¹ Arthur Dunkel, the Director-General of GATT, explicitly acknowledged this dynamic in his ple nary presentation to the United Nations Conference on Environment and Development, Rio de Janeiro, June 11, 1992. See also World Commission on Environment and Development, Our Common Future (1987). The Brundtland Commission defined sustainable development “as a process of change in which the use of resources, the direction of investments, the orientation of technological developments, and institutional change all enhance the potential to meet human needs both today and tomorrow.” Id. at 46.

² See Edith Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity (1989). Moreover, since free trade is regarded as enhancing competitiveness, it is important to note that competitiveness has an intergenerational dimension, so that environmentally unsustainable trade practices today may affect competitiveness tomorrow.

³ Thomas J. Schoenbaum, Free International Trade and Protection of the Environment: Irreconcilable Conflict?, supra p. 700.

⁴ General Agreement on Tariffs and Trade, Oct. 30, 1947, TIAS No. 1700, 55 UNTS 188 [herein after GATT]. For an introduction to the history of these efforts, see John H. Jackson & William J. Davey, Legal Problems of International Economic Relations 293–301 (2d ed. 1986), and material cited therein.

⁵ Rachel Carson, The Silent Spring (1962).

⁶ Pub. L. No. 91-190, 83 Stat. 852 (1969), 42 U.S.C. §§4321–4347 (1988).

⁷ Report of the United Nations Conference on the Human Environment, UN Doc. A/ CONF.48/14, reprinted in 11 ILM 1416 (1972).

⁸ For a comprehensive list, see Edith Brown Weiss, Daniel B. Magraw & Paul C. Szasz, International Environmental Law: Basic Instruments and References (1992).

⁹ There have been several preliminary efforts to develop such an agreement. See Experts Group on Environmental Law of the World Commission on Environment and Development, Environmental Protection and Sustainable Development: Principles and Recommendations (1986); Draft Covenant on Environmental Conservation and Sustainable Use of Natural Resources, 21 Envt'l Pol'y & L. 221 (1991); and even the Rio Declaration on Environment and Development (June 14, 1992), UN Doc. A/CONF.151/5/Rev.1, reprinted in 31 ILM 874 (1992), which sets forth general principles.

¹⁰ GATT, supra note 4 (entered into force Jan. 1, 1948); GATT, Basic Instruments and Selected Documents, 26th Supp. 8 (1980). For an overview of the agreements resulting from the multilateral trade negotiations, see John H. Jackson, The Birth of the GATT-MTN System: A Constitutional Ap praisal, 12 Law & Pol'y Int'l Bus. 21 (1980).

¹¹ See Jeffrey Leonard, Pollution and the Struggle for the World Product (1988). But see U.S. General Accounting Office, U.S.-Mexico Trade: Some U.S. Wood Furniture Firms Relocated from Los Angeles Area to Mexico (No. GAO/NSIAD–91–191, 1991), which reports that 1–3% of wood furniture manufacturers in the Los Angeles area migrated to Mexico between 1988 and 1990, in part because of less-stringent environmental requirements. Increasingly, multinational firms are adopting common environmental standards for their plants for reasons of efficiency, which removes any migration incentive to take advantage of lower environmental standards.

¹² For analysis of this curve and other relevant factors in the environment/trade nexus, see Patrick Low & Raed Safadi, Trade Policy and Pollution (paper delivered at World Bank Symposium on International Trade and Environment, November 1991).

¹³ See Interagency Task Force Coordinated by the Office of the United States Trade Representative, Review of U.S.-Mexico Environmental Issues (1991) (prepared in connection with the proposed North American Free Trade Agreement).

¹⁴ United States—Restrictions on Imports of Tuna, GATT No. DS21/R (Sept. 3, 1991), reprinted in 30 ILM 1594 (1991).

¹⁵ The trading regime may also need to address process questions in the future since, arguably, competitiveness in the 21st century will rest more on the process of production than on the product. See Lester Thurow, Head to Head: The Coming Economic Battle Among Japan, Europe, and America (1992).

¹⁶ See Permanent Sovereignty over Natural Resources, GA Res. 3171, UN GAOR, 28th Sess., Supp. No. 30, at 52, UN Doc. A/9030 (1973), which refers to six earlier General Assembly resolutions concerned with permanent sovereignty over natural resources.

