With that in mind, the first major test of how the newly created WTOan international body dealing with the rules of trade between participating nations 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 WTOan international body dealing with the rules of trade between participating nations’s dispute resolution process.

The United States argued, as it had in the tuna-dolphin case, that the exceptions in Article XX of the GATTAt the Bretton Woods conference following World War II, representatives of the United States, Great Britain, France, Russia, and 40 other countries created GATT to reduce barriers to international trade. It was an agreement not an organization. The functions of GATT were taken over by the World Trade Organizationan international body dealing with the rules of trade between participating nations when it was established in 1990. 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 multilateralmultiple countries working together to on a specific issue trading system.

The United States appealed the decision, however, under the new appeal procedure that had been created by the revision of the GATTAt the Bretton Woods conference following World War II, representatives of the United States, Great Britain, France, Russia, and 40 other countries created GATT to reduce barriers to international trade. It was an agreement not an organization. The functions of GATT were taken over by the World Trade Organizationan international body dealing with the rules of trade between participating nations when it was established in 1990. in the Uruguay RoundA World Trade Organizationan international body dealing with the rules of trade between participating nations round of trade negotiations, which took place between September 1986 and April 1994.. The WTOan international body dealing with the rules of trade between participating nations 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 multilateralmultiple countries working together to on a specific issue trading system.

Furthermore, the appellate body said, the new language in the preamble of the GATTAt the Bretton Woods conference following World War II, representatives of the United States, Great Britain, France, Russia, and 40 other countries created GATT to reduce barriers to international trade. It was an agreement not an organization. The functions of GATT were taken over by the World Trade Organizationan international body dealing with the rules of trade between participating nations when it was established in 1990., quoted above, established that the WTOan international body dealing with the rules of trade between participating nations 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 WTOan international body dealing with the rules of trade between participating nations. Clearly, it is. We have not decided that sovereign nations that are members of the WTOan international body dealing with the rules of trade between participating nations 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 WTOan international body dealing with the rules of trade between participating nations 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].¹

Despite these reassuring words from the WTOan international body dealing with the rules of trade between participating nations, 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.

1 Appellate Body sect. 185.

* Picture: NOAA

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