The Shrimp-Turtle Case in the New WTO Context
The Shrimp-Turtle Case in the New WTO Context

With that in mind, the first major test of how the newly created WTO would deal with environmental issues came in the 1998 shrimp-turtle case mentioned in the introduction to this Issue Brief. The United States had implemented a ban on shrimp from countries whose fishing fleets did not have special “turtle excluder devices,” to prevent endangered sea turtles from being killed in the shrimping process. India, Malaysia, Thailand, and Pakistan claimed that the law was a disguised restriction on free trade and challenged the measure in the WTO’s dispute resolution process.

The United States argued, as it had in the tuna-dolphin case, that the exceptions in Article XX of the GATT allowed for the ban. And, as in the tuna-dolphin case, the United States lost, for virtually the same reasons. The dispute resolution panel deciding the case said that the shrimp ban was not justified under the Article XX exceptions because environmental protection measures could not be used to undermine the overall multilateral trading system.

The United States appealed the decision, however, under the new appeal procedure that had been created by the revision of the GATT in the Uruguay Round. The WTO appellate body again ruled against the United States, but with a significant difference from the rationale of the initial dispute resolution panel. The appellate body said that the panel had read Article XX too narrowly within the context of the overall goal of maintaining free trade. Article XX, the appellate body said, was meant only to prevent abuse of environmental protection laws to undermine the multilateral trading system.

Furthermore, the appellate body said, the new language in the preamble of the GATT, quoted above, established that the WTO members agreed that sustainable economic development was a goal of the trading system and should be taken into account as “color, texture, and shading” in interpreting the agreement. The apellate body went on to say that the way the United States implemented its shrimp ban, however, was discriminatory, and ordered the United States to end the ban. Still, it emphasized that:

In reaching these conclusions, we wish to underscore what we have not decided in this appeal. We have not decided that the protection and preservation of the environment is of no significance to the WTO. Clearly, it is. We have not decided that sovereign nations that are members of the WTO cannot adopt effective measures to protect endangered species, such as sea turtles. Clearly, they can and should. And we have not decided that sovereign states should not act together bilaterally, plurilaterally or multilaterally, either within the WTO or in other international for a, to protect endangered species or to otherwise protect the environment. Clearly, they should and do [Emphasis in the original] (Appellate Body, 1998).

Despite these reassuring words from the WTO, environmentalists and other members of the American and international public focused on the result of the case and what it seemed to mean. That is, an international tribunal had overturned a democratically enacted law for the protection of an endangered species. Like the tuna-dolphin case, therefore, the shrimp-turtle case galvanized opposition to globalization that appeared to be running roughshod over the environment for the benefit of free trade.

* Picture: NOAA

 

Next: The Doha Mandate on the Environment