International trade and protection of the environment: The continuing search for reconciliation

American Journal of International Law

Volumn 91, Issue 2, 1997, Pages 268-306

  Schoenbaum, Thomas J ^a  

^a DOW   (United States)

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EID: 0042731185     PISSN: 00029300     EISSN: None     Source Type: Journal    
DOI: 10.2307/2954212     Document Type: Article

References (191)

1. Concern over the issue of trade and environment was expressed by several observers beginning in the early 1970s. See generally WILLIAM J. BAUMOL, ENVIRONMENTAL PROTECTION, INTERNATIONAL SPILLOVERS, AND TRADE (1971); C. FRED BERGSTEN, THE FUTURE OF THE INTERNATIONAL ECONOMIC ORDER: AN AGENDA FOR RESEARCH 42 (1973); Wolfgang E. Burhenne & Thomas J. Schoenbaum, The European Community and the Management of the Environment, 13 NAT. RES. L.J. 494 (1973) (analyzing problem of harmonizing different environmental standards for products that move in international trade in the context of Community law); Frederic L. Kirgis, Jr., Effective Pollution Control in Industrialized Countries: International Economic Disincentives, Policy Response, and the GATT, 70 MICH. L. REV. 859 (1972) (analyzing legality under the GATT of various environmental taxes on imports).
2. Concern over the issue of trade and environment was expressed by several observers beginning in the early 1970s. See generally WILLIAM J. BAUMOL, ENVIRONMENTAL PROTECTION, INTERNATIONAL SPILLOVERS, AND TRADE (1971); C. FRED BERGSTEN, THE FUTURE OF THE INTERNATIONAL ECONOMIC ORDER: AN AGENDA FOR RESEARCH 42 (1973); Wolfgang E. Burhenne & Thomas J. Schoenbaum, The European Community and the Management of the Environment, 13 NAT. RES. L.J. 494 (1973) (analyzing problem of harmonizing different environmental standards for products that move in international trade in the context of Community law); Frederic L. Kirgis, Jr., Effective Pollution Control in Industrialized Countries: International Economic Disincentives, Policy Response, and the GATT, 70 MICH. L. REV. 859 (1972) (analyzing legality under the GATT of various environmental taxes on imports).
3. Concern over the issue of trade and environment was expressed by several observers beginning in the early 1970s. See generally WILLIAM J. BAUMOL, ENVIRONMENTAL PROTECTION, INTERNATIONAL SPILLOVERS, AND TRADE (1971); C. FRED BERGSTEN, THE FUTURE OF THE INTERNATIONAL ECONOMIC ORDER: AN AGENDA FOR RESEARCH 42 (1973); Wolfgang E. Burhenne & Thomas J. Schoenbaum, The European Community and the Management of the Environment, 13 NAT. RES. L.J. 494 (1973) (analyzing problem of harmonizing different environmental standards for products that move in international trade in the context of Community law); Frederic L. Kirgis, Jr., Effective Pollution Control in Industrialized Countries: International Economic Disincentives, Policy Response, and the GATT, 70 MICH. L. REV. 859 (1972) (analyzing legality under the GATT of various environmental taxes on imports).
4. Concern over the issue of trade and environment was expressed by several observers beginning in the early 1970s. See generally WILLIAM J. BAUMOL, ENVIRONMENTAL PROTECTION, INTERNATIONAL SPILLOVERS, AND TRADE (1971); C. FRED BERGSTEN, THE FUTURE OF THE INTERNATIONAL ECONOMIC ORDER: AN AGENDA FOR RESEARCH 42 (1973); Wolfgang E. Burhenne & Thomas J. Schoenbaum, The European Community and the Management of the Environment, 13 NAT. RES. L.J. 494 (1973) (analyzing problem of harmonizing different environmental standards for products that move in international trade in the context of Community law); Frederic L. Kirgis, Jr., Effective Pollution Control in Industrialized Countries: International Economic Disincentives, Policy Response, and the GATT, 70 MICH. L. REV. 859 (1972) (analyzing legality under the GATT of various environmental taxes on imports).
5. General Agreement on Tariffs and Trade [GATT], Oct. 30, 1947, TIAS No. 1700, 55 UNTS 188. As a result of the Uruguay Round of trade negotiations, the GATT organization became the World Trade Organization (WTO) on January 1, 1995. Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Apr. 14, 1994, 33 ILM 1145 (1994), reprinted in GATT, THE RESULTS OF THE URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIATIONS: THE LEGAL TEXTS (1994) [hereinafter URUGUAY TEXTS].
6. General Agreement on Tariffs and Trade [GATT], Oct. 30, 1947, TIAS No. 1700, 55 UNTS 188. As a result of the Uruguay Round of trade negotiations, the GATT organization became the World Trade Organization (WTO) on January 1, 1995. Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Apr. 14, 1994, 33 ILM 1145 (1994), reprinted in GATT, THE RESULTS OF THE URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIATIONS: THE LEGAL TEXTS (1994) [hereinafter URUGUAY TEXTS].
7. General Agreement on Tariffs and Trade [GATT], Oct. 30, 1947, TIAS No. 1700, 55 UNTS 188. As a result of the Uruguay Round of trade negotiations, the GATT organization became the World Trade Organization (WTO) on January 1, 1995. Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Apr. 14, 1994, 33 ILM 1145 (1994), reprinted in GATT, THE RESULTS OF THE URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIATIONS: THE LEGAL TEXTS (1994) [hereinafter URUGUAY TEXTS].
