* Adopted June 14, 1992, at the United Nations Conference on Environment and Development, Rio de Janeiro, UN Doc. A/CONF.151/5/Rev.1, reprinted in 31 ILM 874, 878 (1992).

¹ The GATT, Oct. 30, 1947, TIAS No. 1700, 55 UNTS 188, entered into force on January 12, 1948. The GATT has been amended several times; the current text can be found in John H. Jackson & William J. Davey, Legal Problems of International Economic Relations: Documents Supplement 1 (1989). The GATT was originally intended to be a provisional agreement until the estab lishment of the International Trade Organization (ITO), which would have been a specialized agency of the United Nations. However, plans for the ITO were abandoned when it became clear that its charter would not be ratified. For the history of the ITO and the GATT, see generally Robert E. Hudec, The GATT Legal System and World Trade Diplomacy (1975); John H. Jackson, World Trade and the Law of GATT (1969).

Under United States law, the GATT is a U.S. executive agreement, treated as a treaty obligation. See Proclamation No. 2761A, 12 Fed. Reg. 8863 (1947).

² Martin Kohr, The GATT and Environmental Protection, Greenpeace, Sept.-Oct. 1990, at 14, 15. See also Virginia I. Postrel, The Big Green Trade-Killing Machine, Wall St. J., Sept. 21, 1990, at A18, in which Herman Daly, identified as a World Bank economist, calls on the United States to abandon free trade and increase tariffs so as to “greatly reduce the incentive [abroad] to produce goods for the American market.” Environmental arguments are being used to attack the U.S.-Canada Free Trade Agreement; Steven Shrybman, counsel to the Canadian Environmental Law Association, is quoted as having stated that the Free Trade Agreement is “a disaster because the environment was utterly and completely ignored.” Id.

³ A coalition of 28 environmental groups have called for the rejection of the Uruguay Round of trade reforms. See Patricia Dodwell, Trade Row Looms over U.S.'s Dolphin-friendly Tuna Policy, Fin. Times (London), Jan. 30, 1992, at 22.

⁴ See Matthew Wald, Industry War on Clean Air Bill, N.Y. Times, Apr. 5, 1990, at A1. Section 811(b) of the Clean Air Act Amendments of 1990 requires the President to conduct a study of the competitive disadvantages of the Clean Air Act regulations and to develop a strategy that analyzes different ways of lessening the effects, including “harmonization of standards and trade adjustment measures.” 42 U.S.C.A. §7612 note (West Supp. 1992).

Many proposals have been introduced in Congress to use trade incentives and sanctions to elicit environmental reforms in other countries, particularly in developing countries, such as by improving their environmental protection programs and equalizing competitive conditions. For a summary of these proposals, see Craig Obey, Note, Trade Incentives and Environmental Reform: The Search for a Suitable Incentive, 4 Geo. Int'l Envt'l L. Rev. 421 (1992).

⁵ The environment has become an important issue in connection with the negotiations regarding a free trade agreement with Mexico. See Roberto Suro, In Search of a Trade Pact with the Environment in Mind, N.Y. Times, Apr. 14, 1991, §5, at 4. In 1991 a coalition of environmental groups brought suit to compel the Office of the United States Trade Representative to prepare environmental impact statements in connection with the NAFTA negotiations, but this action was dismissed for want of the plaintiffs' standing to sue. Public Citizen v. USTR, No. 91-1916 (D.D.C. Jan. 7, 1992). For the argument that the National Environmental Policy Act applies to international trade agreements, see M. Diane Barber, Bridging the Environmental Gap: The Application of NEPA to the Mexico-United States Bilateral Trade Agreement, 5 Tul. Envt'l L.J. 429 (1992).

⁶ That there is a basis for this fear was demonstrated recently by a report of the circulation to colleagues of a memo prepared by Lawrence Summers, the chief economist of the World Bank, arguing that polluting industries should be encouraged to relocate to the less-developed countries (LDCs) of the world. Dr. Summers based his argument on the fact that in LDCs the costs of pollution (measured by forgone earnings from morbidity and mortality) are lowest and the demand for a clean environment has a very high income elasticity. He concluded that “the economic logic of dumping a load of [pollution] in the lowest-wage country is impeccable.” See Let Them Eat Pollution, Economist, Feb. 8, 1992, at 66.

Few people would be convinced by such a crass economic argument. While Summers made a valid point that pollution standards should be flexible, he is guilty of having devalued the lives and well-being of people in low-income countries on the basis of the mere fact that they earn less than people in richer countries. He also assumed that pollution is always local when it in fact has regional and global dimensions. It is wise policy to permit nations to have differing environmental standards, but the increasing recognition of pollution as a global threat dictates that nations should not be permitted to treat the freedom to pollute as a comparative advantage in trade and investment policies. Rather, the recent trend is to recognize state responsibility for pollution control and to develop minimum international norms for environmental quality. See, e.g., World Commission on Environment and Development, Our Common Future (1987); Edith Brown Weiss, In Fairness to Future Generations: Planetary Trust and Intergenerational Equity (1989).

⁷ See Ernst-Ulrich Petersmann, Trade Policy, Environmental Policy, and the GATT, 45 Aussenwirtschaft 197(1991); Free Trade's Green Hurdle, Economist, June 15, 1991, at 61. For an earlier view of the potential conflict between international trade and environmental protection, see Wolfgang E. Burhenne & Thomas J. Schoenbaum, The European Community and the Management of the Environ ment: A Dilemma, 13 Nat. Resources L.J. 494 (1973).

See also Eckard Rehbinder, Environmental Protection and the Law of International Trade, in The Future of the International Law of the Environment 357 (René-Jean Dupuy ed., 1985).

⁸ GATT, GATT Law and the Environment, Doc. GATT/1529 (Feb. 3, 1992) [hereinafter GATT Law], reprinted in 4 World Trade Materials 37 (1992).

⁹ The GATT only requires that restrictions apply to domestic production as well as imports and that standards not be disguised protectionism. GATT LAW, supra note 8, at 7–10.

¹⁰ Id. at 22–24.

¹¹ Id. at 32-35. Ending inefficient agricultural subsidies in richer countries would have the effect of shifting agricultural production to poorer countries that use less than one-tenth the amount of chemi cal fertilizers and pesticides as, for example, countries in Europe. Agricultural trade liberalization would therefore produce a substantial increase in global environmental quality. Id. at 34.

