then, nature of conflict between the two proponents will be discussed in part V. In part VI of this paper, reasons for irreconciliation are identified and discussed. Then, this paper will focus on how and what type of accommodating efforts have been proposed, argued, and developed to overcome the GATT’s Tuna/Dolphin decision, principally under the US leadership, in part VII. Finally, this paper will eventually try to answer whether free trade and environmental protection can be harmonized each other in part VIII.

The Tuna/Dolphin Case

The United States enacted the Marine Mammal Protection Act (“MMPA”) to protect dolphins from foreign and domestic tuna fishing fleets. The MMPA allows the taking and importation of tuna only if the methods used do not result in the death of more dolphins than occurs through the implementation of the best available safety techniques that are economically and technologically practicable. Since the Mexican tuna fleet’s incidental killing rate of dolphins during tuna harvesting exceeded the limits permitted under the MMPA, the US imposed a ban on imports of tuna from Mexico in violation of the MMPA.

Then, Mexico requested dispute settlement under Article XXIII of the GATT, alleging that the US ban under the MMPA was prohibited by Article XI or internal regulations contravening the national treatment provision of Article III(4). The US argued that the import restrictions were consistent with Article III and Article XX (b) and (g). However, the GATT panel found that the US trade sanction under the MMPA was quantitative restrictions in violation of Article XI, and also rejected the US justifications under Article XX (b) and (g).

This decision has invoked various arguments and voluminous criticisms from environmentalists. At the same time, the decision also provided an opportunity for the free trade regime to accommodate what environmentalists have argued for. In other words, outraged by the decision, environmentalists have struggled with the free trade regime, and have the latter partially comply with what they have advocated. However, it still fails to reach a consensus to solve this controversial issue of reconcilability between the two regimes.

Free Trade “Constitution”

The GATT is the most controlling authority in the international free trade regime. There are three general principles in the GATT. That is, contracting parties are obliged to: (1) extend “most favored nation” (MFN) treatment to imports from other GATT parties ; (2) give imported goods “national treatment” once they have cleared customs and border procedures ; and (3) eliminate quantitative restrictions on imports and exports.

The GATT also contains exceptions in this free trade framework. Article XX lists the ten general exceptions to the GATT principles. The environmental, health and safety exceptions are the most noteworthy and controversial among them, where they read:

“Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:

(b) necessary to protect human, animal or plant life or health; …

(g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption….”

These exceptions must satisfy three requirements to be permissible under Article XX. First, it must be “necessary” to the extent that no less trade restrictive alternative is available. Second, it must not “arbitrarily” or “unjustifiably” discriminate between countries. Finally, it must not be a disguised restriction on international trade. Because the terms “necessary,” “arbitrarily,” “unjustifiably” and “in conjunction with” are vague, these exceptions are potentially arguable.

Environmental Protection “Constitution”

Unlike the international free trade regime, there are apparently more than single authorities in the environmental protection regime. They are the 1972 Stockholm Declaration on the Human Environment (“Stockholm Declaration”) and the 1992 Rio Declaration on Environment and Development (“Rio Declaration”). Both Declarations are respectively composed of twenty six and twenty seven guiding principles for protecting the global environment. Even though they are overlapping each other in some respects, it is necessary to explain some critical provisions from each declaration here.

Principle 21 of the Stockholm Declaration proclaims national sovereignty, one of the old issues in international law:

“States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction”.

Principle 11 of the Rio Declaration admits that different environmental standards between developed countries and developing countries can be one of the reasons of the conflict between free trade and environmental protection. Principle 12 of the Rio Declaration states another essential issue between the two regimes, when it reads:

“States should cooperate to promote a supportive and open international economic system that would lead to economic growth and sustainable development in all countries, to better address the problems of environmental degradation. Trade policy measures for environmental purposes should not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade. Unilateral actions to deal with environmental challenges outside the jurisdiction of the importing country should be avoided. Environmental measures addressing transboundary or global environmental problems should, as far as possible, be based on an international consensus.”

