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Trail Smelter Case (1938-1941): (US v.

Canada)
The Trail Smelter arbitration of 1938 and 1941 was a landmark decision about a dispute
over environmental degradation between the United States and Canada. This was the first
decision to recognize international liability for damages caused to another nation, even when
no existing treaty created an obligation to prevent such damage.
The Consolidated Mining and Smelting Company Limited of Canada operated a zinc and
lead smelter along the Columbia River at Trail, British Columbia about 10 miles north of the
international boundary with the State of Washington. In the period between 1925 and 1935,
the U.S. Government objected to the Canadian Government that sulphur dioxide emissions
from the operation were causing damage to the Columbia River valley in an 30 mile stretch
from the international boundary to Kettle Falls, Washington. The two governments resorted
twice to legal arbitration, once from 1928 to 1931 and again from 1935 to 1941, in an attempt
to resolve the dispute. The outcome of each decision involved some payment by the
Canadian Government for damages caused to the State of Washington. The latter decision
also described a set of operational guidelines under which the smelter at Trail should
conclude its operations for at least a year-and-a-half. The main concern of the United States
was that the smelter's sulphur dioxide emissions were harming the land and the trees of the
Columbia River Valley which were used for logging, farming, and cattle grazing; the three
industries crucial to the area. The main species affected were yellow pines, Douglas firs,
larch, and cedar. Affected harvests included alfalfa, wheat, and oats.
Conclusion and Environmental Concern:
On the US side there is the political concern of the ramifications. In addition, there are the
legal issues of assuming personal jurisdiction over the defendant and applying national law
extraterritorially. If these two barriers can be overcome, there is still the issue of having the
US courts judgment enforced in Canada. In recent times US courts have shown a willingness
to overcome these barriers. On the Canadian side there is, at least in theory, the principle of
forum non convenience which a Canadian court could employ to avoid exercising
jurisdiction. However, in light of the modern day emphasis on human rights principles of
non-discrimination and equal access to courts, resort to this principle in a contemporary case
is at least questionable and at most highly unlikely. Besides the principle of forum non
convenience, there remains perhaps the most formidable blockade to national jurisdiction in
the form of the local action rule. Several modern initiatives have demonstrated a willingness
to overcome this barrier in cases of transboundary pollution but overall the success of these
initiatives has been limited. Toby Kruger made a strong argument for the resolution of Trail
Smelter type disputes in the source state. However, in his idealism he took too little notice of
the formidable barrier that is the local action rule.
Recent developments in the national courts approach to some of the classical barriers, have
made it more likely that in the contemporary time a Trail Smelter type dispute would indeed
be resolved at the level of a private dispute. Particularly the US has made some strides in
allowing for a private-rights approach. An increased willingness to exercise personal
jurisdiction over a foreign national and the allowance of extraterritorial application of
national laws based on the effects doctrine has created an opening in the barrier blocking
national jurisdiction in the Trail Smelter case.
On the Canadian side, traditional barriers appear to be more resilient. The fact that a
Canadian court would be applying national law to a violation by a national company makes it

much less controversial. It is highly regrettable that, whereas the barriers to national
jurisdiction in the US have largely diminished, the Canadian barrier in the form of the local
action rule remains relatively solid
One pertinent question, however, remains - how has access to private party litigation in cases
of transboundary air pollution evolved since the Trail Smelter dispute?
It can be said that resort to national jurisdiction in the Trail Smelter case provides a more
likely path to resolution in the present day it is contended that, until international mechanisms
provide a useful forum for private parties to resolve Trail Smelter type disputes,
transboundary private litigation could provide a meaningful way to handle such disputes. In
addition, Hsu and Parrish rightly pointed out that such legislation could serve as () a
catalyst for bilateral negotiations.
Indeed, the fear of reciprocal transboundary litigation could provide the pressure to reach
bilateral solution. This pressure is necessary since, despite the great strides that have been
made since the Trail Smelter dispute, transboundary air pollution is still a pressing issue
between the two countries involved.
Gabcikovo-Nagymaros Project Case (1997): (Hungary v. Slovakia)
The case arose out of a Treaty signed in 1977 between Hungary and Czechoslovakia. This
Treaty concerned the construction of a System of Locks on the Danube River, to
be operated jointly by the parties and designed for the production of hydroelectricity,
improved navigation and protection from flooding. Construction began in 1978.
In the face of growing domestic ecological concern and criticism, the Hungarian Government
suspended works on its part of the Project in 1989, ultimately terminating the Treaty
in 1992.
The Court was asked to decide:

