Is International Trade Really Making Developing Countries Dirtier and Developed Countries Richer?
Maria Vittoria Carminati Garbino |
Posted Monday, January 28, 2008
8 U.C. Davis Bus. L.J. 206 (2007)

Introduction

During the summer of 2006, Argentina sued[1] Uruguay in the International Court of Justice for breach of the 1975 Rio Uruguay Treaty.[2]  This treaty regulates both countries' use of the River Uruguay, which runs along their mutual border and creates The River Uruguay Executive Commission (“Commission”).[3]  The Commission's role as a conduit for notification and a forum for discussions relating to any projects undertaken along the banks of the River Uruguay.[4]  To this end, the Commission sets out a list of procedures each country must follow.[5]  Uruguay approved the building of two paper mills (also known as pulp mills) on the banks of the River Uruguay by two foreign companies: ENCE and Botnia.[6]  Argentina opposed the construction of these pulp mills arguing that they would endanger the flora, fauna, and inhabitants of the River Uruguay shores.[7]  After talks between the countries fell through, Argentina, pursuant to the treaty's dispute settlement clause, sued Uruguay in the International Court of Justice asking for an injunction against Uruguay that would halt construction of the paper mills.[8]  Argentina argued Uruguay failed to comply with the procedural notification and consultation requirements set out by the Commission.[9]  Uruguay's defenses emphasized actual compliance with both the treaty's substantive and procedural law.[10]  Nonetheless, Argentina's environmentalist supporters (most notably the Center for Human Rights and the Environment) made vociferous arguments that this was just another example of a developed country's businesses (in this case, Finland, Belgium, France and Spain) exploiting weaker environmental regulations in developing[11] countries.[12]

Argentinean attorneys and the Center for Human Rights and the Environment's dedication to this argument was so strong, they wholly ignored the fact that Uruguay had imposed a multi–step permitting system.[13]  Moreover, Uruguay even required compliance with the high standards promulgated by the European Commission on Integrated Pollution Prevention and Control's Best Available Techniques.[14]  The International Court of Justice declined to grant Argentina's request for injunctive relief, finding a lack of imminent threat to the environment.[15]  The court, however, left the door open for Argentina to reurge its request if and when the risk to its environment became imminent.[16]

This anecdotal event encapsulates the realities and the false assumptions regarding international environmental law, developing countries, and international businesses.  The reality is that developing countries can function in the market while pursuing environmentally protective domestic policies.[17]  False assumptions (such as, the environment and business development are necessarily at odds, developing countries are not able to negotiate their way to a clean, developed status, and developed countries or their businesses invariably take advantage of this weakness) are often accepted without question.[18]

This comment takes a three–pronged approach in assessing the ability of developing countries to not only protect their environments, but to do so while remaining or becoming active members of the international business community.  First, this Comment summarizes the scholarship in favor of, and debunking the myth that, environmental regulations and economic prosperity are at odds.  This sheds light on false assumptions and also on the general philosophies existing in the field of environmental law.

Second, this Comment looks at the legal frameworks for enforcement of international environmental law in the context of trade competitiveness.  Beginning in the early 1970's with the Stockholm Convention, this part traces international environmental conventions through 2002.  However, this part only analyzes two particular frameworks styles in depth: NAFTA/CAFTA[19] and WTO/GATT.[20]  These international agreements between developing and developed countries provide an appropriate setting to look at the effect of developed countries' wishes on developing countries' environmental protections.[21]

Third, this Comment looks at the enforcement mechanisms available to and used by members of these various frameworks as well as their efficacy in tackling environmental disputes.  Enforcement mechanisms include disputes and settlement negotiations for NAFTA/CAFTA, dispute settlement panels for the WTO/GATT,[22] and the International Court of Justice.  Each enforcement mechanism is looked at through the prism of three particular cases: Harken v. Costa Rica (CAFTA/NAFTA), United StatesRestrictions on Imports of Tuna[23] (WTO), and Pulp Mills on the River Uruguay (Arg. v. Uru.) (International Court of Justice).

Overall, this Comment attempts to paint a more nuanced picture of the interaction between international environmental law and the spread of industry to developing countries.  Many scholars start from the premise that the environment and business are necessarily at odds.  However, this is a simplistic view; a black and white picture that leaves no space for a common ground that may well exist.  Furthermore, wholesale adoption of the zero–sum relationship between developing countries' prosperity and their environmental health masks the various actors and agendas intertwined in the debate.  Of these parties, this Comment discusses Non–Governmental Organizations, environmentalists, governments, populations, and businesses.  An overview of some of the various legal frameworks and enforcement mechanisms in the field allows for a better understanding of the situation in all its shades of grey.

I.  The “System.”

Both the frameworks and the enforcement mechanisms for international environmental law create “the System” for the purposes of this Comment.  The System should provide some insights into the dynamics behind environmental regulation and industrial development.  An overview of the System provides a better of understanding as to how level the playing field really is.

International law is an intricate web of codified and uncodified laws resulting from countries' behaviors, court decisions, treaties, and statements issued by a variety of international organizations.[24]  Despite diversity in international law as a whole, bi– and multi–lateral treaties generally regulate environmental law.  The sheer number of international environmental agreements currently in existence makes a comprehensive review impracticable.[25]  Therefore, this Comment only examines three treaties (or groups of treaties):  WTO/GATT, NAFTA/CAFTA, and the Rio Uruguay Treaty of 1975 (an international agreement between Argentina and Uruguay, self–subjected to I.C.J. jurisdiction).[26]  These treaties are particularly relevant when compared to other international frameworks[27] because they involve interactions between developing and developed countries.

The next step in this Comment is to review treaty enforcement mechanisms to discern whether environmental regulations in developing countries are thwarted when faced with the business interests of developed countries.

A variety of international adjudicatory bodies enforce various elements of international law.  These include the WTO/GATT dispute settlement panels,[28] the European Court of Justice,[29] the International Court of Justice,[30] World Trade Organization ICSID arbitrations,[31] and national courts where NAFTA/CAFTA disputes are settled.[32]

This Comment concentrates on three forums for enforcement: the WTO/GATT dispute resolution panels, the International Court of Justice and national courts in which NAFTA/CAFTA provisions are litigated.

A.  In Theory: The Frameworks.

International law is composed of treaties, general principles of law, and customary international law that results from general and consistent practice by states and is typically followed due to a state's “sense of legal obligation.”[33]  Understanding where developing countries will find the legitimacy to defend their environments without an overview of the broader context of international law and how it interacts with environmental law is difficult.  Interestingly, environmental law is a striking category of “hard law”[34] since it is very nearly entirely based on actual agreements between countries and domestic statutory law.[35]

1.  Background Treaties

The main body of international environmental law comes from multilateral agreements.[36]  Several seminal environmental treaties serve as a strong interpretative and normative framework for environmental disputes that arise today.[37]  As a result, environmental law has gained significant recognition internationally.  As such, environmental law has necessarily had an impact on the drafting of multi–lateral trade agreements.  This effect, however, seems to be very slight.  As shown below, there is great disparity in the extent to which trade agreements take environmental impact into consideration (NAFTA/CAFTA are at one end of the spectrum and the Rio Uruguay Treaty are at the other).[38]

2.  NAFTA/CAFTA

The North Atlantic Free Trade Agreement (“NAFTA”) is a multilateral treaty creating a free trade zone between Canada, Mexico and the United States.[39]  The Central American Free Trade Agreement (“CAFTA”) creates a similar free trade zone between the United States, Honduras, Nicaragua, El Salvador, Guatemala, and the Dominican Republic.[40]  NAFTA and CAFTA have received significant criticism over the years.[41] One particular provision contained in both NAFTA and CAFTA has received significant attention because of its implications on environmental regulation: NAFTA's Chapter 11 and CAFTA's Chapter 10 provisions.  In fact, “[m]any environmentalists and other public interest advocates worry that use of [NAFTA's] Chapter 11 will broaden and ultimately discourage the governments of the United States, Canada, and Mexico from implementing environmentally protective regulations.”[42]  Obviously, these concerns are of particular importance in assessing NAFTA's effect on a developing country's ability to protect its environments while pursuing trade opportunities.

Chapter 11 of NAFTA “grants investors the right to privately enforce the rights granted under NAFTA.”[43]  For example, “private investors [may] sue the government [of a developing country] for compensation for any action that affects the value of an investor's property.”[44]  An investor may challenge a member–country's refusal to grant an operating permit (for example, to drill for oil), arguing that the application of permitting laws is arbitrary and contrary to the principle of a free trade zone.[45]

Much of the criticism surrounding the similar provisions embodied in NAFTA's Chapter 11 and CAFTA Chapter 10 is that the provisions allow private investors to strong–arm governments into allowing environmentally deleterious industries to be built within their borders, by scaring countries into acquiescence through the threat of large claims.[46]  In the name of free trade, companies demand exemptions from the environmental laws of countries with which they want to do business.[47]

CAFTA's Chapter 10 is strikingly similar to NAFTA's Chapter 11.[48]  Scholars argue that this makes it close to impossible for a developing nation to defend itself from CAFTA/NAFTA–type lawsuits.[49]

However, scholars' concerns about developing countries are generally misleading.  Despite the ominous assessment of CAFTA/NAFTA and its ability to overwhelm developing countries through lawsuits, scholars fail to address two important aspects of cases filed thus far.  First, investors have filed NAFTA Chapter 11 cases against all three NAFTA members: the United States, Canada and Mexico.[50]  As of 2005, fourteen out of forty–two cases were still in active arbitration.[51]  Of the fourteen, only five were against Mexico, the sole developing country party to NAFTA.[52]  Eight were against the United States, and one against Canada.[53]

Second, although the claims for all forty–two cases amounted to $48 billion, of the remaining twenty–eight cases (excluding the fourteen still in arbitration) only five cases came to an investor–friendly conclusion.[54]  This resulted in $35 million in collective awards as of 2005.[55]  Six more cases were dismissed, resulting in judgments favoring NAFTA governments.[56]

This reveals several things regarding NAFTA Chapter 11 provisions.  Although the provisions may be unduly beneficial to foreign investors, this shortcoming is applicable to all NAFTA member countries (as can be seen by the abovementioned distribution of cases).  Chapter 11 NAFTA claims are a particularly good tool for evaluating alleged anti–environmental effects of free trade agreements on developing countries because two members are developed countries and one is a developing country.[57]  Given the considerably equal distribution of claims against both the developed nations, Canada and the United States, and the developing nation, Mexico, there seems to be little strength in the argument that NAFTA Chapter 11 is particularly detrimental to developing countries' environmental laws.

