Trade-environment negotiations in the EU, NAFTA, and WTO: Regional trajectories of rule development

American Journal of International Law

Volumn 91, Issue 2, 1997, Pages 231-266

  Steinberg, Richard H ^a  

^a NONE

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[No Author keywords available]

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EID: 0031481733     PISSN: 00029300     EISSN: None     Source Type: Journal    
DOI: 10.2307/2954211     Document Type: Article

References (216)

1. See, e.g., CONVERGENCE OR DIVERSITY? NATIONAL MODELS OF PRODUCTION AND DISTRIBUTION IN A GLOBAL ECONOMY (Suzanne Burger & Ronald Dore eds., 1995); Paulette Kurzer, The Internationalization of Business and Domestic Class Compromises: A Four Country Study, W. EUR. POL., Oct. 1991, at 1.
2. See, e.g., CONVERGENCE OR DIVERSITY? NATIONAL MODELS OF PRODUCTION AND DISTRIBUTION IN A GLOBAL ECONOMY (Suzanne Burger & Ronald Dore eds., 1995); Paulette Kurzer, The Internationalization of Business and Domestic Class Compromises: A Four Country Study, W. EUR. POL., Oct. 1991, at 1.
3. Some suggest that the operation of relatively free trade and international economic competition may be forcing national economic systems to adjust, rationally eliminating inefficiencies peculiar to each one, and moving each country toward an efficient ideal-typical economic and regulatory system. See, e.g., John Goodman & Louis Pauly, The Obsolescence of Capital Controls? Economic Management in an Age of Global Markets, 46 WORLD POL. 50 (1993); W. Carl Kester, American and Japanese Corporate Governance: Converging to Best Practice?, in CONVERGENCE OR DIVERSITY?, supra note 1, at 107.
4. Some suggest that the operation of relatively free trade and international economic competition may be forcing national economic systems to adjust, rationally eliminating inefficiencies peculiar to each one, and moving each country toward an efficient ideal-typical economic and regulatory system. See, e.g., John Goodman & Louis Pauly, The Obsolescence of Capital Controls? Economic Management in an Age of Global Markets, 46 WORLD POL. 50 (1993); W. Carl Kester, American and Japanese Corporate Governance: Converging to Best Practice?, in CONVERGENCE OR DIVERSITY?, supra note 1, at 107.
5. Some suggest that the trend toward globalization may be caused by common cross-national political-ideological programs, such as the neoclassical, laissez-faire deregulatory rhetoric and politics that have often gripped both Britain and the United States since 1980. See, e.g., MARTHA DERTHICK & PAUL QUIRK, THE POLITICS OF DEREGULATION (Brookings Institution 1985) (especially at 1-57, 140-46, 207-58); PETER JENKINS, MRS. THATCHER'S REVOLUTION: THE ENDING OF THE SOCIALIST ERA (1988) (especially at 3-49); ALBERT HIRSCHMAN, THE RHETORIC OF REACTION: PERVERSITY, FUTILITY, JEOPARDY (1991); Peter Hall, Policy Paradigms, Social Learning, and the State: The Case of Economic Policy-Making in Britain, COMP. POL., Apr. 1993, at 1.
6. Some suggest that the trend toward globalization may be caused by common cross-national political-ideological programs, such as the neoclassical, laissez-faire deregulatory rhetoric and politics that have often gripped both Britain and the United States since 1980. See, e.g., MARTHA DERTHICK & PAUL QUIRK, THE POLITICS OF DEREGULATION (Brookings Institution 1985) (especially at 1-57, 140-46, 207-58); PETER JENKINS, MRS. THATCHER'S REVOLUTION: THE ENDING OF THE SOCIALIST ERA (1988) (especially at 3-49); ALBERT HIRSCHMAN, THE RHETORIC OF REACTION: PERVERSITY, FUTILITY, JEOPARDY (1991); Peter Hall, Policy Paradigms, Social Learning, and the State: The Case of Economic Policy-Making in Britain, COMP. POL., Apr. 1993, at 1.
7. Some suggest that the trend toward globalization may be caused by common cross-national political-ideological programs, such as the neoclassical, laissez-faire deregulatory rhetoric and politics that have often gripped both Britain and the United States since 1980. See, e.g., MARTHA DERTHICK & PAUL QUIRK, THE POLITICS OF DEREGULATION (Brookings Institution 1985) (especially at 1-57, 140-46, 207-58); PETER JENKINS, MRS. THATCHER'S REVOLUTION: THE ENDING OF THE SOCIALIST ERA (1988) (especially at 3-49); ALBERT HIRSCHMAN, THE RHETORIC OF REACTION: PERVERSITY, FUTILITY, JEOPARDY (1991); Peter Hall, Policy Paradigms, Social Learning, and the State: The Case of Economic Policy-Making in Britain, COMP. POL., Apr. 1993, at 1.
8. Some suggest that the trend toward globalization may be caused by common cross-national political-ideological programs, such as the neoclassical, laissez-faire deregulatory rhetoric and politics that have often gripped both Britain and the United States since 1980. See, e.g., MARTHA DERTHICK & PAUL QUIRK, THE POLITICS OF DEREGULATION (Brookings Institution 1985) (especially at 1-57, 140-46, 207-58); PETER JENKINS, MRS. THATCHER'S REVOLUTION: THE ENDING OF THE SOCIALIST ERA (1988) (especially at 3-49); ALBERT HIRSCHMAN, THE RHETORIC OF REACTION: PERVERSITY, FUTILITY, JEOPARDY (1991); Peter Hall, Policy Paradigms, Social Learning, and the State: The Case of Economic Policy-Making in Britain, COMP. POL., Apr. 1993, at 1.
9. Some think that globalization is attributable to the formation and expansion of what some political scientists call "transnational epistemic communities" - groups of transnational actors (businessmen, bureaucrats and nongovernmental organizations) that work together and develop similar cognitive and normative views of policy and government. See Peter Haas, Introduction: Epistemic Communities and International Policy Coordination, 46 INT'L ORG. 1 (1992); Peter Haas, Banning Chloroflourocarbons: Epistemic Community Efforts to Protect Stratospheric Ozone, 46 INT'L ORG. 187 (1992). Some international law scholars appear to incorporate this factor in their analyses of international law. See, e.g., Abram Chayes & Antonia Handler Chayes, On Compliance, 47 INT'L ORG. 175 (1993). The concept of "transnational epistemic communities" may be thought of as similar to the notion of "civil society networks." Compare with the articles cited above, David Ronfeldt & Cathryn L. Thorup, NGOs, Civil Society Networks, and the Future of North America, in NORTH AMERICAN INSTITUTE, TRANS-BORDER CITIZENS 21-40 (1994).
10. Some think that globalization is attributable to the formation and expansion of what some political scientists call "transnational epistemic communities" - groups of transnational actors (businessmen, bureaucrats and nongovernmental organizations) that work together and develop similar cognitive and normative views of policy and government. See Peter Haas, Introduction: Epistemic Communities and International Policy Coordination, 46 INT'L ORG. 1 (1992); Peter Haas, Banning Chloroflourocarbons: Epistemic Community Efforts to Protect Stratospheric Ozone, 46 INT'L ORG. 187 (1992). Some international law scholars appear to incorporate this factor in their analyses of international law. See, e.g., Abram Chayes & Antonia Handler Chayes, On Compliance, 47 INT'L ORG. 175 (1993). The concept of "transnational epistemic communities" may be thought of as similar to the notion of "civil society networks." Compare with the articles cited above, David Ronfeldt & Cathryn L. Thorup, NGOs, Civil Society Networks, and the Future of North America, in NORTH AMERICAN INSTITUTE, TRANS-BORDER CITIZENS 21-40 (1994).