whether Hungary was entitled to abandon the Project,


whether Czechoslovakia was then entitled to proceed with Variant C and
Whether Hungary was entitled to terminate the Treaty.

In relation to the first claim, the Court held that Hungary had breached the Treaty by abandon
ing works on the Project and that it could not rely on an argued state of ecological
necessity justifying that breach.
Secondly, Czechoslovakia was found to have acted unlawfully in depriving Hungary
of its rightful equitable and reasonable share of the Danube River.
Finally, the Court determined that Hungarys purported termination of the Treaty was
invalid. Various treaty!based arguments on the part of Hungary, including that new
norms of international environmental law precluded Treaty performance, were rejected.

Environmental Issue:
The diversion of water of the Danube River caused the environmental harm within the
territory of Hungary. As a result, the relationship between the equitable utilization principle
and no harm principle was at issue.
The concept of sustainable development was acknowledged in the opinions of both the
majority and Judge Weeramantry in Gabcikovo. In accepting Hungarys argument that new
environmental norms were relevant to the interpretation of the Treaty, the Court emphasized
the importance of the environment, not as an abstraction, but as representing the living
space, the quality of life and the very health of human beings, including generations unborn.
In what has become the most frequently cited passage of the case, the Court noted that:
Throughout the ages, mankind has, for economic and other reasons, constantly interfered
with nature. In the past, this was often done without consideration of the effects upon the
environment. Owing to new scientific insights and to a growing awareness of the risks for
mankind ! for present and future generations ! of pursuit of such interventions at an
unconsidered and unabated pace, new norms and standards have been developed, set forth in
a great number of instruments during the last two decades. Such new norms have to be taken
into consideration, and such new standards given proper weight, not only when States
contemplate new activities but also when continuing with activities begun in the past. This
need to reconcile economic development with protection of the environment is aptly
expressed in the concept of sustainable development.
The Gabcikovo decision undoubtedly did not live up to the expectations of those seeking a
strong endorsement of principles of international environmental law by the World Court.
However, two important conclusions may be drawn from the preceding discussion. The first
is that widespread use of Gabcikovo by domestic and international tribunals, states,
organizations and academic commentary demonstrates that the case has had a significant
impact on the development of international environmental law. The second is that despite
initial appearances, both the majority opinion and that of Weeramantry have contributed to
this impact. It is thus overly simplistic to describe the Courts judgment generally as a
missed opportunity for international environmental law. One should be equally cautious
about discounting the majority opinion in favor of a wholehearted endorsement of that of
Weeramantry.
Contrary to common perception, even the majoritys single reference to the concept of
sustainable development has been significantly influential within international and domestic
judicial fora. On the other hand, Weeramantrys opinion, while lauded as progressive, has
received at least as much criticism as praise. Indeed, while on an initial reading, the two
opinions appear to differ extensively, their subsequent consideration is remarkably similar in
ultimate effect. In what is perhaps an indication of tribunals reeling in the more extreme
elements of Weeramantrys view, both the majoritys concept and Weeramantrys norm of
sustainable development are used as an approach to decision!making which integrates
environmental considerations with those of economic development.
Looking to the impact of the case on the precautionary principle, one is more justified in
declaring the judgment of the Court as a damaging missed opportunity. The failure of the
Court to address the status of the principle has caused confusion and uncertainty in
international tribunals and academic circles alike. Moreover, the Courts reasoning in relation