3.  WTO/GATT

In an attempt to stymie any future armed conflicts, the General Agreement on Tariffs and Trade (GATT)[58] was created in 1947 as a mechanism to liberalize international trade and to increase international interdependence.[59]  The agreement reduced tariffs and trade barriers between its various members.[60]  In 1994 the GATT members, also referred to as Contracting Parties, created the World Trade Organization.[61]  The WTO currently has one–hundred and fifty members.[62]  The WTO's goal is the continued implementation of GATT principles as they have been amended over the years.[63]  Scholars and environmentalists alike perceive the WTO/GATT as an international vehicle for the perpetration of wrongdoing by developed nations against developing countries.[64]  As such, the GATT agreement and the WTO organization will be referred to jointly as WTO/GATT.

In the realm of environmental protection, scholars accuse the WTO of being a forum where a few rich countries dominate the debate,[65] discouraging developing countries' engagement in the decision–making process,[66] and creating barriers to developing countries' environmental protection through WTO dispute settlement panel decisions.[67]  These three flaws supposedly coalesce to make it extremely difficult for WTO developing country members to protect themselves within the GATT free trade framework.[68]

However, the WTO itself allows for derogations to GATT provisions for the “protection of human health and the environment.”[69]  The possibility for derogation is a clear indication of environmental law's influence on international trade.  The provisions allowing for derogation from purely free trade rules are called the Sanitary and Phyto–sanitary Preservation Provisions (“SPS”).[70]  However, these SPS measures are seen as providing minimal relief because WTO panels and appellate bodies narrowly construe them.[71]

The WTO/GATT exception for environmental concerns is a very narrow one, and critics argue that the dispute settlement panels and appellate panels of the WTO construe it even more narrowly.[72]  Critics further contend that the fundamental problem results from the enforcement mechanism of WTO panels.

Among the shortcomings disparaged, critics argue, “[e]nvironmental regulations . . . may be viewed in the realm of trade agreements as a non–tariff barrier and prohibited with [sic] some defined exceptions.”[73]  In other words, developing countries might find themselves defending environmental laws against accusations that the laws are impermissible non–tariff trade barriers under WTO/GATT.[74]

Critics cite two primary problems once developing countries reach the enforcement phase: cost of and access to the WTO dispute settlement mechanism. [75]  These problems could be a “potential explanation behind the lack of poor country engagement.”[76]  If these identified problems are confirmed, critics contend that it is possible for developed countries to impose environmentally deleterious measures on developing countries with no fear of punishment.  There is, however, no concrete proof of this phenomenon and until such proof emerges this is only another formulation of the partly undermined anti–competitiveness theory.

What emerges from a review of the literature is that, despite facial neutrality and accommodation of environmental controls, the WTO enforcement mechanism might be prohibitively expensive, time consuming, or lacking appropriate remedies for winning parties.[77]  This assessment would support the argument that international laws are biased against the environmental concerns of developing countries.

B.  In Practice: Which Way Does the Enforcement of Seemingly Neutral Laws Really Cut?

Having reviewed two frameworks–NAFTA/CAFTA and WTO/GATT–one might wonder whether, although theoretically neutral, the enforcement mechanisms are biased in practice.  Reviewing particular cases in which developing countries conflicted with developed countries or their businesses will allow for a better understanding of the extent to which international trade regulations create barriers to developing countries' environmental self–protection.

Although the previous sections may have exemplified serious flaws in environmental and trade agreements, they also underlined the fact that the flaws are not inherently biased against developing countries.[78]  The question remains as to whether, in practice, the system as a whole is biased against developing countries.  This section reviews three cases: Harken v. Costa Rica, United States–Restrictions on Imports of Tuna[79] and Pulp Mills on the River Uruguay (Arg. v. Uru.).[80]  The cases are analyzed to determine whether the theory explored in the previous sections holds true when applied in practice.  The hypothesis that developed countries are not necessarily keeping developing countries polluted survives scrutiny because the decisions reviewed are not generally pro developed countries.  From this analysis, it can further be stated that developing countries are not only capable but successful in defending their environmental standards when they choose to do so.[81]

1.  NAFTA in Private Courts: Harken v. Costa Rica.

The Harken Energy case exemplifies the political and legal defense capabilities of a small, developing country when sued by a large company in a CAFTA–like situation.[82]  This case also demonstrates environmentalists' attachment to the anti–competitiveness theory and a strong focus on victimizing developing countries.  Harken showcases the problem of unquestioningly accepting the anti–competitiveness theory and the analytical shortcomings produced in assessing legal conflicts in the area of environmental protection.

Prior to February 2002, Texas–based Harken Energy obtained rights from the Costa Rican government to perform surveys in search for crude oil along the Costa Rican coastline.[83]  After a national uproar over foreign drilling, “[the President of Costa Rica] announced a moratorium on oil exploration and open–pit mining in Costa Rica.”[84]  Costa Rica, therefore, denied Harken's request for authorization to drill because “Harken's plan was not permissible under the country's environmental impact laws.”[85]  Harken subsequently sued Costa Rica for losses totaling $57 billion.[86]

Harken originally brought its claim to the World Bank's International Center for the Settlement of Investment Disputes (ICSID).[87]  However, Costa Rican President Abel Pacheco refused to submit to ICSID's jurisdiction, insisting that Costa Rican courts were the proper forum for the dispute.[88]  A few days later, Harken withdrew its claim and agreed to out–of–court settlement negotiations.[89]

When Harken officials arrived in Costa Rica, they were greeted with widespread protests.[90]  Commentators proclaimed both the U.S. government and Harken officials were blackmailing the Costa Rican government with the impending CAFTA ratification.[91]

While the case has since been resolved, there is very little information available on the outcome.  Many speculate that this is because Costa Rica was ultimately successful.  In 2005, the Costa Rican government formally rescinded its contract with Harken.[92]  The country paid no damages because Harken had breached one of the terms of the contract by “failing to present an adequate environmental impact study on the oil project.”[93]   Ultimately, Costa Rica imposed its environmental restrictions in the face of international pressure and a multi–billion dollar lawsuit.[94]  So why the uproar?

Many saw Harken as a sign of things to come under NAFTA/CAFTA's impending investor protection provisions.[95]  Under CAFTA, Costa Rica would have had to submit to ICSID jurisdiction.[96]  On the other hand, CAFTA Chapter 10/NAFTA Chapter 11 provisions provide foreign investors with exactly the tools used by Harken: very large dollar–amount lawsuits when developing countries balk at environmentally unsound foreign projects within their borders.

If Costa Rica chooses to ratify CAFTA, it would have to submit itself to ICSID jurisdiction.[97]  However, even when faced with the considerable $57 billion claim, Costa Rica stood its ground and successfully safeguarded both its pocket–book and its coastal region.[98]

The uproar surrounding this particular CAFTA–style case reiterates the criticism identified earlier in this Comment.[99]  Environmentalists and scholars fret over the extremely large amounts claimed in lawsuits filed by foreign investors against developing countries.[100]  However, they fail to look at the concrete results.[101]  Critics  argue that the threat of lawsuits, regardless of the merits, is likely to have a chilling effect on the creation and enforcement of environmental laws protecting those waterways; Costa Rica, as a developing nation, cannot afford to effectively litigate every potential case nor can it afford to pay out a large verdict if it loses.[102]

Despite this strong rhetoric, critics have no evidence of this chilling effect.  Developing countries continue to uphold their environmental laws and strategically position themselves to win lawsuits (for example, as Costa Rica did) by demanding that lawsuits be carried out in domestic courts[103] and appropriate environmental safeguards are in place.[104]

To conclude, although critics have called Harken a “paradigmatic case”[105] for potential CAFTA/NAFTA abuses, it actually stands for the opposite proposition.  Developing countries are not only willing, but also able, to defend themselves against foreign investors.  Costa Rica clearly defended its environmental laws and turned down substantial investment opportunities in the name of its peoples' constitutional right to a clean environment.[106]

However, Harkin is not representative of all international environmental disputes.  Costa Rica brought suit in a domestic court which probably encouraged Harken to settle rather than litigate.  A more interesting question is whether, and how, issues are resolved in non–domestic contexts, such as the WTO/GATT dispute settlement panels.

2.  WTO: United States–Restrictions on Imports of Tuna (Mex. v. U.S.A.).[107]

In 1991, a GATT dispute settlement panel ruled in favor of Mexico in United States–Restrictions on Tuna Import.[108]  The United States Marine Mammal Protection Act (MMPA) prohibited importation of commercial fish or fish products caught using technologies resulting in the accidental killing or injuring of ocean mammals in excess of U.S. standards.[109]  Mexico sought to circumvent this restriction and sued under the WTO.  The U.S. argued, among other things, that the prohibition was permissible[110] under Article XX of the GATT.[111]  The panel disagreed and ruled in Mexico's favor.[112]

United States–Restrictions on Tuna Import is a significant case because it contains three pivotal elements: a developing nation, a developed nation and environmental protection dispute.[113]  However, contrary to what might be expected, the developed country seeking to protect its environment lost.[114]

Scholars correctly use this case to show that the WTO can and does undermine “global and national health policies.”[115] However, nothing in the decision reflects bias against developing countries, such as Mexico.  Mexico was not only able to bring suit, but also win.  For these reasons, United States–Restrictions on Tuna Import exemplifies why it is unwise to accept the argument that the WTO is necessarily a tool for the exploitation of developing countries.