The United States Trade Representative, Carla Hills, has attacked European agricultural subsidies on similar grounds, contending that “they encourage over-production which mows down the hedgerows so that there's no refuge for small animals … and require so much fertilizer that they're poisoning the groundwater.” See Keith Bradsher, Trade Official Assails Europe Over Ecology, N.Y. Times, Oct. 31, 1991, at C2.

¹² GATT Law, supra note 8, at 2–6.

¹³ United States—Restrictions on Imports of Tuna, Report of the GATT Panel (Aug. 16, 1991), reprinted in 30 ILM 1594 (1991) [hereinafter U.S. Tuna Ban]. In the eastern tropical Pacific Ocean, dolphins and porpoises travel in proximity with yellowfin tuna, usually sitting on top of the tuna. Tuna fishermen kill dolphins when they use purse-seine fishing nets that entangle and capture the dolphins, which usually panic and drown. To reduce this incidental taking of dolphins and porpoises, the United States, under the authority of the Marine Mammal Protection Act (MMPA), 16 U.S.C. §§1371–1377 (1988), requires that fishing fleets use marine mammal safety techniques and equipment. The MMPA also requires a ban on imports of fish caught with fishing techniques that result in the incidental killing of dolphins and porpoises. 16 U.S.C. §1371 (a)(2) (1988). The GATT panel report drew very unfavorable comment in the United States. See GATT: Implications on Environmental Laws: Hearing Before the Subcomm. on Health and the Environment of the House Comm. on Energy and Commerce, 102d Cong., 1st Sess. (1991). In early 1992, a court extended the tuna embargo to include imports from intermediary nations as well as harvesting nations. Earth Island Inst. v. Mosbacher, 785 F.Supp. 826 (N.D. Cal. 1992).

Ironically, the GATT panel report will probably never become binding on the United States. As a technical matter, GATT panel reports are binding only when they are adopted by the GATT Council. See Understanding Regarding Notification, Consultation, Dispute Settlement, and Surveillance, GATT Doc. L/4907, GATT, Basic Instruments and Selected Documents [hereinafter BISD], 26th Supp. 210 (1980). Mexico, because of political considerations, deferred bringing the panel report before the GATT Council, and on June 15, 1992, the United States, Mexico, Venezuela and Vanuatu entered into a compromise agreement to settle the dispute. See Pro-Dolphin Accord Made, N.Y. Times, June 16, 1992, at C3.

¹⁴ See generally Robert Nicolaiseny & Kenneth Hoeller, Economics and the Environment (OECD 1990).

¹⁵ See, e.g., Michael B. Froman, Recent Developments Note, The United States-European Community Hormone Treated Beef Conflict, 30 Harv. Int'l L.J. 549 (1989).

¹⁶ See text at notes 80–85 infra.

” See generally U.S. Int'l Trade Comm'n Pub. No. 2351, International Agreements to Protect the Environment and Wildlife (1991); see also GATT Law, supra note 8, at 29–31.

¹⁸ See text at and notes 96–105 infra.

¹⁹ The most highly publicized controversy regarding this type of restriction involved the U.S. ban on the import of tuna caught by using methods that inflict heavy casualties on associated dolphins. This ban includes both primary exporters of tuna, such as Mexico, Venezuela and Vanuatu, and 27 other countries that buy tuna and resell it in the U.S. market. See text at notes 47–56 infra.

²⁰ See text at and notes 134–43 infra.

²¹ See generally Robert E. Hudec, The Legal Status of the GATT in the Domestic Law of the United States, in The European Community and GATT 187 (Meinhard Hilf, Francis G. Jacobs & Ernst-Ulrich Petersmann eds., 1986). The contracting parties to the GATT hold a formal session once a year attended by high-level delegates. Between these sessions, the Council of Representatives is authorized to act on both routine and urgent matters. It meets about nine times a year. In addition to the Council, the contracting parties have established various standing committees to assist in negotiating rounds. See List and Index of Documents Issued by Bodies, GATT Doc. INF/236 (1987) (especially Index of Documents by Bodies, which lists the GATT committees). The GATT also uses working parties (ad hoc committees) to consider specific problem areas and to make recommendations to the contracting parties or to the Council. They are ordinarily set up to address specific questions, such as requests for accession to GATT, or to study issues on which the member countries will later wish to take joint action. In this manner, and through special sessions, the GATT members directly supervise all GATT activities. See generally Kenneth R. Simmonds & Brian H. W. Hill, Law and Practice under the GATT 1–10 (1986).

²² When voting does take place, each contracting party has one vote. Paragraph 4 of Article XXV of the GATT, supra note 1, provides: “Except as otherwise provided for in this Agreement, decisions of the Contracting Parties shall be taken by a majority of the votes cast.” Voting is “otherwise provided for” in the General Agreement in several instances. Article XXXII, concerning accession of new members, requires a two-thirds majority. In paragraph 10 of Article XXIV, a two-thirds majority can approve customs unions or free trade proposals. Amendments, under Article XXX, sometimes require unanimity, and other times acceptance by a two-thirds majority. On voting under the GATT, see generally Jackson, supra note 1, at 122–24.

²³ The head of the secretariat is the Director-General. Since 1980, the Director-General has been Arthur Dunkel.

²⁴ The GATT has held seven rounds of tariff reduction negotiations. The first six rounds were held in 1947 (Geneva, Switzerland), 1949 (Annecy, France), 1951 (Torquay, England), and in 1955–1956, 1960–1962 (the “Dillon Round”) and 1964–1967 (the “Kennedy Round”) (all in Geneva). See Kenneth W. Dam, The GATT: Law and International Organization 56 (1970). The seventh round (the “Tokyo Round”) was held in Geneva from 1973 to 1979. See Rodney de C. Grey, The General Agreement after the Tokyo Round, in Non-Tariff Barriers after the Tokyo Round 3, 3–17 (John Quinn & Philip Slayton eds., 1982). It is also sometimes referred to as the MTN (for multilat eral trade negotiations).

The eighth and current round (the so-called Uruguay Round) was to have concluded by December 7, 1990. Instead, the four-year round of talks broke off in disarray as the European Community and nations that export agricultural products remained deadlocked over reducing subsidies to farmers. Trade officials hope to break this impasse in 1992.