to the law of necessity has the potential to significantly erode the principle as it applies in the
context of the law of state responsibility.
Finally, in relation to the law of EIAs, Weeramantrys opinion, assisted by that of the
majority, has resulted in positive developments for the status and content of this aspect of
international environmental law. This is reflected in government policy, the practice of
international organizations and academic commentary. Considering the impact of the ICJs
judgment in the Gabcikovo-Nagymaros Case, there is much cause for optimism. While some
of the more damaging aspects of the decision require remedying, international environmental
law has, for the most part, developed positively as a result of the case. Widespread
consideration of Gabcikovo confirms that the ICJ retains its status at the apex of international
tribunals. One can only hope that, in future, the Court will take the responsibility that such
status engenders to take bolder steps in developing international environmental law for the
better.
Pulp Mills Case: (Argentina v Uruguay)
The case was concerned with the dispute between Argentina and Uruguay concerning the
construction of two paper mills (CMB pulp mill and the Botnia pulp mill) on the River
Uruguay.
Argentina contended that the authorization and construction was in violation of both the
procedural and substantive obligations which both States had undertaken under the 1975
Statute of the River Uruguay.
The Court in its Judgment dealt with three main issues:
a) The scope of its jurisdiction;
b) The alleged violation of the procedural obligations incorporated in the 1975 Statute;
and
c) The alleged violation of the substantive obligations included in the same instrument.
The Court found that Uruguay had violated its procedural obligations, as these were set out in
the 1975 Statute, to notify and consult with Argentina prior to authorizing and/or constructing
the pulp mills. The Court also held that the procedural and substantive obligations of the 1975
Statute were clearly separable and the violation of the former did not necessarily entail a
corresponding violation of the latter. With respect to the Argentinean claims of violations of
the substantive obligations of the 1975 Statute, which required cooperation between the two
States, monitoring and prevention of pollution of the river, the Court held that no such
violation could be substantiated. Concluding the Court held that due to the fact that only
procedural obligations had been violated the mere declaration by the Court of this breach
constitutes appropriate satisfaction
The most notable contribution of this judgment to international environmental law and the
law on shared watercourses is the fact that the ICJ explicitly recognized the customary status
of the requirement to undertake Environmental Impact Assessments whenever there is risk of
pollution which may have transboundary effects
Judges Al-Khasawneh, Simma and Vinuesa were of the opinion that in such cases where
procedural obligations play an essential role in the protection of the environment, their

violation or not should seriously affect any conclusion as to the breach or not of substantive
obligations.
"

The conflict finally ended in 2010, during the presidencies of Cristina Fernndez de Kirchner
(Argentina) and Jos Mujica (Uruguay), with the establishment of a joint coordination of the
activities in the river.
Iron Rhine Arbitration (2005): (Belgium v. Netherlands)
The iron Rhine is a railway linking port of Antwerp to the Rhine basin in Germany across
Dutch territory. Belgium acquired the right of transit over the Dutch territory in a treaty from
1839 and requested a reactivation of the railway in 1998. As they failed to come to an
understanding in negotiations, the Netherlands and Belgium decided to submit the case for
arbitration. In 2003 they set up an Arbitral tribunal under the auspices of the Permanent Court
of Arbitration in Hague.
The Tribunal concluded that inter alia that the Netherlands domestic environmental
measures could not amount to denial of Belgiums transit right or render the exercise of such
right unreasonably difficult. The Tribunal also held that the environmental law and the law on
development stand not as alternatives but as mutually reinforcing, integral concepts, which
require that where development may cause significant harm to the environment, there is duty
to prevent, or at least mitigate such harm. This duty, in the opinion of the Tribunal, has now
become a principle of general international law. This principle applies not only in
autonomous activities but also in activities undertaken in implementation of specific treaties
between the parties.
Barcelona Traction Case (1970): (Belgium v. Spain)
Barcelona Traction was a corporation that controlled light and powerutilities in Spain and
was incorporated in Toronto, (Canada). In 1948, there was adjudication in bankruptcy in
Spain of Barcelona Traction. Its object was to seek reparation for damage alleged by Belgium
to have been sustained by Belgian nationals, shareholders in the company. The Belgian
Government, contended that after the First World War Barcelona Traction share capital came
to be very largely held by alleged Belgian nationals, but the Spanish Government, maintained
that the Belgian nationality of the shareholders was not proven
The government of Spain under Franco in the 1960s placed restrictions on foreigners doing
business in Spain. The Belgian stockholders in Barcelona Traction lost money and wanted to
sue in the ICJ, but in the court Judge Fornier ruled on the side of Spain, holding that only the
state in which the corporation was incorporated (Canada) can sue.
It also expanded the notion of erga omnes obligations owed by the international community.
It contrasted interstate claims for taking of the property, which could only be brought by the
state of nationality of the claimant, and the claims based on the violation of international
human rights law, which could be brought by any state. All state would enjoy standing to
bring claims, and the normal nationality of claims rules would cease to apply.

