¹ See, e.g., Convergence or Diversity ? National Models of Production and Distribution in a Global Economy (Suzanne Burger & Ronald Dore eds., 1995); Kurzer, Paulette, The Internationalization of Business and Domestic Class Compromises: A Four Country Study , W. Eur. Pol., Oct. 1991, at 1.Google Scholar

² 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., Goodman, John & Pauly, Louis, The Obsolescence of Capital Controls? Economic Management in an Age of Global Markets , 46 World Pol. 50 (1993);Google Scholar W. Carl Kester, American and Japanese Corporate Governance: Converging to Best Practice?, in Convergence or Diversity? , supra note 1, at 107.

³ 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); Hall, Peter, Policy Paradigms, Social Learning and the State: The Case of Economic Policy-Making in Britain , Comp. Pol. , Apr. 1993, at 1.Google Scholar

⁴ 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 Hall, Peter, Introduction: Epistemic Communities and International Policy Coordination , 46 Int ’ l Org. 1 (1992);Google Scholar Haas, Peter, Banning Chloroflourocarbons: Epistemic Community Efforts to Protect Stratospheric Ozone , 46 Int ’ l Org. 187 (1992).Google Scholar Some international law scholars appear to incorporate this factor in their analyses of international law. See, e.g., Chayes, Abram & Chayes, Antonia Handler, On Compliance , 47 Int ’ l Org. 175 (1993)Google Scholar. The concept of “transnational epistemic communities” maybe 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-B order Citizens 21–40 (1994).

⁵ Some argue that the rules of international regimes are set by the most powerful states in those regimes. See Krasner, Stephen, Structural Causes and Regime Consequences: Regimes as Intervening Variables, in International Regimes (Krasner, Stephen ed., 1983)Google Scholar [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 O rg. 533 (1992).

⁶ See, e.g., Hills, Jill , Deregulating Telecoms : Competition and Control in the United States , Japan , and Britain (1986);Google Scholar Gareth Locksley , The Single European Market and the Information and Communication Technologies (1990); Cowhey, Peter & Aronson, Jonathan , Managing the World Economy (Council on Foreign Relations 1993).Google Scholar

⁷ 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).

⁸ 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).

⁹ See Krasner, Structural Causes, supra note 5; see also Krasner, Global Communications, supra note 5; Garrett, supra note 5.

¹⁰ 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 Kramer, Ludwig, The Single European Act and Environment Protection: Reflections on Several New Provisions in Community Law , 24 Common Mkt. L. Rev. 659 (1987)Google Scholar (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.

¹¹ 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).

¹² 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).

¹³ 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); Clemencon, Raymond, Global Climate Change and the Trade System: Bridging the Culture Gap , 4 J. Env’t & Dev. 29 (1995)Google Scholar (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.

¹⁴ 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.CA. §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.

¹⁵ On the idea of integration “spillovers” generally, see Haas, Ernst B., Why Collaborate? Issue Linkage and International Regimes , 32 World Pol. 357 (1980).Google Scholar See oho Ernst B. Haas , Beyond the Nation -State (1964).

¹⁶ 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).

¹⁷ The OECD Secretariat defines PPM standards as standards that

¹⁸ 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 Reiations (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., Moravcsik, Andrew, Negotiating the Single European Act , 45 Int ’ l Org. 19 (1991).Google Scholar See also Stephen Krasner , Defending the National Interest (1978); Garrett, supra note 5, at 533–60.

¹⁹ 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).

²⁰ “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 Schoenbaum, Thomas J., International Trade and Protection of the Environment: The Continuing Search for Reconciliation, infra pp. 268, 279–80.Google Scholar

²¹ 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, supranote 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).

²² See, e.g., Convention on International Trade in Endangered Species of Wild Flora and Fauna, Mar. 3, 1973, 27 UST 1087, 993 UNTS 243 [hereinafter CITES]. The WTO Secretariat has identified 20 multilateral environmental agreements with trade provisions. See Committee on Trade and Environment Report, WTO Doc. PRESS/TE 014, para. 7 (Nov. 14, 1996) [hereinafter WTO CTE Report].