11. Some think that globalization is attributable to the formation and expansion of what some political scientists call "transnational epistemic communities" - groups of transnational actors (businessmen, bureaucrats and nongovernmental organizations) that work together and develop similar cognitive and normative views of policy and government. See Peter Haas, Introduction: Epistemic Communities and International Policy Coordination, 46 INT'L ORG. 1 (1992); Peter Haas, Banning Chloroflourocarbons: Epistemic Community Efforts to Protect Stratospheric Ozone, 46 INT'L ORG. 187 (1992). Some international law scholars appear to incorporate this factor in their analyses of international law. See, e.g., Abram Chayes & Antonia Handler Chayes, On Compliance, 47 INT'L ORG. 175 (1993). The concept of "transnational epistemic communities" may be thought of as similar to the notion of "civil society networks." Compare with the articles cited above, David Ronfeldt & Cathryn L. Thorup, NGOs, Civil Society Networks, and the Future of North America, in NORTH AMERICAN INSTITUTE, TRANS-BORDER CITIZENS 21-40 (1994).
12. Some think that globalization is attributable to the formation and expansion of what some political scientists call "transnational epistemic communities" - groups of transnational actors (businessmen, bureaucrats and nongovernmental organizations) that work together and develop similar cognitive and normative views of policy and government. See Peter Haas, Introduction: Epistemic Communities and International Policy Coordination, 46 INT'L ORG. 1 (1992); Peter Haas, Banning Chloroflourocarbons: Epistemic Community Efforts to Protect Stratospheric Ozone, 46 INT'L ORG. 187 (1992). Some international law scholars appear to incorporate this factor in their analyses of international law. See, e.g., Abram Chayes & Antonia Handler Chayes, On Compliance, 47 INT'L ORG. 175 (1993). The concept of "transnational epistemic communities" may be thought of as similar to the notion of "civil society networks." Compare with the articles cited above, David Ronfeldt & Cathryn L. Thorup, NGOs, Civil Society Networks, and the Future of North America, in NORTH AMERICAN INSTITUTE, TRANS-BORDER CITIZENS 21-40 (1994).
13. Some argue that the rules of international regimes are set by the most powerful states in those regimes. See Stephen Krasner, Structural Causes and Regime Consequences: Regimes as Intervening Variables, in INTERNATIONAL REGIMES 1 (Stephen Krasner ed., 1983) [hereinafter Krasner, Structural Causes]; see also Stephen Krasner, Global Communications and National Power: Life on the Pareto Frontier, 43 WORLD POL. 336 (1991) [hereinafter Krasner, Global Communications]; Geoffrey Garrett, International Cooperation and Institutional Choice: The European Community's Internal Market, 46 INT'L ORG. 533 (1992).
14. Some argue that the rules of international regimes are set by the most powerful states in those regimes. See Stephen Krasner, Structural Causes and Regime Consequences: Regimes as Intervening Variables, in INTERNATIONAL REGIMES 1 (Stephen Krasner ed., 1983) [hereinafter Krasner, Structural Causes]; see also Stephen Krasner, Global Communications and National Power: Life on the Pareto Frontier, 43 WORLD POL. 336 (1991) [hereinafter Krasner, Global Communications]; Geoffrey Garrett, International Cooperation and Institutional Choice: The European Community's Internal Market, 46 INT'L ORG. 533 (1992).
15. Some argue that the rules of international regimes are set by the most powerful states in those regimes. See Stephen Krasner, Structural Causes and Regime Consequences: Regimes as Intervening Variables, in INTERNATIONAL REGIMES 1 (Stephen Krasner ed., 1983) [hereinafter Krasner, Structural Causes]; see also Stephen Krasner, Global Communications and National Power: Life on the Pareto Frontier, 43 WORLD POL. 336 (1991) [hereinafter Krasner, Global Communications]; Geoffrey Garrett, International Cooperation and Institutional Choice: The European Community's Internal Market, 46 INT'L ORG. 533 (1992).
16. See, e.g., JILL HILLS, DEREGULATING TELECOMS: COMPETITION AND CONTROL IN THE UNITED STATES, JAPAN, AND BRITAIN (1986); GARETH LOCKSLEY, THE SINGLE EUROPEAN MARKET AND THE INFORMATION AND COMMUNICATION TECHNOLOGIES (1990); PETER COWHEY & JONATHAN ARONSON, MANAGING THE WORLD ECONOMY (Council on Foreign Relations 1993).
17. See, e.g., JILL HILLS, DEREGULATING TELECOMS: COMPETITION AND CONTROL IN THE UNITED STATES, JAPAN, AND BRITAIN (1986); GARETH LOCKSLEY, THE SINGLE EUROPEAN MARKET AND THE INFORMATION AND COMMUNICATION TECHNOLOGIES (1990); PETER COWHEY & JONATHAN ARONSON, MANAGING THE WORLD ECONOMY (Council on Foreign Relations 1993).
18. See, e.g., JILL HILLS, DEREGULATING TELECOMS: COMPETITION AND CONTROL IN THE UNITED STATES, JAPAN, AND BRITAIN (1986); GARETH LOCKSLEY, THE SINGLE EUROPEAN MARKET AND THE INFORMATION AND COMMUNICATION TECHNOLOGIES (1990); PETER COWHEY & JONATHAN ARONSON, MANAGING THE WORLD ECONOMY (Council on Foreign Relations 1993).
19. See, e.g., ALEXANDER GERSCHENKRON, ECONOMIC BACKWARDNESS IN HISTORICAL PERSPECTIVE (1962) (especially at 5-30); JOHN ZYSMAN, GOVERNMENTS, MARKETS AND GROWTH (1983) (especially ch. 2).
20. See, e.g., ALEXANDER GERSCHENKRON, ECONOMIC BACKWARDNESS IN HISTORICAL PERSPECTIVE (1962) (especially at 5-30); JOHN ZYSMAN, GOVERNMENTS, MARKETS AND GROWTH (1983) (especially ch. 2).
21. On the development of competition policy rules in regional organizations, see generally Richard Cunningham & Anthony La Rocca, Harmonization of Competition Policies in Regional Economic Integration, 27 LAW & POL'Y INT'L BUS. 879 (1997).
22. See Krasner, Structural Causes, supra note 5; see also Krasner, Global Communications, supra note 5; Garrett, supra note 5.
23. See Krasner, Structural Causes, supra note 5; see also Krasner, Global Communications, supra note 5; Garrett, supra note 5.
24. See Krasner, Structural Causes, supra note 5; see also Krasner, Global Communications, supra note 5; Garrett, supra note 5.
25. This premise may be inferred from national positions in international negotiations, and from rigorous studies by a host of scholars. See, e.g., GENE M. GROSSMAN & ALAN B. KRUEGER, ECONOMIC GROWTH AND THE ENVIRONMENT (National Bureau of Economic Research Working Paper No. 4634, Feb. 1994) (showing that air pollution levels are lower in richer countries than in poorer ones). See also Ludwig Kramer, The Single European Act and Environment Protection: Reflections on Several New Provisions in Community Law, 24 COMMON MKT. L. REV. 659 (1987) (especially at 680); AARON WILDAVSKY, SEARCHING FOR SAFETY (1988). That richer countries have more stringent environmental rules than poorer countries suggests that richer countries will produce less pollution per unit of output than poorer countries - not that richer countries produce less total pollution than poorer countries.
26. This premise may be inferred from national positions in international negotiations, and from rigorous studies by a host of scholars. See, e.g., GENE M. GROSSMAN & ALAN B. KRUEGER, ECONOMIC GROWTH AND THE ENVIRONMENT (National Bureau of Economic Research Working Paper No. 4634, Feb. 1994) (showing that air pollution levels are lower in richer countries than in poorer ones). See also Ludwig Kramer, The Single European Act and Environment Protection: Reflections on Several New Provisions in Community Law, 24 COMMON MKT. L. REV. 659 (1987) (especially at 680); AARON WILDAVSKY, SEARCHING FOR SAFETY (1988). That richer countries have more stringent environmental rules than poorer countries suggests that richer countries will produce less pollution per unit of output than poorer countries - not that richer countries produce less total pollution than poorer countries.
27. This premise may be inferred from national positions in international negotiations, and from rigorous studies by a host of scholars. See, e.g., GENE M. GROSSMAN & ALAN B. KRUEGER, ECONOMIC GROWTH AND THE ENVIRONMENT (National Bureau of Economic Research Working Paper No. 4634, Feb. 1994) (showing that air pollution levels are lower in richer countries than in poorer ones). See also Ludwig Kramer, The Single European Act and Environment Protection: Reflections on Several New Provisions in Community Law, 24 COMMON MKT. L. REV. 659 (1987) (especially at 680); AARON WILDAVSKY, SEARCHING FOR SAFETY (1988). That richer countries have more stringent environmental rules than poorer countries suggests that richer countries will produce less pollution per unit of output than poorer countries - not that richer countries produce less total pollution than poorer countries.