Chorzow factory Case (1927): (Germany vs. Poland)


The Chorzow Factory case has its roots in the Treaty of Versailles signed in 1919. The Treaty
contained a requirement that certain territories are transferred from German to Polish control
and that the status of certain other lands be determined by plebiscite. The Geneva Convention
adopted to implement the Treaty of Versailles, and the plebiscites that followed ceded the
region of Chorzow to Poland.
Under the Geneva Convention, countries that took over German territory had the right to
seize land owned by the Government of Germany and credit the value of that land to
Germany's reparation obligations. Any disputes that arose under the Convention were to be
referred to the PCIJ.
Shortly after Poland took over Chorzow, a Polish court decreed that land belonging to the
German company be turned over to Poland. Litigation ensued on the question of whether the
land was property of Germany or if it was privately owned by the company. The dispute
eventually reached the PCIJ which concluded that the land was privately owned, and that
Poland had seized private property. The Court stated that there can be no doubt that the
expropriationis derogation from the rules generally applied in regard to the treatment of
foreigners and the principle of respect for vested rights.
Thus, the Court enunciated the then existing international law that expropriations were not
permitted and if they occurred, full compensation must be paid. The PCIJ clearly stated in
this case that a State in breach owes to the affected State a duty of reparation, which must as
far as possible, wipe out the consequences of the illegal act and re-establish the situation
which would, in all probability, have existed if that act had not been committed. The general
principle of international law is that a State which breaches its international obligation has a
duty to right the wrong committed. The same court enunciated the general principle of state
responsibility and reparation, including the principle of restitution in integrum.
Ogoniland Case: (Wiwa v Shell)
Royal Dutch Shell, plc (Shell) began oil production in the Niger Delta region of Nigeria in
1958. It has a long history of working closely with the Nigerian government to quell popular
opposition to its presence in the region. At the request of Shell, and with Shells assistance
and financing, Nigerian soldiers used deadly force and massive, brutal raids against the
Ogoni people throughout the early 1990s to repress a growing movement against the oil
company. The Center for Constitutional Rights (CCR), Earth Rights International (ERI) and
other human rights attorneys sued Shell for human rights violations against the Ogoni.
Ogoni is the name of a region in the Niger Delta of southern Nigeria as well as the name of
the ethnic group that lives in that region. For the Ogoni and the people of Nigeria, oil and oil
companies have brought poverty, environmental devastation and widespread, severe human
rights abuses. Currently, almost 85 percent of oil revenues accrue to 1% of the population
while, according to the African Development Bank, more than 70 percent of Nigerians live
on less than US$1 per day. Ogoni is home to several environmental treasures, including the
third-largest mangrove forest in the world and one of the largest surviving rainforests in
Nigeria. Oil drilling by Shell and other oil companies has had a devastating impact on the
regions environment. Oil spills, gas flaring and deforestation have stripped the land of its

environmental resources, destroying the subsistence farming- and fishing-based economy of