²³ For more discussion of the “race to the bottom” and the associated “industrial flight” hypothesis, see Esty, Daniel , Greening the GATT: Trade , Environment , and the Future (1994).Google Scholar See also C. Leigh Anderson & Robert A. Kagan , Adversarial Legalism , Transaction Costs , and the Industrial Flight Hypothesis (Berkeley Roundtable on the International Economy Working Paper No. 93, 1996).

²⁴ Robert Putnam has argued that trade negotiators must simultaneously play two “games,” one at the international bargaining table and one with the legislative branch. Putnam, Robert, Diplomacy and Domestic Politics: The Logic of Two-Level Games , 42 Int ’ l Org. 427 (1988).Google Scholar Negotiations on trade-environment issues may be seen as part of such a two-level game.

²⁵ This study does not purport to explain why integration has deepened, or why it has deepened more quickly in some fora than others. On those questions, see, e.g., Douglas C. North , Structure and Change in Economic History (1981); Krasner, Stephen, State Power and the Structure of International Trade , 27 World Pol. 317 (1976);Google Scholar Miles Kahler , Regional Futures and Transatlantic Economic Relations (1995).

²⁶ The case studies were prepared and are presented according to the “structured, focused comparison” method. Alexander George described this method of analysis as derived from three traditions: Mill’s method of agreement and differences, process tracing, and counterfactual reasoning. See Alexander George, Case Studies and Theory Development: The Method of Structured, Focused Comparison, in Diplomacy : New Approaches in History , Theory , and Policy 43 (Paul Gordon ed., 1979).

²⁷ Implementation may be better analyzed through an institutionalist paradigm than through the realist paradigm used here. This article shows the heuristic power of applying realism to international rule making and does not purport to evaluate fully or explain the implementation of those rules or associated outcomes (e.g., changes in resulting levels of environmental pollution in member states of the trade organizations examined). For an analysis of policy implementation generally, see, e.g., Gabriel A. Almond & G. Bingham Powell, Jr. , Comparative Politics : System , Process, and Policy (1978) (especially chs. X–XII).

²⁸ Agreement on the Application of Sanitary and Phytosanitary Measures, Apr. 15, 1994, Arts. 2,5 [hereinafter SPS Agreement], Agreement Establishing the World Trade Organization, Annex 1A, in Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations , Marrakesh , 15 April 1994, at 69 (1994) [hereinafter Final Act ]; Agreement on Technical Barriers to Trade, Apr. 15, 1994, preamble, id. at 17 [hereinafter TBT Agreement]; General Agreement on Tariffs and Trade, Oct. 30, 1947, Art. XX(b), (g), TIAS No. 1700, 55 UNTS 187 [hereinafter GATT]. See also GATT Dispute Panel, Thailand—Restrictions on Importation and Internal Taxes on Cigarettes, Nov. 7, 1990, GATT, B.I.S.D. (37th Supp.) at 200 (1990) [hereinafter Thailand Cigarettes].

²⁹ SPS Agreement, supra note 28, Art. 5.7 and Annex C; TBT Agreement, supra note 28, Arts. 2–4.

³⁰ SPS Agreement, supra note 28, Art. 2.3; TBT Agreement, supra note 28, Art. 2.1.

³¹ SPS Agreement, supra note 28, Art. 2.3; TBT Agreement, supra note 28, Art. 2.1.

³² SPS Agreement, supra note 28, Art. 2.3; TBT Agreement, supra note 28, preamble.

³³ SPS Agreement, supra note 28, Art. 2.2; TBT Agreement, supra note 28, Art. 2.2. The SPS Agreement uses the word “necessary,” while the TBT Agreement uses the word “required.” See also GATT, supra note 28, Art. XX; Thailand Cigarettes, supra note 28.

³⁴ A footnote in the SPS Agreement clarifies the meaning of this language: to challenge an import restriction successfully under this language, the challenging party must show that another measure that would achieve the same level of protection is “reasonably available” and would be “significantly less restrictive to trade.” SPS Agreement, supra note 28, at n.3.

³⁵ SPS Agreement, supra note 28, Art. 2.2.

³⁶ 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).

³⁷ 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.

³⁸ 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.

³⁹ GATT, supra note 28, Art. XX(b).

⁴⁰ Id., Art. XX(g).

⁴¹ See Schoenbaum, supra note 20, at pp. 279–80 infra. See also WTO CTE Report, supra note 22 (especially para. 7).