²⁵ John H. Jackson, The World Trading System 40 (1989). As a result of GATT negotiating rounds, the general average of tariffs on industrial goods has declined by 90% in the last 40 years, to about 4.7% today. See Michael Rasky, Groping for a New Order on Trade, N.Y. Times, Aug. 30, 1987, at A7.

²⁶ They may, however (and sometimes do), set a tariff rate lower than the level listed. See Jackson, supra note 25, at 119.

²⁷ GATT, supra note 1, Art. XXVIII(1); see also Jackson, supra note 1, at 229.

²⁸ GATT, supra note 1, Art. XXVIII(4).

²⁹ Under Article XXVIII, the GATT members that possess “rights” with respect to a concession modification or withdrawal can be divided into three categories: (1) the party “with which” the concession was negotiated, sometimes called the “withwhom” (or the party with “initial negotiating rights”); (2) the “principal supplying interest”; and (3) parties with a “substantial interest in such concession.” See id., Art. XXVIII(1)–(3); see also Jackson, supra note 1, at 231–33.

³⁰ GATT, supra note 1, Art. XXVIII(1)-(3).

³¹ To the extent that these general obligations, such as MFN treatment, also apply to the scheduled products, they reinforce and fill out the obligation undertaken by a tariff commitment or protect the value of the tariff concession.

³² GATT, supra note 1, Art. I(2).

³³ See infra text at and notes 126–27 for elaboration of what “like products” means. The principle of nondiscrimination is a feature of many other GATT articles as well. The contracting parties may not discriminate against other member states with respect to regulations (Arts. I, III), quantitative restric tions (Art. XIII), state trading enterprises (Art. XVII(I)) safeguard measures (Arts. XVII–XX) and exchange controls (Arts. XIV, XV).

³⁴ Regional trading arrangements, in which a group of countries agree to abolish or reduce barriers to imports from one another, are expressly sanctioned under Article XXIV. Such arrangements may take the form of a customs union or a free trade area (FTA). An FTA consists of two or more countries that have eliminated duties and nontariff barriers on substantially all trade between them, see, e.g., Free Trade Agreement, Jan. 2, 1988, U.S.-Can., 102 Stat. 1851, while a customs union adopts a unified customs tariff for nonmembers. In either case, Article XXIV requires that the arrangement facilitate trade among the countries concerned, without raising the barriers to trade with the outside world. See GATT, supra note 1, Art. XXIV(4).

³⁵ Providing preferential tariff treatment to certain developing countries is permitted under the Generalized System of Preferences. See GATT Contracting Parties, Decision of Nov. 28, 1979, Differential and More Favorable Treatment Reciprocity and Fuller Participation of Developing Coun tries, BISD, 26th Supp. 203 (1980).

In the United States, Congress has enacted two statutes that grant nonreciprocal benefits to developing countries. The Generalized System of Preferences Renewal Act of 1984 permits the President to grant duty-free treatment to eligible articles from beneficiary countries when he determines that to do so would promote economic development in the Third World (the GSP Renewal Act of 1984 was enacted as §501 of the Trade and Tariff Act of 1984). See Pub. L. No. 98-573, 98 Stat. 2948, 3018 (codified at 19 U.S.C. §§2461–2465 (1988)). Similarly, under the Caribbean Basin Initiative, the President has the authority to lower customs duties assessed on goods imported from developing countries in the Caribbean region. See Interest and Dividend Tax Compliance Act of 1983, Pub. L. No. 98-67, tit. II, 97 Stat. 369 (codified at 19 U.S.C. §§2701–2706 (1988)).

³⁶ GATT, BISD, 1st Supp. 59 (1953).

³⁷ Id. at 84. The MFN rule of nondiscrimination extends not only to customs levies but also to charges that are imposed at the point of purchase or sale.

³⁸ GATT, supra note 1, Article 111(4) provides in relevant part as follows:

The products of the territory of any contracting party imported into the territory of any other contracting party shall be accorded treatment no less favourable than that accorded to like products of national origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution, or use.

In contrast, most-favored-nation treatment under Article I merely prohibits discrimination between goods from different exporting countries. Thus, if widgets are made in A and also imported into A from X and Y, the most-favored-nation provision requires only that A treat the widgets from X and Y the same. National treatment, on the other hand, requires A to treat the widgets from X and Y the same as domestically made widgets. See Jackson, supra note 25, at 273.

³⁹ United States—Taxes on Petroleum and Certain Imported Substances, GATT, BISD, 34th Supp. 136 (1988) [hereinafter Superfund].

⁴⁰ Pub. L. No. 99-499, 100 Stat. 1613 (1986).

⁴¹ Paragraph 2 of Article III of the GATT, supra note 1, provides in pertinent part: “The products of the territory of any contracting party imported into the territory of any other contracting party shall not be subject, directly or indirectly, to internal taxes or other internal charges of any kind in excess of those applied, directly or indirectly, to like domestic products.”

⁴² Superfund, supra note 39, at 162. Article II(2)(a) of the GATT, supra note 1, specifically allows a charge on imported products that is “equivalent to an internal tax” properly imposed consistently with Article III(2). To clarify the meaning of the word “equivalent” in paragraph 2(a) of Article II, the dispute panel relied in part on the example provided by the drafters of the General Agreement: “If a charge is imposed on perfume because it contains alcohol, the charge to be imposed must take into consideration the value of the alcohol and not the value of the perfume, that is to say the value of the content and not the value of the whole.” Superfund, supra note 39, at 163 (citation omitted).

⁴³ As an exception to this rule, Articles XII and XIV allow the use of quantitative restrictions in balance-of-payment difficulties. Even then, however, restrictions must not be applied beyond the extent necessary to protect balance of payments and must be progressively reduced and eliminated as soon as they are no longer required. Article XIII requires such restrictions to be administered on a nondiscriminatory basis. See GATT, supra note 1, Arts. XII–XIV.

⁴⁴ Id., Art. XI(2)(a).

⁴⁵ Id., para. 2(b). This provision would not justify environmental restrictions. Measures that fall within this exception include a butter-marketing scheme that requires export licenses and a system controlling the orderly marketing of commodities in relation to storage facilities in the countries of both origin and destination. See Havana Reports, UN Doc. ICITO/1/8, at 85 (1948); and GATT, BISD, 3d Supp. 170, 189 (1955).