the Ogoni.
The Movement for the Survival of the Ogoni People (MOSOP) is a human rights group
founded in 1990 that is committed to using nonviolence to stop the repression and
exploitation of the Ogoni and their resources by Shell and the Nigerian government. Upon its
founding, MOSOP quickly garnered wide support and in 1993, at least half the total Ogoni
population publicly supported the group. Ken Saro-Wiwa, founding member and president of
MOSOP brought worldwide attention to the human rights violations committed against the
Ogoni through international campaigning and his poignant writing. He was nominated for a
Nobel Prize and awarded the Right Livelihood Award and the Goldman Prize for his
environmental and human rights activism.
As the peaceful movement of the Ogoni grew, so did the Nigerian governments and Shells
brutal campaign against the Ogoni and MOSOP. In early 1993, Shell requested military
support to build a pipeline through Ogoni. In 1994, Ken Saro-Wiwa and other Ogoni leaders
were prevented by the military from attending a gathering; at that very gathering, four Ogoni
chiefs were killed. The military governor promptly announced that Ken Saro-Wiwa caused
the deaths, and he and other leaders were taken into custody. Despite the lack of any
connection between MOSOP and the deaths, the military used the deaths as a pretext to
conduct raids on 60 towns in Ogoni and to detain and beat several hundred men suspected of
involvement with MOSOP.
A three-man tribunal was created by the Nigerian government to try the Ogoni leaders
known as the Ogoni Nine for the murders of the four chiefs. The tribunal denied the
Ogoni Nine access to counsel, a fair trial, and the opportunity to appeal the decision. During
the course of the trial they were tortured and mistreated, as were their relatives. The Ogoni
Nine were convicted and were executed by hanging on November 10, 1995. Plaintiffs in this
case include family members of Ken Saro-Wiwa, John Kpuinen, Dr. Barinem Kiobel,
Saturday Doobee, Daniel Gbokoo and Felix Nuate.
Wiwa v. Royal Dutch Petroleum, Wiwa v. Anderson, and Wiwa v. Shell Petroleum
Development Company were three lawsuits filed by the Center for Constitutional Rights
(CCR) and co-counsel from EarthRight International on behalf of relatives of murdered
activists who were fighting for human rights and environmental justice in Nigeria. The
lawsuits were brought against the Royal Dutch Petroleum Company and Shell Transport and
Trading Company (Royal Dutch/Shell); the head of its Nigerian operation, Brian Anderson;
and the Nigerian subsidiary itself, Shell Petroleum Development Company (SPDC).
The defendants were charged with complicity in human rights abuses against the Ogoni
people in Nigeria, including summary execution, crimes against humanity, torture, inhumane
treatment, arbitrary arrest, wrongful death, assault and battery, and infliction of emotional
distress. The cases were brought under the Alien Tort Claims Act (ATCA) and the Torture
Victim Protection Act (TVPA). The case against Royal Dutch/Shell also alleges that the
corporation violated the Racketeer Influenced and Corrupt Organizations (RICO) Act.
On June 8, 2009, on the eve of trial, the parties agreed to a settlement for all three of the
lawsuits for $15.5 million.

