In 1989 the State Department enacted Section 609 and limited the geographical scope of the import ban imposed by to countries in the wider Caribbean/western Atlantic region and granted these countries a three-year phase-in period. On 29 December 1995, the U S Court of International Trade directed the Department of State to extend the ban worldwide not later than 1 May 1996 ( Earth Island Institute v. Warren Christopher, 913 Fed. Supp. 559 (CIT 1995) ). As of May 1996, the embargo was extended to over 70 countries around the world. Over over $1 billion in exports to the U.S.are affected and potentially over 100,000 sea turtles are saved each year.

Section 609 currently provides that shrimp or products from shrimp harvested with commercial fishing technology that may adversely affect certain species of sea turtles protected under U.S. law and regulations may not be imported into the United States unless the President certifies to Congress by May 1, 1991, and annually thereafter, that:

a. The government of the harvesting nation has provided documentary evidence of the adoption of a regulatory program governing the incidental taking of such sea turtles in the course of such harvesting that is comparable to that of the United States; and
b. The average rate of that incidental taking by vessels of the harvesting nation is comparable to the average rate of incidental taking of sea turtles by United States vessels in the course of such harvesting; or
c. The particular fishing environment of the harvesting nation does not pose a threat of the incidental taking of such sea turtles in the course of such harvesting. The President has delegated to the Secretary of State the authority to make certifications pursuant to Section 609 (Memorandum of December 19, 1990; 56 FR 357; January 4, 1991).

The environmental groups won in the CIT and the State Department was required to begin implementing "country by country" certification regulations. These regulations meant that shrimp could only be exported to the US from "certified" : countries in which virtually all shrimpers were required to use TEDs. To be certified, these countries were also required to develop comprehensive national policies protecting sea turtles. In Novemver, 1996, the CIT issued a clarifying opinion which stated that the State Department could allow entry into the United States of any shrimp or products from shrimp harvested by citizens or vessels of nations which have not been certified in accordance with Section 609 so long as the harvest was accomplished in a manner which did not adversely affect sea turtles (e.g. shrimp harvested in an aquaculture facility under certain circumstances; shrimp harvested by manual rather than by mechanical methods; or shrimp harvested in areas in which sea turtles do not occur). However, shrimp and products from shrimp harvested with turtle excluder devices (TEDs) could not be imported unless the harvesting nation was certified in accordance with Section 609. Earth Island Institute v. Christopher, 948 F. Supp. 1062 (CIT 1996). See also SHRIMP and SHRIMP2

Under the authority of Sea Turtle Protection Law, the US placed an import ban on shrimp and shrimp products from India, Malaysia, Thailand and Pakistan. In 1996, these four countries had filed a joint complaint with the World Trade Organization against the United States requesting the establishment of a Dispute Settlement Panel (DSP) and alledging that the sanctions amounted to unfair and unjustified discrimination. These countries claimed that the trade measure discriminates against countries that do not require the use of TEDs in violation of GATT principles which prevents arbitrary discrimination between identicial products from different countries. GATT also requires that there be no trade discrimination between identical products made using different process and production methods. The complainants characterized the US embargo as a "disguised restriction on international trade."

The US in defending the import ban, claimed that the import ban was justified under Article XX of the GATT which allows a WTO member to legitimately place its national environmental goals ahead of its general obligations not to raise trade restrictions or apply discriminatory trade measures. For a sanction to be justified under Article XX, the law must be 'relating to the conservation of an exhaustible natural resource', yet not an 'arbitrary or unjustifiable discrimination' between countries.

The WTO Panel found that Section 609, as applied, conditioned access to the US market for a given product on the adoption of conservation policies that the US considers to be comparable to its own in terms of regulatory programmes and incidental taking. The Panel reasoned that in light of the context of the term "unjustifiable" and the object and purpose of the WTO Agreement, the US measure constituted unjustifiable discrimination between countries where the same conditions prevail and thus not within the scope of measures permitted under Article XX. Consequently, they found that the US measure at issue was not within the scope of measures permitted under the chapeau of Article XX.