8. Decision of the GATT Contracting Parties, GATT Dec. C/M/71 (1971).
9. United States - Restrictions on Imports of Tuna, 30 ILM 1598 (1992) [hereinafter Tuna/Dolphin I]. This decision was not adopted by the GATT Council or contracting parties.
10. The literature is too voluminous to cite here. Among the most prolific and vocal commentators have been, on the environmentalist side, Steve Charnovitz, and on the trade side, Jagdish Bhagwati. See especially Steve Charnovitz, Free Trade, Fair Trade, Green Trade: Defogging the Debate, 27 CORNELL INT'L L.J. 459 (1994); Steve Charnovitz, A Taxonomy of Environmental Trade Measures, 6 GEO. INT'L ENVTL. L. REV. 1 (1993); and Jagdish Bhagwati, Trade and Environment: The False Conflict?, in TRADE AND THE ENVIRONMENT: LAW, ECONOMICS, AND POLICY 159 (D. Zaelke et al. eds., 1993). A leading book on the subject is DANIEL C. ESTY, GREENING THE GATT: TRADE, ENVIRONMENT, AND THE FUTURE (1994). For a brilliant synthesis of the opposing views, see Ernst-Ulrich Petersmann, International Trade Law and International Environmental Law, 27 J. WORLD TRADE L. 46 (1993).
11. The literature is too voluminous to cite here. Among the most prolific and vocal commentators have been, on the environmentalist side, Steve Charnovitz, and on the trade side, Jagdish Bhagwati. See especially Steve Charnovitz, Free Trade, Fair Trade, Green Trade: Defogging the Debate, 27 CORNELL INT'L L.J. 459 (1994); Steve Charnovitz, A Taxonomy of Environmental Trade Measures, 6 GEO. INT'L ENVTL. L. REV. 1 (1993); and Jagdish Bhagwati, Trade and Environment: The False Conflict?, in TRADE AND THE ENVIRONMENT: LAW, ECONOMICS, AND POLICY 159 (D. Zaelke et al. eds., 1993). A leading book on the subject is DANIEL C. ESTY, GREENING THE GATT: TRADE, ENVIRONMENT, AND THE FUTURE (1994). For a brilliant synthesis of the opposing views, see Ernst-Ulrich Petersmann, International Trade Law and International Environmental Law, 27 J. WORLD TRADE L. 46 (1993).
12. The literature is too voluminous to cite here. Among the most prolific and vocal commentators have been, on the environmentalist side, Steve Charnovitz, and on the trade side, Jagdish Bhagwati. See especially Steve Charnovitz, Free Trade, Fair Trade, Green Trade: Defogging the Debate, 27 CORNELL INT'L L.J. 459 (1994); Steve Charnovitz, A Taxonomy of Environmental Trade Measures, 6 GEO. INT'L ENVTL. L. REV. 1 (1993); and Jagdish Bhagwati, Trade and Environment: The False Conflict?, in TRADE AND THE ENVIRONMENT: LAW, ECONOMICS, AND POLICY 159 (D. Zaelke et al. eds., 1993). A leading book on the subject is DANIEL C. ESTY, GREENING THE GATT: TRADE, ENVIRONMENT, AND THE FUTURE (1994). For a brilliant synthesis of the opposing views, see Ernst-Ulrich Petersmann, International Trade Law and International Environmental Law, 27 J. WORLD TRADE L. 46 (1993).
13. The literature is too voluminous to cite here. Among the most prolific and vocal commentators have been, on the environmentalist side, Steve Charnovitz, and on the trade side, Jagdish Bhagwati. See especially Steve Charnovitz, Free Trade, Fair Trade, Green Trade: Defogging the Debate, 27 CORNELL INT'L L.J. 459 (1994); Steve Charnovitz, A Taxonomy of Environmental Trade Measures, 6 GEO. INT'L ENVTL. L. REV. 1 (1993); and Jagdish Bhagwati, Trade and Environment: The False Conflict?, in TRADE AND THE ENVIRONMENT: LAW, ECONOMICS, AND POLICY 159 (D. Zaelke et al. eds., 1993). A leading book on the subject is DANIEL C. ESTY, GREENING THE GATT: TRADE, ENVIRONMENT, AND THE FUTURE (1994). For a brilliant synthesis of the opposing views, see Ernst-Ulrich Petersmann, International Trade Law and International Environmental Law, 27 J. WORLD TRADE L. 46 (1993).
14. The literature is too voluminous to cite here. Among the most prolific and vocal commentators have been, on the environmentalist side, Steve Charnovitz, and on the trade side, Jagdish Bhagwati. See especially Steve Charnovitz, Free Trade, Fair Trade, Green Trade: Defogging the Debate, 27 CORNELL INT'L L.J. 459 (1994); Steve Charnovitz, A Taxonomy of Environmental Trade Measures, 6 GEO. INT'L ENVTL. L. REV. 1 (1993); and Jagdish Bhagwati, Trade and Environment: The False Conflict?, in TRADE AND THE ENVIRONMENT: LAW, ECONOMICS, AND POLICY 159 (D. Zaelke et al. eds., 1993). A leading book on the subject is DANIEL C. ESTY, GREENING THE GATT: TRADE, ENVIRONMENT, AND THE FUTURE (1994). For a brilliant synthesis of the opposing views, see Ernst-Ulrich Petersmann, International Trade Law and International Environmental Law, 27 J. WORLD TRADE L. 46 (1993).