The settlement and the case itself serve to highlight several uncertainties surrounding the
ATS, the primary statute under which the litigation was brought. Enacted in 1791, the ATS
gives federal courts jurisdiction over claims by aliens for torts in violation of the law of
nations. The statute was largely ignored until the 1980s, when human rights lawyers began to
use it as the basis for civil claims against perpetrators of torture, genocide, war crimes and
other conduct that violates customary international law. Sovereign immunity bars most such
claims brought directly against governments, but (with some exceptions) international law
generally makes conduct wrongful only when it involves some form of state action. Early
cases were brought against individual defendants (such as former dictators or members of the
police or military) who had worked for or with a government when the wrongful conduct
occurred, but plaintiffs often had difficulty collecting on judgments.
The last decade has seen many ATS cases brought against multinational corporations, most
alleging that the defendants worked with or supported governments that engaged in human
rights violations. Defendants in this second wave of ATS litigation have included Chevron
(also for conduct related to protests in the Niger Delta), Rio Tinto (for slave labor and other
claims related to copper mines in Papua New Guinea), Unocal (Yodana pipeline in Burma), a
Boeing subsidiary (for claims related to extraordinary rendition), Pfizer (for nonconsensual
medical experimentation in Nigeria), major banking, automobile and computer companies
(for claims related to apartheid in South Africa), a variety of companies for atrocities
committed during World War II, and others.
Although some of these cases are still ongoing, other cases against corporations have been
dismissed outright. The only two that have gone to trial resulted in victories for the
defendants, including the case against Chevron. The case against Unocal settled in 2005, but
on confidential terms. For these reasons, as well as the significant legal questions discussed
below, the viability and strength of ATS cases against multinational corporations, including
the willingness of defendants to settle, has been seen as uncertain.
In this context, the Wiwa settlement represents a significant victory for the plaintiffs and for
human rights attorneys generally. The public terms of the settlement and the substantial (at
least to the plaintiffs) amount of money involved, demonstrate that some victims of foreign
human rights abuses at the hands of multinational corporations can find meaningful redress in
U.S. courts.
The cost of litigation and prospect of negative publicity from the trial (regardless of the
verdict) probably played a role in the defendants willingness to settle on the eve of trial.
Documents purportedly linking company officials to the Nigerian government no doubt
added to this concern, and to the likelihood that the defendants would lose. Moreover, two
last-minute legal rulings went for the plaintiffs. The District Court rejected the defendants
argument that under the ATS neither the vicarious liability claims nor many of the causes of
action themselves could go forward. And the Second Circuit ordered jurisdictional discovery
against a defendant Shell Petroleum Development Company of Nigeria (SPDC) which
had previously been dismissed from the case by the trial court judge for lack of personal
jurisdiction.
Finally, the settlement did not require the defendants to admit wrong-doing, and $4.5 million
dollars of the pay-out went to a trust to benefit the Ogoni people, helping defendants portray
the settlement as a humanitarian gesture rather than an implicit acknowledgement of fault.

Tuna-Dolphin I (1991): (Mexico v. USA)


In eastern tropical areas of the Pacific Ocean, schools of yellow fin tuna often swim beneath
schools of dolphins. When tuna is harvested with purse seine nets, dolphins are trapped in the
nets. They often die unless they are released.
The US Marine Mammal Protection Act sets dolphin protection standards for the domestic
American fishing fleet and for countries whose fishing boats catch yellow fin tuna in that part
of the Pacific Ocean. If a country exporting tuna to the United States cannot prove to US
authorities that it meets the dolphin protection standards set out in US law, the US
government must embargo all imports of the fish from that country. In this dispute, Mexico
was the exporting country concerned. Its exports of tuna to the US were banned. Mexico
complained in 1991 under the GATT dispute settlement procedure.
The embargo also applies to intermediary countries handling the tuna en route from
Mexico to the United States. Often the tuna is processed and canned in one of these countries.
In this dispute, the intermediary countries facing the embargo were Costa Rica, Italy,
Japan, and Spain, and earlier France, the Netherlands Antilles, and the United Kingdom.
Others, including Canada, Colombia, the Republic of Korea, and members of the Association
of Southeast Asian Nations, were also named as intermediaries.
This case still attracts a lot of attention because of its implications for environmental disputes.
It was handled under the old GATT dispute settlement procedure. Key questions are:

Can one country tell another what its environmental regulations should be?
Do trade rules permit action to be taken against the method used to produce goods?

Mexico asked for a panel in February 1991. A number of "intermediary" countries also
expressed an interest. The panel reported to GATT members in September 1991. It
concluded:

That the US could not embargo imports of tuna products from Mexico simply because
Mexican regulations on the way tuna was produced did not satisfy US regulations.
(But the US could apply its regulations on the quality or content of the tuna
imported.) This has become known as a product vs. process issue.

That GATT rules did not allow one country to take trade action for the purpose of
attempting to enforce its own domestic laws in another country even to protect animal
health or exhaustible natural resources. The term used here is "extra-territoriality".