Nature of Conflict between the Two Regimes

The nature of the conflict was typically exemplified in the Tuna/Dolphin case, as explained in part II of this paper. To address the conflict briefly, environmentalists contend that we should protect the environment since economic growth or development is not unlimited in the free trade regime or framework. By contrast, proponents of free trade assert that economic growth can be achieved under the free trade regime or framework, while criticizing what the environmentalists claim above as disguised protectionism.

Professor Jackson clearly states each proposition of both free trade and environmental protection regimes in his article as follows:

“Proposition 1: Protection of the environment has become exceedingly important, and promises to be more important for the benefit of future generations. Protecting the environment involves rules of international cooperation, sanction, or both, so that government actions to enhance environmental protection will not be undermined by the actions of other governments. Sometimes such rules involve trade restricting measures.

Proposition 2: Trade liberalization is important for enhancing world economic welfare and for providing a greater opportunity for billions of individuals to lead satisfying lives. Measures that restrict trade often will decrease the achievement of this goal.”

As Professor Jackson points out, this type of “policy discord” is not unique; there are many policy discords. Despite many reasons for irreconciliation, there have been many accommodating efforts for reconciliation. In the following parts of VI and VII, this paper will discuss this issue of reconcilability between the free trade regime and the environmental protection regime in detail.

Reasons for Irreconciliation

Introduction

In this part, several reasons for irreconciliation between the two regimes will be explained and discussed. Those issues include ideological mutual exclusiveness, unilateralism, eco-imperialism or green imperialism, sovereignty, and the argument of the forum such as the GATT. They are not separately claimed each other. Rather, they are interrelated and interdependent each other, thus can be asserted simultaneously. In the first part of each section, each contention will be summarized. Unless further explanations are necessary to give more details, discussion will be covered in the second part of each section.

Ideological Predominance of Free Trade over Environmental Protection

Professor Bernabe-Riefkohl contends in his article that trade and environment are incompatible ideologies each other because of the mutual exclusive characters. He supports his contention by addressing that several different approaches to accommodate the interests of free trade and to simultaneously provide environmental protection such as the harmonization of laws, the adoption of equivalence standards, and the creation of international dispute resolution panels have not been successful. Therefore, he concludes that it is a “impossible dream” to reconcile the conflict between the two regimes under the premise that environmental protection is a less valuable objective than free trade and, thus, should be subordinated to the latter for economic growth.

His idea is nothing new and unique. However, his ideological emphasis of declining the subordination to the free trade regime should not be disregarded as a fundamental or ideological assumption of the environmental protection regime.

Unilateralism

One of the issues in the Tuna/Dolphin case was on the US unilateral application of the MMPA to Mexico under the Article XX, where the GATT panel rejected. The environmental protection regime criticizes the decision, and tries to justify this unilateralism.

As briefly mentioned in the introduction of this paper, trade and environment is one of the important post-Uruguay Round agendas. Whereas the unilateral extraterritorial application of the Sherman Act was justified by the Supreme Court decision, the Tuna/Dolphin decision denied the unilateral application. Thus, this apparent “inconsistency” after the Uruguay Round brings another big question of how to accommodate and harmonize these post-Uruguay Round agendas beyond the less simple issue of why and how to justify unilateralism.

Eco-Imperialism Or Green Imperialism

Unilateral environmental trade measure, as the US did against Mexico, is also blamed for “eco-imperialism,” “green imperialism,” or new “green protectionism.” This argument is very much interrelated with unilateralism and sovereignty. The developing countries contend that they have their sovereign right to develop with their own environmental law and policy, thus the developed countries should not apply their own environmental regulations unilaterally to the developing nations. In this sense, green imperialism can be another term of such a unilateralism. On the other hand, the developed countries blame the developing countries for their lower environmental standards.

