United States-Import Prohibition of Certain Shrimp and Shrimp Products. WTO Doc.

WT/DS58/
AB/R
Author(s): Gregory Shaffer
Source: The American Journal of International Law, Vol. 93, No. 2 (Apr., 1999), pp. 507-514
Published by: American Society of International Law
Stable URL: http://www.jstor.org/stable/2998005
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1999] INTERNATIONAL DECISIONS 507

exemptedfromthejurisdictionof the Court cannot be con-sideredin interpreting such

reservationstojurisdiction,because such an approach confusesthe legalityof the acts at
issue withconsent tojurisdiction,is new and important.
The Court did not pass on the legalityof the disputedCanadian acts againstthe Estai
in the NAFO Reguilatory Area of the highseas.29Nevertheless,
itsbroad interpretation of
the genericterm"conservationand managementmeasures"and itsconclusion thatthe
term"enforcementof such measures"contemplatesa minimaluse of force may have
importantimplicationsforthe law of the sea. And the writtenand oral proceedingswill
retaintheirvalue in one of the mostwidelypublicizedlawof the sea disputesofour time.
BARBARA KWIATKOWSKA
NetherlandsInstitutefor theLaw of theSea

International trade-WTO- quantitative restrictions-environmentalprotection-endangered

species-U.S. importban on shrimp
UNITED STATES-IMPORT PROHIBITION OF CERTAIN SHRIMP AND SHRIMP PRODUCTS. WTO Doc.
WT/DS58/AB/R.
World Trade Organization,Appellate Body,October 12, 1998.
In May 1996, the United Stateseffectively prohibitedimportsof shrimpand shrimp
products fromall countries that do not require commercial shrimp trawlersto use
turtle-excluderdevices (TEDs) to permitendangered species of sea turtlesto escape
fromtrawlingnets to avoid drowning.'InJanuary 1997, India, Malaysia,Pakistanand
Thailand requested thatthe WTO Dispute SettlementBody establisha panel to deter-
mine whetherthisimportban, among otherthings,violatesthe prohibitionon quanti-
tativerestrictions
in ArticleXI of GATT (1994). The United States maintainedthatits
importban was permittedunder the exceptionsset forthin paragraphs(b) and (g) of
GATT ArticleXX.2 Four turtlespecies3thatmigratein and out of waterssubjectto the
complaining parties'jurisdictionare listed as endangered under the Convention on
InternationalTrade in EndangeredSpecies ofWild Fauna and Flora and are coveredby
the relevantU.S. regulation.

29
on the Law of theSea, in
See Bernard H. Oxman, The Rule of Law and the UnitedNationsConvention
CONTEMPORARY INTERNATIONAL LAW ISSUES: CONFLICTS AND CONVERGENCE 309, 312-13 (1996), and in 7 EUR.
J. INT'L L. 353, 357-58 (1996).
' These devicesare relativelyinexpensive,costingbetween$75 and $400 in the United States,althoughthe
"harder"varieties(whichare increasinglybeingrequired)startin the$200 range.Not muchisknownaboutthecost
of TEDs in developingcountrieswherelabor is cheaper,althoughan Indian newspaperhas statedthattheyare
"inexpensive, costingonlyRs3.000" (aroundU.S. $75), and a memberoftheU.S. NationalMarineFisheriesService
on a visitto India wastoldthatthecostwasactuallyin the$8 to $12 range.Ifproperlyinstalledand used,TEDs are
in permitting
said to be up to 97% effective turtlesto escape fromshrimptrawlnets,whilerestiltingin a negligible
lossofshrimpcatch.Discussionof theauthorwitha memberof theNationalMarineFisheriesService(Nov. 1997).
SeealsoUnitedStates-ImportProhibition ofCertainShrimpand ShrimpProducts,U.S. Panel Submission, para.23.
Thailand disagreedwiththe U.S. contention.Seeid.,Thailand'sSecond Panel Submission,paras.5, 19-22.
2 The relevantprovisionsof ArticleXX read:

