1 42 U.S.C. §14332(C).

2 40 C.F.R. §1508.18(b)(1) (definition of major federal actions to which NEPA applies, including “treaties and international conventions or agreements”).

3 22 C.F.R. §161.5.

4 Office of the United States Trade Representative, Review of U.S.-Mexico Environmental Issues (1992). See also U.S. Environmental Protection Agency and Secretaria de Desarrollo Urbano y Ecologia, Integrated Environmental Plan for the Mexican-U.S. Border Area (First Stage, 1992-94) (1992).

5 Besides the Panama Canal Treaty, for which the U.S. Department of State prepared a draft environmental impact statement (EIS) in 1977, the Executive Branch has also prepared the following final EISs in connection with the negotiation of the following international agreements: Montreal Protocol on Substances That Deplete the Ozone Layer (Department of State & Environmental Protection Agency, 1988); Interim Convention on the Conservation of North Pacific Fur Seals (Department of Commerce and Department of State, 1985); Incineration of Wastes at Sea Under the 1972 Ocean Dumping Convention (Department of State and Environmental Protection Agency, 1979); Renegotiation of Interim Convention on Conservation of North Pacific Fur Seals (Department of Commerce, 1976); Convention for the Conservation of Antarctic Seals (Department of State, 1974); Ratification of Proposed Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (Department of State, 1973); and Negotiation of an International Regime for Antarctic Mineral Resources (Department of State, undated).

6 Cf. Exec. Order No. 12,114, 3 C.F.R. 356 (1980), reprinted in 42 U.S.C. §4321 app. (articulating attenuated requirements for analysis of environmental effects abroad of major federal actions).

7 Public Citizen v. Office of the United States Trade Representative, 782 F.Supp. 139 (D.D.C. 1992), appeal docketed, No. 92-5010 (D.C. Cir. Jan. 9, 1992).

8 Draft Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations in GATT, Doc. MTN.TNC/W/FA (Dec. 20, 1991).

9 General Accounting Office, International Food Safety: Comparison of U.S. and Codex Pesticides Standards (1991).

10 Federal Food, Drug, and Cosmetic Act §§409(c)(3)(A), 512(d)(1)(H) and 706(b)(5)(B), 21 U.S.C. §§348(c)(3)(A), 360b(d)(l)(H) and 376(b)(5)(B).

11 See Federal Insecticide, Fungicide, and Rodenticide Act §24(a), 7 U.S.C. §136v(a); Safe Drinking Water and Toxic Enforcement Act of 1986, Cal. Health & Safety Code §§125249.5-. 13; Wisconsin Public Intervenor v. Mortier, 111 S. Ct. 2476 (1991); COPARR, Ltd. v. City of Boulder, 942 F.2d 724 (10th Cir. 1991).

12 Japan Whaling Association v. American Cetacean Society, 478 U.S. 221, 229-30 (1986).

13 A 1972 OECD recommendation articulates the “Polluter-Pays Principle,” intended as an international minimum standard requiring the internalization of environmental costs for the express purpose of eliminating trade distortions arising from disparate domestic environmental policies. Recommendation on Guiding Principles Concerning International Economic Aspects of Environmental Policies, OECD Doc. C(72)128, reprinted in Organisation for Economic Cooperation and Development, OECD and the Environment 23 (1986). The European Community applies the Polluter-Pays Principle internally. See Single European Act, Feb. 17 & 28, 1986, art. 25, 19 Bull. Eur. Comm. Supp. (No. 2), at 5 (1986), reprinted in 25 ILM 506 (1986) (adding new article 130R, para. 2, specifying “that the polluter should pay,” to Treaty of Rome); Recommendation Regarding Cost Allocation and Action by Public Authorities on Environmental Matters, 18 OFF. J. EUR. COMM. (NO. L 194) 1 (1975), reprinted in BNA, 131 INTL ENV’TL. REP. 1001 (implementing Polluter-Pays Principle).

14 See, e.g., Agreement on the Interpretation and Application of Articles VI, XVI, and XXIII of the General Agreement on Tariffs and Trade, B.I.S.D. 26th Supp. at 56 (1980) (GATT Subsidies Code).

15 16 U.S.C. §1371.

16 Earth Island Institute v. Mosbacher, 746 F.Supp. 964 (N.D. Cal. 1990), aff’d, 929 F.2d 1449 (9th Cir. 1991). The Court of Appeals affirmed a second order of the District Court, issued after a conclusion that the federal defendants’ subsequent finding that Mexico satisfied the statutory standard of the MMPA was illegal. The District Court recently granted plaintiffs’ motion for a preliminary injunction and issued an order clarifying the broad extent of a secondary ban on imports from intermediary nations that purchase yellowfin tuna abroad and export it to the United States. Earth Island Institute v. Mosbacher, 785 F.Supp. 826 (N.D. Cal. 1992).

17 United States–Restrictions on Imports of Tuna, reprinted in 30 ILM 1594 (1991). The threemember dispute settlement panel noted that discrimination by importing states based on the methods by which foreign goods are produced, as opposed to characteristics of the foreign goods themselves, is not warranted by the GATT. Consequently, the GATT requires competitive treatment of imported products as such without regard to the environmental policies of the country of export. Further, the exceptions in article XX of the GATT for trade measures directed at the protection of animal life or health or the conservation of natural resources must be narrowly construed. In light of that interpretation, the drafting history of the agreement and the broader implications for international trade, the panel concluded that trade measures to protect resources outside the jurisdiction of a contracting party are not permissible. Further, the United States had failed to demonstrate that the import restriction primarily aimed at conservation or that measures less burdensome to international trade as such were unavailable. Presumably because of its stake in the NAFTA negotiations, Mexico postponed presentation to the GATT Council of the panel report. See WASH. POST, Sept. 27, 1991 at A26 (advertisement by Government of Mexico). The GATT Council recently rejected a request by the European Economic Community to adopt the Mexican Tuna panel report. See GATT Council Refuses EC Request to Adopt Panel Report on U.S. Tuna Embargo, 9 INT’L TRADE REP. (BNA) 353 (1992).

18 See, e.g., Understanding Regarding Notification, Consultation, Dispute Settlement and Surveillance, Annex ¶6(iv), B.I.S.D., 26th Supp. at 210 (1980). (“Written memoranda submitted to the panel have been considered confidential, but are made available to the parties to the dispute.”) See also Draft Final Act, supra note 8, §S ¶¶12.1-2 (draft understanding on rules and procedures governing the settlement of disputes under Articles XXII and XXIII of the GATT specifying that “written memoranda submitted to the panel shall be considered confidential”).

19 See Understanding Regarding Notification, Consultation, Dispute Settlement and Surveillance, supra note 18, ¶15 (“Any contracting party having a substantial interest in the matter before a panel, and having notified this to the Council, should have an opportunity to be heard by the panel.”).