⁴² CITES, supra note 22.

⁴³ 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].

⁴⁴ 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 Envtl. Pol ’ y & L. 163 (1996) (especially at 165); Rege, Vinod, GATT Law and Environment-Related Issues Affecting the Trade of Developing Countries , 28 J. World Trade L. 95 (1994)Google Scholar (especially at 122–28).

⁴⁵ 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).

⁴⁶ 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).

⁴⁷ 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 & Jackson, John H., WTO Dispute Procedures, Standard of Review, and Deference to National Governments , 90 AJIL 193 (1996);Google Scholar Judith Hippler Bello, The WTO Dispute Settlement Understanding: Less Is More, 90 AJIL 416 (1996) (Editorial Comment).

⁴⁸ Dispute Settlement Understanding, supra note 47, Arts. 6.1, 16.4.

⁴⁹ 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.

⁵⁰ See John H. Jackson , World Trade and the Law of GATT (1969).

⁵¹ See GATT, Analytical Index : Guide to GATT Law and Practice 541–42 (6th ed. 1994); and Jackson, supra note 50, at 745.

⁵² 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].

⁵³ 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 signatories of the Final Act, which also includes agreements that the developing countries had threatened not to sign, such as the SPS and TBT Agreements, and agreements on intellectual property, investments and services. The GATT 1994 (combined widi 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.

⁵⁴ See WTO Appellate Body, United States—Standards for Reformulated and Conventional Gasoline, GATT Doc. WT/DS2/AB/R (Apr. 29, 1996), 35 ILM 603 (1996); and Schoenbaum, supra note 20, at pp. 275–76 infra.

⁵⁵ 16 U.S.C. §1537 note (1994).

⁵⁶ See, e.g., North-South Rift On Eco-Labeling Exposed in Meeting Before WTO Ministerial, 13 Int’l Trade Rep. (BNA) 1681 (Oct. 30, 1996); Environment Committee Stalled over Language on WTO Standards, 13 Int’l Trade Rep. (BNA) 1707 (Nov. 6, 1996).

⁵⁷ See, e.g., Jennifer Schultz, The GATT/WTO Committee on Trade and the Environment—Toward Environmental Reform, 89 AJIL 423 (1995).

⁵⁸ 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.

⁵⁹ 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.

⁶⁰ See WTO Trade & Env ’ t Bull. , Nos. 1–13, supra note 58; 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.

⁶¹ See WTO Trade & Env ’ t Bull. , Nos. 1–13, supra note 58.

⁶² See 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); CTE, Report of the Meeting Held on 21–22 June 1995, Note by the Secretariat, WTO Doc. WT/CTE/M/3 (July 18, 1995).

⁶³ See WTO Trade & Env ’ t Bull. , No. 5, WTO Doc. Press/TE 005 (Oct. 10, 1995).

⁶⁴ 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].

⁶⁵ 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).

⁶⁶ See WTO Trade & Env ’ t Bull. , Nos. 1–13, supra note 58; WTO CTE Report, supra note 22, paras. 55–81.

⁶⁷ WTO, Singapore Ministerial Declaration, para. 16, WTO Doc. WT/MIN(96)/DEC/W (Dec. 13, 1996), 36 ILM 218 (1997).

⁶⁸ 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.

⁶⁹ See text at and note 59 supra.

⁷⁰ Confidential interviews with a member of the WTO Secretariat who follows the trade-environment debate, Geneva (Jan. 1995 & Nov. 1996).

⁷¹ See, e.g., WTOT rade & Env ’t Bull. , No. 8, WTO Doc. Press/TE 008 (Apr. 29, 1996) (especially at 5).

⁷² There was, however, considerable disagreement and dissension within and among U.S. environmental NGOs about the wisdom of supporting the NAFTA. See Vogel, David , Trade-Environment Politics in the United States (Berkeley Roundtable on the International Economy Working Paper No. 94, Feb. 1997).Google Scholar

⁷³ Dunkel text, supra note 52.

⁷⁴ Compare Dunkel text, supra note 52, with Final Act , supra note 28.

⁷⁵ 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].

⁷⁶ The most significant difference is that the NAFTA SPS provisions do not include language from the WTO SPS Agreement, supranote 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.

⁷⁷ See, e.g., Schultz, supra note 57, at 427–30.