Before assessing the impact of United States– Restrictions on Tuna Import,[116] it is important to note that the WTO did not adopt the case's holding and it is not officially part of WTO law.[117]  It was, however, important in establishing how much power one country can exercise over another's environmental regulations.

In this context, I raise the question whether United States– Restrictions on Tuna Import[118] supports this paper's hypothesis that the world stage is not biased against developing countries attempting to protect their environment or make a place for themselves in the international market place?  The answer is that it depends.

On one hand, a developing country rebuked a developed country.[119]  On the other hand, environmentally safeguarding laws were struck down as being discriminatory,[120] thereby supporting the anti–competitiveness theory of environmental law and trade.  On the whole, the decision does not truly give us an answer regarding WTO bias because the panel decision both supported a developing country and struck down environmental laws.

Nevertheless, the WTO dispute settlement system cannot be looked at so narrowly.  A concentration on actual outcomes overlooks hurdles such as cost or lack of accessibility that the enforcement mechanism, as a whole, presents for developing countries.

The voluntary nature of WTO agreements is one characteristic taken into consideration.[121]  A victory before a WTO panel may not, in the end, prove to be of any use to developing countries.  First, “[d]espite a legal victory on the merits, the economic result of no increased market access (i.e. noncompliance) could arise if developing countries ultimately cannot force respondent compliance due to lack of retaliatory  capacity.”[122]  Second, conversely, a victory might not win the developing country anything of value.  It could, for example, be punished by being denied opportunities available through bilateral agreements or be denied assistance or reductions under other trade agreements.[123]

United States–Restrictions on Tuna Import is important because it exemplifies the nuances of the WTO/GATT system.  The lack of developing–developed country disputes may be a symptom of developing countries' reluctance to enter an arena in which a victory on paper would not provide any actual benefits.  In the context of environmental protections conflicting with trade opportunities, the WTO dispute settlement agreement seems to be the closest to having a potential anti–developing country bias.  This does not mean that it is biased, but that at this point it is hard to point the finger in either direction.  Caution in accusing the WTO of being necessarily at odds with developing countries' attempts to remain environmentally responsible is probably the best policy.

The WTO is one example of an international institution attempting to regulate multiple countries' trade and the related interactions.  Another interesting forum is the bilateral, specifically environmentally oriented, agreement.

3.  The International Court of Justice: Argentina v. Uruguay.

A third forum for the resolution of international environmental disputes is the International Court of Justice (I.C.J.).[124] A recent I.C.J. case, Pulp Mills on the River Uruguay (Arg. v. Uru.)[125] crystallizes why the theory surrounding developing countries' alleged incapacity to compete in the market–place while maintaining environmental integrity is incorrect.

Pulp Mills on the River Uruguay (Arg. v. Uru.)[126]exemplifies an I.C.J. resolution of international environmental disputes.  The case is significant because a developing country, Uruguay, successfully imposed its environmental requirements on two foreign businesses, ENCE and Botnia, despite accusations that it was doing so at the expense of its people.

Botnia, a Finnish company, and ENCE, a Spanish company, both contracted to build one pulp mill on the River Uruguay each.[127]  The Republic of Uruguay imposed one of the strictest environmental regulations: the European Commission's Best Available Technology standards.[128]  In addition, Uruguay imposed a multi–step permitting system by which it would have to issue permits for each phase of construction and operation independently.[129]  Uruguay would only issue each permit upon environmental review and additional environmental impact studies.[130]  The facts in Pulp Mills on the River Uruguay (Arg. v. Uru.) demonstrate two realities: businesses do not necessarily avoid environmentally protective countries and developing countries are perfectly able to negotiate a position for themselves in the market which allows them to capture shares of the market while preserving their environmental health.[131]

ENCE and Botnia received approval from the Uruguayan government in 2003 and 2005 respectively to begin planning for the construction.[132]  The total would consist of $1.7 billion,[133] representing nearly 5% of Uruguay's $33.98 billion Gross Domestic Product in 2005.[134] 

The River Uruguay runs along the Uruguay–Argentina border.[135]  When Uruguay granted approval to start construction of the mills,[136] environmentalists and local Argentineans protested vigorously in an attempt to slow construction.[137]  Ultimately, Argentina sued Uruguay in the I.C.J. for breach of the Rio Uruguay Treaty.[138]

Argentina's claims asserted in large part that Uruguay had failed to fulfill Rio Uruguay Treaty's notification requirements.[139]  Additionally, Argentina asked the I.C.J. to grant injunctive relief because “its rights . . . were ‘under immediate threat of serious and irreparable prejudice” if the mills were built.[140]

The prejudice, Argentina argued, came from the fact that the paper mills would irreparably damage the Argentinean coastline.[141]  Argentina argued that the paper mills would produce nitrogen oxides, sulfuric oxides, and volatile organic compounds.[142]  Uruguay conceded that the plants would pollute to a certain degree, but that they would also need to satisfy contemporary European standards.[143]  Moreover, the plants would have to employ Best Available Techniques.[144]  Uruguay further argued that it imposed a multi–step permitting process through which neither ENCE nor Botnia had yet received approval to begin operations.[145]

At the time of oral arguments, ENCE (the project with the most seniority) had only received approval for “an environmental management plan for site preparation.”[146]  Uruguay's attorney concluded his oral arguments by stating that Uruguay was not only willing, but also able, to deal with any problems created by the two mills.[147]

Uruguay's environmental permitting and monitoring system illustrates a demanding set of requirements.[148]  Environmental protection in Uruguay is a constitutional duty.[149]  Uruguay upholds this duty by enforcing stringent requirements.[150]

Notwithstanding these requirements, environmentalists and scholars alike saw the ENCE and Botnia investments in Uruguay as the businesses of developed countries' creating “pollution havens” in less developed nations.[151]  Botnia, in particular, was attacked for taking advantage of a “defenseless” developing nation.  The CEDHA's criticism was particularly harsh, opining “Botnia ignored stringent environmental and social safeguards . . . to ensure that contaminating industries from the industrialized world do not unduly attempt to gain undue competitive advantage in the developing world by exporting contaminating industries.”[152]

Regardless of the accusations made against Botnia, and by association, ENCE, the fact remains that opponents consistently attempt to make this part of the north–south/developing–developed country debate.[153]  In reality, if someone is to blame, it is the conjunctive efforts of the Uruguayan government and Botnia.[154]  This Comment, however, has also shown that Uruguay is cognizant of its environmental protection duties and has established stringent requirements for both ENCE and Botnia to follow.[155]  It therefore seems that environmentalists' claims of “developed country exploitation” are nothing more than a smoke–screen for their fundamental opposition to a polluting industry along the River Uruguay.[156]

Within the context of this Comment, what is most interesting is that both ENCE and Botnia accepted these requirements and are presumably operating in compliance with this regimented approach to environmental standards.[157]  Uruguay imposed its own environmental standards as well as those currently imposed in the European Union.  Uruguay was thereby able to defend its environment as well as its financial interests in the investments.[158]  Furthermore, Uruguay was able to reach outside its own standards and use European standards.  The use of European Union standards exemplifies the powerful effect international, and apparently unrelated environmental standards, can have on domestic laws because Uruguay adopted them as domestic standards.  This case also demonstrates environmentalists developed country dominion over developing country's independent, self–governing protection of its environment.

II.  Economic Prosperity and Environmental Regulation: Are They at Odds?

The fundamental question addressed in this Comment is whether the environment and economic development are necessarily at odds.  If they are, developing countries will likely have to sacrifice one for the other.  If they are not, then the truth must lie somewhere in between.  Identifying a middle ground is crucial to changing attitudes regarding developing countries' avenues of development and the role businesses may play in this development.

The common assumption–environment and business development are always, necessarily, and unavoidably at odds with each other–is exposed when one considers the significant qualitative and quantitative data that supports the opposite proposition.  Despite this emerging data, commentators refuse to accept the possibility that the assumption may be less than a certainty.  This unwavering assumption constricts the debate and masks the real issues.  Additionally, certain hard–line positions (for example, that developed countries exploit a developing country) mask the real agendas at play in the various conflicts.  For example, some environmental organizations strongly oppose certain treaties (such as CAFTA) or international contracts (such as the one between Uruguay, ENCE and Botnia) but still fail to recognize a developing country's success when faced with powerful industrial opponents.  This type of coverage broadcasts to the public that the developing country is “in danger” but does not convey the happy denouement by which the developing country–Costa Rica or Uruguay for purposes of this Comment–stands its ground.

A.  Background.

For a number of years, the prevalent theory regarding the environment and businesses[159] is that environmental laws and businesses (or prosperity) are at odds.[160]  Commentators and environmentalists often view the relationship as a zero–sum game in which whatever ground gained by businesses is necessarily lost by the environment.[161]  Thus, this theory becomes the fundamental assumption driving the environmental movement.[162]  Although empirical studies have re–shaped this assumption, it is important to keep in the mind that “[t]he prevalent view of the relationship between environment and trade policy . . . suppose[s] that environmental protection measures . . . impose costs on producers of goods that would, at least in theory, adversely affect their competitive position in international trade.”[163]  In other words, the majority view is that, should a company choose to be environmentally friendly, it loses its competitive edge.  By analogy, an environmentally responsible country necessarily loses business attractiveness.  This corollary is explored in the next section.

B.  The Perceived Effect of Anti–Competitiveness on Developing Countries' Choices.

The corollary to the anti–competitiveness theory was, and still is, business and prosperity or environmental health.[164]  This antagonistic ‘relationship' between environmental protection and trade policy created the myth that a developing country had to give up environmental protection if it wanted to prosper and attract business.[165]  This is a patronizing view of developing countries' ability to not only self–regulate but to also defend themselves and their constituents in the international market–place.