If the US arguments were accepted, then any country could ban imports of a product from
another country merely because the exporting country has different environmental, health and
social policies from its own. This would create a virtually open-ended route for any country
to apply trade restrictions unilaterally and to do so not just to enforce its own laws
domestically, but to impose its own standards on other countries. This would give rise to
protectionist abuses. This would conflict with the main purpose of the multi lateral trading
system to achieve predictability through trade rules.

The panel's task was restricted to examining how GATT rules applied to the issue. It was not
asked whether the policy was environmentally correct. It suggested that the US policy could
be made compatible with GATT rules if members agreed on amendments or reached a
decision to waive the rules especially for this issue. That way, the members could negotiate
the specific issues, and could set limits that would prevent protectionist abuse.
The panel was also asked to judge the US policy of requiring tuna products to be labeled
dolphin-safe (leaving to consumers the choice of whether to buy the product). It concluded
that this did not violate GATT rules because it was designed to prevent deceptive advertising
practices on all tuna products, whether imported or domestically produced.
Tuna-Dolphin II (1994): (EU v. USA)
The EC and the Netherlands complained that both the primary and the intermediary nation
embargoes, enforced pursuant to the Marine Mammal Protection Act did not fall under
Article III, were inconsistent with Article XI:1 and were not covered by any of the exceptions
of Article XX.
The US considered that the intermediary nation embargo was consistent with GATT since it
was covered by Article XX, paragraphs (g), (b) and (d), and that the primary nation embargo
did not nullify or impair any benefits accruing to the EC or the Netherlands since it did not
apply to these countries.
The Panel found that neither the primary nor the intermediary nation embargo was covered
under Article III, that both were contrary to Article XI: 1 and not covered by the exceptions
in Article XX (b), (g) or (d) of the GATT.
Shrimp Turtle Case (1998): (India etc. v. USA)
Seven species of sea turtles have to date been identified. They are distributed around the
world in subtropical and tropical areas. They spend their lives at sea, where they migrate
between their foraging and nesting grounds. Sea turtles have been adversely affected by
human activity, either directly (their meat, shells and eggs have been exploited), or indirectly
(incidental capture in fisheries, destruction of their habitats, pollution of the oceans).
In early 1997, India, Malaysia, Pakistan and Thailand brought a joint complaint against a ban
imposed by the US on the importation of certain shrimp and shrimp products. The protection
of sea turtles was at the heart of the ban.
The US Endangered Species Act of 1973 listed as endangered or threatened the five species
of sea turtles that occur in US waters, and prohibited their take within the US, in its
territorial sea and the high seas.
Under the act, the US required that US shrimp trawlers use turtle excluder devices (TEDs)
in their nets when fishing in areas where there is a significant likelihood of encountering sea
turtles.
Section 609 of US Public Law 101102, enacted in 1989, dealt with imports. It said that
shrimp harvested with technology that may adversely affect certain sea turtles may not be
imported into the US unless the harvesting nation was certified to have a regulatory

programmed and an incidental take-rate comparable to that of the US, or that the particular
fishing environment of the harvesting nation did not pose a threat to sea turtles.
In practice, countries that had any of the five species of sea turtles within their jurisdiction,
and harvested shrimp with mechanical means, had to impose on their fishermen requirements
comparable to those borne by US shrimpers if they wanted to be certified to export shrimp
products to the US. Essentially this meant the use of TEDs at all time.
In its report, the Appellate Body made clear that under WTO rules, countries have the right to
take trade action to protect the environment and endangered species and exhaustible
resources. The WTO does not have to allow them this right.
It also said measures to protect sea turtles would be legitimate under GATT Article
20 (i.e. XX) which deals with various exceptions to the WTOs trade rules, provided certain
criteria such as non-discrimination were met.
The US lost the case, not because it sought to protect the environment but because it
discriminated between WTO members. It provided countries in the western hemisphere
mainly in the Caribbean technical and financial assistance and longer transition periods for
their fishermen to start using turtle-excluder devices.
It did not give the same advantages, however, to the four Asian countries (India, Malaysia,
Pakistan and Thailand) that filed the complaint with the WTO.
The ruling also said WTO panels may accept amicus briefs (friends of the court
submissions) from NGOs or other interested parties.