⁷⁸ NAFTA, supra note 76, Art. 903.

⁷⁹ Chapter Nine: Standards-Related Measures, Summary of NAFTA Provisions, Background, in Presidential Message, supra note 75, at 120–21.

⁸⁰ NAFTA, supra note 76, Art. 904(2).

⁸¹ See Garvey, Jack I., Trade Law and Quality of Life—Dispute Resolution under the NAFl’A Side Accords on Labor and the Environment 89 AJIL 439, 442 , (1995);Google Scholar Kevin W. Pattern, Dispute Resolution under the North American Commission on Environmental Cooperation, 5 Duke J. C omp. & 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).

⁸² North American Agreement on Environmental Cooperation, Dec. 17, 1993, U.S.-Can.-Mex., pt. V, 32 ILM 1480 (1993) [hereinafter NAAEC].

⁸³ Id., Arts. 14, 15.

⁸⁴ Agreement on Cooperation for Protection and Improvement of the Environment in the Border, Aug. 14, 1983, U.S.-Mex., TIAS No. 10,827.

⁸⁵ 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).

⁸⁶ Id., ch. II, Art. II, §1(b).

⁸⁷ Use of NADBank’s Capital, in NADB ank , NADB ank ’ sO perations and Benefits (1996) 〈http://www.quicklink.-com/mexico/NADBank/ningl.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).

⁸⁸ See NAFTA, supra note 76, Art. 722.

⁸⁹ Id., Art. 913.

⁹⁰ Id., ch. 20.

⁹¹ North American Commission on Environmental Cooperation , 1995 Annual Report (1996) 〈 http://www.cec-org/cgi-shl/dbml.exc?Template=/cectemplateo/PubData&varlan=English&unique=〉 [hereinafter nacec Annual Report ]; Overview of nafta Related Organizations, Mex. Trade & L. Rep. , Dec. 1, 1994, available in LEXIS, News Library, ALLWLD File.

⁹² In June 1995, a U.S.-Mexico coalition led by the Biodiversity Legal Foundation filed a complaint alleging that the United States was failing to enforce the Endangered Species Act of 1973 by virtue of the “Hutchinson Rider” to an emergency appropriations act signed into law in April 1995. The Hutchinson Rider allegedly prevented the U.S. Fish and Wildlife Service from issuing rules, making final determinations, or otherwise acting to protect threatened or endangered species. In September 1995, the secretariat rejected the claims because the Hutchinson Rider suspended the power of the Fish and Wildlife Service to enforce the Act, which amounted to an amendment of the underlying law rather than an agency’s failure to enforce that law. Citizen Submissions on Enforcement Matters—Articles 14 & 15 ofthe naaec , Submission No. SEM–95–001, in NACEC Annual Report , supra note 91. A second CEC petition, filed by a broad coalition of Canadian, Mexican and U.S. environmental groups, alleged that the “Logging Rider” to the U.S. Recissions Act violated Article 14 by suspending the application of U.S. environmental laws to logging in Western U.S. “ancient forests”; the secretariat again found that the Logging Rider effectively amended underlying U.S. law and could not be characterized as an enforcement failure. Id., Submission ID. SEM–95–002. See also Stephen L. Kass, First Cases Before New NAFTA Forum Suggest Its Power Will Increase, N at ’ l L.J., June 10, 1996, at C5.

⁹³ Petition to the Commission for Environmental Cooperation from the National Audubon Society, The Grupo de los Gen International and the Centro Mexicano de Derecho Ambiental, reprinted in International Silva Reservoir Scientific Panel , Nacec , An Assessment of the 1994–95 Mass Mortality of Resident and Migratory Waterbirds at the Presa de Silva in Mexico’s Turbio River Basin (Oct. 1995) 〈 http://www.cec.org/cgi-shl/dbml.exc?Template=/cectemplateo/PubData&varlan=English&unique=46〉 [hereinafter Silva Assessment ].

⁹⁴ nafta : Environment Agency Agrees to Investigate Birds’ Deaths, Greenwire , June 20, 1995, available in LEXIS, News Library, CURNWS File.

⁹⁵ S ilva Assessment , supra note 93.

⁹⁶ Id.