Subject to the requiremenitthatsuch measuresare not applied in a mannerwhichwould constitutea

means of arbitraryor unjustifiablediscrimination
betweencountrieswherethesame conditionsprevail,or
a disguisedrestrictionon internationaltrade,nothingin thisAgreementshall be construedto preventthe
adoption or enforcementby any contractingpartyof measures:

(b) necessaryto protecthuman, animal or plant lifeor health;

(g) relatingto the conservationof exhaustiblenaturalresourcesifsuch measuresare made effectivein

conjunctionwithrestrictions on domesticproductionor consumptiol.
GeneralAgreementon Tariffsand Trade [GATT], as amended, in GATT, THE RESULTSOF THE URUGUAY
reprinted
ROUND OF MULTILATERAL TRADE NEGOTIATIONS:THE LEGALTEXTS 486 (1994) [hereinafter GATT 1994].
3 The leatherback,the green, the hawksbilland the olive iidley.

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508 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 93

In its report,UnitedStates-Import Prohibitionof CertainShrimpand ShrimpProducts,the

WTO Appellate Body upheld the disputesettlementpanel's findingagainstthe United
Statesbut disagreedwiththe panel's reasoning.In doing so, the Appellate Body signif-
icantlychanged the WTO's approach to environmentalregulationshavingan extrajuris-
dictional object. In each of the Appellate Body's three reversalsof panel findings,it
appeared to respond to charges that the WTO's dispute settlementprocess is trade-
biased. First,the Appellate Body held that WTO rules do not prohibita panel from
acceptingunsolicitedamicus curiae briefssubmittedbyenvironmentalnongovernmen-
tal organizations(NGOs). Second, it confirmedthatthe U.S. ban legitimately "relat[es]
to the protectionof exhaustiblenaturalresources"forpurposesof ArticleXX (g). Third,
it criticizedthe panel forits"overlybroad" depictionof the WTO Agreement'spurpose
and foritsfocuson a priori"categories"of measures,ratherthanon a factualanalysisof
how the United Stateshad actuallyapplied itsparticularimportban.4
InJune 1987, pursuantto authority grantedit under the EndangeredSpecies Act,the
National Marine FisheriesService of the U.S. Departmentof Commerce firstadopted
regulationsrequiringshrimptrawlersof a certainsize operatingin the Gulfof Mexico
eitherto use turtle-excluder devicesor to restrictthe timetheytowshrimpnetswithout
boardingtheircatch.5
On November 21, 1989, Congress enacted section 609 of U.S. Public Law 101-162,
which instructedthe President to initiatenegotiationswith foreigngovernmentsto
develop bilateraland multilateral agreementsfortheprotectionofsea turtles,and to ban
the importof shrimpand shrimpproducts"whichhave been harvestedwithcommercial
fishingtechnologywhichmayaffectadverselysuch species of sea turtles."6 The object of
the legislationwas twofold.First,as declared by its sponsors,it attemptedto "level the
playingfield"betweenU.S. shrimpers,who were subject to the costsof complyingwith
U.S. environmentalregulations,and foreignshrimpers,who were not.7 Second, for
environmentalists, it would exert pressure on foreigngovernmentsto take stronger
measuresto protectendangered sea turtles.
Section 609(b) precludes shrimpimportsunless "the Presidentshall certifyto Con-
gress"thateither(1) the "fishingenvironmentof the harvestingnationdoes not pose a
threat[to] .. . such sea turtles,"
or (2) the foreigngovernmenthas adopted "a regulatory
programgoverningthe incidentaltakingofsuch sea turtles.. . thatis comparableto that
of the United States,"and "theaveragerateof thatincidentaltakingbythevesselsof the
harvestingnation is comparable" to that of U.S. vessels.The Presidentdelegated the
authorityto make the required certifications to the Departmentof State. The Depart-
ment firstinterpretedsection 609 to apply only to countrieswithcoastlinesbordering
"the wider Caribbean and WesternAtlanticregion."8This limitedapplication of the
sectionwas challenged byvariousenvironmentalgroups,as wellas an associationof U.S.
shrimptrawlers,packers and suppliers.In December 1995, the U.S. Court of Interna-
tional Trade directed the Department "to prohibitnot later than May 1, 1996 the