Sovereignty

Each state has an equal and sovereign right thus is a final authority within its territorial limits. Thus, developing and developed nations with their own sovereign right can set up and implement their own environmental policies and laws within their territories. However, as seen in the Tuna/Dolphin case above, simply because of transboundary character of the environmental concerns, the sovereignty question cannot be solved easily. In case of conflict between free trade and environmental, developing countries have defended themselves by invoking sovereign right as well as eco-imperialism and unilateralism argument.

Bragdon argues that traditional sovereignty concept is inappropriate in a world of global environmental interdependence. Therefore, new meaning of sovereignty must be given as a general rule of state responsibility for international environmental concern. That is, she contends that the importance of state responsibility outweighs that of state sovereignty as global environmental concerns are more interrelated between states. On the other hand, Malone explains that states must cede sovereignty to a supra-national body, such as the United Nations, to combat environmental concerns. Recently, protecting “six environmental hubs” in the world has been incorporated as a new security agenda in the US State Department.

Professor Jackson also contends that national sovereignty would be the ancient concept thus no longer viable today when the government disregards important international principles such as human rights under the name of national sovereignty. He explains that “national sovereignty is a part of ‘subsidiary,’ meaning that … certain type of decisions should be made only at national level … [and] … other kind of decisions must be elevated to the international level.”

Professor Gardner insists his way of solution by borrowing domestic constitutional principle, the Taking Clause of the Fifth Amendment. After explaining that private property rights are similar with national sovereignty, Professor Gardner contends that the conditional assistance method that the US has sought to protect the environment through financial incentives and disincentives can be extended internationally. He further argues that such an extension of conditional assistance has proven helpful in multilateral and bilateral relationship. He concludes that such assistance can be consistent thus justified with the domestic principle of just compensation.

Is the GATT Right Forum?

Goldman criticizes free trade regime’s solution of the conflict between the two regimes by accepting the preeminence of the free trade regime, minor adaptation within the free trade regime, and therefore environmental protection regime’s submission to the free trade regime as unacceptable to the environmental protection regime. She argues that the debate between the two regimes should begin by asking this fundamental question of “whether the trade regime should be the preeminent system to which environmental protections are subordinated.” She contends that the preeminence of the free trade regime cannot be accepted because of the biases inherent in the process and rules of the free trade regime. They are: “(1) the trade rule does not account for environmental externalities; (2) the trade system discounts unilateral environmental actions; (3) GATT’s health and natural resource exceptions thwart needed environmental regulations.” While declining Professor Jackson’s suggestions, Goldman concludes that the conflict between the two regimes should be resolved in a neutral forum.

Under the title of “the Ancient Regime: the GATT,” professor Dunoff also argues that environmental interests have been subordinated under the GATT practice as follows: “(1) the GATT severely restricts the use of trade measures designed to protect the global commons; (2) the GATT does not permit trade restrictions on products produced in an environmental destructive manner; (3) the GATT forbids the use of unfair trade statutes to address international environmental issues; (4) the GATT severely constrains a nation’s ability to utilize trade policy as a tool for environmental protection.” Then, he contends that a new “International Court for the Environment” to direct issues between the two regimes should be created in order to protect international interests in the global environment.

Various Accommodating Efforts for Reconciliation

Introduction

The Tuna/Dolphin decision has greatly impacted both regimes of free trade and environmental protection to defend themselves and to extend their own propositions. As the conflict between them clearly surfaced in the decision, the question of reconcilability has been widely debated between the two regimes. The accommodating efforts from the environmental protection regime, as the US was with this side in the Tuna/Dolphin case, have been oddly tried within the context of the free trade regime. Therefore, in this sense, many proponents seem to agree that there is no insurmountable conflict between the two regimes within the existing free trade context, while true minor environmentalists contend that there can be no true meaning of reconciliation between the two regimes because of some inherent reason such as the issue of ideological preeminence. In the following, such accommodation efforts are discussed in this sense. It should be, however, remembered that such efforts are interconnected each other thus can be pursued simultaneously with appropriate coordination.