⁹⁷ NACEC Secretariat , CEC Secretariat Report on the Death of Migratory Birds at the Silva Reservoir 1994–95 (1995).

⁹⁸ Kass, supra note 92, at C5; Making the Most of Moral Power: Environment Body Is Concentrating on Averting Disputes Rather Than Resolving Them, Fin. Times (London), Sept. 3, 1996, at 4.

⁹⁹ NACEC Secretariat, Mexican NGOs Allege Irregularities in Environmental Impact Assessment Process: CEC Asks Mexico to Respond, 2 Eco Region 5 (1996) 〈http://www.cec.org/english/newsletters/eco2-1.htm#eco5〉; Making the Most of Moral Power, supra note 98, at 4.

¹⁰⁰ Market Notes: Mexico, Latin Am. L. & Bus. Rep. , Apr. 30, 1996, available in LEXIS, News Library, CURNWS File. The Mexican Government stated 23 points of objection to the complaint.

¹⁰¹ Summary Record, Regular Session of Council 2, NACEC Doc. C/96–00/SR/01/final (Aug. 1–2, 1996).

¹⁰² NAFTA and the Environment, in Latin American Regional Reports : Mexico and NAFTA Report 1 (Sept. 26, 1996).

¹⁰³ See nacec , 1996 CEC Annual Program and Budget (1996).

¹⁰⁴ Sound Management of Chemicals, Summary Record, 1995 Regular Session of Council 9–14, nacec Res. No. 95-5 (Oct. 13, 1995); Summary Record, Regular Session of Council, supra note 101, at 4; NACEC Secretariat, Three Additional Chemicals Targeted for Joint Action by CEC, 2 Eco Region 2 (1996).

¹⁰⁵ Ley Federal de Procedimiento Administrativo (Federal Administrative Procedure Act), D.O., 4 de agosto de 1992; Ley de Metrologóa y Normalization (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 Ecologico (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.

¹⁰⁶ 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).

¹⁰⁷ 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, NAITA’s Supplemental Agreement: In Need of Reform, 9 N.Y. Int ’ lL. Rev. 49, 63 (1996); Barry Shanoff, Mexico Takes Steps to Improve Its Environment, World Wastes , Mar. 1994, at 16.

¹⁰⁸ Robinson, David, A Clean Break: 100% Approved Tax Incentives for the Environmentally Conscious , Bus. Mex. , June 1996, at 34.Google Scholar

¹⁰⁹ Confidential interview with a Mexican government official who negotiated NAFTA and NAAEC trade-environment issues, Berkeley, California (Nov. 1994).

¹¹⁰ Hopp, Rachel, The New Era of Global Environmental Protection: Part II—Mexico Yesterday and Today , 3 J. Envtl. Reg. 243, 250 (1994).Google Scholar

¹¹¹ 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).

¹¹² 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 slighdy fewer inspections annually than they do.

¹¹³ Canela-Cacho, supra note 106; and Fulton & Sperling, supra note 111, at 122–23 n.21.

¹¹⁴ Canela-Cacho, supra note 106, at 2.

¹¹⁵ Id.

¹¹⁶ Hopp, supra note 110, at 251.

¹¹⁷ Id. at 252.

¹¹⁸ Overview of NAITA Related Organizations, supra note 91.

¹¹⁹ Id.

¹²⁰ Id.

¹²¹ Border Environment Cooperation Commission, Minutes of the Public Meetings of the Board of Directors (Feb. 15, 1995 through Nov. 9, 1996).

¹²² Telephone interview with Tracy Williams, Public Outreach Coordinator, BECC (Jan. 9,1997); confidential telephone interview with an NADBank official (Jan. 9, 1997).

¹²³ Telephone interviews, supra note 122.

¹²⁴ No Loans Yet for Border Pollution Cleanup, Austin -A m. Statesman , Aug. 4, 1996, at A13.

¹²⁵ U.S.-Mexico Citizens’ Group Deplores NAITA Failures on Border, Inter Press Serv., Jan. 2, 1996, available in 1996 WL, Allnewsplus File.

¹²⁶ No Loans Yet for Border Pollution Cleanup, supra note 124.

¹²⁷ Peter F. Guerrero , U.S. General Accounting Office , International Environment —E nvironmental Infrastructure Needs in the U.S.-M exico Border Region Remain Unmet (GAO Report GAO/RCED–96–179, 1996), available in LEXIS, Legis Library, GAORPT File [hereinafter GAO Report ].