Scholars in support of this view attack the various methods developing countries use to respond to market pressures.  First, some scholars simply state that the legislative steps taken by developing countries in fact aid in “exploitation.”[166]  Others identify the problem as being developing countries' “lack of professional and scientific capacities . . . [which] has prevented their enforcement of environmental legal regimes.”[167]  Scholars further generalize statements of this nature by wholesale belittling of developing countries' domestic enforcement policies.[168]  Others identify instances where officials in a developing country act against their country's environmental interests for the sake of business prosperity.[169]  Nonetheless, the few instances of leaders actively permitting environmental abuses cannot, and should not, be used to draw general conclusions that developing countries are necessarily too weak to protect themselves. Common sense dictates that regardless of how concerned countries are regarding the environment, if a certain regime decides to redirect environmental policy of the country, mishaps can take place.[170]

Suggesting the environment is always a negative force in business development inexorably leads to the conclusion that developing countries are indeed faced with two mutually exclusive courses of action.[171]  This is the anti–competitiveness theory's main flaw: either a developing country has to accept pollution or it must remain under–developed.[172]  However, scholars nevertheless adopted the notion that a country must make a choice: get rich or stay clean.

The anti–competitiveness corollary still exists only because of persistent assumptions that developing countries do not have a choice and are unable (or unwilling) to make environmentally sound decisions.[173]  Both of these are paternalistic views of developing countries and recent studies, as well as literature, successfully counter these assumptions.[174]  The most notable illustration of this is Uruguay's exemplary negotiation regarding the River Uruguay pulp mills.[175]  Other illustrations of this phenomenon are explored later in this Comment.

C.  Reconsidering the Anti–Competitiveness Assumption

While most scholars hold fast to this persisting assumption, other scholars reconsider the assumption that the environment and businesses are necessarily at odds with each other.[176]  This reconsideration leads some scholars to the conclusion that the anti–competitiveness theory is little more than a faulty theory driven by externalities and “unquestioned assumptions that have guided policymakers for 25 years.”[177]

Spurring this reconsideration are empirical studies and observations regarding business relocations.[178]  For example, there is evidence that industries with high levels of pollution reached higher levels of prosperity than equivalent businesses in so–called developing country pollution havens: “[T]he industries incurring high environmental control costs in industrial countries, which have stronger environmental control regimes, actually did better in maintaining their international market share than other domestic manufacturers less affected by environmental regulation.”[179]  Recent literature has been increasingly persuasive that the empirical evidence “indicates that there is no need for a country to adopt weak environmental standards, or to be lax in the enforcement of the standards that are in place, in order to protect its international economic competitiveness.”[180]  Furthermore, studies show that “open economies” with lower environmental standards do not necessarily become “pollution havens.”[181]

Therefore, there is at least moderate evidence against the anti–competitiveness theory of international environmental regulation both in empirical market–share calculations and from observing the behavior of various international businesses and their relocation choices.  The default assumption that developing countries are necessarily in a position of weakness when it comes to environmental protection and business competition should, at a minimum, no longer be accepted at face value.  Despite this, and as the following section shows, the anti–competitiveness theory is still widely accepted.

D.  The Assumption Lives On

Unfortunately, this realization has not yet affected the way scholars and environmental activists view their relationship.[182]  For example, in early 2006, one commentator stated that, in the context of CAFTA ratification, “the benefits of privatization are enjoyed almost entirely by the international organizations, and those benefits come at a very high cost to the citizens and the environments of these [developing] countries.”[183]  The fact that a necessary and unavoidable, mutually exclusive relationship exists between business competitiveness and environmental regulations still pervades many people's understanding of the international stage.[184]

The WTO/GATT framework is the lightning rod for criticism directed at the liberalization of trade and its negative effects on environmental regulation.[185]  More specifically, critics argue that the WTO/GATT model superficially attempts to protect public health and the environment, while in reality, liberalization of trade and the organizational framework actually favor trade over environmental preservation.[186]  Additionally, some critics argue that GATT is inherently incapable of providing help in the environmental sphere because it is a tool uniquely crafted for trade.[187]  These observations reflect how ingrained the belief the environment and business are necessarily at odds actually is.

It may well be that in certain cases, weak environmental protection laws, desperate governments or overwhelmed environmental protection offices facilitate the spread of dangerous industries.  This does not, however, indicate a zero–sum game between the environment and industry.  Developing countries have a lot more say within their own borders than is generally recognized, and businesses are willing to absorb environmentally related externalities much more than commentators like to believe.[188]

Given Pulp Mills on the River Uruguay (Arg. v. Uru.) and the empirical evidence available, it is imprudent to unquestioningly accept that environmental protection and business development are necessarily in contention.[189]  It is also patronizing and narrow–minded to victimize developing nations.  The truth lies somewhere in between the environment, businesses, and developing countries' weaknesses and strengths. 

Conclusion

This Comment's aim is to give an overview of environmental law on the international stage, its shortcomings when faced with market forces, and the possible avenues for enforcement and remedies available to developing countries.  This analysis reveals that international environmental law is not, in fact, making developing countries dirtier and developed countries richer.  The picture is far more complicated than that, and it is made more complicated by various actors (environmentalists, multi–national organizations, Non Governmental Organization's, governments and populations) each vying for their own agenda.

Criticism leveled at various institutions and “arrangements,” such as NAFTA/CAFTA, WTO, and national contracts with foreign investors, revolves around the perception that the WTO with its dispute settlement panels and the various arrangements (such as NAFTA/CAFTA) create insurmountable hurdles for developing countries and do so at the expense of the countries' environments.[190]  These hurdles span the gamut: reduced possibilities for debate, insufficient national resources to tackle environmental problems, “unwinnable” litigation, diplomatic blackmail, and inherently unfair agreement language.[191]

An overview of the agreements themselves uncovers significant flaws which arguably give foreign investors too much power in the various domestic arenas (NAFTA Chapter 11/CAFTA Chapter 10 is a prime example of this).[192]  However, these shortcomings seem neutral in that they affect all parties to the agreements, both developed and developing countries.  The more critics make their arguments, the more they demonstrate that if something has to change it is the system as a whole, not who supposedly “controls” it.[193]

The three paradigmatic cases for enforcement of environmental protections in the investment setting show that regardless of where developing countries fight their battles–their own domestic courts for Costa Rica,[194] the International Court of Justice for Uruguay and Argentina,[195] or the WTO Dispute Settlement Panel for Mexico–[196] a lawsuit does not necessarily mean a loss.  Costa Rica obtained a resounding victory that largely went unmentioned in activist literature.[197]  Uruguay was able to attract a significant investment while imposing environmental restrictions.[198]  Mexico won against the United States in demanding equal treatment in the marketplace.[199]

NAFTA/CAFTA and traditional international treaties such as the one entered into by Uruguay and Argentina are not inherently biased against developing countries, or at least, no real evidence of such bias has been convincingly presented so far.  In the case of WTO disputes, a word of caution is appropriate.  Having reviewed the literature, it seems that the numbers of cases, identity of the parties, and outcomes may not give a clear picture of WTO dispute settlement. 

However, before the various bi- and multi-lateral agreements can be looked at objectively, a fundamental shift in mentality needs to take place.  The anti–competitiveness theory of environmental law must be viewed as a possible theory, not as an absolute truth.  As long as scholars and activists describe developing countries as helpless nations incapable of fending for themselves,[200] any attempt to understand international environmental law and how it affects developing countries' attempts to enter the market will remain fruitless.


[1] See Application Instituting Proceedings, Pulp Mills on the River Uruguay, (Arg. v. Uru.), 2006 I.C.J. Pleadings 135, at ¶ 5 (May 4, 2006).

[2] Statute of the River Uruguay  (Feb. 26, 1975), available at http://www.caru.org.uy/publicaciones/The-River-Uruguay-executive-commission-Uruguay-Paysandu.pdf [hereinafter Rio Uruguay Treaty] (unofficial translation of the Spanish original); Treaty Founding The River Uruguay Executive Commission (Comisión Administradora del Rio Uruguay), Arg.-Uru., Feb. 26, 1975, available at http://www.caru.org.uy/publicaciones/The-River-Uruguay-executive-commission-Uruguay-Paysandu.pdf (ratified by Act No. 21.413 of Argentine Republic dated September 9, 1976 and Act No. 14.521 of Oriental Republic of Uruguay dated May 20, 1975).

[3] Treaty Founding The River Uruguay Executive Commission (Comisión Administradora del Rio Uruguay), Arg.-Uru., Feb. 26, 1975, at 1, available at http://www.caru.org.uy/publicaciones/The-River-Uruguay-executive-commission-Uruguay-Paysandu.pdf (stating that name of entity is Commission).

[4] Id. at 5 (stating that Commission will serve as forum for discussion regarding development along River Uruguay).

[5] Id.at 3 (granting powers to Commission to create rules and regulations pertaining to use of River Uruguay).

[6] Resolución Ministerial 63/2005 [R.M.] [Ministerial Resolution], 14 de Febrero de 2005 (Uru.); Resolución Ministerial 342/2003 [R.M.] [Ministerial Resolution], 9 de Octubre de 2003 (Uru.).

[7] See James Harrison, Significant Environmental Law Cases, 18 J. Envtl. L. 505, 507 (2006) (describing Argentina's claim that Uruguay had not adequately provided for protection of “the aquatic environment and to prevent pollution of the river”).

[8] Pulp Mills on the River Uruguay (Arg. v. Uru.), 2006 I.C.J. 135, at ¶ 1 (July 13, 2006), available at http://www.icj-cij.org/docket/index.php?p1=3&p2=1&code=au&case=135&k=88.

[9] See Harrison, supra note 7, at 507 (describing Argentina's procedural and substantive opposition to Uruguay's approval of two pulp mills).

[10] Pulp Mills on the River Uruguay (Arg. v. Uru.), 2006 I.C.J. 135, at ¶¶ 41, 43.

[11] Argentina and Uruguay are developing countries, while Finland, Belgium, France and Spain are developed countries.  This classification is consistent with United Nations Development Programme Human Development Indicators.  See U.N. Dev. Programme [UNDP], Human Development Report 2005, H.D.R. 2005, 219, 227 (2005), available at  http://hdr.undp.org/reports/global/2005/pdf/HDR05_HDI.pdf  (listing Finland, Spain, France and Belgium among countries with high human development index and Argentina and Uruguay as developing countries).