4 WTO Doc. WT/DS58/AB/R,para. 116 (Oct. 12, 1998) [hereinafterAB Report].

s Sea TurtleConservation;ShrimpTrawlingRequirements,52 Fed. Reg. 24,244 (1987). The regulationswere
opposed by many U.S. shrimpers,who nicknamedTEDs "trawlereliminationdevices." See Kathleen Doyle,
TurtleExcluderDeviceRegulations:Laws Sea TurtlesCan Live With,21 N.C. CENT. L.J.256, 271-82 (1995).
6 Pub. L. No. 101-162,?609(b), 103 Stat. 1038 (1989).
7 Section 609 was introducedand promoted by the senators fromLouisiana in large part to help "our
shrimpersin Louisiana." They argued thatifthe UnitedStates,notwithstanding theiropposition,was going to
impose thesecostson theirconstituents, itwas going to impose themon everyoneelse whowantedto compete
in the U.S. market.See 135 CONG.REc. S12191 (1989).
8 Turtles and ShrimpTrawl FishingOperations Protection:Guidelines,56 Fed. Reg. 1051 (1991). See also
RevisedGuidelinesforDeterminingComparability of ForeignProgramsforthe ProtectionofTurtlesin Shrimp
Trawl FishingOperations,58 Fed. Reg. 9015 (1993).

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1999] INTERNATIONALDECISIONS 509

importationof shrimpor productsof shrimp7vherever harvestedin the wild withcom-

mercial fishingtechnologywhich may affectadversely[the designated] species of sea
turtles."9
The Departmentcomplied.
Eleven countries filed third-party submissionswith the WTO dispute settlement
panel hearing the complaintsagainstsection 609. All opposed the U.S. position.The
submissionof the European Communitieswas arguablythe most significant.While
the Communitiesasserted that the United States should lose in "the circumstances
of this particular case," its position on unilateral extrajurisdictionalmeasures was
more flexiblethan in the earlier GATT Tuna-Dolphin cases.10The Communitiesnow
assertedthat
ArticleXX may,in certaincircumstances,be relied upon tojustifymeasurestaken
to protect [the] global commons (globally shared environmentalresources) or
resourceslocated outside the territory of a contractingparty,provided,of course,
thatthe otherconditionsof applicationof the relevantexceptionin Ar-ticleXX, and
the introductory clause thereof,are complied with."
In effect,the twomostpowerfulmembersof the WTO werecallingforan "evolution"in
GATT jurisprudence,one thatthe Appellate Body would soon provide.
Early signs suggested that the panel would seriouslyaddress the U.S. substantive
environmentalclaims,and not limititsassessmentto trade-relatedarguments.First,the
panel agreed to forma group of conservationbiologyexpertspursuantto Article13.2 of
the DisputeSettlementUnderstanding.The panel designatedfiveindividualsto formthe
expertgroup, two recommendedby the United States and three by the complainants.
Not surprisingly, while the expertsall confirmedthatthe sea turtleswere endangered,
theydid not concur on the mostappropriateconservationmethodforthe complainants
to utilize and, in particular,on whetherthe means mandated by the United States
regulationwere necessaryor appropriate.
Second, environmentalnongovernmentalorganizationssubmittedtwo amicus briefs
to the panel in supportof the U.S. ban. A consortiumof NGOs led by two U.S.-based
groupsfiledone brief.The WWF-WorldWildlifeFund forNaturefiledthe other.While
the panel refusedto accept the amicus briefsas independentdocuments,itaccepted the
factual portion of the consortium'sbriefas an exhibit to the United States' second
writtensubmission.
In itsreportof May 15, 1998, the panel held thatthe U.S. importban violatedGATT
ArticleXI and was "not withinthe scope of measurespermittedunder the chapeau of
ArticleXX."12 It reasoned that the U.S. import restrictionson shrimp and shrimp
products"wereclearlya threatto the multilateraltradingsystem." 13
The Appellate Body firstoverruledthe panel's holdingthat"acceptingnon-requested
informationfromnon-governmental sources is incompatiblewiththe provisionsof the