⁴⁶ GATT, supra note 1, Art. XI(2)(c). This exception has little value as an environmental provision. Its complex limitations have been summarized as follows:

—the measure on importation must constitute an import restriction (and not a prohibition);

—the import restriction must be on an agricultural or fisheries product;

—the import restriction and the domestic marketing or production restriction must apply to “like” products in any form (or directly substitutable products if there is no substantial production of the like product);

—there must be governmental measures which operate to restrict the quantities of the domestic product permitted to be marketed or produced;

—the import restriction must be necessary to the enforcement of the domestic supply restriction;

—the contracting party applying restrictions on importation must give public notice of the total quantity or value of the product permitted to be imported during a specified future period; and

—the restrictions applied must not reduce the proportion of total imports relative to total domestic production, as compared with the proportion which might reasonably be expected to rule between the two in the absence of restrictions.

Canada—Import Restrictions on Ice Cream and Yoghurt, GATT, BISD, 36th Supp. 68, 85–86 (1990).

⁴⁷ Note 13 supra.

⁴⁸ 16 U.S.C.A. §1371(a)(2)(E) (West Supp. 1992). The ban was imposed because of injunctive relief granted by the court in Earth Island Inst. v. Mosbacher, 746 F.Supp. 964 (N.D. Cal. 1990), aff'd, 929 F.2d 1449 (9th Cir. 1991). Even after the GATT panel decision was handed down, the court barred the import of yellowfin tuna not only from primary exporters of tuna caught by dolphin-unfriendly methods, but also from intermediary nations that purchase such tuna abroad for export to the United States. Earth Island Inst., 785 F.Supp. 826 (N.D. Cal. 1992). This action accords with U.S. constitu tional practice, which requires the application of U.S. federal domestic law even when it is inconsistent with GATT obligations if the law passed by Congress is later in time than U.S. acceptance of the GATT. See Hudec, supra note 21.

⁴⁹ The threat of fish product embargoes has been consistently used by the United States to achieve conservation and environmental objectives. The Pelly Amendment, codified as amended at 22 U.S.C. §1978 (1988), to the Fisherman's Protective Act of 1967, was enacted in 1971 to conserve Atlantic salmon. The Pelly Amendment grants the President discretion to prohibit the importation of fish or fish products originating in a country that is diminishing the effectiveness of an international fishery conservation program. The Packwood-Magnuson Amendment of 1979, 16 U.S.C. §1821(e) (1988), an amendment to the 1976 Fishery Conservation and Management Act (FCMA), 16 U.S.C. §§1801–1882 (1988), allows the President to impose trade sanctions pursuant to the Pelly Amendment if a country is diminishing the effectiveness of the International Convention for the Regulation of Whaling, Dec. 2, 1946, 62 Stat. 1716, 161 UNTS 72. This Convention was implemented in U.S. law by the Whaling Convention Act, 16 U.S.C. §951 (1988). For an unsuccessful effort to apply sanctions under this Act, see Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221 (1986). The Pelly Amendment sanction is also linked with the Driftnet Impact Monitoring, Assessment, and Control Act of 1987, 16 U.S.C. §1822 (1988), and the Driftnet Act Amendments of 1990, 16 U.S.C.A. §1826 (West Supp. 1992). In addition, a 1990 amendment to the Endangered Species Act, 16 U.S.C. §§1531–1544 (1988), prohibits shrimp imports from any country that fails to satisfy U.S. officials that its shrimp-harvesting practices are comparable to U.S. practices. 16 U.S.C.A. §1537(b) (West Supp. 1992).

Note that in most cases the authorized embargoes relate to products and fish species that are different from the species that are the object of conservation measures.

⁵⁰ U.S. Tuna Ban, supra note 13, para. 5.18, 30 ILM at 1618.

⁵¹ Id., paras. 5.10–5.16, 30 ILM at 1617–19. On this point it is useful to compare the decision of a binational panel established under chapter 18 of the United States-Canada FTA, which involved a U.S. regulation that imposed a size limitation on imported lobsters equal to that imposed by federal law on domestically caught lobsters. A majority of the panel concluded that this requirement was protected by Article III of the GATT and was not an illegal import measure under Article XI(1). Lobsters from Canada, Final Report of the Panel under Chapter Eighteen, USA–89–1807–01 (May 25, 1990), reprinted in 3 Can. Trade & Commodity Tax Cas. (CCH) 8182 (1990).

⁵² Id., para. 6.2, 30 ILM at 1622.

⁵³ See text at note 36 supra.

⁵⁴ See note 38 supra.

⁵⁵ 16 U.S.C.A. §1385 (West Supp. 1992).

⁵⁶ U.S. Tuna Ban, supra note 13, paras. 5.42–5.44, 30 ILM at 1622.

⁵⁷ GATT, supra note 1, Art. XX.

⁵⁸ See generally Jackson, supra note 1, ch. 28.

⁵⁹ United States—Section 337 of the Tariff Act of 1930, GATT, BISD, 36th Supp. 345, paras. 5.9, 5.27 (1990); Canada—Administration of the Foreign Investment Review Act, id., 30th Supp. 140, para. 5.20 (1986).

⁶⁰ United States—Prohibition of Imports of Tuna and Tuna Products from Canada, id., 29th Supp. 91 (1983) [hereinafter Canada-U.S. Tuna].

⁶¹ 16 U.S.C. §1825 (1988).

⁶² In 1990 Congress finally amended the FCMA to recognize the right of a coastal state to manage tuna within its 200-nautical-mile fishing zone. Fishery Conservation Amendments of 1990, Pub. L. No. 101-627, §103, 104 Stat. 4436, 4439 (to be codified at 16 U.S.C. §1822).

⁶³ Canada—Unprocessed Salmon and Herring, GATT, BISD, 35th Supp. 98 (1989).

⁶⁴ Subsequent to this decision, Canada adopted new regulations that required salmon and herring caught in Canadian waters to be landed in Canada prior to their exportation. The United States challenged this landing requirement before a binational panel established under chapter 18 of the United States-Canada FTA, arguing that the landing requirement was equivalent to an export restric tion. The binational panel agreed that the landing requirement was an illegal restriction on the “sale for export” of Canadian fish under GATT Article XI(1). The panel also found that the landing requirement could not be considered a measure “relating to the conservation of natural resources under GATT article XX(g) because this would not justify a regulation which required all fish to be landed in Canada.” In the Matter of Canada's Landing Requirement for Pacific Coast Salmon and Herring, Final Report of the Panel under Chapter 18 (Oct. 16, 1989), reprinted in 2 Can. Trade & Commodity Tax Cas. (CCH) 7162 (1989).