… [W]e are of the opinion that the chapeau [of] Article XX, interpreted within its context and in the light of the object and purpose of GATT and of the WTO Agreement, only allows Members to derogate from GATT provisions so long as, in doing so, they do not undermine the WTO multilateral trading system, thus also abusing the exceptions contained in Article XX. Such undermining and abuse would occur when a Member jeopardizes the operation of the WTO Agreement in such a way that guaranteed market access and nondiscriminatory treatment within a multilateral framework would no longer be possible. …
In our view, if an interpretation of the chapeau of Article XX were to be followed which would allow a Member to adopt measures conditioning access to its market for a given product upon the adoption by the exporting Members of certain policies, including conservation policies, GATT 1994 and the WTO Agreement could no longer serve as a multilateral framework for trade among Members as security and predictability of trade relations under those agreements would be threatened. This follows because, if one WTO Member were allowed to adopt such measures, then other Members would also have the right to adopt similar measures on the same subject but with differing, or even conflicting, requirements. … Market access for goods could become subject to an increasing number of conflicting policy requirements for the same product and this would rapidly lead to the end of the WTO multilateral trading system.

Although the WTO Appellate Body found that the U.S. law is justified under Article XX(g) of the GATT by determining that sea turtles are 'exhaustible natural resources' in dire need of international protection, and that the U.S. law is directly aimed at conservation of these species, they found that the State Department’s implementation of the law constituted 'arbitrary and unjustifiable' discrimination. The State Department’s guidelines for certifying countries were deemed too rigid.

The Tuna-Dolphin was similar to this case where the U.S. was also brought before the GATT dispute panel for violating international trade laws. In the Tuna - Dolphin case, the GATT panel ruled that the Marine Mammal Protection Act violated international trade laws because it extended national environmental laws beyond U.S. territories without the support of existing, international agreements. The panel also rejected the MMPA for its "discriminatory nature" because of the inadequacy of the MMPA's scientific basis. In shrimp - turtle case at hand, the turtles are protected as endangered under other international agreements and furthermore, the scientific basis for protection of sea turtles was not at issue. See TUNA TUNA(2) and TUNA3.

3. Related Cases

CLEAN AIR ACT
ESKIMO
GREEN
HAWKSBIL
JPWHALE
LOBSTER
MANGROVE
MEXWHALE
NWHALE
SALMON
SALMON2
SHRIMP
SHRIMP2
SWIFT
TEDS
TUNA
TUNA(2)
TUNA3

KEYWORDS

(1) Measure = IMBAN
(2) Scope = MULTI
(3) Environmental Problem = Species Loss Sea (SPLS)

4. Draft Author:

II.WTO AND THE ENVIRONMENT

Article I contains the Most Favored Nation (MFN) principle which prohibits Members from discriminating between its trading partners, consquently granting all countries equally a MFN status. If a country improves the benefits that it gives to another country, it must extend the same benefit to all other WTO members, granting each country a MFN position. The principle of freer trade is a major tenent of the trading system. Since the creation of GATT, there has been eight rounds of trade negotiations securing the lowering of trade barriers and strengthening the trading system.
Article XI:1 of GATT 1994 provides for the general elimination of quantitative restrictions on imports and exports. Article XI:1 applies to all measures instituted or maintained by a Member prohibiting or restricting the importation, exportation or sale for export of products other than measures that took the form of duties, taxes or other charges.
Article XX Despite the move towards free trade, the GATT recognizes exception to permit unilateral trade restrictions relating to the preservation of the environment. Article XX (General Exceptions)requires that "such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade". Article XX, paragraphs (b) and (g)provides that nothing in the GATT 1994 might be construed to prevent the adoption and enforcement of measures "necessary to protect human, animal or plant life or health" and of measures "relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production and consumption."

WTO Committee on Trade and Environment
In recognition of the results of the UN Conference on Environment and Development in 1992 (the Earth Summit)regarding the importance of the contribution of the multi-lateral trading system to better protect and conserve environmental resources and promote sustainable development, the WTO created a Committee on Trade and Environment (CTE)in 1995. The CTE was given the primary functions to: (a)identify the relationships between trade and the environmental measures to promote sustainable development, and (b) to make recommendations on whether any modifications to the provisions of the multilateral trading system are required.