Justifying Unilateralism and Eco-Imperialism

Charnovitz contends that unilateralism has been a critical step for securing multilateral cooperation. He further explains that how this proposition has been incorporated in the history by illustrating the CITES, the Tuna/Dolphin case, and other examples, and concludes that there has been a “fruitful interplay” between unilateral and multilateral actions. He also asserts that unilateral environmental regulations is not imperialism.

Professor Cheyne tries to justify unilateral trade restrictions based on environmental urgency. She criticizes the GATT panel’s Tuna/Dolphin decision based on purposive interpretation is too strict. In other words, she argues that the panel’s assumption that unilateral and coercive trade measure will destroy the object of the GATT as a whole is inconsistent with Article III and Article XX. Under such a circumstance, the panel, she argues, employed too literal interpretation on Article III.

Professor Cheyne does not oppose to a multilateral treaties solution within the World Trade Organization (“WTO”) or the GATT. However, she argues that the individual states should be remained to use unilateralism option to protect important non-trade value such as environmental protection based on urgency particularly where there are actual and potential effects on them.

Her justifications seem to be weakened in two points. First, professor Cheyne fails to give reasons of the urgency of environmental unilateralism in international trade context. She may successfully argue that the panel’s interpretation is inflexible and purposive. Nevertheless, she fails to justify why environmental unilateralism is urgent to win over free trade. Second, I think her suggestion to justify an urgent environmental unilateralism is based on the premise that there is no consensus in the international forum such as the WTO and the GATT. That is, she seems to argue that unilateral option should be remained to be employed in case of urgency while multilateral measures are still under the way of formation.

Anderson argues that unilateral trade restriction for environmental protection should become legitimate, as has unilateral action to protect human rights. In other words, she contends that the “green extraterritorial unilateral trade measures” or “green EUTM” should be justified by offering an analogy of human rights abuse. After giving general discussion about the Tuna/Dolphin decision, including the GATT framework and legislative history of Article XX, Anderson tries to legitimize the green EUTM on the premise that human rights have been more important than state rights such as sovereignty. She regards environmental protection principles as becoming important and experiencing the same dilemma with human rights principles. Therefore, the same as unilateral action for the humanitarian principles is widely accepted as a legitimate basis, unilateral action for environmental protection should be also justified. Then she provides 10 factors to be considered for the decisionmakers and procedural guidelines.

Her effort and endeavor to justify the unilateral action for environmental protection based on human rights analogy and to provide the factors and the guidelines should be praiseworthy. However, it seems less weakened to fail to explain how and why environmental protection is as much as widely accepted as human rights as an international norm or principle. Where the environmental unilateralism lacks legitimate reasons, it simply could be overused or misused based on subjective standard and decision.

Professor Schoenbaum also contends that the US unilateral environmental regulation would be categorized as “creative unilateralism,” which should be justified under the accepted norms of public international law.

Reforming or Greening the GATT

Right after the Tuna/Dolphin decision, Ross addressed his prediction on how the US would respond to the decision. Above all, he contends that the GATT provisions such as general exception clause should be amended to provide adequate guidelines for limiting the applicability of the exception. He also asserts that there should be appropriate environmental code in the GATT provisions.

Professor Lang also recognizes and explains general nature of the conflict between the two regimes such as unilateralism and eco-imperialism. He insists that such a conflict comes from differing social traditions, levels of economic development, and degree of international consensus. Then, he provides declaratory principles to reconcile the conflict. They are three “Cs”: coordination, cooperation, and compatibility.