⁶⁵ Thailand—Restrictions on Importation of and Internal Taxes on Cigarettes, GATT Doc. DS10/R (1990) (adopted by GATT Council Nov. 7, 1990).

⁶⁶ Id. at 200, para. 74.

⁶⁷ U.S. Tuna Ban, supra note 13, paras. 5.26–5.29, 30 ILM at 1620.

⁶⁸ Id., para. 5.32, 30 ILM at 1621.

⁶⁹ Id., para. 5.33, 30 ILM at 1621.

⁷⁰ Id., para. 6.2, 30 ILM at 1622.

⁷¹ GATT, supra note 1, Art. XX(b). This means the regulation must be enforced as to both domestic and imported products.

⁷² See text at note 66 supra.

⁷³ See text at note 52 supra.

⁷⁴ Such trade restrictions may produce controversy. For example, in 1985 the European Community prohibited the use in livestock farming of certain substances containing hormones, as well as the importation of meat from animals to which hormonal substances had been administered. The United States protested this action on the ground that the import restrictions and production process requirements could not be scientifically justified. The Community rejoined that the GATT consistency of such regulations did not depend on their scientific necessity. The United States, however, did not ever request the establishment of a GATT dispute settlement panel to settle the issue but, instead, unilaterally imposed tariff increases on agricultural imports from the Community. See Comment, The U.S.-EC Hormone Beef Controversy and the Standards Code: Implications for the Application of Health Regulations to Agricultural Trade, 14 N.C. J. Int'l L. & Com. Reg. 135 (1989).

In another case, Canada, a large exporter of asbestos, recently intervened in a lawsuit against the U.S. Environmental Protection Agency contesting the promulgation of an asbestos ban on the ground that international commerce would be disrupted and the stricter standard enforced by the EPA was a violation of U.S. obligations under the GATT. However, both Canada and Canadian petitioners were held to lack standing to sue. Corrosion Proof Fittings v. EPA, 947 F.2d 1201 (5th Cir. 1991).

Another example is the recent one-year ban imposed by the EPA on certain wines imported from the EC because they were treated with procymidone, a fungicide widely used outside the United States. The EPA eventually compromised, approving an interim tolerance level for procymidone, but by the time it did so, the ban had cost EC wine exporters an estimated $200 million in lost exports. See Commission of the European Communities, Report on United States Trade Barriers and Unfair Practices 25 (1991).

⁷⁵ GATT, supra note 1, Art. XX(g).

⁷⁶ See text at notes 63–64 supra.

⁷⁷ GATT, supra note 1, Art. XX(g); see text at note 64 supra.

⁷⁸ See text at note 52 supra.

⁷⁹ Edmond McGovern, International Trade Regulation 405 (2d ed. 1986).

⁸⁰ See note 82 infra.

⁸¹ GATT, supra note 1, Art. XI(2)(a).

⁸² Title IV of Pub. L. No. 101-382, 104 Stat. 714, Forest Resources Conservation and Shortage Relief Act of 1990, 16 U.S.C.A. §§620–620j (West Supp. 1992). There is a limited exception to this general prohibition under which states may still export a portion of their annual timber harvest. The new law establishes a 400-million-board-feet threshold for state timber exports. States cutting less than this amount may not export any of the timber as raw logs; states cutting more may export the additional amount. Washington is likely to be the only state able to take advantage of this provision because only it cuts more than the threshold amount.

⁸³ Section 488 of the Act, 16 U.S.C. §620, provides in relevant part:

(a) Findings.—The Congress makes the following findings:

(1) Timber is essential to the United States.

(2) Forests, forest resources, and the forest environment are exhaustible natural resources that require efficient and effective conservation efforts.

….

(6) There is evidence of a shortfall in the supply of unprocessed timber in the western United States.

(7) There is reason to believe that any shortfall which may already exist may worsen unless action is taken.

(8) In conjunction with the broad conservation actions expected in the next few months and years, conservation action is necessary with respect to exports of unprocessed timber.

(b) Purposes.—The purposes of this title are—

(1) to promote the conservation of forest resources in conjunction with State and Federal resources management plans …

(2) to take action essential for the acquisition and distribution of forest resources or products in short supply in the western United States;

(3) to take action necessary, to meet the goals of Article XI 2. (a) of the General Agreement on Tariffs and Trade, to ensure sufficient supplies of certain forest resources or products which are essential to the United States; …

(5) to effect measures aimed at meeting these objectives in conformity with the obligations of the United States under the General Agreement on Tariffs and Trade.

104 Stat, at 714–15 (emphasis added). Senator Robert Packwood, who was largely responsible for adding log export restrictions during the Senate's consideration of the statute, told a press conference that the provision would satisfy U.S. obligations under the GATT. See 7 Int'l Trade Rep. (BNA) 758, 759 (1990).

The U.S. Trade Representative appears to believe that it would not. In testimony before Congress, Ambassador Carla Hills distinguished between export restrictions on unprocessed timber based on conservation and those designed to protect domestic production. In her view, the former would be consistent with the GATT, but if the purpose of the export restriction was to create jobs (by giving domestic mills the right to do the value-added processing), the measure would be a violation of GATT obligations. See Unfair and Illegal Foreign Trade Practices, and the Upcoming Uruguay Round of Multilateral Trade Negotiations: Hearings Before the Subcomm. on Oversight and Investigations of the House Comm. on Energy and Commerce, 101st Cong., 2d Sess. 169 (1990) (statement of Ambassador Carla Hills, U.S. Trade Representative).

⁸⁴ The Canada-U.S. Tuna case, supra note 60, construes Article XI(2)(a) to mandate domestic con servation requirements as a complement to controls on the exports of commodities in short supply. The Forest Resources Conservation and Shortage Relief Act of 1990 does not contain domestic conservation measures; it merely alludes to “broad conservation actions” that will be taken in the future. See the quoted text, supra note 83.