II. Legal Clusters

5. Discourse and Status: DISagree and COMPlete

In 1989, the United States enacted Section 609 of the Sea Turtle Protection Law which provides that shrimp harvested with technology that may adversely affect certain sea turtles may not be imported into the United States, unless the President certified to Congress that the harvesting nation has a regulatory programme. A regulatory programme includes, "a requirement that all commercial shrimp trawl vessels operating in waters in which there is a likelihood of intercepting sea turtles use TEDs at all times. TEDs must be comparable in effectiveness to those used in the United States ...". Moreover, the average incidental take rate "will be deemed comparable if the harvesting nation requires the use of TEDs in a manner comparable to that of the US program ...". According to the 1996 Guidelines, certification shall be made if the program includes: (i) the required use of TEDs that are "comparable in effectiveness to those used in the United States. Any exceptions to this requirement must be comparable to those of the United States program … "; and (ii) "a credible enforcement effort that includes monitoring for compliance and appropriate sanctions." The regulatory program may be in the form of regulations, or may, in certain circumstances, take the form of a voluntary arrangement between industry and government. Other measures that the harvesting nation undertakes for the protection of sea turtles will also be taken into account in making the comparability determination. The average incidental take rate "will be deemed comparable if the harvesting nation requires the use of TEDs in a manner comparable to that of the U.S. program … " (61 Federal Register 17342, 19 April 1996).

India, Malaysia, Pakistan and Thailand filed a complaint with the WTO and requested the WTO Panel to find that Section 609: (a) were contrary to Articles, XI:1 and XIII:1 of GATT 1994;and (b) were not covered by the exceptions under Article XX(b) and (g) of GATT 1994. India, Pakistan and Thailand additionally requested the Panel to find that Section 609 was contrary to Article I:1 of GATT 1994. The complainants argued that the embargo on shrimp and shrimp products was inconsistent with the MFN principle embodied in Article I:1 of GATT because physically identical shrimp and shrimp products from different nations were treated differently by the US upon importation based solely on the method of harvest and the policies of the foreign government under whose jurisdiction the shrimp were harvested.The complainants argued that the US embargo on imports of shrimp and shrimp products violated Article XI:1. They felt that the import prohibition was arbitrary, discriminatory and was nothing else but a disguised restriction on international trade with a view to protecting their domestic shrimp industry with a total disregard to international law.

The United States on the other hand, claimed that the measures at issue adopted pursuant to Section 609 are justified under Article XX(b) and (g) of GATT. The US concluded that the right of WTO Members to take measures under Article XX to conserve and protect natural resources was reaffirmed and reinforced by the Preamble to the WTO Agreement. The complainants in turn argued that Article XX(b) and (g) cannot be invoked to justify a measure which applies to animals not within the jurisdiction of the Member enacting the measure. And furthermore, since Section 609 allows the United States to take actions unilaterally to conserve a shared natural resource, it is therefore in breach of the sovereignty principle under international law.

These countries further argued that Section 609 was inconsistent with Article XIII:1 of GATT 1994 because it restricted the importation of shrimp and shrimp products from countries which had not been certified, while "like products" from other countries which had been certified could be imported freely into the US. The US permitted or denied entry of shrimp and shrimp products based on the method of harvest. However, the method of harvest did not affect the nature of the product, as noted by the Tuna II Panel (Panel Report on United States - Restrictions on Imports of Tuna, circulated 16 June 1994, not adopted, DS29/R.). See also the TUNA and TUNA2 cases. Shrimp products which may be imported into the US pursuant to Section 609 were "like" shrimp products from non-certified countries which were denied entry. WTO Members are required that there be no trade discrimination between identical products made by using different process and production methods.

A particular area of focus within the WTO and more specifically in the CTE have been the relationship between WTO provisions and use of trade measures applied pursuant to multilateral environmental agreements (MEAs). All species of sea turtles appeared on Appendix I to CITES. Under the terms of CITES, trade in these species must accordingly be subject to "particularly strict regulation in order not to endanger their survival and must be authorized only in exceptional circumstances". As a consequence of their listing on Appendix I to CITES, international trade in sea turtles, and in their eggs, parts and products, was virtually prohibited. As members of CITES, they recognized that sea turtles were threatened with extinction. Shrimp were not covered as an endangered species under the provisions of CITES, and therefore could not under those provisions be put under an import prohibition. If the US believed that other nations needed to take specific actions to protect sea turtles within their jurisdiction or on the high seas, the answer was to seek amendment to CITES or to negotiate other consensual international agreements to address the problem. The US did not - and could not - show that CITES authorized an import embargo on a non -endangered species - shrimp - in order to protect or conserve an endangered species - sea turtles.