[12] Center for Human Rights and Environment [CEDHA] & Bank Track, Botnia and ENCE Pulp Paper Mills Uruguay, http://www.cedha.org.ar/docs/press-kit-celulosa.doc (last visited Jan. 23, 2008) (declaring that community had consistently opposed ENCE and Botnia's projects and that two companies were “willfully and intentionally taking advantage of less stringent [regulations] in Latin America to export . . . outdated contaminating technology to the developing world.”); Center for Human Rights and Environment, Declaration, available at http://www.cedha.org.ar/en/initiatives/paper_pulp_mills/celulosa-declaracion-eng.doc (arguing that developed countries were turning developing countries into “world's rubbish tip” by exporting dangerous industries).

[13] See infra Part III.b.iii. (describing multiple steps required by permitting procedure).

[14] Council Directive 96/61, Integrated Pollution Prevention and Control, art. 2.11, 1996 O.J. (L 257), available at http://eippcb.jrc.es/pages/Directive.htm (defining best available techniques (“BAT”) for environmental protection).

[15] Pulp Mills on the River Uruguay (Arg. v. Uru.), 2006 I.C.J. 135, at ¶ 87 (July 13, 2006) (denying Argentina's request for injunctive relief).

[16] Pulp Mills on the River Uruguay (Arg. v. Uru.), 2006 I.C.J. 135, at ¶ 86 (leaving door open to Argentina to “submit in the future a fresh request for the indication of provisional measures”).

[17] See infra Parts III.b.i-iii (describing such efforts by Costa Rica, Uruguay and Mexico).

[18] See infra Parts II.a-b. (chronicling development and prevalence of these opinions in scholarly literature).

[19] Central American Free Trade Agreement, Aug. 5, 2004, 119 Stat. 462, 43 I.L.M. 514 [hereinafter CAFTA]; North American Free Trade Agreement, U.S.-Can.-Mex., Dec. 17, 1992, 107 Stat. 2057 [hereinafter NAFTA] (entered into force Jan. 1, 1994).

[20] The World Trade Organization (hereinafter “WTO”) and the General Agreement on Tariffs and Trade, Oct. 30, 1947, 24 U.S.T. 146, 55 U.N.T.S. 194, (hereinafter “GATT”) are usually referred to collectively.

[21] The North American Free Trade Agreement is a free trade agreement between Mexico, Canada and the United States.  See NAFTA, supra note 19.  Mexico is a developing country while Canada and the United States are developed countries.  See UNCTAD, infra note 57.  The World Trade Organization has 151 members (as of July 27, 2007), including developed and developing countries at all stages of economic and social development.  See The World Trade Organization, What is the WTO?, http://www.wto.org/english/thewto_e/whatis_e/whatis_e.htm (listing WTO member countries).

[22] These are official ad hoc panels regulated by the GATT Dispute Settlement Understanding.  See GATT, Annex 2, supra note 20.

[23] Report of the Panel, United StatesRestrictions on Imports of Tuna, GATT B.I.S.D. (39th Supp.) at 155 (Aug. 16, 1991).

[24] David Bederman, International Law Frameworks 12 (Foundation Press 2001) (pointing to Article 38 of Statute of Court of Justice as definitive source of international law and describing international law as: international conventions, international custom, as evidence of general practice accepted as law, general principles of law recognized by civilized nations, judicial decisions, and teachings of most highly qualified publicists of various nations).

[25] Katrina Fischer, Harnessing the Treaty Power in Support of Environmental Regulation of Activities that Don't “Substantially Affect Interstate Commerce” Recognizing the Realities of the New Federalism, 22 Va. Envtl.  L. J. 167, 198 (2004) (citing Environmental Regulation, Law, Science, and Policy 1097 (Percival et al. eds., 2000)) (stating that between 1970 and 1999, “the number of environment-related treaties expanded from fifty-two to 215, and estimates reveal that over 1,000 international agreements contain at least one environmental component”).

[26] See infra Part III (analyzing cases brought under WTO/GATT framework, NAFTA-like circumstances, and bilateral agreement self-subjected to I.C.J. jurisdiction).

[27] Most notably the European Union frameworks.

[28] See infra Part III.a.iii; Firew Kebede Tiba, What Caused the Multiplicity of International Courts and Tribunals, 10 Gonz. J. Int'l L. 202, 204 (2006) (describing WTO Dispute Settlement Understanding as example of “compulsory jurisdiction and the granting of binding decision making power to judicial institutions. . . ”).

[29] See Tiba, supra note 28, at 203 (chronicling development of first truly international court, I.C.J. in 1940s and 1950s).

[30] Id.

[31] See Jarrod Wong, Umbrella Clauses in Bilateral Investment Treaties: of Breaches of Contract, Treaty Violations, and the Divide Between Developing and Developed Countries in Foreign Investment Disputes, 14 Geo. Mason L. Rev. 135, 142 (2006) (describing option various countries and private entities have of submitting their disputes to ICSID arbitrations).

[32] See infra Part III.b.i (chronicling CAFTA-like dispute involving Costa Rica and Harken).

[33] Restatement (Third) Of Foreign Relations Law Of The United States § 102 (2006).

[34] See Sungjoon Cho, Defragmenting World Trade, 27 NW. J. Int'l L. & Bus. 39, 79-80 (2006) (describing “soft law [as] international standards (guidelines or recommendations) [and] hard law [as] treaties. . .”).

[35] See Dinah Shelton, Normative Hierarchy in International Law, 100 Am. J. Int'l L. 291, 305 (2006) (stating that given widespread existence of multilateral regimes for environmental protection of all types, main issue is usually one of statutory compliance or construction rather than question as to existence of laws protecting environment).

[36] Id.

[37] See Johannesburg Declaration on Sustainable Development, U.N. Doc. A/CONF.199/20 (Sept 4, 2002); Rio U.N. Conference on the Environment and Development, UN Doc. A/CONF.151/26/REV.1 (Aug. 12, 1992); Convention on the Protection and Use of Transboundary Watercourses and International Lakes, 1936 U.N.T.S. 269 (Mar. 17, 1992) (“defining ‘environmental' to include human health and safety, flora, fauna, soil, air, water, climate landscape, historical monuments or other physical structures, or any interaction among these factors.” (cited in William Onzivu, International Environmental Law, The Public's Health, and Domestic Environmental Governance in Developing Countries, 21 Am. U. Int'l L. Rev. 597, 684 n. 109 (2006))); Vienna Convention for the Protection of the Ozone Layer, 1513 U.N.T.S. 293 (Mar. 22, 1985); Stockholm Declaration, Report of the United Nations Conference on the Human Environment, U.N. Doc. A/CONF.48/14 (June 5-16, 1972).

[38] NAFTA/CAFTA trade agreements provide exceptions for the environment, while the Rio Uruguay Treaty of 1975 was expressly entered into to protect the River Uruguay environment from dangerous investments.

[39] See NAFTA and CAFTA, supra note 19, at 2061.

[40] See CAFTA, supra note 19, at 463 (listing CAFTA's member-states).

[41] Accord Public Citizen, http://www.citizen.org/trade/nafta (last visited Nov. 18, 2007) (describing “the damage NAFTA has wrought for millions of people in the U.S., Mexico and Canada”); see also National Association of Manufacturers, NAFTA Background Report, (1998) http://www.nam.org/s_nam/doc1.asp?CID=201740&DID=223558 (describing both verbal attacks against NAFTA and organized opposition to treaty led by labor organizations and environmentalists).  See generally Victoria Lindo, Hydroelectric Power Production in Costa Rica and the Threat of Environmental Disaster Through CAFTA, 29 B.C. Int'l & Comp. L. Rev. 297 (2006) (describing CAFTA as imminent disaster for Costa Rica because of its similarities to NAFTA); Paulette Stenzel, Plan Puebla Panama: An Economic Tool That Thwarts Sustainable Development and Facilitates Terrorism, 30 WM. & Mary Envtl. L. & Pol'y Rev. 555, 573 (2006) (describing prevalence of opposition to NAFTA among environmentalists); Happily Ever NAFTA?, http://www.fair.org/extra/best-of-extra/nafta.html (last visited Jan. 23, 2008) (describing labor unionist and environmentalist anti-NAFTA messages in Newsweek, Washington Post and N.Y. Times).

[42] Jessica Lawrence, Chicken Little Revisited: NAFTA Regulatory Expropriations after Methanex, 41 GA. L. Rev. 261, 265 (2006) (quoting Madeline Stone, Note, NAFTA Article 1110: Environmental Friend or Foe?, 15 Geo. Int'l Envtl L. Rev. 763, 764 (2003)).

[43] See Lindo, supra note 41, at 310 (citing NAFTA, ch. 11, Dec. 17, 1992, 107 Stat. 2057).

[44] Id. at 310 (citing Public Citizen, NAFTA, ch. 11 Investor-to-State Cases: Bankrupting Democracy, at iv (2001),  available at http://www.citizen.org/documents/ACF186.pdf.)

[45] Public Citizen, Nafta ch. 11 Investor-to-State Cases: Bankrupting Democracy (2001), available at http://www.citizen.org/documents/ACF186.pdf (chronicling multiple examples of investors bringing suits against various governments on ground that governments discriminated against them by enforcing their environmental laws).

[46]  Lindo, supra note 41, at 310.  For example, some scholars argue that cases arising out of Chapter 11 demonstrate the extremes to which companies are willing to go in order to ensure their prosperity in developing countries while severely undermining those same countries' environmental integrity. Id.; Public Citizen, supra note 41.

[47] Lindo, supra note 41, at 312.  From here on, any reference to NAFTA Chapter 11 should be construed as also applying to CAFTA Chapter 10.

[48] Id. at 311.

[49] Id. (“Costa Rica, as a developing nation, cannot afford to effectively litigate every potential case nor can it afford to pay out a large verdict if it loses”).