28. This approach to power in the trade context is similar to Albert Hirschman's. ALBERT HIRSCHMAN, NATIONAL POWER AND THE STRUCTURE OF FOREIGN TRADE (1945) (Nazi Germany developed national power over much of Eastern Europe in the 1930s through asymmetric trade opportunities and the fostering of dependence on Germany's large market).
29. For example, under the U.S. Marine Mammal Protection Act, the U.S. Government may ban the importation of tuna caught by a means that kills more dolphins than the U.S. tuna fleet kills. Marine Mammal Protection Act, 16 U.S.C. §§1361-1407 (1994). Elizabeth DeSombre has identified several U.S. laws that attempt to limit imports on environmental grounds. See Elizabeth R. DeSombre, Unilateral Action for Multilateral Goals: United States Environmental Sanctions, draft paper presented at the 1994 Annual Meeting of the American Political Science Association (Sept. 1994) (on file with author). On coercive diplomacy generally, see ALEXANDER GEORGE, DAVID K. HALL & WILLIAM E. SIMONS, THE LIMITS OF COERCIVE DIPLOMACY (1971).
30. For example, under the U.S. Marine Mammal Protection Act, the U.S. Government may ban the importation of tuna caught by a means that kills more dolphins than the U.S. tuna fleet kills. Marine Mammal Protection Act, 16 U.S.C. §§1361-1407 (1994). Elizabeth DeSombre has identified several U.S. laws that attempt to limit imports on environmental grounds. See Elizabeth R. DeSombre, Unilateral Action for Multilateral Goals: United States Environmental Sanctions, draft paper presented at the 1994 Annual Meeting of the American Political Science Association (Sept. 1994) (on file with author). On coercive diplomacy generally, see ALEXANDER GEORGE, DAVID K. HALL & WILLIAM E. SIMONS, THE LIMITS OF COERCIVE DIPLOMACY (1971).
31. At times, richer, greener countries even pay cash to poorer, dirtier countries to induce improved environmental standards. See, e.g., Ronald Herring, Menaka Gandhi's Refrigerator Theory: India's Contingent Compliance with the Montreal Protocol, conference draft, Annual Meeting of the American Political Science Association 6 (Sept. 1994) (on file with author) (U.S. payment of $80 million compliance compensation package to China and India to induce them to accept Montreal Protocol); Raymond Clemencon, Global Climate Change and the Trade System: Bridging the Culture Gap, 4 J. ENV'T & DEV. 29 (1995) (compensation packages are planned under the World Bank's Global Environment Facility). Professor Jody Freeman has pointed out that a debt-for-nature swap might also be considered "compensation" to a developing country for a specific environment-friendly action.
32. At times, richer, greener countries even pay cash to poorer, dirtier countries to induce improved environmental standards. See, e.g., Ronald Herring, Menaka Gandhi's Refrigerator Theory: India's Contingent Compliance with the Montreal Protocol, conference draft, Annual Meeting of the American Political Science Association 6 (Sept. 1994) (on file with author) (U.S. payment of $80 million compliance compensation package to China and India to induce them to accept Montreal Protocol); Raymond Clemencon, Global Climate Change and the Trade System: Bridging the Culture Gap, 4 J. ENV'T & DEV. 29 (1995) (compensation packages are planned under the World Bank's Global Environment Facility). Professor Jody Freeman has pointed out that a debt-for-nature swap might also be considered "compensation" to a developing country for a specific environment-friendly action.
33. For example, a decision by the United States Trade Representative to launch an investigation under section 301 of the Trade Act of 1974, as amended, may be seen as signaling a threat to decrease market access. See Trade Act of 1974, §§301-310, Pub. L. No. 93-618, 88 Stat. 1978 (current version as amended at 19 U.S.C.A. §2411 (West Supp. 1996)). And a decision by a country to enter into negotiations that will create or deepen a free trade area is usually a clear signal of an offer to increase access to its market, provided that the increased access is reciprocated with trade-related promises.
34. On the idea of integration "spillovers" generally, see Ernst B. Haas, Why Collaborate? Issue Linkage and Iternational Regimes, 32 WORLD POL. 357 (1980). See also ERNST B. HAAS, BEYOND THE NATION-STATE (1964).
35. On the idea of integration "spillovers" generally, see Ernst B. Haas, Why Collaborate? Issue Linkage and Iternational Regimes, 32 WORLD POL. 357 (1980). See also ERNST B. HAAS, BEYOND THE NATION-STATE (1964).
36. Several trade analysts have described "deep integration" as liberalization involving understandings on domestic as well as international topics. See, e.g., Robert Lawrence, Towards Globally Contestable Markets, in OECD, MARKET ACCESS AFTER THE URUGUAY ROUND: INVESTMENT, COMPETITION AND TECHNOLOGY PERSPECTIVES 25 (1996).
37. The OECD Secretariat defines PPM standards as standards that specify criteria for how a product is manufactured, harvested, or taken. They encompass emission and effluent standards, certain performance or operations standards, and practices prescribed for natural resource sectors. Terms such as "made with", "produced by" and "harvested by" signify a PPM standard. . . . All PPM standards apply to the production stage, i.e., before a product is placed on the market for sale. These standards specify criteria for how a product is produced or processed. However, the PPM standard may address the environmental effects of a product all during its life-cycle, i.e., effects which may emerge when the product is produced, transported, consumed or used, and disposed of. Typology of Trade Measures Based on Environmental Product Standards and PPM Standards: Note by the Secretariat Joint Session of Trade and Environment Experts, OECD Environment Directorate and Trade Directorate, COM/ENV/TD(93)89 (Sept. 28-30, 1993).
38. Interests established by the operation of liberal political processes may be advanced by realist means, since realism takes interests as determined exogenously. See generally KENNETH WALTZ, THEORY OF INTERNATIONAL RELATIONS (1978). There are several useful analyses that combine liberal state preferences, or liberal preference formation, with a realist model of politics at the international level. See, e.g., Andrew Moravcsik, Negotiating the Single European Act, 45 INT'L ORG. 19 (1991). See also STEPHEN KRASNER, DEFENDING THE NATIONAL INTEREST (1978); Garrett, supra note 5, at 533-60.
39. Interests established by the operation of liberal political processes may be advanced by realist means, since realism takes interests as determined exogenously. See generally KENNETH WALTZ, THEORY OF INTERNATIONAL RELATIONS (1978). There are several useful analyses that combine liberal state preferences, or liberal preference formation, with a realist model of politics at the international level. See, e.g., Andrew Moravcsik, Negotiating the Single European Act, 45 INT'L ORG. 19 (1991). See also STEPHEN KRASNER, DEFENDING THE NATIONAL INTEREST (1978); Garrett, supra note 5, at 533-60.
40. Interests established by the operation of liberal political processes may be advanced by realist means, since realism takes interests as determined exogenously. See generally KENNETH WALTZ, THEORY OF INTERNATIONAL RELATIONS (1978). There are several useful analyses that combine liberal state preferences, or liberal preference formation, with a realist model of politics at the international level. See, e.g., Andrew Moravcsik, Negotiating the Single European Act, 45 INT'L ORG. 19 (1991). See also STEPHEN KRASNER, DEFENDING THE NATIONAL INTEREST (1978); Garrett, supra note 5, at 533-60.
41. Interests established by the operation of liberal political processes may be advanced by realist means, since realism takes interests as determined exogenously. See generally KENNETH WALTZ, THEORY OF INTERNATIONAL RELATIONS (1978). There are several useful analyses that combine liberal state preferences, or liberal preference formation, with a realist model of politics at the international level. See, e.g., Andrew Moravcsik, Negotiating the Single European Act, 45 INT'L ORG. 19 (1991). See also STEPHEN KRASNER, DEFENDING THE NATIONAL INTEREST (1978); Garrett, supra note 5, at 533-60.