¹²⁸ Id.

¹²⁹ Id. See also Andrew Wheat, Troubled NAtTA Waters, Multinat’l Monitor , Apr. 1996, at 23.

¹³⁰ GAO Report , supra note 127.

¹³¹ Id.

¹³² Id. See also Border Cleanup NADBank Terms May Be Too Tough, Engineering News -R ec , Aug. 12, 1996, at 9; Paul Weinberg, Trade-Environment: Green Code Doesn’t Satisfy NAFTA Critics, Inter Press Serv., Aug. 5, 1996, available in 1996 WL, Allnewsplus File.

¹³³ Municipal Wastewater Market Equipment and Services, M ex. T rade & 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 -A m. Statesman , Dec. 17, 1995, at Al; Wheat, supra note 129, at 24.

¹³⁴ Treaty on European Union, Feb. 7, 1992, Art. 36, 1992 O.J. (C 224) 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].

¹³⁵ 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].

¹³⁶ 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).

¹³⁷ See discussions at p. 237 and p. 245 n.76 supra.

¹³⁸ 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].

¹³⁹ Danish Bottles case, supra note 134; Dutch Nisin case, supra note 135.

¹⁴⁰ German Beer case, supra note 138; Cassis de Dijon case, supra note 136.

¹⁴¹ B aker & Mc Kenzie , Single European Market Reporter 29-1–4 (1994).

¹⁴² See William F. Dietrich, Harmonization of Automobile Emission Standards under International Trade Agreements: Lessons from the European Union Applied to the WTO and the NAFIA, 20 Wm. & Mary Envtl. L. & Pol ’ y R ev. 175, 199 (1996).

¹⁴³ I.e., action taken under the TEU, supra note 134, Art. 100A.

¹⁴⁴ I.e., action taken under the TEU, id., Art. 130r(2).

¹⁴⁵ Id, Arts. 100A(3), 130r(2).

¹⁴⁶ 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).

¹⁴⁷ TEU, supra note 134, Art. 100A(4). See also Danish Bottles case, supra note 134.

¹⁴⁸ TEU, supra note 134, Art. 130t.

¹⁴⁹ 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.

¹⁵⁰ European Commissioner Ritt Bjerregaard, Europe , Apr. 1996, at 27.

¹⁵¹ Remedying Damage to the Environment: Green Paper from the European Commission, COM(93)47 final.

¹⁵² 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).

¹⁵³ Bernauer, supra note 152.

¹⁵⁴ 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.

¹⁵⁵ Kramer, supra note 10, at 673.

¹⁵⁶ Action taken under the TEU, supra note 134, Art. 100A.

¹⁵⁷ Co-decision means that the Parliament may veto the Council decision.

¹⁵⁸ Action taken under the TEU, supra note 134, Art. 130s.

¹⁵⁹ Coparticipation means, inter alia, that die Parliament has two chances to amend the legislation.

¹⁶⁰ TEU, supra note 134, Arts. 100A(4), 130r(2).

¹⁶¹ Id., Arts. 100A(3), 130r(2). See Wilkinson, supra note 154, at 232.

¹⁶² Kramer, supra note 10, at 673; Rolf Wagenbaur, The European Community’s Policy on Implementation of Environmental Directives, 14 Fordham Int ’ lL.J. 455, 470–71 (1991).

¹⁶³ Case 106/77, Amministrazione delle Finanze dello Stato v. Simraenthal S.p.A., 1978 ECR 629.

¹⁶⁴ Case 26/62, Van Gend & Loos v. Nederlandse Administrate der Belastingen, 1963 ECR 1, 2 C.M.L.R. 105 (1963).

¹⁶⁵ 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).

¹⁶⁶ TEU, supra note 134, Art. 171. 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).

¹⁶⁷ Wilkinson, supra note 154, at 233.

¹⁶⁸ Cases C–6/90, C–8/90, Francovich v. Italian Republic, 1991 ECR 1–5357. 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 L aw. 583 (1994).

¹⁶⁹ 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.

¹⁷⁰ Nigel Haigh, New Took far European Air Pollution Control, I nt ’ l E nvtl. Aff. , Winter 1989, at 26. “’ Dietrich, supra note 142, at 199; Vogel , supra note 36, at 70.