15. E.g., Patricia Dodwell, Trade Row Looms over U.S.'s Dolphin-Friendly Trade Policy, FIN. TIMES (London), Jan. 30, 1992, at 22. From time to time, environmental groups have taken full-page ads in national newspapers to oppose the GATT. E.g., Sabotage!, N.Y. TIMES, Apr. 20, 1992, at A9 (nat'l ed.).
16. E.g., Patricia Dodwell, Trade Row Looms over U.S.'s Dolphin-Friendly Trade Policy, FIN. TIMES (London), Jan. 30, 1992, at 22. From time to time, environmental groups have taken full-page ads in national newspapers to oppose the GATT. E.g., Sabotage!, N.Y. TIMES, Apr. 20, 1992, at A9 (nat'l ed.).
17. Id. at 47.
18. Singapore Ministerial Declaration, para. 16, WTO Doc. WT/MIN(96)/DEC/W (Dec. 13, 1996), 36 ILM 218, 224 (1997).
19. WTO Agreement, Art. IX, URUGUAY TEXTS, supra note 2, at 11.
20. Trade and Environment, supra note 8.
21. WTO Agreement, Art. IV, URUGUAY TEXTS, supra note 2, at 8.
22. Id., Art. X. Amendments to Articles I and II of GATT 1994 require a unanimous vote. Other amendments require a two-thirds vote to take effect for those members that have accepted them. If a member refuses to accept such amendments, the Ministerial Conference can exert pressure by deciding, by a three-fourths majority, that that member "shall be free to withdraw from the WTO or to remain a Member with the consent of the Ministerial Conference." Id., Art. X:3. Amendments to the WTO Agreement and other multilateral trade agreements can be adopted by two-thirds vote. Id., Art. X:4. For these provisions, see URUGUAY TEXTS, supra note 2, at 12-14.
23. A kind of executive committee, the Consultative Group of Eighteen, was authorized by the GATT Council in 1975; there is some discussion of reviving such a group. See INSIDE U.S. TRADE, Dec. 20, 1996, at 7.
24. In contrast to international economic law, international environmental law is a diverse mixture of treaty law, customary law and nonbinding principles. There is no central international environmental agency, although some have proposed that a "Global Environmental Organization" be created. See ESTY, supra note 5, at 80-90. There is also no binding system of dispute settlement in international environmental law.
25. GATT 1994 is the original 1947 GATT, as amended and modified through the Uruguay Round as well as all the ancillary agreements pertaining to GATT 1947 adopted prior to the Uruguay Round. For the official text of GATT 1994, see URUGUAY TEXTS, supra note 2, at 486.
26. GATT 1994, Art. II.
27. Id., Art. XI.
28. These are dealt with in the GATT itself or the side agreements or understandings. Fifteen Agreements are annexed to GATT 1994, the most important being the Agreement on Technical Barriers to Trade, the Agreement on Trade-Related Aspects of Intellectual Property Rights, the Agreement on Sanitary and Phytosanitary Measures, the Agreement on Agriculture, and the Agreement on Services. See URUGUAY TEXTS, supra note 2.
29. This means that the right of access to a market cannot be conditioned on reciprocal market concessions. See JOHN H. JACKSON, THE WORLD TRADING SYSTEM 136-38 (1989).
30. Belgian Family Allowances (Allocations Familiales), Nov. 7, 1952, GATT B.I.S.D. (1st Supp.) 59 (1953).
31. Id., para. 3.
32. GATT 1994, Art. 111:4.
33. Id., Art. III:1.
34. Id., Art. III:2.
35. Id., Art. III:1.
36. Japan - Taxes on Alcoholic Beverages, Appellate Body Report, WTO Doc. AB-1996-2, at 17-25 (Oct. 4, 1996) [hereinafter Japan Shochu].
37. Italian Discrimination against Imported Machinery, Oct. 23, 1958, GATT B.I.S.D. (7th Supp.) 60, para. 12 (1959) (emphasis supplied). The panel thus ruled that an Italian law that provided special credit facilities to certain farmers for the purchase of agricultural machinery produced in Italy was inconsistent with Article III.
38. United States - Section 337 of the Tariff Act of 1930, Nov. 7, 1989, GATT B.I.S.D. (36th Supp.) 345, para. 5.11 (1990). This ruling means that the actual economic impact of a discriminatory measure or tax is irrelevant. See United States - Taxes on Petroleum and Certain Imported Substances, June 17, 1987, GATT B.I.S.D. (34th Supp.) 136, para. 5.1.9 (1988) [hereinafter Superfund].
39. United States - Section 337 of the Tariff Act of 1930, Nov. 7, 1989, GATT B.I.S.D. (36th Supp.) 345, para. 5.11 (1990). This ruling means that the actual economic impact of a discriminatory measure or tax is irrelevant. See United States - Taxes on Petroleum and Certain Imported Substances, June 17, 1987, GATT B.I.S.D. (34th Supp.) 136, para. 5.1.9 (1988) [hereinafter Superfund].