42. For more discussion of this topic, see C. FORD RUNGE, FREER TRADE, PROTECTED ENVIRONMENT: BALANCING TRADE LIBERALIZATION AND ENVIRONMENTAL INTERESTS (Council on Foreign Relations 1994) (especially at 15-19).
43. "Extrajurisdictional" may be contrasted to "extraterritorial." The latter relates to the right to prescribe law enforce law, and adjudicate conflict outside the territory of a particular state, whereas the former relates to the right to prescribe law, enforce law, and adjudicate conflict outside the jurisdiction of a particular state. The distinction makes a difference to the extent that a state generally has jurisdiction over activities of its own nationals and vessels even if those activities take place outside its territory. See generally RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES §§400-433 (1987). For more discussion of this point, see Thomas J. Schoenbaum, International Trade and Protection of the Environment: The Continuing Search for Reconciliation infra pp. 268, 279-80.
44. "Extrajurisdictional" may be contrasted to "extraterritorial." The latter relates to the right to prescribe law enforce law, and adjudicate conflict outside the territory of a particular state, whereas the former relates to the right to prescribe law, enforce law, and adjudicate conflict outside the jurisdiction of a particular state. The distinction makes a difference to the extent that a state generally has jurisdiction over activities of its own nationals and vessels even if those activities take place outside its territory. See generally RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES §§400-433 (1987). For more discussion of this point, see Thomas J. Schoenbaum, International Trade and Protection of the Environment: The Continuing Search for Reconciliation infra pp. 268, 279-80.
45. See, e.g. African Elephant Conservation Act of 1988, Pub. L. No. 100-478, 102 Stat. 2306 (codified as amended at 16 U.S.C. §§4201-4245 (1994)); Marine Mammal Protection Act, supra note 12; Pelly Amendment to the Fisherman's Protective Act, Pub. L. No. 92-219, 85 Stat. 786 (1971) (codified as amended at 22 U.S.C. §1978 (1994)); 16 U.S.C. §1537 note (1994) (generally prohibiting imports of shrimp or shrimp products "which have been harvested with commercial fishing technology that may affect adversely such species of sea turtles" protected under the U.S. Endangered Species Act).
46. SPS Agreement, supra note 28, Art. 2.2.
47. The GATT/WTO approach may nonetheless result in some upward harmonization via two means. First, the SPS Agreement regards conformity to international standards as GATT-consistent, creating an incentive for poor countries that cannot afford testing simply to default and choose the international standard, which is generally more stringent than current developing country standards. Second, the right of wealthy green countries to ban imports that do not conform to their relatively stringent standards is likely to create market pressures on developing countries to produce products for export that meet those higher standards. On this latter point, see DAVID VOGEL, TRADING UP: CONSUMER AND ENVIRONMENTAL REGULATION IN A GLOBAL ECONOMY (1995).
48. WTO member governments have stated that they are committed "not to introduce WTO-inconsistent or protectionist trade restrictions or countervailing measures in an attempt to offset any real or perceived adverse domestic economic or competitiveness effects of applying environmental policies." WTO CTE Report, supra note 22, para. 169.
49. See GATT Dispute Panel Report, United States - Restrictions on Imports of Tuna, 33 ILM 839 (1994) [hereinafter Tuna II]; WTO CTE Report, supra note 22.
50. See GATT Dispute Panel Report, United States - Restrictions on Imports of Tuna, 33 ILM 839 (1994) [hereinafter Tuna II]; WTO CTE Report, supra note 22.
51. GATT, supra note 28, Art. XX(b).
52. Id., Art. XX(g).
53. See Schoenbaum, supra note 20, at pp. 279-80 infra. See also WTO CTE Report, supra note 22 (especially para. 7).
54. See Schoenbaum, supra note 20, at pp. 279-80 infra. See also WTO CTE Report, supra note 22 (especially para. 7).
55. CITES, supra note 22.
56. Montreal Protocol on Substances That Deplete the Ozone Layer, Sept. 16, 1987, S. TREATY Doc. No. 10, 100th Cong., 1st Sess., 26 ILM 1541 (1987) [hereinafter Montreal Protocol].
57. Application of provisions like these against a WTO member that is a signatory to the MEA would likely be legal under the doctrine of lex specialis, Tuna II, supra note 38, para. 3.41, or other theories. For a more complete analysis of this issue, see Steve Charnovitz, Multilateral Environmental Agreements and Trade Rules, 26 ENVT'L. POL'Y & L. 163 (1996) (especially at 165); Vinod Rege, GATT Law and Environment-Related Issues Affecting the Trade of Developing Countries, 28 J. WORLD TRADE L. 95 (1994) (especially at 122-28)
58. Application of provisions like these against a WTO member that is a signatory to the MEA would likely be legal under the doctrine of lex specialis, Tuna II, supra note 38, para. 3.41, or other theories. For a more complete analysis of this issue, see Steve Charnovitz, Multilateral Environmental Agreements and Trade Rules, 26 ENVT'L. POL'Y & L. 163 (1996) (especially at 165); Vinod Rege, GATT Law and Environment-Related Issues Affecting the Trade of Developing Countries, 28 J. WORLD TRADE L. 95 (1994) (especially at 122-28)
59. Confidential interview with a member of the WTO Secretariat, Washington, D.C. (Feb. 1995). This also seems to be the current view of the WTO Committee on Trade and Environment. See WTO CTE Report, supra note 22, para. 8. A discussion of the GATT/WTO's legal competence is beyond the scope of this article but it is likely that an argument could be made that such negotiations and activities would be within the GATT's legal competence pursuant to Article XXV of the General Agreement, and within the WTO's legal competence pursuant to Article III of (and the first paragraph of the preamble to) the Agreement Establishing the World Trade Organization. See FINAL ACT, supra note 28, Agreement Establishing the World Trade Organization, Apr. 15, 1994. On the scope of GATT legal competence generally, see Frieder Roessler, The Competence of GATT, 21 J. WORLD TRADE L. 73 (1987).
60. Confidential interview with a member of the WTO Secretariat, Washington, D.C. (Feb. 1995). This also seems to be the current view of the WTO Committee on Trade and Environment. See WTO CTE Report, supra note 22, para. 8. A discussion of the GATT/WTO's legal competence is beyond the scope of this article but it is likely that an argument could be made that such negotiations and activities would be within the GATT's legal competence pursuant to Article XXV of the General Agreement, and within the WTO's legal competence pursuant to Article III of (and the first paragraph of the preamble to) the Agreement Establishing the World Trade Organization. See FINAL ACT, supra note 28, Agreement Establishing the World Trade Organization, Apr. 15, 1994. On the scope of GATT legal competence generally, see Frieder Roessler, The Competence of GATT, 21 J. WORLD TRADE L. 73 (1987).
61. WTO Trade and Environment Ministerial Decision, adopted Apr. 14, 1994, GATT Doc. MTN.TNC/ MIN(94)/1/Rev.1 (Apr. 11, 1994), 33 ILM 1267 (1994).
62. FINAL ACT, supra note 28, Understanding on Rules and Procedures Governing the Settlement of Disputes, reprinted in 33 ILM 1226 (1994) [hereinafter Dispute Settlement Understanding]. See also Stephen P. Croley & John H. Jackson, WTO Dispute Procedures, Standard of Review, and Deference to National Governments, 90 AJIL 193 (1996); Judith Hippler Bello, The WTO Dispute Settlement Understanding: Less Is More, 90 AJIL 416 (1996) (Editorial Comment).
63. FINAL ACT, supra note 28, Understanding on Rules and Procedures Governing the Settlement of Disputes, reprinted in 33 ILM 1226 (1994) [hereinafter Dispute Settlement Understanding]. See also Stephen P. Croley & John H. Jackson, WTO Dispute Procedures, Standard of Review, and Deference to National Governments, 90 AJIL 193 (1996); Judith Hippler Bello, The WTO Dispute Settlement Understanding: Less Is More, 90 AJIL 416 (1996) (Editorial Comment).