Panel and Appellate Findings

With regard to Article XX , the Panel considered that certain unilateral measures, insofar as they could jeopardize the multilateral trading system, could not be covered by Article XX. General international law and international environmental law clearly favour the use of negotiated instruments rather than unilateral measures when addressing transboundary or global environmental problems, particularly when developing countries are concerned. A negotiated solution is preferred, both from a WTO and an international environmental law perspective. They considered that the US adopted measures which, irrespective of their environmental purpose, were clearly a threat to the multilateral trading system and were applied without any serious attempt to reach, beforehand, a negotiated solution. The Panel found that the US measure was not within the scope of measures permitted under the chapeau of Article XX, and did not find it necessary to examine whether the US measure is covered under the exception in Article XX(b) or (g). As a result, they found that Section 609 violates Article XI:1 of GATT 1994. Also, they did not find it necessary to review the allegations of the complainants with respect to Articles I:1 and XIII:1.

The Panel also noted that under CITES, each of the complainants currently was obligated to take trade measures to conserve natural resources located in the jurisdiction of other countries. More specifically, the question was whether the US had the obligation to accept imports of shrimp regardless of the resulting impact on the environment, or whether the US had retained the right to limit such imports in furtherance of a bona fide conservation measure. Since the inception of the GATT, the United States, as well as many other nations, including the complainants under CITES, had continued to hold and to exercise the right, as preserved by Article XX, to regulate trade for the purpose of conserving exhaustible natural resources outside their jurisdiction. Second, the WTO Agreements did not provide for unfettered trade at all costs. CITES required that action be taken with respect to the importation, sale, handling or exportation of the endangered species itself, once it came within the jurisdiction of the party. Moreover, CITES was a multilateral agreement evidencing broad consensus regarding appropriate measures that should be taken to protect and conserve endangered species. The measure at issue in this dispute, by contrast, sought to bar access to the US market for imports of a species that was not endangered - shrimp - and represented a unilateral determination of the appropriate means to conserve resources outside the jurisdiction of the United States. The only action that was in fact required or authorized under CITES was the prohibition of trade in, or possession of, certain endangered species themselves (Article VIII - Measures to be Taken by the Parties); i.e. CITES required that action be taken with respect to the importation, sale, handling or exportation of the endangered species itself once it came within the jurisdiction of the party. Therefore, CITES did not authorize the US action in this dispute nor did it illustrate why the Panel should find that the US action fell within one of the general exceptions to the GATT. CITES only demonstrated that for exceptions to these general principles of international law to be tolerated by the international community, there had to be international agreement.

The Appellate Body reversed the Panel's finding that the United States measure at issue is not within the scope of measures permitted under the chapeau of Article XX of the GATT 1994, and concluded that the US measure, while qualifying for provisional justification under Article XX(g), fails to meet the requirements of the chapeau of Article XX, and, therefore, is not justified under Article XX of the GATT 1994. The Panel did not inquire specifically into how the application of Section 609 constitutes "a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade." the Panel did not look into the object and purpose of the chapeau of Article XX. Rather, the Panel looked into the object and purpose of the whole of the GATT 1994 and the WTO Agreement, which object and purpose it described in an overly broad manner. Conditioning access to a Member's domestic market on whether exporting Members comply with, or adopt, a policy or policies unilaterally prescribed by the importing Member may, to some degree, be a common aspect of measures falling within the scope of one or another of the exceptions (a) to (j) of Article XX. Paragraphs (a) to (j) comprise measures that are recognized as exceptions to substantive obligations established in the GATT 1994, because the domestic policies embodied in such measures have been recognized as important and legitimate in character. The Appelate Body stated that it was not necessary to assume that requiring from exporting countries compliance with, or adoption of, certain policies (although covered in principle by one or another of the exceptions) prescribed by the importing country, renders a measure a priori incapable of justification under Article XX.

6. Forum and Scope: WTO and MULTI