9 Earth Island Inst.v. Christopher,913 F.Supp. 559 (Ct. Int'l Trade 1995) (emphasis added). The Depart-
mentof Statethenissuednewguidelines,which,among othermatters,permittedshrimpto be importedto the
extenttheywere certifiedby a foreigngovernmentofficialto have been caught byTEDs, even ifthe foreign
governmentin question did not have a "comparableregulatoryprogram"mandatingthe use of TEDs. These
guidelineswere again challenged by the same groups and found by the U.S. Court of InternationalTrade to
be contraryto section 609.
'1 See United States-Restrictionson Importsof Tuna, 30 ILM 1594 (1991) (unadopted panel report,Aug.
16, 1991) [hereinafterTuna-Dolphin I); and United States-Restrictionson Importsof Tuna, 33 ILM 839
(1994) (unadopted panel report,June 16, 1994) [hereinafterTuna-Dolphin II].
Third PartySubmissionby the European Communitiesto the panel (on filewithauthor). See also AB
Report,paras. 65-74 (remarksby the Communities).
12 United States-Import Prohibitionof Certain Shrimp and Shrimp Products,WTO Doc. WT/DS58/R,
para. 7.62 (May 15, 1998) [hereinafterPanel Report].
13 Id., para. 7.61. The panel repeated eight times that the U.S. environmentalmeasures "undermine,"
"threaten"and "put at risk"the tradingsystem.See id., paras. 7.44, 7.45, 7.51, 7.55, 7.60, 7.61.

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510 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 93

DSU."14 The Appellate Body made this determinationeven though the language of
Article13 of the WTO Dispute SettlementUnderstandingrefersto a panel's "rightto
seek information," and the panel clearlydid not "seek""non-requested"information.In
the appeal, the Appellate Body not onlyaccepted "forconsideration"threeNGO briefs
attachedas exhibitsto the U.S. submission;5 it also accepted a revisedversionof one of
these briefsindependentlysubmittedbya group of NGOs.16
The Appellate Bodynextadmonishedthe panel forhavingfailedto examine whether
the U.S. regulationswere permissibleunder ArticleXX(g) as a "measure relatingto
the conservationof exhaustible natural resources."'17The United States maintained
thatendangered sea turtlesare clearlycovered under ArticleXX(g), citingthe earlier
UnitedStates-Reformulated Gasoline case.'18 The complainants countered that the
term "exhaustiblenatural resources" refersonly to nonbiological resources,such as
minerals. They also cited the two Tuna-Dolphinpanel decisions, which had held
thatthe U.S. tuna embargo was not "primarily aimed at the conservationof dolphins"
because it attemptedto coerce foreigncountriesinto modifyingtheirdomestic regu-
lations.'9
The Appellate Body confirmedthat the term "natural resources"incorporatesthe
protectionof livingspecies,thattherewas a "sufficient nexus betweenthe migratory and
endangered marine populations involvedand the United States,"20and that the U.S.
measuresthusfellwithinthe scope of the ArticleXX(g) exception.The U.S. measures
were thereby"provisionally" justified,subject to application of the chapeau of Article
XX.21Though theAppellateBodylimiteditsfindingto the "specificcircumstancesof the
case beforeus," it effectively
rejectedthe reasoningof the Tuna-Dolphin panel decisions.
Like the Shrimp-Turtlepanel report,the Tuna-Dolphin cases had focusedon a categoryof
measures(importrestrictions based on foreignproductionmethods),as opposed to the
particularcharacteristicsof the importrestrictionin question.22The Appellate Body
rejected thisgeneric typeof analysis.Curiously,it did so withoutever citingthe Tuna-
Dolphin decisions.

1' SeeAB Report,para. 110.