64. FINAL ACT, supra note 28, Understanding on Rules and Procedures Governing the Settlement of Disputes, reprinted in 33 ILM 1226 (1994) [hereinafter Dispute Settlement Understanding]. See also Stephen P. Croley & John H. Jackson, WTO Dispute Procedures, Standard of Review, and Deference to National Governments, 90 AJIL 193 (1996); Judith Hippler Bello, The WTO Dispute Settlement Understanding: Less Is More, 90 AJIL 416 (1996) (Editorial Comment).
65. Dispute Settlement Understanding, supra note 47, Arts. 6.1, 16.4.
66. The reason for Japan's international passivity is the subject of much speculation. While a definitive explanation for Japan's passivity at the GATT would be interesting, it is beyond the scope of this analysis.
67. See JOHN H. JACKSON, WORLD TRADE AND THE LAW OF GATT (1969).
68. See GATT, ANALYTICAL INDEX: GUIDE TO GATT LAW AND PRACTICE 541-42 (6th ed. 1994); and JACKSON, supra note 50, at 745.
69. See GATT, ANALYTICAL INDEX: GUIDE TO GATT LAW AND PRACTICE 541-42 (6th ed. 1994); and JACKSON, supra note 50, at 745.
70. At least as early as 1990, the United States took the position that the Uruguay Round agreements would be concluded as part of a "single undertaking," meaning that all signatories would be expected to be bound by all of the multilateral agreements. But many of the developing countries had indicated as early as 1985 (and through 1991) that they had no intention of joining several of the agreements, including the SPS and TBT Agreements. See, e.g., Statements by the Representatives of Brazil, Egypt, and India in GATT Council Meetings, GATT Doc. L/5818 (June 7, 1985); see also GATT Docs. L/5852, C/W/479 (July 1985). Many developing countries hoped that the Uruguay Round might be concluded, as had been the Tokyo Round, with several codes that they would not sign. See generally Legal and Procedural Questions on Conclusion of the MTN, Memorandum from the UNCTAD Secretariat, UNCTAD Doc. MTN/CB.14 (Aug. 21, 1978). Issuance of the draft Final Act (also known as the "Dunkel text") in December 1991 made it clear that the developing countries would be forced into accepting the SPS and TBT Agreements. See Draft Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, GATT Doc. MTN.TNC/W/FA (Dec. 20, 1991) [hereinafter Dunkel text].
71. More specifically, the Uruguay Round Final Act provides that signatories shall withdraw from the GATT 1947 - which releases all parties to the Final Act from the GATT 1947 MFN provision - and accede to the GATT 1994 - which amounts to assuming a new MFN promise, but only for signatones of the Final Act, which also includes agreements that the developing countries had threatened not to sign, such as SPS and TBT Agreements, and agreements on intellectual property, investments and services. The GATT 1994 (combined with other Uruguay Round instruments) includes new schedules of concessions offering lower tariffs than those found in the prior arrangements. See Richard H. Steinberg, The Uruguay Round: A Legal Analysis of the Final Act, INT'L Q., Apr. 1994, at 1.
72. See, e.g., Jennifer Schultz, The GATT/WTO Committee on Trade and the Environment - Toward Environmental Reform, 89 AJIL 423 (1995).
73. See WTO TRADE & ENV'T BULL., Nos. 1-13, WTO Doc. Press/TE 001-13 (1995-96); WTO CTE Report, supra note 22, paras. 9-31.
74. See WTO TRADE & ENV'T BULL., Nos. 1-13, WTO Doc. Press/TE 001-13 (1995-96); WTO CTE Report, supra note 22, paras. 9-31.
75. See WTO CTE Report, supra note 22, paras. 99-122; see also Jagdish Bhagwati, The Case for Free Trade, SCI. AM., Nov. 1993, at 42.
76. See WTO CTE Report, supra note 22, paras. 99-122; see also Jagdish Bhagwati, The Case for Free Trade, SCI. AM., Nov. 1993, at 42.
77. See WTO TRADE & ENV'T BULL., Nos. 1-13, supra note 58;
78. WTO CTE Report, supra note 22, paras. 101, 118. Of course, in the CTE, the United States has supported agricultural trade liberalization more aggressively than the European Union has.
79. See WTO TRADE & ENV'T BULL., Nos. 1-13, supra note 58.
80. WTO TRADE & ENV'T BULL., No. 4, WTO Doc. Press/TE 004 (Aug. 14, 1995); see also CTE, Environment and TRIPS, WTO Doc. WT/CTE/W/8 (June 8, 1995); TE, Report of the Meeting Held on 21-22 June 1995, Note by the Secretariat, WTO Doc. WT/CTE/M/3 (July 18, 1995).
81. WTO TRADE & ENV'T BULL., No. 4, WTO Doc. Press/TE 004 (Aug. 14, 1995); see also CTE, Environment and TRIPS, WTO Doc. WT/CTE/W/8 (June 8, 1995); TE, Report of the Meeting Held on 21-22 June 1995, Note by the Secretariat, WTO Doc. WT/CTE/M/3 (July 18, 1995).
82. WTO TRADE & ENV'T BULL., No. 4, WTO Doc. Press/TE 004 (Aug. 14, 1995); see also CTE, Environment and TRIPS, WTO Doc. WT/CTE/W/8 (June 8, 1995); TE, Report of the Meeting Held on 21-22 June 1995, Note by the Secretariat, WTO Doc. WT/CTE/M/3 (July 18, 1995).
83. See WTO TRADE & ENV'T BULL., No. 5, WTO Doc. Press/TE 005 (Oct. 10, 1995).
84. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Mar. 22, 1989, S. TREATY DOC. No. 5, 102d Cong., 1st Sess. (1991), 28 ILM 649 (1989) [hereinafter Basel Convention].
85. United Nations Development Programme, London Guidelines for the Exchange of Information on Chemicals in International Trade (amended 1989), adopted by UNEP Governing Council Dec. 15/30 (May 25, 1989), superseding Provisional Notification Scheme for Banned and Severely Restricted Chemicals Dec 12/14 (May 28, 1984).
86. See WTO TRADE & ENV'T BULL., Nos. 1-13, supra note 58; WTO CTE Report, supra note 22, paras. 55-81.
87. See WTO TRADE & ENV'T BULL., Nos. 1-13, supra note 58; WTO CTE Report, supra note 22, paras. 55-81.
88. WTO, Singapore Ministerial Declaration, para. 16, WTO Doc. WT/MIN(96)/DEC/W (Dec 13, 1996), 36 ILM 218 (1997).
89. See, e.g., WTO TRADE & ENV'T BULL., No. 2, WTO Doc. Press/TE 002 (May 8, 1995) (especially at 4); WTO CTE Report, supra note 22, para. 173.
90. See text at and note 59 supra.
91. Confidential interviews with a member of the WTO Secretariat who follows the trade-environment debate, Geneva (Jan. 1995 & Nov. 1996).
92. See, e.g., WTO TRADE & ENV'T BULL., No. 8, WTO Doc. Press/TE 008 (Apr. 29, 1996) (especially at 5).
93. There was, however, considerable disagreement and dissension within and among U.S. environmental NGOs about the wisdom of supporting the NAFTA. See DAVID VOGEL, TRADE-ENVIRONMENT POLITICS IN THE UNITED STATES (Berkeley Roundtable on the International Economy Working Paper No. 94, Feb. 1997).
94. Dunkel text, supra note 52.
95. Compare Dunkel text, supra note 52, with FINAL ACT, supra note 28.
96. See Chapter Seven: Agriculture and Sanitary and Phytosanitary Measures, Section B - Sanitary and Phytosanitary Measures, Summary of NAFTA Provisions, Background, in Message from the President of the United States Transmitting the North American Free Trade Agreement [NAFTA], H.R. DOC. No. 103-159, Vol. 1, at 89 (1993) [hereinafter Presidential Message].