40. Vienna Convention on the Law of Treaties, opened for signature May 3, 1969, Art. 31, 1155 UNTS 331. In U.S. Gasoline Standards App., supra note 40, at 23, the Appellate Body applied this interpretation of Article 31.
41. Vienna Convention on the Law of Treaties, opened for signature May 3, 1969, Art. 31, 1155 UNTS 331. In U.S. Gasoline Standards App., supra note 40, at 23, the Appellate Body applied this interpretation of Article 31.
42. See in this regard Steven P. Croley & John H. Jackson, WTO Dispute Procedures, Standard of Review, and Deference to National Government, 90 AJIL 193, 211-12 (1996).
43. E.g., Canada Herring, supra note 35, para. 4.4.
44. U.S. Gasoline Standards Panel, supra note 44, para. 6.38; U.S. Gasoline Standards App., supra note 40, at 13-14.
45. U.S. Gasoline Standards Panel, supra note 44, para. 6.38; U.S. Gasoline Standards App., supra note 40, at 13-14.
46. Tuna/Dolphin I, supra note 4, para. 5.26; Tuna/Dolphin II, supra note 48, para. 5.13.
47. Tuna/Dolphin I, supra note 4, para. 5.26; Tuna/Dolphin II, supra note 48, para. 5.13.
48. See U.S. Taxes on Automobiles, supra note 39, para. 5.57 (ruling that gasoline is an exhaustible natural resource).
49. U.S. Gasoline Standards Panel, supra note 44, para. 6.37; U.S. Gasoline Standards App., supra note 40, at 14.
50. U.S. Gasoline Standards Panel, supra note 44, para. 6.37; U.S. Gasoline Standards App., supra note 40, at 14.
51. See Canada Herring, supra note 35, para. 6.39; U.S. Gasoline Standards App., supra note 40, at 15.
52. See Canada Herring, supra note 35, para. 6.39; U.S. Gasoline Standards App., supra note 40, at 15.
53. U.S. Taxes on Automobiles, supra note 39, para. 5.60-5.61.
54. U.S. Gasoline Standards Panel, supra note 44, para. 6.40.
55. Id.
56. U.S. Gasoline Standards App., supra note 40, at 16.
57. Vienna Convention on the Law of Treaties, supra note 53, Art. 31.
58. U.S. Gasoline Standards App., supra note 40, at 19.
59. Id. at 20 (citations omitted).
60. Id. at 21.
61. Id.
62. See the discussion in text at notes 43-47 supra.
63. Tuna/Dolphin I, supra note 4, paras. 5.26, 5.31.
64. See, e.g., William J. Snape III & Naomi B. Lefkovitz, Searching for GATT's Environmental Miranda: Are "Process Standards" Getting "Due Process"?, 27 CORNELL INT'L L.J. 777, 782-90 (1994); Alison Raina Ferrante, The Dolphin-Tuna Controversy and Environmental Issues, 5 J. TRANSNAT'L L. & POL'Y 279, 297 (1996).
65. See, e.g., William J. Snape III & Naomi B. Lefkovitz, Searching for GATT's Environmental Miranda: Are "Process Standards" Getting "Due Process"?, 27 CORNELL INT'L L.J. 777, 782-90 (1994); Alison Raina Ferrante, The Dolphin-Tuna Controversy and Environmental Issues, 5 J. TRANSNAT'L L. & POL'Y 279, 297 (1996).
66. Tuna/Dolphin II, supra note 48, para. 5.20.
67. Id.
68. Ilona Cheyne, Environmental Unilateralism and the WTO/GATT System, 24 GA. J. INT'L & COMP. L. 433, 453 (1995). Similar points are made by Shinya Murase, Perspectives from International Economic Law on Transnational Environmental Issues, 253 RECUEIL DES COURS 283, 349-53 (1995).
69. Ilona Cheyne, Environmental Unilateralism and the WTO/GATT System, 24 GA. J. INT'L & COMP. L. 433, 453 (1995). Similar points are made by Shinya Murase, Perspectives from International Economic Law on Transnational Environmental Issues, 253 RECUEIL DES COURS 283, 349-53 (1995).
70. Vienna Convention on the Law of Treaties, supra note 53, Art. 31(1).
71. Id., Art. 31(3)(c). See the careful analysis by Petersmann, supra note 5, at 70-71.
72. See, e.g., Rio Declaration on Environment and Development, supra note 7, Principle 2;
73. United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, pt. XII, UN Doc. A/CONF.62/122 (1982), reprinted in UNITED NATIONS, OFFICIAL TEXT OF THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA WITH ANNEXES AND INDEX, UN Sales No. E.83.V.5 (1983).
74. Cheyne, supra note 75, at 453-54.
75. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES §§402-403 (1987) [hereinafter RESTATEMENT].
76. Id. See ROSALYN HIGGINS, PROBLEMS AND PROCESS: INTERNATIONAL LAW AND How WE USE IT 56-77 (1994).
77. Jennifer Schultz, Environmental Reform of the GATT/WTO International Trading System, 18 WORLD COMPETITION 77, 104 (1994).