Is The threebriefswere submitted:(1) by the Earth Island Institute,the Humane Society,and the Sierra
Club; (2) by the Center for InternationalEnvironmentalLaw, the Center for Marine Conservation,the
EnvironmentalFoundation Ltd., the MarngroveAction Project, the Philippine Ecological Network,Red
Nacional de Acci6n Ecol6gica, and Sobrevivencia;and (3) by the Worldwide Fund for Nature and the
Foundation forInternationalEnvironmentalLaw and Development.
16 The Appellate Body did not, however,set any proceduralguidelinesforthe submissionof amicus briefs,
an issue thatremainsopen.
1' While not addressingAlrticleXX(g), the panel had observedthat,even ifthe U.S. restrictionsfellwithin
the scope of paragraph (g), theywere unjustifiableunder the "chapeau" of ArticleXX.
18 SeeWTO Panel Report,United States-Standards forReformulated and Con-ventionalGasoline, 35 ILM
274, 299 (Jan. 29, 1996). The panel held that"clean air"was an exhaustiblenaturalresourceand thatthe U.S.
neasure thusfellwithinthe scope of ArticleXX(g).
9 The second Tuna-Dolphinpanel held that the primaryaim of the U.S. measures was "to force other
countriesto change theirpolicies withrespectto personsand thingswithintheirownjurisdiction,since the
embargoesrequiredsuch changes in order to have any effecton the conservationof dolphins." Tuna-Dolphin
II, supra note 10, para. 5.24.
20 AB Report,para. 133.
21 Seeid.,para. 187(c). For reasonsofjudicial economy,theAppellateBodydid not addresswhetherthe U.S.
importban was also "necessaryto protecthuman, animal or plant life or health" under ArticleXX(b). Id.,
para. 146.
22 The Shrimp-Turtle panel used the same rationale under the chapeau of ArticleXX as applied by the
Tuna-Dolphin panels under ArticleXX(g). All three panels held that the respectiveimportembargoes were
impermissiblebecause theywere "types"of measuresthatcould "undermine"the tradingsystem.The Tuna-
DolphinII panel claimed, "Under such an interpretation the General Agreementcould no longer serveas a
multilateralframework fortrade among contractingparties."Tuna-Dolphin II, supranote 10, para. 5.26. The
Shrimp-Turtlepanel cited the Tuna-DolphinII decision withapproval.SeePanel Report,supranote 12,para. 7.46.

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1999] INTERNATIONAL DECISIONS 511

In interpretingArticle XX(g), an article "craftedmore than 50 years ago," the

AppellateBodyfocusedless on the contextof "theoverallWTO Agreement"thanon the
contemporarycontext in which it must render its decision. Rather than analyze the
originalintentor draftinghistoryof ArticleXX, the Appellate Body affirmedthat the
term"exhaustiblenatural resources"is "not 'static' in its content or referencebut is
rather'by definition,evolutionary'."The Appellate Body held thatthe words"mustbe
read ... in the lightof contemporaryconcerns of the communityof nationsabout the
protectionand conservationof the environment."As evidence of the contemporary
context,it emphasized the referencein the Preamble to the WTO Agreementto "the
objectiveof sustainabledevelopment,"a referencethatdid not appear in the original
GATT. The Appellate Body statedthat"itis too late in the day"to limitcoverageunder
ArticleXX(g) to "theconservationof exhaustiblemineralor othernon-livingresources,"
as the complainantsdesired. "In the absence up to now of any agreed amendmentsor
modificationsto the substantiveprovisionsof the GATT 1994,",23the Appellate Body
amended priorGATT analysisin lightof contemporaryperspectives.
The Appellate Bodyfinallyturnedto the conditionsset forthin the chapeau ofArticle
XX, whereit soughtto maintain"a balance... betweenthe rightof a Member to invoke
an exceptionunder ArticleXX and the dutyof thatsame Member to respectthe treaty
rightsof the otherMembers."24The AppellateBodydefinedits"task"as "the delicate one
of locatingand markingout a lineofequilibrium"that"is not fixedand unchanging,"but
"movesas the kind and the shape of the measuresat stakevaryand as the factsmaking
up specific cases differ."25In searching for this "equilibrium,"the Appellate Body
attemptedto applyArticleXX "delicately"to the United States' indelicateapplicationof
an importban. It eschewed a genericanalysisof importbans based on foreignproduc-
tion and processingmethods,and concentratedon the "factsmakingup" the "specific
case."26
The Appellate Body found six flawsin the application of section 609. First,and
"[p]erhaps the mostconspicuous flawin thismeasure's application,"the United States
requires all "exporting
Members, if theywish to exercise their GATT rights,to adopt
thesamepolicy"as thatapplied in the UnitedStates.27The reportfoundthatthis
essentially
has an unjustifiably
"coerciveeffect"on policydecisionsmade byforeigngovernments.
The AppellateBodyadmonishedthe United Statesforfailingto take"intoconsideration
differentconditionswhich may occur in the territoriesof. . . other Members."28The
United Stateswas thus unable to assure thatits policies were appropriateforthe local
"conditionsprevailing"in these countries.
Second, the Appellate Body emphasized that,even where shrimpare caught using
U.S.-prescribedmethods,the United Statesstillprohibitstheirimportationiftheycome
fromcountriesthatdo not requirethe use ofTEDs. The reportsuggestedthatthe United
States was "more concerned with effectively influencingWVTOmembers to adopt"
U.S.-prescribedregulatoryregimesthan assuringthatshrimpactuallyimportedinto the
countryare caughtwithmethodsthatdo not endanger migratory sea turtles.29
Third, noting that the United States had successfullynegotiatedan Inter-American
Conventionforthe Protectionand Conservationof Sea Turtles,whichdemonstratesthat