⁸⁵ In 1989, for example, softwood log exports from Washington, Oregon, northern California and Alaska totaled $2.03 billion. See 6 Int'l Trade Rep. (BNA) 293 (1989). Just over half the timber went to Japan, one-fourth to China, and the remainder to other Far East nations. Id. U.S. exports of finished softwood lumber to all countries, on the other hand, totaled only $793 million. Id. See also 21 Nat'l J. 2624 (1989).

According to U.S. mill owners, if unfinished log exports were prohibited, Asian nations would be forced to buy more finished wood products, which, in turn, would generate more mill jobs. See id. At present, however, Asian nations prefer to pay up to 70% more than domestic mills for raw logs than to buy finished wood products from mills in the United States.

The point may be made that an export ban would reduce the pressure from timber-hungry domestic mills to invade those forest stands that, until now, have been set aside from cutting. See id. However, this coincidental benefit is too attenuated for purposes of characterizing the export ban as a conservation measure within the meaning of Article XX(g).

⁸⁶ GATT, supra note 1, Art. XX.

⁸⁷ Case 302/86, Commission v. Denmark, 1988 ECR 4607.

⁸⁸ Agreement on Technical Barriers to Trade, Apr. 12, 1979, GATT, BISD, 26th Supp. 8 (1980).

⁸⁹ Id., Art. 2.

⁹⁰ 19 U.S.C. §2532 (1988).

⁹¹ Id. §2533.

⁹² Id.

⁹³ In the past, various nations have sought to make lax pollution controls a source of comparative advantage. See Jackson, supra note 25, at 209.

⁹⁴ United Nations Environment Programme, Register of International Treaties and Other Agreements in the Field of the Environment, UN Doc. UNEP/GC.16/Inf.4 (1991) (listing 152 multilateral agreements). A recent GATT report identified 127 multilateral agreements on environmental protection. See GATT, General Secretariat of the Council, Press Communique GATT/529 (Feb. 1992). The report found that 17 of these agreements have provisions restricting international trade. Id. at 10–11 and App. I. A similar study, U.S. Int'l Trade Comm'n Pub. No. 2351, supra note 17, at 5-1–5-2, identified 19 international environmental protection agreements with trade restrictions.

⁹⁵ U.S. Int'l Trade Comm'n Pub. No. 2351, supra note 17.

⁹⁶ Mar. 3, 1973, 27 UST 1087, 993 UNTS 243.

⁹⁷ Sept. 16, 1987, S. Treaty Doc. No. 10, 100th Cong., 1st Sess. (1987), reprinted in 26 ILM 1550 (1987), amended and adjusted, S. Treaty Doc. No. 4, 102d Cong., 1st Sess. (1991), reprinted in 30 ILM 539 (1991). Revisions to the Protocol require a total phase-out of chlorofluorocarbons and other related chemicals (including halons) by the end of the century. See Dale S. Bryk, The Montreal Protocol and Recent Developments to Protect the Ozone Layer, 15 Harv. Envt'l L. Rev. 275 (1991). In addition, the United States, the European Community and Japan have decided unilaterally to phase out chloro fluorocarbons, halons and certain other ozone-depleting chemicals by 1995. See Frances Williams, Faster Phase-Out Sought for Ozone-Depleting Chemicals, Fin. Times, Apr. 15, 1992, at 1.

⁹⁸ Nov. 14, 1970, 823 UNTS 231, reprinted in 10 ILM 231 (1970).

⁹⁹ CITES, supra note 96, Arts. I, II.

¹⁰⁰ See note 97 supra.

¹⁰¹ Montreal Protocol, supra note 97, Art. 4.

¹⁰² Id., Art. 4(1).

¹⁰³ Id., Art. 4(2).

¹⁰⁴ Id., Art. 4(4).

¹⁰⁵ See Bryk, supra note 97, at 283.

¹⁰⁶ See note 98 supra.

¹⁰⁷ Id., Arts. II, III.

¹⁰⁸ Opened for signature May 23, 1969, 1155 UNTS 331, reprinted in 8 ILM 679 (1969) [hereinafter Vienna Convention]. Technically, the Vienna Convention does not apply to the GATT because the GATT preceded it. Nevertheless, the portion of the Vienna Convention governing the general inter pretation of treaties is considered to codify accepted rules of customary international law. See Jackson, supra note 25, at 88. Because the Vienna Convention is regarded as declaratory of existing law, it is considered authoritative even for countries not a party to it. Id. Accordingly, although it has never formally ratified the Convention, the United States accepts the substantive provisions of the Vienna Convention as authoritative on the subject. See Restatement (Third) of the Foreign Relations Law of the United States, pt. III, Introductory Note (1987).

¹⁰⁹ Vienna Convention, supra note 108, Art. 30, 1155 UNTS at 339–40, 8 ILM at 691. Article 30, which relates to inconsistent treaties and priority rules, should be read in conjunction with Article 41, which is applicable when two or more states clearly intend to modify a multilateral treaty by explicit agreement among themselves. Article 41 provides that they may do so under certain conditions, but the new agreement does not affect the rights Under the old treaty of parties that decide not to sign the modification. Id., Art. 41(1)(b)(i).

¹¹⁰ See text at notes 56–57 supra.

¹¹¹ See text at notes 67–68 supra.

¹¹² See text at notes 102–05 supra.

¹¹³ See text at note 57 supra.

¹¹⁴ GATT Article XX(b) contains this requirement. See text at note 59 supra.

¹¹⁵ See text at note 108 supra.

¹¹⁶ See text at note 109 supra.

¹¹⁷ Ted L. McDorman, The 1991 U.S.-Mexico GATT Panel Report on Tuna and Dolphin: Implica tions for Trade and Environment Conflicts, 17 N.C. J. Int'l & Com. Reg. 461 (1992). Professor McDorman makes the case that GATT obligations are superseded by the will of states even for nonparties to CITES. Id. at 484–85. Furthermore, CITES, supra note 96, contains a priority clause that saves “the obligations of Parties deriving from any treaty, convention, or international agreement relating to other aspects of trade … which is in force.” Id., Art. XIV(2).

¹¹⁸ “Relating to” is a better choice of words than “necessary,” which is too restrictive in this regard.

¹¹⁹ Text at notes 71–83 supra.

¹²⁰ See text at note 36 supra.

¹²¹ See text at note 47 supra.