Since this issue surfaced with the Tuna/Dolphin decision, reforming or greening the GATT argument also followed. Professor Kennedy contends that efficiency of trade sanctions ought to be decisionmakers’ initial focus and ultimately be the bottom line. After identifying the fundamental positions and nature of the conflict, he introduces and discusses 10 proposals to amend the GATT and the US trade laws. They are: (1) amend Article XX or adopt a GATT waiver to except trade measures taken on environmental grounds; (2) amend the GATT standard code to include environmental standards; (3) exempt environmental subsidies from countervailing duty laws; (4) deny GSP beneficiary status to developing countries with lax environmental standards; (5) amend GATT Article XIX to authorize trade restrictions imposed pursuant to domestic environmental protection; (6) impose countervailing duties on imports from countries with lax environmental standards; (7) impose antidumping duties on imports from countries with lax environmental laws; (8) amend section 301 of the Trade Act of 1974; (9) impose an environmental tax on imports; (10) permit states to adopt nondiscriminatory, proportional environmental measures.

Institutionalization or Globalization

In order to integrate or reconcile the conflict between the two regimes, establishment of an institution for such a purpose has been pursued with other simultaneous efforts by reforming or greening the GATT and the WTO and by entering into multilateral environmental agreements. There are two comparative contentions on this issue of institutionalization. That is, whether such a conflict between the two regimes should be reconciled or resolved within a separate international institution instead of the GATT or the WTO. This section particularly discusses whether there should be a separate international organization for the two regimes: for example, the GATT or the WTO for the free trade regime and the “Global Environmental Organization (“GEO”)” for the environmental protection regime.

On the other hand, professor Dunoff also argues another way as an institutionalization effort. His contention can be summarized in a word: globalization of international environmental law (“IEL”) (from greening of international law, the IEL, and the GATT) by simply going beyond the greening of the laws. He contends that greening of the IEL has been developed by a dramatic growth in the number of international environmental bodies and by an increased sophistication of legal instruments.

While professor Dunoff agrees with professor Esty’s call for the formation of a “strong and comprehensive GEO” under his own justifications, he contends that a new international body can fulfill a number of important roles. That is, the new body, if formed, should provide: (1) for the coordination and dissemination of scientific research on the causes, extent, and consequences of global ecological problem; (2) a permanent forum in which nations could engage in the going negotiations necessary to create new law in a rapidly changing world; (3) a series of institutional support services; (4) a degree of coordination for the wide array of existing global, regional and subregional environmental bodies.

In addition, in order to maximize global environmental protection, he contends that every form of international activities–from humanitarian aid to warfare–should be incorporated into the IEL. In this sense, he further contends greening of the World Bank, the North-South gap, and even exploitation of the information and communication revolution to discuss knowledge and to facilitate the involvement of non-state actors and the developing nations as an effort for globalization of the IEL.

Having a separate international environmental body in the environmental sphere equal to the GATT in trade arena is a very interesting idea. However, whether or not it is necessary against the counter-argument of taking advantage of existent international organizations such as the GATT and the WTO is still questionable besides the argument of its effectiveness, as briefly discussed above. In other words, declaratory justifications, rather than practical or pragmatic reasons, will not be sufficiently legitimate for creating such an international environmental body. But, I expect more active discussions for such an ambitious goal should come forward in the near future. If it should be formed, the coordination issue between the two regimes would be more arguable than under the current system, which also casts continuing argument why the environmental interests should be subordinated to those of trade, or vice versa, within the international trade bodies.

By contrast, Woody and Professor Schoenbaum discuss about a new Committee on Trade and Environment (“CTE”) under the auspices of the WTO. The CTE was formally established at the meeting held to sign the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiation in Marrakesh on April 14, 1994. The CTE’s focus includes the following 10 issues: “(1) the relationship between the provisions of the multilateral trading system and trade measure for environmental purposes, including those pursuant to multilateral environmental agreements; (2) domestic environmental measures that have significant trade effects; (3) charges, taxes, standards, and technical regulations for environmental purposes, including packaging, labeling, and recycling regulations; (4) the provisions of the multilateral trading system with respect to the transparency of trade measures used for environmental purposes and environmental measures and requirements which have significant trade effects; (5) the relationship between the dispute settlement mechanisms in the multilateral trading system and those found in multilateral environmental agreements; (6) the effect of environmental measures on market access, … and environmental benefits of removing trade restrictions and distortions; (7) the issue of exports of domestically prohibited goods; (8) the relevant provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights; (9) the work program envisaged in the Decision on Trade in Services and the Environment; and (10) input to the relevant bodies in respect of appropriate arrangements for relations with inter-governmental and non-governmental organizations.”