97. The most significant difference is that the NAFTA SPS provisions do not include language from the WTO SPS Agreement, supra note 28, Art. 2.2, requiring SPS measures to be no "more trade restrictive than necessary" to achieve the chosen level of protection. However, the NAFTA states that each party may maintain or apply any SPS measure "necessary for the protection of human, animal or plant life or health in its territory" (emphasis added). North American Free Trade Agreement, Dec. 8, 11, 14, 17, 1992, Art. 712.1, U.S.-Can.-Mex., 32 ILM 289 (1993) [hereinafter NAFTA]. While obviously not binding on NAFTA dispute settlement panels, a GATT panel has held that the term "necessary" in GATT Article XX (excepting certain measures "necessary to protect human, animal or plant life or health") means that there must be "no alternative measures . . . less inconsistent with" the General Agreement that could be reasonably employed to achieve the same policy objective. Thailand Cigarettes, supra note 28, at 42. This standard seems quite similar to the "no more trade restrictive than necessary" approach that was expressly not included in the NAFTA SPS Agreement.
98. See, e.g., Schultz, supra note 57, at 427-30.
99. NAFTA, supra note 76, Art. 903.
100. Chapter Nine: Standards-Related Measures, Summary of NAFTA Provisions, Background, in Presidential Message, supra note 75, at 120-21.
101. NAFTA, supra note 76, Art. 904(2).
102. See Jack I. Garvey, Trade Law and Quality of Life - Dispute Resolution under the NAFTA Side Accords on Labor and the Environment, 89 AJIL 439, 442 (1995); Kevin W. Patton, Dispute Resolution under the North American Commission on Environmental Cooperation, 5 DUKE J. COMP. & INT'L L. 87, 90 (1994); confidential interviews with U.S. government officials (from Office of the United States Trade Representative and the Environmental Protection Agency) who negotiated NAFTA trade-environment issues, Washington, D.C. (Sept. 1994).
103. See Jack I. Garvey, Trade Law and Quality of Life - Dispute Resolution under the NAFTA Side Accords on Labor and the Environment, 89 AJIL 439, 442 (1995); Kevin W. Patton, Dispute Resolution under the North American Commission on Environmental Cooperation, 5 DUKE J. COMP. & INT'L L. 87, 90 (1994); confidential interviews with U.S. government officials (from Office of the United States Trade Representative and the Environmental Protection Agency) who negotiated NAFTA trade-environment issues, Washington, D.C. (Sept. 1994).
104. North American Agreement on Environmental Cooperation, Dec. 17, 1993, U.S.-Can.-Mex., pt. V, 32 ILM 1480 (1993) [hereinafter NAAEC].
105. Id., Arts. 14, 15.
106. Agreement on Cooperation for Protection and Improvement of the Environment in the Border, Aug. 14, 1983, U.S.-Mex., TIAS No. 10,827.
107. Agreement Concerning the Establishment of a Border Environment Cooperation Commission and a North American Development Bank, Nov. 16, 18, 1993, U.S.-Mex., 32 ILM 1545 (1993).
108. Id., ch. II, Art. II, §1(b).
109. Use of NADBank's Capital, in NADBANK, NADBANK's OPERATIONS AND BENEFITS (1996) 〈www.quicklink.-com/mexico/NADBank/ning1.htm〉. But see Raul Hinojosa-Ojeda, The North American Development Bank: Forging New Directions in Regional Integration Policy, 60 J. AM. PLAN. ASS'N 301 (1994) (suggesting that it could be leveraged to support up to $20 billion in cleanup projects).
110. Use of NADBank's Capital, in NADBANK, NADBANK's OPERATIONS AND BENEFITS (1996) 〈www.quicklink.-com/mexico/NADBank/ning1.htm〉. But see Raul Hinojosa-Ojeda, The North American Development Bank: Forging New Directions in Regional Integration Policy, 60 J. AM. PLAN. ASS'N 301 (1994) (suggesting that it could be leveraged to support up to $20 billion in cleanup projects).
111. See NAFTA, supra note 76, Art. 722.
112. Id., Art. 913.
113. Ley Federal de Procedimiento Administrative (Federal Administrative Procedure Act), D.O., 4 de agosto de 1992; Ley de Metrología y Normalización (Measurement and Standardization Act), D.O., 12 de junio de 1992; Ley Federal de Sanidad Animal (Federal Animal Health Act), D.O., 16 de junio de 1993; Ley Federal de Sanidad Vegetal (Federal Plant Health Act), D.O., 5 de enero de 1994; and Amendments to Ley General de Equilibrio Ecológico (General Act on Ecological Balance), D.O., 12 de diciembre de 1996. The last of these substantially decentralizes to the states the responsibility for enforcing environmental laws, which has troubled some environmentalists; their concerns may be offset by federal government promises to transfer resources to the states so they may effectively enforce those laws, provisions that sharpen ambiguous aspects of prior laws so as to make them more effective, and provisions that for the first time establish clear standing for advocacy groups and individuals in environmental proceedings and disputes.
114. These regulations have been issued as Normas Officiales Mexicanas (NOMs). Adoption of a NOM requires a cost-benefit analysis and a prior 90-day public comment period. Annex I: North American Report on Environmental Enforcement, Mexico, in NACEC ANNUAL REPORT, supra note 91. See also José Canela-Cacho, Mexico's Domestic Implementation of Environmental Provisions under NAFTA and NAAEC, 1994-96 (Berkeley Roundtable on the International Economy Working Paper No. 95, 1997) (ms. copy on file with author).
115. Mexico's Ecology Law is modeled after U.S. environmental laws, and Mexican standards for handling hazardous wastes are modeled on the U.S. Resource Conservation and Recovery Act. Alicia A. Samios, NAFTA's Supplemental Agreement: In Need of Reform, 9 N.Y. INT'L L. REV. 49, 63 (1996); Barry Shanoff, Mexico Takes Steps to Improve Its Environment, WORLD WASTES, Mar. 1994, at 16.
116. Mexico's Ecology Law is modeled after U.S. environmental laws, and Mexican standards for handling hazardous wastes are modeled on the U.S. Resource Conservation and Recovery Act. Alicia A. Samios, NAFTA's Supplemental Agreement: In Need of Reform, 9 N.Y. INT'L L. REV. 49, 63 (1996); Barry Shanoff, Mexico Takes Steps to Improve Its Environment, WORLD WASTES, Mar. 1994, at 16.
117. David Robinson, A Clean Break: 100% Approved Tax Incentives for the Environmentally Conscious, BUS. MEX., June 1996, at 34.
118. Confidential interview with a Mexican government official who negotiated NAFTA and NAAEC trade-environment issues, Berkeley, California (Nov. 1994).
119. Rachel Hopp, The New Era of Global Environmental Protection: Part II - Mexico Yesterday and Today, 3 J. ENVTL. REG. 243, 250 (1994).
120. Id.; Scott C. Fulton & Lawrence I. Sperling, The Network of Enforcement and Compliance Cooperation in North America and the Western Hemisphere, 30 INT'L LAW. 111, 120 (1996).
121. Canela-Cacho, supra note 106, compiled his data from official Mexican government documents provided by the Office of the Attorney General for Environmental Protection. The data for 1996 are an extrapolation from the number of inspections completed in January-July 1996. See also Fulton & Sperling, supra note 111, at 122-23 n.21. Canela-Cacho's data for 1993-1995 are more conservative than Fulton and Sperling's, suggesting slightly fewer inspections annually than they do.
122. Canela-Cacho, supra note 106; and Fulton & Sperling, supra note 111, at 122-23 n.21.
123. Canela-Cacho, supra note 106; and Fulton & Sperling, supra note 111, at 122-23 n.21.
124. Canela-Cacho, supra note 106, at 2.
125. Id.
126. Hopp, supra note 110, at 251.
127. Id. at 252.
128. Overview of NAFTA Related Organizations, supra note 91.
129. Border Environment Cooperation Commission, Minutes of the Public Meetings of the Board of Directors (Feb. 15, 1995 through Nov. 9, 1996).
130. Telephone interview with Tracy Williams, Public Outreach Coordinator, BECC (Jan. 9, 1997); confidential telephone interview with an NADBank official (Jan. 9, 1997).
131. Telephone interviews, supra note 122.
132. No Loans Yet for Border Pollution Cleanup, AUSTIN-AM. STATESMAN, Aug. 4, 1996, at A13.
133. U.S.-Mexico Citizens' Group Deplores NAFTA Failures on Border, Inter Press Serv., Jan. 2, 1996, available in 1996 WL, ALLNEWSPLUS File.