78. The conflict of successive treaties is controlled by Article 30 of the Vienna Convention on the Law of Treaties, supra note 53, which provides that, in a case of conflict, the later-in-time treaty prevails as between parties to both. As between two states, both WTO/GATT members, where only one is party to an MEA, the WTO/GATT prevails.
79. For proposals by various WTO members, see CTE Report, supra note 10, at 2-12.
80. Tuna/Dolphin I, supra note 4, para. 5.28.
81. URUGUAY TEXTS, supra note 2, at 11-12.
82. See Douglas Jake Caldwell, International Environmental Agreements and the GATT: An Analysis of the Potential Conflict and the Role of a GATT "Waiver" Resolution, 18 MD. J. INT'I. L. & TRADE 173 (1994). Another critic of the waiver approach is Steve Charnovitz, GATT and the Environment, 4 INT'L ECON. AFF. 41 (1992).
83. See Douglas Jake Caldwell, International Environmental Agreements and the GATT: An Analysis of the Potential Conflict and the Role of a GATT "Waiver" Resolution, 18 MD. J. INT'I. L. & TRADE 173 (1994). Another critic of the waiver approach is Steve Charnovitz, GATT and the Environment, 4 INT'L ECON. AFF. 41 (1992).
84. North American Free Trade Agreement, Dec. 17, 1992, Can.-Mex.-U.S., 32 ILM 296 & 605, Art. 104, para. 1 (1993).
85. See Miller, supra note 93.
86. An interpretation can be adopted by the WTO Ministerial Conference by a three-fourths majority vote. WTO Agreement, Art. IX:2, URUGUAY TEXTS, supra note 2, at 11.
87. These ideas are discussed by Vinod Rege, GATT Law and Environment-Related Issues Affecting the Trade of Developing Countries, 28 J. WORLD TRADE 95, 124-29 (1994);
88. and Robert E. Hudec, GATT Legal Restraints on the Use of Trade Measures Against Foreign Environmental Practices, in 2 FAIR TRADE AND HARMONIZATION 95, 120-42 (Jagdish N. Bhagwati & Robert E. Hudec eds., 1996).
89. Hudec, supra note 104, at 125.
90. Id. at 125-45.
91. A similar proposal has been put forward by the European Union. See CTE Report, supra note 10, at 5-6.
92. For a summary of the various proposals to amend GATT Article XX, see Michael Reiterer, GATT, the WTO, and the Environment: The Agenda of the CTE, in particular MEAs, Ecolabeling and Trade Liberalization, paper presented at the Asia Conference on Trade and Environment, Singapore (June 27-28, 1996) (on file at Dean Rusk Center, University of Georgia).
93. There is a great debate as to whether trade measures are effective to protect the environment. Many authorities argue that trade measures are at best second-or third-best solutions since they are indirect in their effect. See Charnovitz, supra note 94, at 172. The issue of effectiveness, however, should be left to the parties that are negotiating the MEA. They should have to consult with the WTO beforehand, but the WTO should not be able to invalidate an MEA on the basis of second-guessing the effectiveness of the trade restrictions involved.
94. See text at notes 75-81 supra.
95. URUGUAY TEXTS, supra note 2, at 163 [hereinafter TBT Agreement].
96. Id. at 69 [hereinafter SPS Agreement].
97. Both Agreements, however, provide a broad exception for developing countries. The TBT provides that "developing country members should not be expected to use international standards as a basis for their 134 See text at notes 26-31 supra.
98. See text at notes 125-26 supra.
99. A useful balancing test that might be employed is the concept of proportionality, see Danish Bottles case, supra note 126. The ECJ upheld a ban on nonreturnable beverage containers, but held that a limitation on the sale of nonapproved containers was discriminatory against foreign producers and out of proportion to the benefits served.
100. See TBT Agreement, supra note 110, Art. 2.2 and Annex I, para. 1; SPS Agreement, supra note 111, Annex A, para. 1.
101. See notes 4 and 48 supra.
102. Another example of a PPM controversy is the EU proposal to prohibit the import of pelts and manufactured goods of certain animal species caught or killed by methods using leghold traps. See Council Regulation 3254/91, 1991 O.J. (L 308) 1. Such a ban would be invalid under current WTO rules.
103. See especially Snape & Lefkovitz, supra note 72, at 788-92.
104. E.g., Alan Neff, Not in Their Backyards, Either: A Proposal for a Foreign Environmental Practices Act, 17 ECOLOGY L.Q. 477 (1990). See the discussion in ESTY, supra note 5, at 163-68.
105. E.g., Alan Neff, Not in Their Backyards, Either: A Proposal for a Foreign Environmental Practices Act, 17 ECOLOGY L.Q. 477 (1990). See the discussion in ESTY, supra note 5, at 163-68.
106. See ESTY, supra note 5, at 114-16.
107. Eco-dumping and countervailing duties are not authorized under the GATT Subsidies and Countervailing Duty Codes or current U.S. law. For analysis, see Robert E. Hudec, Differences in National Environmental Standards: The Level-Playing Field Dimension, 5 MINN. J. GLOBAL TRADE 1, 14-21 (1995).