[50] Public Citizen, NAFTA's Threat to Sovereignty and Democracy: The Record of NAFTA Chapter 11 Investor-State Cases 1994-2005, 9 (2005), http://www.citizen.org/documents/Chapter%2011%20Report%20Final.pdf (summarizing cases as fourteen still in arbitration, five cases resolved in favor of investors, six cases resolved in favor of NAFTA governments, arbitration of ten cases has not yet commenced, two cases settled, and five never reached arbitration stage).

[51] Id. at i-v (despite summary on page v stating different number, careful review of remainder of document indicates that fourteen cases are currently open or pending).

[52] Id. at v (listing five cases brought against Mexico under NAFTA).

[53] Id. at i-iii (listing eight cases brought against U.S. and single case brought against Canada).

[54] Id. at v (summarizing that five cases came to investor-friendly conclusion).

[55] Id.  (stating that $35 million of collective awards were won by 2005).

[56] Id.  (summarizing that six cases were ruled in favor of NAFTA governments).

[57] United Nations Development Programme, Human Development Indicators 219 (2005) (listing Canada fifth in Human Development Indicators rankings and United States tenth); World Trade Organization, Annual Report iii, 40 (2006) (listing Mexico among recognized developing nations); United Nations Conference on Trade and the Development [UNCTAD], Generalized System of Preferences List of Beneficiaries, 6,   UNCTAD/ITCD/TSB/Misc.62/Rev.1 (2005) (listing Mexico as self-reported developing country)

[58] General Agreement on Tariffs and Trade, Oct. 30. 1947, 24 U.S.T. 146, 55 U.N.T.S. 194 [hereinafter GATT].

[59] World Trade Organization, GATT: A Brief History, http://www.wto.org/english/thewto_e/whatis_e/inbrief_e/inbr01_e.htm (last visited Jan. 23, 2008).

[60] GATT, supra note 58, at Preface (describing goals of GATT as being reduction of tariffs and other barriers to trade).

[61] Marrakesh Agreement Establishing the World Trade Organization, Apr. 15 1994, 1867 U.N.T.S. 154, 33 I.L.M. 1144 (1994).

[62] World Trade Organization, Members and Observers, http://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm (last visited Jan. 23, 2008).

[63] Id. (declaring WTO's goal to be implementation of GATT principles as they have evolved over years).

[64] See William Onzivu, International Environmental Law, The Public's Health, and Domestic Environmental Governance in Developing Countries, 21 Am. U. Int'l L. Rev. 597, 680-81 (2006) (“WTO has negatively impacted on health and environmental protection in developing countries.”); Bruce Ramsey, WTO Targeted by Critics at Seattle U Trade Forum, http://seattlepi.nwsource.com/national/rams02.shtml (last visited Dec. 20, 2007) (describing protests during Seattle WTO forum); World Trade Organization [WTO], Top 10 Reasons to Oppose the World Trade Organization? Criticism, yes . . . misinformation, no!,  http://www.wto.org/english/theWTO_e/minist_e/min99_e/english/misinf_e/00list_e.htm (last visited Dec. 20, 2007) (listing typical accusations leveled against WTO, including accusations that it only serves multinational corporations' interests, it kills people, violates their human rights, destroys the environment, it is undemocratic, it undermines local development, “penalizes poor countries”, and increases inequality).

[65] See James Thuo Gathii, The High Stakes of WTO Reform, 140 Mich. L. Rev 1361, 1361 (describing WTO trade-negotiation as arena that enables few rich countries to dominate all other countries (referencing Fatoumata Vawara and Aileen Kwa, Behind the Scenes at the WTO: The Real World of Trade Negotiations/The Lessons of Cancun (2004))).

[66] Id. at 1363 (describing WTO as “highly secretive organization” where decisions are made by its four richest members: U.S., E.U., Canada and Japan).

[67] See Chad Bown & Bernard Hoekman, WTO Dispute Settlement and the Missing Developing Country Cases: Engaging the Private Sector, 8 J. Int'l Econ. L. 861, 861 (2005) (arguing that poorest WTO members regularly fail to enter dispute settlement arena, whether it be as parties to dispute or as interested third-parties).

[68] See supra notes 65-68 and accompanying text (listing various procedures scholars identify and  argue limit developing countries' engagement in process).

[69] See Onzivu, supra note 64, at 680 (citing General Agreement on Tariffs and Trade, art. XX, Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S. 194 (stating that GATT "shall be construed to prevent the adoption or enforcement by any contracting party of measures: . . .  (b) necessary to protect human, animal or plant life or health; . . . (g) relating to the conservation of exhaustible natural resources.")).

[70] General Agreement on Tariffs and Trade, art. XX, Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S. 194.

[71] David Barnhizer, Waking from Sustainability's “Impossible Dream”: The Decisionmaking Realities of Business and Government, 18 Geo. Int'l Envtl. L. Rev. 595, 602 (2006) (arguing GATT caters to lowest common environmental denominator and that it is adamant that any environmental protection has to create least possible intrusion on trade).

[72] See Chantal Thomas, Should the World Trade Organization Incorporate Labor and Environmental Standards?, 61 Wash. & Lee L. Rev. 347, 390 (2004) (describing ways in which current interpretation of SPS provisions significantly narrows their scope); John Ewers, Comment, Dueling Risk Assessments: Why the WTO and Codex Threaten U.S. Food Standards, 30 Envtl. L. 387, 412 (2000) (stating that WTO “appellate body's narrow interpretation of risk assessment” is unreasonable and not supported by SPS Agreement itself).

[73] Onzivu, supra note 64, at 681-82.

[74] Id. (stating that some environmental laws could be perceived as impermissible trade barriers).

[75] See Bown & Hoekman, supra note 67, at 863.

[76] Id.

[77] See Thomas, supra note 72 at 390 (describing ways in which current interpretation of SPS provisions significantly narrows their scope); Ewers, supra note 72, at 412 (stating that WTO “appellate body's narrow interpretation of risk assessment” is unreasonable and not supported by SPS Agreement itself); see also Onzivu, supra note 64, at 681-82.

[78] See supra Parts III.a.i-iii (reviewing various legal frameworks).

[79] Report of the Panel, United StatesRestrictions on Imports of Tuna, GATT B.I.S.D. (39th Supp.) at 155 (Aug. 16, 1991).

[80] Pulp Mills on the River Uruguay, Pulp Mills on the River Uruguay, (Arg. v. Uru.), 2006 I.C.J. 135, ¶ 1 (May 4, 2006).

[81] The hypothesis that developing countries are not necessarily at a chronic disadvantage with respect to their environmental safety seems holds true for NAFTA/CAFTA and for the Rio Uruguay 1975 Treaty.  It is neither proven nor disproven with respect to the WTO/GATT enforcement mechanism. 

[82] Mark Engler & Nadia Martinez, Harken v. Costa Rica: US Companies Employ Blackmail in 'Free Trade' with Central America, People's Weekly Newspaper, May 27, 2004, available at http://www.bilaterals.org/article.php3?id_article=188.

[83] Id.

[84] Id.; accord Lindo, supra note 41, at 311(relating President Abel Pacheco's announcement of moratorium on oil exploration in Costa Rica).

[85] Engler & Martinez, supra note 82.

[86] Id. (reporting Harken brought suit against Costa Rican government for $57 billion).

[87] Id. (reporting that in late September 2000 President Pacheco announced that his country, Costa Rica, would not submit to international arbitration).

[88] Id.; NRDC & Friends of the Earth, The Threat to the Environment from the Central America Free Trade Agreement (CAFTA): The Case of Harken Costa Rica Holdings and offshore oil,  https://www.foe.org/camps/intl/harken.pdf (last visited Jan. 23, 2008), (noting that when Costa Rica insisted that case be tried in domestic court, Harken withdrew its claims).

[89] See NRDC & Friends of the Earth, supra note 88, at 2 (discussing when Costa Rica insisted that case be tried in domestic court, Harken withdrew its claims).

[90] Id. at 2 (describing protests that took place during Harken officials' negotiation visits to Costa Rica).

[91] See Antonia Juhasz, Democracy v. Corporate Rule: How the Central American Free Trade Agreement (CAFTA) Allows Investor Rights to Trump the Public Interest, at 10 (2004),  http://www.ifg.org/news/CaftaPress.html (explaining that both Bush Administration and Harken were using impending CAFTA ratification to pressure Costa Rica to settle case by either paying damages or allowing drilling to go forward).

[92] See Oilwatch, Deuda Ecologica y Moratoria Petrolera en Costa Rica, Aug. 2005,  http://www.oilwatch.org/2005/documentos/deuda_costarica_esp.pdf (reporting that rescission of contract between Harken and Costa Rica was prompted by finding that Harken's project in Costa Rican Caribbean waters was not environmentally viable (translation by author)); see also Inside Costa Rica, Costa Rica Formally Rescinds Harken Energy Oil Contract, Wednesday, Mar. 2, 2005, http://insidecostarica.com/dailynews/2005/march/02/nac01.htm (describing Costa Rica's formal cancellation of contract after three-year long dispute).

[93] Inside Costa Rica, supra note 92.

[94] See supra note 92 and accompanying text (chronicling Costa Rica's defense of its environmental health from Harken's drilling plans).

[95] See Lindo, supra note 41, at 311 (characterizing fear of foreign investors' use of CAFTA as justified in light of their proven willingness to threaten countries with lawsuits and substantial damages (citing Engler & Martinez, supra note 83)); Engler & Martinez, supra note 82 (describing “cautionary tale” regarding possible abuses foreign investors could perpetrate under CAFTA and/or NAFTA and environmental bullying potential these agreements could have)).

[96] See Engler & Martinez, supra note 82 (elaborating that under CAFTA, Costa Rica would not have had choice to reject ICSID forum and demand domestic resolution of CAFTA disputes).

[97] See Lindo, supra note 41, at 312 (explaining that Costa Rica would not have been able to simply refuse to submit to arbitration if it was member of CAFTA, and that “[a]lthough Costa Rica successfully avoided arbitration with Harken, if CAFTA had been in force then, the result would likely have been quite different”).

[98] See supra notes 92-94 and accompanying text (chronicling Costa Rica's success).