134. No Loans Yet for Border Pollution Cleanup, supra note 124.
135. PETER F. GUERRERO, U.S. GENERAL ACCOUNTING OFFICE, INTERNATIONAI. ENVIRONMENT - ENVIRONMENTAL INFRASTRUCTURE NEEDS IN THE U.S.-MEXICO BORDER REGION REMAIN UNMET (GAO Report GAO/RCED-96-179, 1996), available in LEXIS, Legis Library, GAORPT File [hereinafter GAO REPORT].
136. Id. See also Andrew Wheat, Troubled NAFTA Waters, MULTINAT'L MONITOR, Apr. 1996, at 23.
137. GAO REPORT, supra note 127.
138. Id. See also Border Cleanup NADBank Terms May Be Too Tough, ENGINEERING NEWS-REC., Aug. 12, 1996, at 9;
139. Paul Weinberg, Trade-Environment: Green Code Doesn't Satisfy NAFTA Critics, Inter Press Serv., Aug. 5, 1996, available in 1996 WL, ALLNEWSPLUS File.
140. Municipal Wastewater Market Equipment and Services, MEX. TRADE & L. REP., Oct. 1, 1995, available in LEXIS, News Library, ALLWLD File; Mexicans Say Cleanup of Border Imperiled, WASH. POST, May 16, 1995, at A12; No Loans Yet for Border Pollution Cleanup, supra note 124; Nancy Nuesser, The Border: Unkept Promises, AUSTIN-AM. STATESMAN, Dec. 17, 1995, at A1;
141. Municipal Wastewater Market Equipment and Services, MEX. TRADE & L. REP., Oct. 1, 1995, available in LEXIS, News Library, ALLWLD File; Mexicans Say Cleanup of Border Imperiled, WASH. POST, May 16, 1995, at A12; No Loans Yet for Border Pollution Cleanup, supra note 124; Nancy Nuesser, The Border: Unkept Promises, AUSTIN-AM. STATESMAN, Dec. 17, 1995, at A1;
142. Municipal Wastewater Market Equipment and Services, MEX. TRADE & L. REP., Oct. 1, 1995, available in LEXIS, News Library, ALLWLD File; Mexicans Say Cleanup of Border Imperiled, WASH. POST, May 16, 1995, at A12; No Loans Yet for Border Pollution Cleanup, supra note 124; Nancy Nuesser, The Border: Unkept Promises, AUSTIN-AM. STATESMAN, Dec. 17, 1995, at A1;
143. Municipal Wastewater Market Equipment and Services, MEX. TRADE & L. REP., Oct. 1, 1995, available in LEXIS, News Library, ALLWLD File; Mexicans Say Cleanup of Border Imperiled, WASH. POST, May 16, 1995, at A12; No Loans Yet for Border Pollution Cleanup, supra note 124; Nancy Nuesser, The Border: Unkept Promises, AUSTIN-AM. STATESMAN, Dec. 17, 1995, at A1;
144. Wheat, supra note 129, at 24.
145. Treaty on European Union, Feb. 7, 1992, Art. 36, 1992 O.J. (1992) 1, 31 ILM 247 (1992) [hereinafter TEU]. See also Case 302/86, Commission v. Denmark, 1988 ECR 4607, 1 C.M.L.R. 619 (1989) (Danish rules that certain beverages be sold only in recyclable bottles not inconsistent with Treaty of Rome, despite effects on intra-Community trade) [hereinafter Danish Bottles case].
146. Case 53/80, Officier van Justitie v. Koninklijke Kaasfabriek Eyssen BV, 1981 ECR 409, 2 C.M.L.R. 20 (1982) (European Court of Justice [ECJ] upheld Dutch ban on the use of nisin in processed cheese until clear health risks were established for maximum permissible intake) [hereinafter Dutch Nisin case].
147. See Case 120/78, Rewe-Zentral AG v. Bundesmonopolverwaltung fur Branntwein, 1979 ECR 649 (German ban on French Cassis, on theory that French Cassis was low in alcoholic content and so could confuse German consumers into consuming too much alcohol, held inconsistent with Treaty of Rome) [hereinafter Cassis de Dijon case]; Case 130/80, Criminal Proceedings Against Fabriek voor Hoogwaardige Voedingsprodukten Kelderman BV, 1981 ECR 527 (Dutch ban on French brioches held inconsistent with common market principles in the Treaty of Rome).
148. See discussions at p. 237 and p. 245 n.76 supra.
149. Cassis de Dijon case, supra note 136; Case 178/84, Commission v. Germany, 1987 ECR 1227, 1 C.M.L.R. 780 (1988) (German beer purity law, Reinheitsgebot, held to interfere impermissibly with intra-Community trade) [hereinafter German Beer case].
150. Danish Bottles case, supra note 134; Dutch Nisin case, supra note 135.
151. German Beer case, supra note 138; Cassis de Dijon case, supra note 136.
152. BAKER & MCKENZIE, SINGLE EUROPEAN MARKET REPORTER 29-1-4 (1994).
153. See William F. Dietrich, Harmonization of Automobile Emission Standards under International Trade Agreements: Lessons from the European Union Applied to the WTO and the NAFTA, 20 WM. & MARY ENVTL. L. & POL'Y REV. 175, 199 (1996).
154. I.e., action taken under the TEU, supra note 134, Art. 100A.
155. I.e., action taken under the TEU, id., Art. 130r (2).
156. W., Arts. 100A(3), 130r(2).
157. Kramer, supra note 10, at 680. See also Dirk Vandermeersch, The Single European Act and the Environmental Policy of the European Economic Community, 12 COMMON MKT. L. REV. 407, 417-19 (1987).
158. Kramer, supra note 10, at 680. See also Dirk Vandermeersch, The Single European Act and the Environmental Policy of the European Economic Community, 12 COMMON MKT. L. REV. 407, 417-19 (1987).
159. TEU, supra note 134, Art. 100A(4). See also Danish Bottles case, supra note 134.
160. TEU, supra note 134, Art. 130t.
161. Dicta in Dutch Red Grouse case, described in Environment Directorate and Trade Directorate, Typology of Trade Measures Based on Environmental Product Standards and PPM Standards, OECD Doc. COM/ENV/ TD(93)89 (Sept. 28-30, 1993). For the Dutch Red Grouse case, see Case 169/89, Commission v. Netherlands, 1990 ECR 2143.
162. European Commissioner Ritt Bjerregaard, EUROPE, Apr. 1996, at 27.
163. Remedying Damage to the Environment: Green Paper from the European Commission, COM(93)47 final.
164. Convention on the Protection of the Rhine Against Chemical Pollution, Dec. 3, 1976, reprinted in 16 ILM 242 (1977). See ALEXANDRE KISS & DINAH SHELTON, MANUAL OF EUROPEAN ENVIRONMENTAL LAW (1993); Thomas Bernauer, International Financing of Environmental Protection, paper prepared for the 1994 Annual Meeting of the American Political Science Association (Sept. 1-5, 1994) (on file with author).
165. Convention on the Protection of the Rhine Against Chemical Pollution, Dec. 3, 1976, reprinted in 16 ILM 242 (1977). See ALEXANDRE KISS & DINAH SHELTON, MANUAL OF EUROPEAN ENVIRONMENTAL LAW (1993); Thomas Bernauer, International Financing of Environmental Protection, paper prepared for the 1994
166. Convention on the Protection of the Rhine Against Chemical Pollution, Dec. 3, 1976, reprinted in 16 ILM 242 (1977). See ALEXANDRE KISS & DINAH SHELTON, MANUAL OF EUROPEAN ENVIRONMENTAL LAW (1993); Thomas Bernauer, International Financing of Environmental Protection, paper prepared for the 1994 Annual Meeting of the American Political Science Association (Sept. 1-5, 1994) (on file with author).
167. Bernauer, supra note 152.
168. The scope of environmental side payments made through the Cohesion Fund is set forth in Article 130d of the TEU and the Protocol on Economic and Social Cohesion attached to the TEU. David Wilkinson, Maastricht and the Environment: The Implications for the EC's Environment Policy of the Treaty on European Union, 1992 J. ENVTL. L. 225, 232.