108. See Japan Shochu, supra note 30.
109. Australian Subsidy on Ammonium Sulphate, Apr. 3, 1950, 2 GATT B.I.S.D. 188, 191, para. 8 (1952). See also EEC - Measures on Animal Feed Proteins, Mar. 14, 1978, GATT B.I.S.D. (25th Supp.) 49, para. 4.2 (1979) (where the panel relied on the fact that the products fell into different internationally accepted tariff classifications); Spain - Tariff Treatment of Unroasted Coffee, June 11, 1981, GATT B.I.S.D. (28th Supp.) 102, para. 4.8 (1982); and Japan - Tariff on Imports of Spruce-Pine-Fir (SPF) Dimension Lumber, July 19, 1989, GATT B.I.S.D. (36th Supp.) 167 (1990).
110. Australian Subsidy on Ammonium Sulphate, Apr. 3, 1950, 2 GATT B.I.S.D. 188, 191, para. 8 (1952). See also EEC - Measures on Animal Feed Proteins, Mar. 14, 1978, GATT B.I.S.D. (25th Supp.) 49, para. 4.2 (1979) (where the panel relied on the fact that the products fell into different internationally accepted tariff classifications); Spain - Tariff Treatment of Unroasted Coffee, June 11, 1981, GATT B.I.S.D. (28th Supp.) 102, para. 4.8 (1982); and Japan - Tariff on Imports of Spruce-Pine-Fir (SPF) Dimension Lumber, July 19, 1989, GATT B.I.S.D. (36th Supp.) 167 (1990).
111. Australian Subsidy on Ammonium Sulphate, Apr. 3, 1950, 2 GATT B.I.S.D. 188, 191, para. 8 (1952). See also EEC - Measures on Animal Feed Proteins, Mar. 14, 1978, GATT B.I.S.D. (25th Supp.) 49, para. 4.2 (1979) (where the panel relied on the fact that the products fell into different internationally accepted tariff classifications); Spain - Tariff Treatment of Unroasted Coffee, June 11, 1981, GATT B.I.S.D. (28th Supp.) 102, para. 4.8 (1982); and Japan - Tariff on Imports of Spruce-Pine-Fir (SPF) Dimension Lumber, July 19, 1989, GATT B.I.S.D. (36th Supp.) 167 (1990).
112. Australian Subsidy on Ammonium Sulphate, Apr. 3, 1950, 2 GATT B.I.S.D. 188, 191, para. 8 (1952). See also EEC - Measures on Animal Feed Proteins, Mar. 14, 1978, GATT B.I.S.D. (25th Supp.) 49, para. 4.2 (1979) (where the panel relied on the fact that the products fell into different internationally accepted tariff classifications); Spain - Tariff Treatment of Unroasted Coffee, June 11, 1981, GATT B.I.S.D. (28th Supp.) 102, para. 4.8 (1982); and Japan - Tariff on Imports of Spruce-Pine-Fir (SPF) Dimension Lumber, July 19, 1989, GATT B.I.S.D. (36th Supp.) 167 (1990).
113. Japan - Customs Duties, Taxes, and Labeling Practices on Imported Wines and Alcoholic Beverages, Nov. 10, 1987, GATT B.I.S.D. (34th Supp.) 83 (1988).
114. Id., para. 5.6.
115. Id., para. 5.7.
116. The two tests were employed cumulatively and each produced a different grouping of "like products." See id., paras. 5.6 and 5.7.
117. United States - Measures Affecting Alcoholic and Malt Beverages, June 19, 1992, GATT B.I.S.D. (39th Supp.) 206 (1993) [hereinafter U.S. Alcohol].
118. U.S. Taxes on Automobiles, supra note 39. The issue of protective effect was analyzed not in terms of actual sales date, but on the basis of potential effect. The panel noted that there was no evidence that foreign manufacturers lacked inherent capacity to market automobiles below the high tax thresholds. The panel also found that U.S. Corporate Average Fuel Efficiency Rules were in violation of Article III:4, since certain averaging formulas discriminated against foreign vehicles.
119. Report of the Appellate Body, supra note 30.
120. Id. at 20.
121. Id. at 21.
122. Id. at 25.
123. U.S. Alcohol, supra note 150, para. 5.71.
124. E.g., Cheyne, supra note 75, at 445-46.
125. Spain - Tariff Treatment of Unroasted Coffee, supra note 145, para. 46.
126. See notes 4 and 48 supra.
127. See note 24 supra.
128. See, e.g., Kenneth S. Komoroski, The Failure of Governments to Regulate Industry: A Subsidy Under the GATT?, 10 HOUS. J. INT'L L. 189 (1988).
129. Under criteria issued by both the WTO and the OECD, such duties would be illegal. The WTO Agreement on Subsidies and Countervailing Measures. Arts. I & II, URUGUAY TEXTS, supra note 2, at 264, defines subsidies in terms of financial contributions.
130. See also the discussion in text at note 207 infra. 163 See Richard B. Stewart, Environmental Regulation and International Competitiveness, 102 YALE L.J. 2039 (1993);
131. and Hudec, supra note 149.
132. See ESTY, supra note 5, at 114-18.
133. See, e.g., Huron Cement Co. v. Detroit, 362 U.S. 440 (1960); see also Donald A. Farber & Robert E. Hudec, GATT Legal Restraints on Domestic Environmental Regulations, in 1 FAIR TRADE AND HARMONIZATION, supra note 104, at 59, 64-68.