¹²² GATT, supra note 1.

¹²³ See text at notes 50–52 supra.

¹²⁴ See text at notes 39–42 supra.

¹²⁵ See text at notes 68–69 supra.

¹²⁶ See, e.g., Spain—Tariff Treatment of Unroasted Coffee, GATT, BISD, 28th Supp. 102, para. 4.8 (1982) (“The Panel noted that no other contracting party applied its tariff regime in respect of unroasted, non-decaffeinated coffee in such a way that different types of coffee were subject to different tariff rates”).

¹²⁷ See, e.g., Canada/Japan: Tariff on Imports of Spruce, Pine, Fir (SPF) Dimension Lumber, GATT, BISD, 36th Supp. 167, para. 5.14 (1989), in which the

Panel noted in this respect that “dimension lumber” as defined by Canada was a concept extraneous to the Japanese tariff system and did not belong to any internationally accepted customs classification. The Panel concluded therefore that reliance by Canada on the concept of dimension lumber was not an appropriate basis for establishing “likeness” of products under Art I:1 of the General Agreement.

See also EEC—Measures on Animal Feed Proteins, id., 25th Supp. 49, para. 4.2 (1979): “The Panel noted, in this case, such factors as the number of products and tariff items carrying different duty rates and tariff bindings …”; Treatment by Germany of Imports of Sardines, id., 1st Supp. 53 (1953):

[T]he Panel was satisfied that it would be sufficient to consider whether in the conduct of the negotiations at Torquay the two parties agreed expressly or tacitly to treat these preparations as if they were “like products” for the purpose of the General Agreement. The evidence produced before the Panel shows that … the German Delegation has consistently treated the preparation of the various types of clupeae as if they were separate products . …

Australian Subsidy on Ammonium Sulphate, 2 GATT, BISD 188, para. 8 (1952):

[T]he working party reached the conclusion that [the two fertilizers] were not to be considered “like products” within the terms of Article I. In the Australian tariff the two products are listed in separate items and enjoy different treatment … in the tariffs of other countries the two products are listed separately.

¹²⁸ For example, in EEC—Measures on Animal Feed Proteins, the panel founded its conclusion that the various protein products under examination could not be considered as “like products” not only on the existence of a number of tariff items carrying different duty rates and tariff bindings, but also on “the varying protein contents and the different vegetable, animal, and synthetic origin of the protein products before the Panel.” GATT, BISD, 25th Supp. 49, para. 4.2 (1979). Similarly, in Spain—Tariff Treatment of Unroasted Coffee, supra note 126, para. 4.7, the panel based its finding of “like products” not only on the tariff regime of other contracting parties, but also on certain features of coffee, namely, on the fact that coffee was sold in the form of blends and, in its end use, was universally regarded as a single product.

¹²⁹ See, e.g., Roger D. Stone & Evan Hamilton, Global Economics and the Environment 31 (1991) (citing a World Wildlife Fund paper presented at the International Tropical Timber Organiza tion's meeting in Yokohama in November 1991, according to which GATT signatories may not use trade tariffs, quotas or bans to favor trade in sustainably rather than unsustainably produced tropical timber). See also Frederic L. Kirgis, Jr., Effective Pollution Control in Industrialized Countries: Interna tional Economic Disincentives, Policy Responses, and the GATT, 70 Mich. L. Rev. 859, 891 (1972) (stating that “[a]ny argument to the effect that pollution-engendering and pollution-free imports are not ‘like products’ for most-favored-nation purposes is unpersuasive unless, perhaps, a number of countries adopt such a distinction for tariff classification purposes”).

¹³⁰ U.S. Tuna Ban, supra note 13, para. 6.2, 30 ILM at 1620. This is also the conclusion of Jackson, supra note 25, at 208–10.

¹³¹ See Kenneth S. Komoroski, The Failure of Governments to Regulate Industry: A Subsidy Under the GATT?, 10 Hous. J. Int'l L. 189 (1988).

The GATT system of the permissible scope of countervailing duties is regulated by GATT Articles VI and XVI and the 1979 Subsidies Code (Agreement on Interpretation and Application of Articles VI, XVI, and XXIII of the GATT, Apr. 12, 1979, 31 UST 513, 1186 UNTS 204). The United States has applied countervailing duties in the case of natural resource subsidies (e.g., Certain Softwood Lumber Products from Canada, 57 Fed. Reg. 22,570 (1992) (final affirmative countervailing duty determination)), but there is no basis in the Subsidies Code for either natural resource or pollution equalization countervailing duties. Canada has complained to the GATT regarding the U.S. softwood lumber countervailing duty, and the case is now pending. For an argument in favor of natural resources countervailing duties, see John A. Ragosta, Natural Resource Subsidies and the Free Trade Agreement: Economic Justice and the Need for Subsidy Discipline, 24 Geo. Wash. J. Int'l L. & Econ. 255 (1990).

The threshold for determining when lax environmental regulations would constitute a countervailable subsidy would require agreement among the GATT contracting parties. The amount of the subsidy in such a case would be the cost savings to the industry resulting from noncompliance with acceptable international minimum environmental standards. Antidumping duties have also been suggested as a way to enforce minimum pollution control standards in international trade. See Eliza Patterson, GATT and the Environment; Rules Changes to Minimize Adverse Trade and Environmental Effects, 26 J. World Trade 99 (1992).

¹³² The Generalized System of Preferences (GSP) is a special GATT-approved program that permits preferences and special benefits for developing countries. GATT, BISD, 18th Supp. 24 (1972). In U.S. law this program is implemented as title V of the Trade Act of 1974 as amended, 19 U.S.C. §2464 (1988). Lax pollution controls could be included in the legal criteria for denying or terminat ing GSP status.

¹³³ The Caribbean Basin Initiative (CBI) is a U.S. initiative designed to aid certain nations in the Caribbean region. 19 U.S.C. §2701 (1988). Twenty-seven countries are eligible to be accorded beneficiary status under the CBI. They are Anguilla, Antigua and Barbuda, the Bahamas, Barbados, Belize, the Cayman Islands, Costa Rica, Dominica, the Dominican Republic, El Salvador, Grenada, Guatemala, Guyana, Haiti, Honduras, Jamaica, Montserrat, the Netherlands Antilles, Nicaragua, Panama, St. Christopher-Nevis, St. Lucia, St. Vincent and the Grenadines, Suriname, Trinidad and Tobago, Turks and Caicos Islands, and the British Virgin Islands. 19 U.S.C. §2702(b) (1988). Seventy-seven countries are eligible to be accorded beneficiary status under the GSP. See Agreement on the Global System of Trade Preferences among Developing Countries, UNCTAD Doc. GSTP MM/Belgrade/12 (Vol. 1) (1988) (Group of 77 is listed in Annex I of Agreement).