Although the CTE has not played a significant role to progress those issues because of its short period of time since the establishment, it will continue to build a constructive policy relationship between trade, environment, and sustainable development, as declared in the Singapore Conference report, held two years after the establishment to review the CTE’s work. Despite its express activities to achieve such policy goals as explained above, it is still questionable whether the CTE will succeed as a coordinating or accommodating international body to reconcile the conflict between the two regimes. Professor Schoenbaum concludes that the goal of sustainable development, in other words, reconciliation between trade and environment, can be furthered by free international trade despite no “grand synthesis” of the conflict. However, it still does not answer minor environmentalists’ fundamental question.

Codification Effort by Multilateral Environmental Agreements

There have been voluminous multilateral environmental agreements (“MEAs”) since the UN Stockholm Conference of 1972. As I mentioned earlier, however, such an effort for reconciliation by MEAs has never been independently pursued. Rather, it has been sought with the other accommodating efforts such as justifying environmental unilateralism, reforming or amending the GATT provisions, and institutionalization since the controversial Tuna/Dolphin decision. Thus, such MEAs can be regarded as a codification effort within the existing international free trade regime. However, as revealed in the following discussion, this effort also contains no consensus to reconcile the conflict.

Professor Brand addresses his opinion on the question of conformity between the MEAs and the GATT. He contends that the recent trade decisions have resulted in emphasis on the need for further development of MEAs. That is, he asserts that the WTO as well as the GATT can take care of the conflict between trade and environment by illustrating many cases, including the Tuna/Dolphin case, decided by those international trade institutions. He further argues that such decisions have resulted in the codification of many MEAs because the GATT, as in the Tuna/Dolphin decision, used the languages in the GATT provisions in order to bring environmental protection into the free trade framework. He also contends that further development within the free trade regime is also possible as the CTE will determine to accommodate explicit environmental rules in the WTO.

On the other hand, Wold states his opinion on the specific question of whether such MEAs and the GATT provisions are in conformity each other about the issue of conflict between trade and environment. He views that question of whether MEAs are consistent with the GATT is dependent upon how broadly the GATT’s core obligations and general exceptions should be interpreted. After reviewing various trade measures such as quotas and quantitative restrictions, strict domestic measures and sanctions for noncompliance, trade restriction with nonparties, technology transfer and financing provisions, and economic incentives in such MEAs, he contends that reconciliation of the conflict between trade rules and the MEAs is possible by broadly construing the GATT exceptions that the GATT panels have narrowed.

There are also such an effort in regional trade institutions such as the North America Free Trade Agreement (“NAFTA”) and the European Union (“EU”). Miller and Professor Porras debate on the NAFTA in the opposite positions each other. After discussing the key environmental provisions in the NAFTA, Miller contends that the NAFTA provisions can be a good model to reconcile the conflict between trade and environment. By contrast, Professor Porras asserts that the current NAFTA “upward harmonization” standard will perpetuate economic and political inequalities between states principally because such a standard is neither neutral nor based on environmental goal.

Summary and Outlook

The Tuna/Dolphin decision has obviously kindled one of the controversial post-Uruguay agendas, the question of reconcilability between trade and environment. Both regimes have defended themselves and extended their propositions since the decision. Despite some disagreements between the two regimes many reconciliation efforts have fortunately been reached. Those compromising results, if they are correct ones, were possible under the undisputed but forced assumption that both free trade and environmental protection are crucial for prosperity and welfare of human life. However, those results were limited ones because there is still no clear consensus between the two regimes. Those limited compromises were also achieved in international free trade framework. As long as the environmental protection regime continues to decline to accept those reconciliation efforts with its contention of no subordination to the free trade framework, the road to consensus may be too far away.