134. See generally IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 307-09 (4th ed. 1990).
135. Tuna/Dolphin I, supra note 4; Tuna Dolphin/II, supra note 48.
136. Tuna/Dolphin I, supra note 4; Tuna Dolphin/II, supra note 48.
137. See Michael Reiterer, The International Legal Aspects of Process and Production Methods, 17 WORLD COMPETITION 111 (1994), and Markus Schlagenhof, Trade Measures Based on Environmental Processes and Production Methods, 29 J. WORLD TRADE 123 (1995), which also came to this conclusion.
138. See Michael Reiterer, The International Legal Aspects of Process and Production Methods, 17 WORLD COMPETITION 111 (1994), and Markus Schlagenhof, Trade Measures Based on Environmental Processes and Production Methods, 29 J. WORLD TRADE 123 (1995), which also came to this conclusion.
139. See generally Karl Zemanek, State Responsibility and Liability, in ENVIRONMENTAL PROTECTION AND INTERNATIONAL LAW, supra note 88, at 187. New draft articles on state responsibility were elaborated by the International Law Commission in 1996. See Report of the International Law Commission on the work of its forty-eighth session, UN GAOR, 51st Sess., Supp. No. 10, at 125, UN Doc. A/51/10 (1996).
140. See generally Karl Zemanek, State Responsibility and Liability, in ENVIRONMENTAL PROTECTION AND INTERNATIONAL LAW, supra note 88, at 187. New draft articles on state responsibility were elaborated by the International Law Commission in 1996. See Report of the International Law Commission on the work of its forty-eighth session, UN GAOR, 51st Sess., Supp. No. 10, at 125, UN Doc. A/51/10 (1996).
141. See, e.g., Trail Smelter (U.S. v. Can.), 3 R.I.A.A. 1905 (1949);
142. Canada-United States Agreement on Air Quality, Mar. 13, 1991, 30 ILM 676 (1991) (accord limiting air pollution emissions in each country).
143. There is a rich scholarly literature debating the merits of the PPP in relation to trade. See, e.g., Charles S. Pearson, Testing the System: GATT + PPP = ?, 27 CORNELL INT'L L.J. 553 (1994); Candace Stevens, Interpreting the Polluter Pays Principle in the Trade and Environment Context, id. at 578; Charnovitz, supra note 5, at 505-07.
144. There is a rich scholarly literature debating the merits of the PPP in relation to trade. See, e.g., Charles S. Pearson, Testing the System: GATT + PPP = ?, 27 CORNELL INT'L L.J. 553 (1994); Candace Stevens, Interpreting the Polluter Pays Principle in the Trade and Environment Context, id. at 578; Charnovitz, supra note 5, at 505-07.
145. There is a rich scholarly literature debating the merits of the PPP in relation to trade. See, e.g., Charles S. Pearson, Testing the System: GATT + PPP = ?, 27 CORNELL INT'L L.J. 553 (1994); Candace Stevens, Interpreting the Polluter Pays Principle in the Trade and Environment Context, id. at 578; Charnovitz, supra note 5, at 505-07.
146. OECD, Guiding Principles Concerning International Economic Aspects of Environmental Policies, May 26, 1972, 11 ILM 1172 (1972) [hereinafter OECD, Guiding Principles].
147. See also OECD, Recommendation on the Implementation of the Polluter Pays Principle, Nov. 14, 1974, 14 ILM 234 (1975) [hereinafter OECD, Recommendation].
148. OECD, Guiding Principles, supra note 201, at 1175.
149. The PPP is thus opposed to the theoretical view of pollution as a reciprocal problem that is value neutral; and it does not make any difference as to whom the entitlement is allocated and who bears the cost. See Ronald Coase, The Problem of Social Cost, 3 J.L. & ECON. 1 (1960).
150. Superfund, supra note 32, para. 5.2.5.
151. Rio Declaration on Environment and Development, supra note 7, Principle 16, 31 ILM at 879.
152. North American Agreement on Environmental Cooperation, supra note 93. For the NAFTA, see note 102 supra.
153. North American Agreement on Environmental Cooperation, supra note 93. For the NAFTA, see note 102 supra.
154. See Robert Carbaugh & Darwin Wassink, Environmental Standards and International Competitiveness, 16 WORLD COMPETITION 81 (1992).
155. Id. at 87-88.
156. H. JEFFREY LEONARD, POLLUTION AND THE STRUGGLE FOR THE WORLD PRODUCT (1988); CHARLES S. PEARSON, DOWN TO BUSINESS: MULTINATIONAL CORPORATIONS, THE ENVIRONMENT, AND DEVELOPMENT (World Resources Institute 1985).
157. H. JEFFREY LEONARD, POLLUTION AND THE STRUGGLE FOR THE WORLD PRODUCT (1988); CHARLES S. PEARSON, DOWN TO BUSINESS: MULTINATIONAL CORPORATIONS, THE ENVIRONMENT, AND DEVELOPMENT (World Resources Institute 1985).
158. Carbaugh & Wassink, supra note 212, at 88-90.
159. The Agreement on Trade-Related Investment Measures (TRIMs), URUGUAY TEXTS, supra note 2, at 163, was one of the key agreements of the GATT Uruguay Round.
160. See Michael A. Geist, Toward a General Agreement on the Regulation of Foreign Direct Investment, 26 LAW & POL'Y INT'L BUS. 673 (1995).