23
AB Report,paras. 129-31, 155.
24
Id., para. 156 (emphasis of "balance" added).
25
Id., para. 159 (emphasis added).
26 Id.
27 Id.,para.161.
28 Id., para. 164.
29
Id., para. 165.

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512 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 93

"multilateral procedures are available and feasible," the report found that the United
States had never seriously attempted to negotiate a similar agreement with the four
complainants.30
Fourth, the Appellate Body held that the United States had discriminated between
WTO members by applying different"phase-in" periods during which they must require
shrimp trawlers to use TEDs. Whereas countries in the Caribbean/western Atlantic
region wer-e permitted a three-year phase-in period, the rest of the world had been
granted "only four months."3'
Fifth, the report faulted the United States for having made far "greater efforts to
transfer[TED] technology" to countries in the Caribbean/western Atlantic region "than
to other exporting countries, including the appellees. "32
Finally, the Appellate Body elaborated on the meaning of the reference in Article XX
to "arbitrary discrimination." It effectivelyrequired the United States to create an
administrative procedure pursuant to which foreign governments or traders would have
an opportunity to comment on and challenge regulations before U.S. administrative
bodies or courts. The Appellate Body held that the application of the U.S. measure is
"arbitrary"in that the certificationprocess is not "transparent" or "predictable," and does
not provide any "formal opportunity for an applicant country to be heard, or to respond
to any arguments that may be made against it."33 The report noted that the U.S.
implementing agency issues "no formal written, reasoned decision, whether of accep-
tance or rejection," and that there is no "procedure for review of, or appeal from, a
denial of an application."34 The Appellate Body cited Article X of GATT 1994 as
requiring the United States to grant foreign traders and countries these "due process"
rights.35 Without these procedures, foreign traders' only protection from arbitrary
administrative action is through their government representatives before the WTO
Dispute Settlement Body.
The Appellate Body did not criticize the U.S. Congress, directing its comments to the
U.S. implementing agency, the Department of State, and perhaps, by implication, the
Court of International Trade.36 It noted that the actual statutoryprovisions of section 609
"appear[ ] to permit a degree of discretion or flexibility"that had been "effectively
eliminated in [their] implementation . . . by the Department of State."37 The Appellate
Body implied that Congress, in using the term "comparable," would permit conservation
measures that do not require the use of TEDs.
The United States has notified the Dispute Settlement Body that it will comply with the
Appellate Body's ruling within thirteen months of its adoption by the DSB (i.e., by
December 6, 1999).38 The Department of State has already revised its guidelines to
permit shrimp to be imported into the United States if they are caught by vessels using

30
Id., paras. 166-70.
3' This was the resultof a decision of the U.S. Court of InternationalTrade, a body forwhichthe United
States"bears responsibility."Id., para. 173.
32
Id., para. 175.
33
Id., para. 180.
34
Id.
35 AB Report,para. 182. Paragraph3 of ArticleX, forexamnple, requirespartiesto "admninisterin a uniform,
impartialand reasonable inanner"theirlawsand regulations,and to "inaintain. . .judicial, arbitralor admnin-
istrativetribunalsor proceduresforthe purpose, interalia, of the promnptreviewand correctionof admninis-
trativeaction." GATT 1994, supranote 2.
36 See supra note 9.
37 AB Report,para. 161.