[99] See infra note 125 and accompanying text (describing general view that developing countries are unable to defend their environmental interests while remaining competitive in international market).

[100] See Public Citizen, supra note 50 (describing large amounts investors have sued for, and explaining that chilling effect on government's efforts to protect environment).

[101] Id.

[102] See Lindo, supra note 41, at 311 (citing Martinez & Engler, supra note 82).

[103] See supra note 88 (chronicling Costa Rica's refusal to submit to international jurisdiction).

[104] See supra notes 92-93 and accompanying text (stating that legal ground for rescission was failure to comply with environmental requirements).

[105] See Lindo, supra note 41, at 311 (stating that “[t]he Harken oil drilling case illustrates [the] threat [of foreign investors using CAFTA as a blackmailing tool] perfectly”).

[106] Constitución de la Republica de Costa Rica [Constitution of the Republic of Costa Rica], Art. 50 (1994), available at http://pdba.georgetown.edu/Constitutions/Costa/costarica49.html, translated in Costa Rice Legal Net, Laws and Regulations of Costa Rice, http://www.costaricalaw.com/LEGALNET/constitutional_law/constitution_en_05.php (“Every person has the right to a healthy and ecologically balanced environment, being therefore entitled to denounce any acts that may infringe said right and claim redress for the damage caused”).

[107] Report of the Panel, United States--Restrictions on Imports of Tuna, GATT B.I.S.D. (39th Supp.) at 155 (Aug. 16, 1991).

[108] Id. ¶ 7 (holding that United States' various environmental laws violated GATT).

[109] Id. ¶ 2.3 (summarizing MMPA).

[110] Id. ¶ 3.27 (summarizing United States' argument that MMPA fit within Article XX SPS exceptions).

[111] GATT, supra note 20.

[112] Report of the Panel, United States--Restrictions on Imports of Tuna, GATT B.I.S.D. (39th Supp.) at 155, ¶ 7 et seq. (Aug. 16, 1991) (ruling in Mexico's favor and against United States' tuna protection legislation).

[113] Id. ¶¶ 1.1, 2.1 (listing Mexico as plaintiff, U.S. as defendant and environmentally related cause of action).

[114] See supra note 112 and accompanying text (relating that GATT panel ruled in favor of Mexico).

[115] Onzivu, supra note 64, at 682.

[116] Report of the Panel, United StatesRestrictions on Imports of Tuna, GATT B.I.S.D. (39th Supp.) at 155 (Aug. 16, 1991).

[117] See Meredith Kolsky Lewis, The Lack of Dissent in WTO Dispute Settlement, 9 J. Int'l Econ. L. 895, 897-98 (2006) (explaining that under GATT regime disputes were resolved by panel, but that panel report only bound parties to dispute unless there was unanimous consensus by all GATT members that panel be adopted as GATT law, in which case panel report would be GATT law and therefore WTO law).

[118] Report of the Panel, United StatesRestrictions on Imports of Tuna, GATT B.I.S.D. (39th Supp.) at 155 (Aug. 16, 1991).

[119] See supra note 112 and accompanying text (relating that GATT panel ruled in favor of Mexico).

[120] Id. (court found that U.S.'s environmental protection laws were in violation of GATT).

[121] See Bown & Hoekman, supra note 67, at 865 (noting that “The WTO is a set of self-enforcing agreements.”).

[122] Id. at 865-66.

[123] Id. at 866 (summarizing possible avenues through which “losing” country might punish “winning” country for their victory).

[124] Markus Ehrmann, Procedures of Compliance Control in International Environmental Treaties, 13 Colo. J. Int'l Envtl. L. & Pol'y 377, 382-83 & 443 n.14 (2002) (stating that I.C.J. has tackled environmental disputes).

[125] Report of the Panel -Pulp Mills on the River Uruguay (Arg. v. Uru.), 2006 I.C.J. 135.

[126] Id.

[127] See Resolución Ministerial,  supra note 6  (approving construction of Botnia and ENCE pulp mills).

[128] Uruguay Oral Arguments, Pulp Mills on the River Uruguay, (Arg. v. Uru.), 2006 I.C.J. Pleadings 2006/49, at 15 (June 9, 2006) (stating that Uruguay imposed European Best Available Techniques on two foreign companies).

[129] Uruguay Oral Arguments, Pulp Mills on the River Uruguay,  (Arg. v. Uru.), 2006 I.C.J. Pleadings 2006/47, ¶ 15 (June 8, 2006) (telling court that at time of oral arguments Spanish plant only had permit to move earth and prepare ground, and that no license had been issue for construction of buildings, installation of machinery, or for commencement of operations; Finnish plant had received permission to construct civil works but not to install machinery).

[130] Id. (stating that both companies had to complete environmental impact assessments at each stage of development).

[131] The facts of Pulp Mills on the River Uruguay (Arg. v. Uru.) demonstrate this.  Uruguay imposed a multi-stepped permitting system aimed at protecting the environment as much as possible, given the nature of pulp mills. On the other hand, Botnia and ENCE accepted to make substantial investments despite these seemingly restrictive requirements.

[132] See Resoluciónes Ministeriales, supra note 6 (approving construction of two paper mills).

[133] Planetark.com, Botnia Continues Building Uruguay Mill for Now, http://www.planetark.com/dailynewsstory.cfm/newsid/35619/story.htm (last visited Feb. 3, 2007).

[134] Central Intelligence Agency, The World Factbook: Uruguay,  https://www.cia.gov/library/publications/the-world-factbook/geos/uy.html (last visited Dec. 20, 2007) (Uruguay's GDP (purchasing power parity) was $37.54 billion in 2006).

[135] See Treaty Founding The River Uruguay Executive Commission, supra note 2, at ii, 1 (containing map of River Uruguay along Argentinean-Uruguayan border and stating, “[t]he Uruguay River . . . constitutes the frontier . . . between Argentina and Uruguay.”).

[136] See Resoluciónes Ministeriales, supra note 6 (approving construction of two paper mills).

[137] See Benedict Mander, Paper Mill Protests Resume in Uruguay, FINANCIAL TIMES, Apr. 6, 2006 (“Argentine environmental activists have resumed roadblocks preventing access across the border with Uruguay, where a $1.7bn paper mill project is fraying relations between the two countries.”); Americas.org, Paper Mill Protests Continue, Jan. 2, 2007, http://www.americas.org/item_23996 (“On December 30, hundreds of protesters blocked traffic along three bridges which span the Uruguay River, linking Argentina's Entre Ríos province with Uruguay, to protest the Uruguayan government's decision to allow the construction of paper mills along the river”).

[138] See Application Instituting Proceedings, Pulp Mills on the River Uruguay (Arg. v. Uru.), supra note 1.

[139] Id.

[140] Id.  ¶ 35.

[141] Argentina Oral Arguments, Pulp Mills on the River Uruguay, (Arg. v. Uru.), 2006 I.C.J. Pleadings 2006/46, ¶¶ 13-15 (June 8, 2006) (describing boundary effects of pulp mills).

[142] Argentina Oral Arguments, Pulp Mills on the River Uruguay, (Arg. v. Uru.), 2006 I.C.J. Pleadings 2006/48, at 32 (June 9, 2006) (describing identified and unidentified toxic substances which will be emitted by paper mills).

[143] Uruguay Oral Arguments, Pulp Mills on the River Uruguay,  (Arg. v. Uru.), 2006 I.C.J. Pleadings 2006/47, at 13 (announcing that mills “currently under construction” will be of same, if not of higher, quality than those currently being built in Europe).

[144] Uruguay Oral Arguments, Pulp Mills on the River Uruguay,  (Arg. v. Uru.), 2006 I.C.J. Pleadings 2006/49, at 14-15 (“the Orion mill will be a state-of-the art facility that will comply full with European Union best available techniques.”).

[145] Uruguay Oral Arguments, supra note 143, ¶ 13.

[146] Id.

[147] Id. ¶ 17 (“Uruguay lacks neither the will nor the means to tackle pollution or other environmental problems that might result from the licensing of two pulp mills.”).

[148] Id. ¶¶ 6-11.

[149] Id. ¶ 5.

[150]  First, “the Applicant is required to undertake an environmental assessment.” Uruguay Oral Arguments, Pulp Mills on the River Uruguay,  (Arg. v. Uru.), 2006 I.C.J. Pleadings 2006/47, at 13,¶ 6.  Second, “no authorization to construct or operate industrial facilities may be issued if [the environmental authority] finds that there will be unacceptable [environmental impacts].” Id. ¶ 7.  Third, any discharge in excess of prescribed limits is prohibited.  Id. ¶ 8.  Fourth, Uruguayan law “provides that the plant operator must obtain a further authorization before operations can begin.”  Id. ¶ 9. Fifth, “industrial plants must request and obtain a renewal of their authorization to operate every three years.”  Id. ¶ 10.  Sixth, each plant must have a monitoring plan to ensure continuing compliance with environmental requirements.  Id. ¶ 11.

[151] Jorge Taillant, Case Commentary by Taillant to Finnish National Contact Point(Aug. 27, 2006), available at http://www.cedha.org.ar/en/initiatives/paper_pulp_mills/case-commentary-by-taillant-to-finnish-ncp.pdf (“[This case] is about Corporate Social Responsibility at a global scale.  It is about how one company operates when it sees a profitable business opportunity in a developing country”).

[152] Center for Human Rights and the Environment, Specific Instance Regarding Paper Mill Investment in Fray Bentos Uruguay by Botnia S.A., at 2 (2006), available at  http://www.cedha.org.ar/en/initiatives/paper_pulp_mills/oecd-specific-instance-Botnia-eng.pdf.

[153] See supra Parts III.b.i, iii (describing perceived insurmountable division which exists between developing countries and developed countries).

[154] See supra note 6 and accompanying text (Uruguayan government approved Botnia and Ence's construction plans).

[155] See supra note 150 (describing requirements imposed on companies).

[156] Uruguay was allowed to continue construction but oral arguments are ongoing at the I.C.J.   See International Court of Justice, Pending Cases, http://www.icj-cij.org/docket/index.php?p1=3&p2=1 (last visited Nov. 19. 2007). 

