Law and ethics in the trade and environment debate: tuna, dolphins and turtles

Abstract

Resolving ethical conflicts is a key challenge in contemporary environmental law and policy. The tuna-dolphin disputes provide a key example of the issues at stake, yet an examination of the legislative background which led to the GATT panel decisions suggest that too little attention was paid by legislators and decision-makers to identifying and pursuing clear lines of ethical argument. Discovery of ethical viewpoints with legal or political discourse is often problematic, but as the tuna-dolphin debates developed the explicitness of ethical values was progressively diluted by formalistic legal argument which tended to disguise or compromise key underlying principles at work. A crucial issue at the heart of the debates was that of ranking the needs and desires of competing species, but the ethical approaches necessary to handle such an exercise are complex and varied. National law-making, international trade policy and competing ethical theories cannot easily be subsumed within the simple model of competition between trade and environment. No coherent policy response to the types of challenge posed by international trade rules is possible unless the underlying ethical approaches are made explicit, and their contradictions and similarities carefully explored and understood.