The CBI law could be amended to include pollution control among the criteria to be considered in granting CBI status.

¹³⁴ See In re Union Carbide Corp. Gas Plant Disaster, 809 F.2d 195 (2d Cir. 1987).

¹³⁵ Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C. §11001–11050 (1988).

¹³⁶ See Maureen A. Bent, Exporting Hazardous Industries: Should American Standards Apply?, 20 N.Y.U. J. Int'l L. & Pol. 777 (1988).

¹³⁷ 7 U.S.C. §§136–136y (1988).

¹³⁸ 7 U.S.C.A. §1360 (West Supp. 1992). For a critical view, see generally Alice Crowe, Breaking the Circle of Poison: EPA's Enforcement of Current FIFRA Export Requirements, 4 Geo. Int'l Envt'l L. Rev. 319 (1992).

¹³⁹ Mar. 22, 1989, UN Doc. EP/IG.80/3 (1989), reprinted in 28 ILM 649 (1989).

Another important initiative is the Bamako Convention, which bans the import of hazardous waste into Africa from noncontracting parties. Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Waste within Africa, Jan. 29, 1990, reprinted in 30 ILM 773 (1991). This Convention, which was sponsored by the Organization of African Unity (OAU), was signed by all African countries except South Africa.

¹⁴⁰ Basel Convention, supra note 139, Art. IV(2)(e) and (g).

¹⁴¹ 42 U.S.C. §6938(e) (1988). 40 C.F.R. §262.53(a)–(b) (1990) requires the principal exporters of hazardous waste to send to the EPA Office of International Activities a written and signed notification that includes (1) name, mailing address, telephone number and EPA identification number of the principal exporter; and (2) a description of the waste; the quantity; the manner of treatment; the address of the ultimate treatment, storage, or disposal facility; and the name of any transit country through which the waste will be sent.

¹⁴² A two-step process is required to activate the Convention. Countries first sign the Convention; then, after they have passed the necessary implementing legislation to carry out its obligations, they may ratify it. The Basel Convention entered into force on May 5, 1992. See 57 Fed. Reg. 20,602 (1992).

¹⁴³ See Report by the Chairman of the Gatt Working Group on Export of Domestically Prohibited Goods and Other Hazardous Substances, and accompanying draft Decision, GATT Doc. L/6872 (July 2, 1991).

¹⁴⁴ In 1971 the GATT Council established a Working Group on Environmental Measures and International Trade. Decision of the GATT Contracting Parties to Establish a Group on Environmental Measures and International Trade Adopted by the GATT Council in 1971, GATT Doc. C/M/71 (1971). This group met for the first time in November 1991 and again in January 1992. The working group is a useful forum, but only to prepare for higher-level consideration of environmental issues looking to the conclusion of a side agreement or memorandum of understanding by the GATT contracting parties.

¹⁴⁵ Agenda 21, one of the key documents of the recent United Nations Conference on Environment and Development, reflects the idea that international trade and protection of the environment must be viewed as complementary, not conflicting, values. For example:

2.19. Environment and trade policies should be mutually supportive. An open, multilateral trading system makes possible a more efficient allocation and use of resources and thereby contributes to an increase in production and incomes and to lessening demands on the environment. It thus provides additional resources needed for economic growth and development and improved environmental protection. A sound environment, on the other hand, provides the ecological and other resources needed to sustain growth and underpin a continuing expansion of trade. An open, multilateral trading system, supported by the adoption of sound environmental policies, would have a positive impact on the environment and contribute to sustainable development.

… .

2.22. Governments should encourage GATT, UNCTAD and other relevant international and regional economic institutions to examine, in accordance with their respective mandates and competences, the following propositions and principles:

(a) Elaborate adequate studies for the better understanding of the relationship between trade and environment for the promotion of sustainable development;

(b) Promote a dialogue between trade, development and environment communities;

(c) In those cases when trade measures related to environment are used, ensure transparency and compatibility with international obligations;

(d) Deal with the root causes of environment and development problems in a manner that avoids the adoption of environmental measures resulting in unjustified restrictions on trade;

(e) Seek to avoid the use of trade restrictions or distortions as a means to offset differences in cost arising from differences in environmental standards and regulations, since their application could lead to trade distortions and increase protectionist tendencies;

(f) Ensure that environment-related regulations or standards, including those related to health and safety standards, do not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade;

(g) Ensure that special factors affecting environment and trade policies in the developing countries are borne in mind in the application of environmental standards, as well as in the use of any trade measures. It is worth noting that standards that are valid in the most advanced countries may be inappropriate and of unwarranted social cost for the developing countries;

(h) Encourage participation of developing countries in multilateral agreements through such mechanisms as special transitional rules;

(i) Avoid unilateral actions to deal with environmental challenges outside the jurisdiction of the importing country. Environmental measures addressing transborder or global environmental problems should, as far as possible, be based on an international consensus. Domestic measures targeted to achieve certain environmental objectives may need trade measures to render them effective. Should trade policy measures be found necessary for the enforcement of environmental policies, certain principles and rules should apply. These could include, inter alia, the principle of non-discrimination; the principle that the trade measure chosen should be the least trade-restrictive necessary to achieve the objectives; an obligation to ensure transparency in the use of trade measures related to the environment and to provide adequate notification of national regulations; and the need to give consideration to the special conditions and developmental requirements of developing countries as they move towards internationally agreed environmental objectives;

(j) Develop more precision, where necessary, and clarify the relationship between GATT provisions and some of the multilateral measures adopted in the environment area;

(k) Ensure public input in the formation, negotiation and implementation of trade policies as a means of fostering increased transparency in the light of country-specific conditions;

(l) Ensure that environmental policies provide the appropriate legal and institutional framework to respond to new needs for the protection of the environment that may result from changes in production and trade specialization.

Agenda 21, UN Doc. A/CONF.151/4 (1992).