¹⁷² TEU, supra note 134, Art. 100A(3); Kramer, supra note 10, at 678–82. See also Vandermeersch, supra note 146, at 417–19.

¹⁷³ TEU, supra note 134, Art. 130r(2). See Wilkinson, supra note 154, at 221–39.

¹⁷⁴ B aker & Mckenzie , supra note 141.

¹⁷⁵ 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).

¹⁷⁶ See, e.g., Dimitris Stevis, The Politics of Greek Environmental Policy, 20 Pol ’ y S tud. J. 695 (1992).

¹⁷⁷ 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.

¹⁷⁸ See Kramer, supra note 10; see also Vandermeersch, supra note 146.

¹⁷⁹ Tindale, supra note 169, at 455–56.

¹⁸⁰ Wilkinson, supra note 154.

¹⁸¹ See, e.g., UK Is Dragging Feet on EU Laws, Env ’ t B us. , July 19, 1995, available in LEXIS, News Library, CURNWS File; Fedarene Urges Greater Coherence In Environmental Legislation, Eur. Env ’ t, N ov. 28, 1995, available in LEXIS, Intlaw Library, ECNEWS File.

¹⁸² 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.

¹⁸³ 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.

¹⁸⁴ Id.

¹⁸⁵ 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.

¹⁸⁶ See Appendix, Logistic Regression: Implementation of EU Directives Applicable to the Environment, infra p. 267.

¹⁸⁷ See id.

¹⁸⁸ See, e.g., Turner T. Smith, Jr., EU Environmental Law, in Environmental Law in a Growing European Union 9 (Diane Palframan & Andrew Tank eds., 1995).

¹⁸⁹ 13th Report, supra note 183, at 9, 11.

¹⁹⁰ See the discussion of Francovich liability in text at note 168 supra.

¹⁹¹ David Judge & David Earnshaw, Weak European Parliament Influence? A Study of the Environment Committee of the European Parliament, 29 Gov’t & Opposition 262, 275 (1994).

¹⁹² See Kirschner, supra note 166, at 233.

¹⁹³ For an article raising doubts about how easily Francovich liability will apply in environmental law cases, see Jane Holder & Susan Elworthy, Case C–237/90, Commission v. Germany, Judgment of 24 November 1992 (not yet reported) and Case C–337/89, Commission v. United Kingdom, Judgment of 25 November 1992 (not yet reported), 31 Common Mkt. L. Rev. 123 (1994).

¹⁹⁴ This is a comparison of the twelve countries that were member states in 1992. EC Commission, Eighth Annual Report to the European Parliament on Commission Monitoring of the Application of Community Law—1990, 1991 O.J. (C 338) 46, compared to 13th Report, supra note 183, at 55, table 2.8.

¹⁹⁵ See Appendix, infra p. 267.

¹⁹⁶ The number of suspected infringements by Belgium fell from 12 to 7, by Denmark from 17 to 1, by Germany from 63 to 19, by Greece from 59 to 15, by Spain from 83 to 66, by France from 50 to 36, by Ireland from 31 to 21, by Italy from 37 to 12, by Portugal from 24 to 11, and by the United Kingdom from 70 to 34. The number of suspected infringements by Luxembourg rose from 2 to 6, and by the Netherlands from 9 to 11. See 13th Report, supra note 183, at 63, table 1.2.

¹⁹⁷ Krasner, Global Communications, supra note 5; Garrett, supra note 5.

¹⁹⁸ This is consistent with the neorealist argument that the world trading system is being regionalized. Stephen Krasner and Robert Gilpin, for example, have each argued that the world trading system is being regionalized as the structure of power in the system becomes more diffuse. See, e.g., Krasner, supra note 25; Robert Gilpin , War and Change in World Politics 229 (1981).

¹⁹⁹ 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.

²⁰⁰ See Andrea C. Durbun, Trade and the Environment: The North-South Divide, Environment , Sept. 1995, at 16.

²⁰¹ See, e.g., Herman E. Daly, From Adjustment to Sustainable Development: The Obstacle of Free Trade, 15 Loy. L.A. Int’l & Comp. L.J. 33 (1992); see also Tindale, supra note 169, at 455.