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Treaty Regimes and the Protection of the Environment

Case: The Shrimp Turtle Case (38 International Legal Materials 118, 1999)

Facts:
○ U.S. imposed an import ban on shrimp harvested in ways that could damage
sea turtles.
○ India, Pakistan, and Thailand challenged U.S.'s policy before a panel
established under the WTO's (World Trade Org) Dispute Settlement Understanding,
arguing that it violated the General Agreement on Tariffs and Trade (GATT 1994).
○ The panel found that the policy violated Article XI(1) of the 1994
General Agreement on Tariffs and Trade, which prohibits quantitative barriers to
trade, and was not justified under the exceptions of Article XX of that agreement.

U.S. Appealed that decision, arguing that the panel had "erred in finding that the
measure at issue constitutes unjustifiable discrimination between countries where
the same conditions prevail and thus is not within the scope of measures permitted
under Art XX of GATT 1994.

Notes

· Why does the WTO have jurisdiction? (and not a US court, etc.)
○ This is a trade issue, so it makes sense for WTO to deal with it. But what
gives it jurisdiction?
§ Countries signed on to it
§ WTO developed from agreement, GATT
§ Not just any trade issue goes to WTO, but these state consented to
WTO, so they have jurisdiction
· Background on WTO as a dispute resolution
○ Treaty states signed.
§ 1st step: consultation
□ States agreed to get together and discuss the dispute be4
bringing in 3rd parties. If that fails, they go to step 2
□ Like an arbitration
§ 2nd step: go to panel of experts
□ If either party doesn’t like it, go to step 3
§ 3rd step: appellate body
□ Like a Court of final appeals for the WTO
§ 4th step: Dispute settlement body
□ Enforcement body
□ If party doesn’t comply with appellate body decision, they will
impose economic sanctions on the offending party. b/c if this, they have good
complying rates b/c of the enforcement.
· Shrimp Turtle Case
○ US defense - it falls under the exception "exhaustible natural resources"
○ WTO uses 2 part analysis
§ 1st - if it falls within one of the exceptions - for exhaustible
natural resources
§ 2nd - does the US's restriction satisfy the preamble for the
exception?

· Analyzing the 2nd part of the analysis


○ Even if a law, on its face, is neutral, it can still be discriminatory,
and you can find this out when applying it
○ Unjustified, b/c not closely related to goal of conservation
§ Boats were using environmentally safe procedures, but still penalized
○ Arbitrary
§ There wasn’t a process
□ States were not given a process to challenge US's
qualification. There was no way for countries to say that they were using safe
methods of catching shrimp
· What did US end up doing?
○ US ended up modifying its laws, creating a more nuanced law dealing with
sea turtles, and helped countries to comply