161. NAFTA, supra note 102, Art. 1114:2.
162. See WTO Understanding on Rules and Procedures Governing the Settlement of Disputes, Art. 23(2) (a), URUGUAY TEXTS, supra note 2, at 426.
163. An example is President Truman's unilateral proclamation of U.S. "jurisdiction and control" over the resources of the continental shelves of the United States in 1945. This act matured into the doctrine of the continental shelf formulated in the Geneva Convention on the Continental Shelf, Apr. 29, 1958, 15 UST 471, 499 UNTS 311. Thus, unilateral measures that are "illegal" at first may come to be "opposable" against some states and develop into an international law rule. See Fisheries case, infra note 221 (baselines claimed by Norway).
164. The Fisheries case (UK v. Nor.), 1951 ICJ REP. 116 (Dec. 18), involved a dispute over the limits of Norway's internal waters delimited by straight baselines. The ICJ found that the rule limiting artificial baselines to 10-nautical-mile lines to close the mouth of a bay "has not acquired the authority of a general rule of international law" and was inapplicable ("opposable" in the French text) against Norway so that Norway was not limited to such baselines of 10 miles or less. Id. at 131. The straight baselines relied on by Norway were opposable to the UK, meaning the UK could not object to them as violative of international law since it had not objected in a timely fashion. Id. at 139.
165. To be opposable, a unilateral measure must fulfill three requirements: (1) it must be within the effective power of the asserting state; (2) it must conform to a sense of equity and the general interest of the international community (not merely the special interest of a particular state); and (3) it must be asserted in good faith. Murase, supra note 75, at 364-66.
166. Provision is made for countermeasures in the International Law Commission's draft articles on state responsibility, supra note 169, Arts. 47-50. See generally OSCAR SCHACHTER, INTERNATIONAL LAW IN THEORY AND PRACTICE 184-200 (1991);
167. Yoshiro Matsui, Countermeasures in the International Legal Order, 37 JAPANESE ANN. INT'L L. 1 (1994).
168. See ELISABETH ZOLLER, PEACETIME REMEDIES: AN ANALYSIS OF COUNTERMEASURES 37-42 (1984).
169. Id. at 70-71. See also RESTATEMENT, supra note 80, §905 (Unilateral Remedies).
170. See The Naulilaa (Ger./Port.), 2 R.I.A.A. 1011 (1928); Case concerning the Air Service Agreement of 27 March 1946 (U.S./Fr.), 18 R.I.A.A. 417 (1978).
171. See draft articles on state responsibility, supra note 169, Art. 47, para. 2.
172. This harm prevention principle is generally traced to the famous Trail Smelter and Corfu Channel decisions, and was explicitly recognized as customary international law by the International Court of Justice in the advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, 25 ILM 809, para. 26 (1996).
173. See generally Sean T. Fox, Responding to Climate Change: The Case for Unilateral Measures to Protect the Global Atmosphere, 84 GEO. L.J. 2499 (1996).
174. The Spanish vessels employed double nets with holes so small nothing could escape; this was a violation of the Northwest Atlantic Fisheries Organization agreement. See generally Taunya L. McLarty, WTO and NAFO Coalescence: A Pareto Improvement for Both Free Trade and Fish Conservation, 15 VA. ENVTL. L.J. 469 (1996).
175. Convention on Future Multilateral Cooperation in Northwest Atlantic Fisheries, Oct. 24, 1978, S. EXEC. DOC. T, 90th Cong., 1st Sess. (1979).
176. For example, Canada could have adopted a ban on imports of fish products from Spain but did not because Canada chose to retaliate in another way, by pursuing and capturing the offending vessels. See Anne Swardson, Canada's Fish Affair: Diplomacy or Piracy?, WASH. POST, Mar. 29, 1995, at A25.
177. Pub. L. No. 102-523, 106 Stat. 3425 (1992), codified at 16 U.S.C. §§1411-1418 (1994).
178. Note 174 supra.
179. See MARINE MAMMAL COMMISSION, ANNUAL REPORT TO CONGRESS 121 (1994).
180. Dolphin Slaughter Ended, supra note 175, at 6.
181. Tuna/Dolphin I, supra note 4, para. 5.28. See text at note 52 supra.
182. See, e.g., Jeffrey L. Dunoff, Reconciling International Trade with Preservation of the Global Commons: Can We Prosper and Protect?, 49 WASH. & LEE L. REV. 1407, 1415-33 (1992).
183. See Chase, supra note 196, at 374-78.
184. Edith Brown Weiss, Environment and Trade as Partners in Sustainable Development: A Commentary, 86 AJIL 728, 732 (1992).
185. The principle of sustainable development was explicitly endorsed by the WTO member states. See supra note 7.
186. 7 U.S.C. §136o (1994).
187. See text at notes 111-26 supra.
188. See Report by the Chairman of the GATT Working Group on Export of Domestically Prohibited Goods and other Hazardous Substances, GATT Doc. L/6872 (July 2, 1991). This group recommended a code that would allow individual member states to decide whether their domestic restrictions should be carried over to exports.
189. See Geza Feketekuty, The Link Between Trade and Environmental Policy, 2 MINN. J. GLOBAL TRADE 171, 178 (1993).
190. See Greenery and Poverty, ECONOMIST, Sept. 18, 1993, at 80.
191. See text at notes 20-29 supra.