[157] See supra note 133, 150 and accompanying text (detailing multi-step procedure and amounts companies have nonetheless agreed to invest).

[158] Id.

[159]   This theory is referred to as the anti-competitiveness theory throughout this Comment.

[160] See generally U.S. Office of Tech. Assessment, 85th Cong.,Trade and the Environment:  Conflicts and Opportunities, Report no. OTA-BP-ITE-94, at 37-51 (1992) (recognizing that “perceived efforts to liberalize trade and to protect the environment are driving discussion of trade/environment issues”); Edith Weiss, Environmentally Sustainable Competitiveness: A Comment, 102 Yale L.J. 2123, 2123 (1993) (arguing international minimum standards could be way to harmonize otherwise competing interests of economic growth and environmental protection).

[161] See Weiss, supra note 160, at 2124 (claiming that countries may be willing to pay heavy environmental degradation prices “in order to compete for economic gain”).

[162] See Sanford Gaines, Rethinking Environmental Protection, Competitiveness, and International Trade, 1997 U. Chi. Legal F. 231, 243 (1997) (explaining belief that environmental regulations place subject producers at disadvantage is “article of faith”).

[163] Id. at 235.

[164] See Erik B. Bluemel, Substance Without Process: Analyzing TRIPS Participatory Guarantees in Light of Protected Indigenous Rights, 86 J. Pat. & Trademark Off. Soc'y 671, 696 (2004) (stating that lower environmental standards provide competitive advantage in trade and investments (citing Mark Hannig, An Examination of the Possibility to Secure Intellectual Property Rights for Plant Genetic Resources Developed by Indigenous Peoples of the NAFTA States: Domestic Legislations Under the International Convention for Protection of New Plant Varieties, 13 Ariz. J. Int'l & Comp. L. 175, 235-241 (1996))). In an e-mail from J. Taillant, CEO of the Center for Human Rights and the Environment, to A. Kaisu, Botnia representative, the Center for Human Rights and the Environment clearly states that, in their opinion, there is no such thing as a developing country with high environmental standards and a functioning pulp mill. Robert M. Crowley, Comment, Stepping onto a Moving Train: The Collision of Illegal Logging, Forestry Policy, and Emerging Free Trade in the Russian Far East, 14 Pac. Rim L. & Pol'y J. 425, 453 (2005) (assuming that “nations in the region. . . obtain competitive advantage by having lower environmental standards”).

[165] See supra notes 159-64 and accompanying text (providing overview of literature assuming anti-competitiveness theory and its corollary).

[166] Victoria Lindo, Hydroelectric Power Production in Costa Rica and the Threat of Environmental Disaster Through CAFTA, 29 B.C. Int'l & Comp. L. Rev. 297,  303 (2006) (explaining that newly passed hydroelectric nationalization law has done nothing more than open Costa Rica to “negative consequences of permitting foreign investment”).

[167] Onzivu, supra note 64, at 664.

[168] Id. (“In reality, less developed countries do not have the technical and professional capabilities to enforce and evaluate the treaties' provisions”) (internal citations omitted).

[169] See Tanya Sobol, Note, An NGO's Fight to Save Ukraine's Danube Delta: The Case for Granting Nongovernmental Organizations Formal Powers of Enforcement, 17 Colo. J. Int'l Envtl. L. & Pol'y 123, 146-47 (2006) (explaining that despite scientific certainty to contrary, Ukrainian officials approved construction of canal, arguing that there would be “no adverse impact on the environment”).

[170] Id. (chronicling Ukrainian government's acceptance of Canal building in face of scientific certainty that environmental damage would ensue).

[171] See Heather Bowman, If I had a Hammer: The OECD Guidelines for Multinational Enterprises as Another Tool to Protect Indigenous Rights to Land, 15 Pac. Rim L. & Pol'y J. 703, 715-16 (2006) (describing one advantage of soft law being developing country's ability to choose between foreign investments and their environment); Byung-Sun Cho, Emergence of an International Environmental Criminal Law?, 19 UCLA J. Envtl. L. & Pol'y11, 41 (2001) (stating that many poor nations are faced with choice of either having clean environment or economic growth, and that they usually choose latter);  Madeline Cohen, A New Menu for the Hard-Rock Café: International Mining Ventures and Environmental Cooperation in Developing Countries, 15 Stan. Envtl. L.J. 130, 161 n.132 (1996) ("[I]f forced to make a choice, most developing countries will choose more rapid economic development over protection of the environment.").

[172] Cohen, supra note 171. Literature on the topic reiterates this view.  See Bowman, supra note 171, at 715-16 (using government regulations to protect natural environment and safety of people affected by development projects may not be practical or likely solution for country that desires to provide jobs for its people or increase its national revenues) (citations omitted); Alan R. Jenkins, NAFTA: Is the Environmental Cost of Free Trade too High?, 19 N.C. J. Int'l L. & Com. Rec. 143, 155-56 (1993) (“When a developing country has a choice between a more cost effective yet dirtier technology, it may well choose the more polluting route and still gain a comparative advantage”) (citations omitted).

[173] See Michael Holly, Sustainable Development in Central America: Translating Regional Environmental Accords into Domestic Enforcement Action, 25 Ecology L.Q. 89, 111 (1998) (stating that environmental agencies throughout Central America lack monetary capacity, legal mandate, and political will to enforce their international environmental rights).

[174]  See infra Part III.b.iii.  The other two cases, Pulp Mills on the River Uruguay (Arg. v. Uru.) and United StatesRestrictions on Imports of Tuna, explored in this Comment also support this. See infra Parts III.b.i-ii.

[175] See infra Parts III.b.i-ii.

[176] See Weiss, supra note 160, at 2132 (citing H. Jeffrey Leonard, Pollution and the Struggle for the World Product: Multinational Corporations, Environment, and International Comparative Advantage 231-32 (1998)) (reporting studies that have shown little correlation between “stringency of environmental regulations” and companies' decisions to locate in specific countries).

[177] Gaines, supra note 162, at 245 (describing the faulty assumptions as follows: “environmental controls represent unproductive costs to firms; firms in nations taking strong environmental measures will have higher environmental control costs than firms with weak standards, therefore, firms in countries with strong environmental programs will be competitively disadvantaged in the world market vis-à-vis firms located where environmental standards are more lenient”).

[178] See Weiss, supra note 160, at 2132 (citing H. Jeffrey Leonard, Pollution and the Struggle for the World Product 231-32 (1998)) (reporting studies that show little correlation between “stringency of environmental” and “industrial location decisions”).

[179] See Gaines, supra note 162, at 256 (citing Piritti Sorsa, Competitiveness and Environmental Standards (World Bank 2004))  (reporting that industrial countries' share of world exports was 81.3 percent in 1970 and 81.1 percent in 1990, therefore showing little-to-no-change over those two decades).

[180] See e.g., Weiss, supra note 160.

[181] See Gaines, supra note 162, at 256 (citing Nancy Birdsall and David Wheeler, Trade Policy and Industrial Pollution in Latin America: Where are the Pollution Havens?, in Low, ed., International Trade and the Environment, 167 (1992))  (stating open economies experienced fast growth in clean industries, and that “pollution havens” have been found in protectionist, rather than open economies).

[182] See infra Part II.d, supra notes 164-70 and accompanying text (summarizing ways in which scholars and activists view relationship between environment and business prosperity).

[183] Lindo, supra note 41, at 299; see also supra note 46.

[184] See sources cited, supra note 183; see also Paula Barrios, The Rotterdam Convention on Hazardous Chemicals: A Meaningful Step Toward Environmental Protection?, 16 Geo. Int'l Envtl. L. Rev. 679, 705 (2004) (stating that WTO has encouraged movement of dangerous pesticides to developing countries in  southern hemisphere); Onzivu, supra note 64 (arguing that developing countries lack capacity to protect their environments).

[185] See Barrios, supra note 184, at 705 (stating that WTO has encouraged movement of dangerous pesticides to developing countries in southern hemisphere).

[186] See Onzivu, supra note 64, at 680-83 (explaining that despite allowing exceptions to free trade for human health and environment, WTO has more often than not negatively impacted both these areas).

[187] Matthew H. Hurlock, The GATT, U.S. Law and the Environment: A Proposal to Amend the GATT in Light of the Tuna/Dolphin Decision, 92 Colum. L. Rev. 2098, 2100 (1992) (describing absence of word “environment” from GATT text as signal that GATT is incapable of “capturing the environmental costs of externalities related to methods of production”).

[188] See supra Part III.b.iii (illustrating how Pulp Mills on River Uruguay (Arg. v. Uru.), 2006 I.C.J. 135, shakes foundations upon which anti-competitiveness theory is built).

[189] See Weiss, supra note 160.

[190] See supra Parts I, II.a-b (discussing anti-competitiveness theory).

[191] See supra Parts III.a.iii, III.b.i (chronicling arguments made against WTO enforcement mechanism as well as pressures brought to bear on developing countries in CAFTA-like disputes).

[192] See supra Parts III.a.ii, III.b.i (describing NAFTA/CAFTA flaws).

[193] See supra note 192.

[194] See supra Part III.b.i (describing Costa Rican dispute over Harken's oil exploration and drilling).

[195] See supra Part III.b.iii (describing Argentina's lawsuit at I.C.J.)

[196] See supra Part III.b.ii (describing Mexico's successful attempt at challenging U.S. import restriction laws).

[197] See supra note 92 and accompanying text (chronicling Costa Rica's successful settlement of Harken's claim against its government for breach of contract).

[198] See supra notes 133-134 (describing ENCE and Botnia's investment in Uruguay as 5% of Uruguay's GDP).

[199] See supra Part III.b.ii (relating GATT panel's decision in Mexico's favor).

[200] See supra Part II.b (illustrating general view that developing countries are defenseless when attempting to safeguard their environments).

Maria Vittoria "Giugi" G. Carminati Garbino, Student at the University of Houston Law Center, Member of the Univ. of Houston Law Center Mock Trial Team.