169. Kramer, supra note 10, at 673.
170. Action taken under the TEU, supra note 134, Art. 100A.
171. Co-decision means that the Parliament may veto the Council decision.
172. Action taken under the TEU, supra note 134, Art. 130s.
173. Coparticipalion means, inter alia, that the Parliament has two chances to amend the legislation.
174. TEU, supra note 134, Arts. 100A(4), 130r(2).
175. Id., Arts. 100A(3), 130r(2). See Wilkinson, supra note 154, at 232.
176. Id., Arts. 100A(3), 130r(2). See Wilkinson, supra note 154, at 232.
177. Kramer, supra note 10, at 673; Rolf Wagenbaur, The European Community's Policy on Implementation of Environmental Directives, 14 FORDHAM INT'L L.J. 455, 470-71 (1991).
178. Kramer, supra note 10, at 673; Rolf Wagenbaur, The European Community's Policy on Implementation of Environmental Directives, 14 FORDHAM INT'L L.J. 455, 470-71 (1991).
179. Case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal S.p.A., 1978 ECR 629.
180. Case 26/62, Van Gend & Loos v. Nederlandse Administratie der Belastingen, 1963 ECR 1, 2 C.M.L.R. 105 (1963).
181. For a more complete analysis of the Article 169 procedure, see Wagenbaur, supra note 162, at 462-63; Alan Dashwood & Robin White, Enforcement Actions under Articles 169 and 170 EEC, 14 EUR. L. REV. 388 (1989).
182. For a more complete analysis of the Article 169 procedure, see Wagenbaur, supra note 162, at 462-63; Alan Dashwood & Robin White, Enforcement Actions under Articles 169 and 170 EEC, 14 EUR. L. REV. 388 (1989).
183. TEU, supra note 134, Art. 171.
184. At least one commentator thinks this penalty will be used only rarely. See Heinrich Kirschner, The Framework of the European Union under the Treaty of Maastricht, 13 J.L. & COM. 233, 233 (1994).
185. Wilkinson, supra note 154, at 233.
186. Cases C-6/90, C-8/90, Francovich v. Italian Republic, 1991 ECR I-5357. See also James E. Hanft, Francovich and Bonifaci v. Italy: EEC Member State Liability for Failure to Implement Community Directives, 15 FORDHAM INT'L L.J. 1237 (1991/1992); Melanie L. Ogren, Francovich v. Italian Republic: Should Member-States Be Directly Liable for Nonimplementation of European Union Directives?, 7 TRANSNAT'L LAW. 583 (1994).
187. Cases C-6/90, C-8/90, Francovich v. Italian Republic, 1991 ECR I-5357. See also James E. Hanft, Francovich and Bonifaci v. Italy: EEC Member State Liability for Failure to Implement Community Directives, 15 FORDHAM INT'L L.J. 1237 (1991/1992); Melanie L. Ogren, Francovich v. Italian Republic: Should Member-States Be Directly Liable for Nonimplementation of European Union Directives?, 7 TRANSNAT'L LAW. 583 (1994).
188. Cases C-6/90, C-8/90, Francovich v. Italian Republic, 1991 ECR I-5357. See also James E. Hanft, Francovich and Bonifaci v. Italy: EEC Member State Liability for Failure to Implement Community Directives, 15 FORDHAM INT'L L.J. 1237 (1991/1992); Melanie L. Ogren, Francovich v. Italian Republic: Should Member-States Be Directly Liable for Nonimplementation of European Union Directives?, 7 TRANSNAT'L LAW. 583 (1994).
189. Kramer, supra note 10, at 678-82. See also Stephen Tindale, European Environmental Policy, DISSENT, Fall 1995, at 455; Bruce Barnard, Does Business Want a Green Europe?, EUROPE, April 1996, at 23.
190. Kramer, supra note 10, at 678-82. See also Stephen Tindale, European Environmental Policy, DISSENT, Fall 1995, at 455; Bruce Barnard, Does Business Want a Green Europe?, EUROPE, April 1996, at 23.
191. Kramer, supra note 10, at 678-82. See also Stephen Tindale, European Environmental Policy, DISSENT, Fall 1995, at 455; Bruce Barnard, Does Business Want a Green Europe?, EUROPE, April 1996, at 23.
192. Nigel Haigh, New Tools for European Air Pollution Control, INT'L ENVTL. AFF., Winter 1989, at 26.
193. Dietrich, supra note 142, at 199; VOGEL, supra note 36, at 70.
194. Dietrich, supra note 142, at 199; VOGEL, supra note 36, at 70.
195. TEU, supra note 134, Art. 100A(3); Kramer, supra note 10, at 678-82. See also Vandermeersch, supra note 146, at 417-19.
196. TEU, supra note 134, Art. 100A(3); Kramer, supra note 10, at 678-82. See also Vandermeersch, supra note 146, at 417-19.
197. TEU, supra note 134, Art. 100A(3); Kramer, supra note 10, at 678-82. See also Vandermeersch, supra note 146, at 417-19.
198. TEU, supra note 134, Art. 130r(2). See Wilkinson, supra note 154, at 221-39.
199. TEU, supra note 134, Art. 130r(2). See Wilkinson, supra note 154, at 221-39.
200. BAKER & MCKENZIE, supra note 141.
201. Konrad von Moltke, A European Perspective on Trade and the Environment, in TRADE AND THE ENVIRONMENT: LAW, ECONOMICS, AND POLICY (Durwood Zaelke et al. eds., 1993).
202. See, e.g., Dimitris Stevis, The Politics of Greek Environmental Policy, 20 POL'Y STUD. J. 695 (1992).
203. See Case 91/79, Commission v. Italy, 1980 ECR 1099, 1106 (rejecting Italy's challenge to the Council directives on harmonization, which argued lack of competence, on the ground that "if there is no harmonization of national provisions [on the environment and health], competition may be appreciably distorted"); see also Kramer, supra note 10, at 661-62.
204. See Kramer, supra note 10; see also Vandermeersch, supra note 146.
205. See Kramer, supra note 10; see also Vandermeersch, supra note 146.
206. Tindale, supra note 169, at 455-56.
207. Wilkinson, supra note 154.
208. See, e.g., UK Is Dragging Feet on EU Laws, ENV'T BUS., July 19, 1995, available in LEXIS, News Library, CURNWS File; Fedarene Urges Greater Coherence In Environmental Legislation, EUR. ENV'T, Nov. 28, 1995, available in LEXIS, Intlaw Library, ECNEWS File.
209. See, e.g., UK Is Dragging Feet on EU Laws, ENV'T BUS., July 19, 1995, available in LEXIS, News Library, CURNWS File; Fedarene Urges Greater Coherence In Environmental Legislation, EUR. ENV'T, Nov. 28, 1995, available in LEXIS, Intlaw Library, ECNEWS File.
210. These data are an imperfect measure of implementation because they reflect "notifications" of implementation, leaving the possibility that some implementing laws were not notified during a particular year. Nonetheless, to the extent that member states will find it in their own interest to comply with the requirement that they notify implementation of EU directives, this is a useful indicator of the extent of implementation.
211. Commission of the European Communities [EC Commission], Thirteenth Annual Report on Monitoring the Application of Community Law - 1995, 1996 O.J. (C 303) 55, table 2.8 [hereinafter 13th Report]. Table 2.8 lists all the directives the Commission considers as relating to the environment. This appears to be a fair list, but different analysts might disagree about whether the list is over-or underinclusive.
212. Denmark has notified its implementation of 98% of environmental directives; Germany, 94%; and the Netherlands, 98%. Greece has notified its implementation of 88% of environmental directives; Italy, 85%; Portugal, 87%; and Spain, 90%. Id.
213. See Appendix, Logistic Regression: Implementation of EU Directives Applicable to the Environment, infra p. 267.
214. Daniel Esty, GATTing the Greens - Not Just Greening the GATT, FOREIGN AFF., Nov./Dec. 1993, at 32; and RUNGE, supra note 19, at 100-07.
215. Daniel Esty, GATTing the Greens - Not Just Greening the GATT, FOREIGN AFF., Nov./Dec. 1993, at 32; and RUNGE, supra note 19, at 100-07.
216. See Andrea C. Durbun, Trade and the Environment: The North-South Divide, ENVIRONMENT, Sept. 1995, at 16.