¹⁷ For a thorough analysis of the history and intent of the Stockholm Declaration, infra note 20, see Louis B. Sohn, The Stockholm Declaration on the Human Environment, 14 Harv. J. Int'l L. 423 (1973).

¹⁸ Note 9 supra.

¹⁹ The 1992 North American Free Trade Agreement is innovative in that it provides for a dispute settlement panel to request a written report from an independent scientific review board on factual issues concerning the environment and puts the burden of proof on the party challenging the environ mental measure to show that it is inconsistent with the agreement. U.S. Environmental Protection Agency, Statement on the North American Free Trade Agreement and accompanying summary of provisions of agreement (Aug. 12, 1992).

²⁰ As Schoenbaum notes, it is well-accepted practice that countries under the GATT may restrict imports to protect aspects of their domestic environment, provided that the restrictions are nondis criminatory and the principle of national treatment is applied. For detailed treatment of this issue, see Steve Charnovitz, Exploring the Environmental Exceptions in GATT Article XX, 25 J. World Trade L. 37 (1991). However, even if products are imported that do not fall within the GATT Article XX exceptions, there would still be a possibility of individual actions in the importing country against environmentally deleterious imports. See Anthony D'Amato & Kirsten Engel, State Responsibility for the Exportation of Nuclear Power Technology, 74 Va. L. Rev. 1011, 1056–66 (1988).

²¹ Schoenbaum, supra note 3, at 723.

²² Declaration on the Human Environment (June 16, 1972), in Report of the United Nations Conference on the Human Environment, supra note 7, at 3; see generally Jeffrey L. Dunoff, Reconciling International Trade with Preservation of the Global Commons: Can We Prosper and Protect? (unpublished manuscript 1992, on file with the author).

²³ Article 12 of the Rio Declaration on Environment and Development, supra note 9, provides that “unilateral actions to deal with environmental challenges outside the jurisdiction of the importing country should be avoided. Environmental measures addressing transboundary or global environmen tal problems should, as far as possible, be based on an international consensus.” There may be serious threats to the global environment that merit immediate attention where international consensus is not yet possible.

²⁴ Code of Conduct on the Distribution and Use of Pesticides (Nov. 28, 1985), 23 FAO Conf. Res. 10/85, as amended Dec. 1989, FAO Doc. M/U0610E/I/9.90.

²⁵ UNEP Governing Council Decision, London Guidelines for the Exchange of Information on Chemicals in International Trade (May 25, 1989), UNEP GC/DEC/15/30, UN Doc. UNEP/ PIC.WG.2/4 (1989).

²⁶ This is consistent with Article 12 of the Rio Declaration, supra note 23. See Raymond Hill, Problems and Policy for Pesticide Exports to Less Developed Countries, 28 Nat. Resources J. 699 (1988).

²⁷ See U.S. Office of Technology Assessment, Trade and Environment: Conflicts and Opportunities 7 (1992). Already countries have considered controlling exports of such products as pesticides to other countries on the basis of the environmental effects in the country of import.

²⁸ See, e.g., Raymond Kopp, Paul Portney & Diane DeWitt, International Comparisons of Environ mental Regulation (Resources for the Future discussion paper, 1990) (comparing controls on air and water pollution and hazardous waste in the United States and in OECD countries); U.S. Environmental Protection Agency, International Comparison of Air Pollution Control (1988). Section 811 of the U.S. Clean Air Act Amendments of 1990 requires comparative study of the competitive effects of the significant U.S. air quality control standards and those of the major trading partners. Clean Air Act Amendments of 1990, Pub. L. No. 101-549, 104 Stat. 2399 (1990).

²⁹ Montreal Protocol on Substances That Deplete the Ozone Layer, Sept. 16, 1987, S. Treaty Doc. No. 10, 100th Cong., 1st Sess. (1987), reprinted in 26 ILM 1541 (1987); Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Mar. 22, 1989, UN Doc. EP/IG.80/3, reprinted in 28 ILM 649 (1989); Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 27 UST 1087, 993 UNTS 243.