38 See Agriculture:EU PromisesDecision on HormoneDispute b)yMay 13 WTO Implementation

Deadline, 16 Int'l Trade
Rep. (BNA) 191 (Feb. 3, 1999).

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1999] INTERNATIONAL DECISIONS 513

TEDs, even ifthe foreigncountrydoes not require them.39During the implementation

period, the Departmentwillreviseits guidelines,subjectto U.S. administrative require-
mentsunder the UruguayRound AgreementsAct,to permitcomplainantsto show that
theyuse "comparable" methods to protectsea turtlesfromshrimp trawling,such as
throughlimitingthe time or area in which trawlersmay operate.40Revised guidelines
should offerforeigngovernmentsgreater"due process" rights,including the rightto
challenge"preliminary" findingsbeforetheybecome definitive, in particularconcerning
the local "condition"of endangered sea turtlesand the comparabilityof theirshrimp-
trawlingrequirements.41 Finally,the United Stateswillattemptto create a "paper trail"
of itsofferto negotiatea multilateralsea turtleprotectionconventionand to providethe
complainantswithTED technologyand consultingservices.The Departmentis already
attemptingto findthefundsto financean internationalconferenceto negotiatea treaty.

The WTO AppellateBody'sdecisioncan be viewedas a responseto challengestoWTO

legitimacyby powerfulenvironmentalconstituenciesin the United States and Europe
thatsuccessfully pressuredtheirgovernmentsinto seekingchanges in the applicationof
GATT rules.Ratherthan uphold a bright-line based on
rule againstall traderestrictions
foreignproductionmethods,the Appellate Body has attemptedto fostera process of
takingforeigninterestsintoaccount whendomesticregulationsaddressingenvironmen-
talissuesaffectinternationaltrade.In thisrespect,thedecisiondepartssignificantly from
earlierGATTjurisprudence,particularly the reasoningin the two Tuna-Dolphin cases of
1991 and 1994.
The AppellateBody'sdecision has nonethelessbeen criticizedfromdifferent perspec-
tives.Some trade law expertsquestioned whetherit is appropriatefora WTO panel to
reviewdomesticlegislativeand administrative procedures.42Earth Island Institute,the
NGO that,throughU.S. courts,had compelled the United Statesto applysection609 to
The complainants,in
all countries,dubbed the decision "a death blow forsea turtles."43
contrast,called theAppellateBody's approach "dangerous,"fearingthatthe ruling"will
result in explosive growthin unilateral,discriminatory, trade-relatedenvironmental
measures."44
Much has been made of the decision to admit NGO briefs.On the one hand, the
acceptance of the briefswas largelysymbolic.The Appellate Body focused"on the legal

See63 Fed. Reg. 46,094 (1998). This followeda successfulgovernmentappeal ofan earlierjudgmentbythe
Courtof InternationalTrade. SeeEarthIsland Inst.v. Albright,147 F.3d 1352 (Fed. Cir. 1998). The U.S. court
of appeals decision is discussedin 15 Int'l Trade Rep. (BNA) 1063 (June 17, 1998). The revisedguidelinesare
again being challenged before the trade courts by the Earth Island Instituteand other environmental
organizations.The decision reportedat 16 Int'l Trade Rep. (BNA) 638 (Apr. 14, 1999) is being appealed.
40 Telephone interview witha representative of the U.S. Departmentof State (Feb. 8, 1999). On March 25,
1999, the Departmentof State publisheda Notice of Proposed Guidelinesforthe Implementationof Section
609 of Public Law 101-162Relatingto the Protectionof Sea Turtlesin ShrimpTrawl FishingOperations,64
Fed. Reg. 14,481 (1999) [hereinafter1999 Proposed Guidelines]. The 1999 Proposed Guidelineswere subject
to public commentfora 30-dayperiod (untilApril24, 1999). Once finalized,the revisedguidelinesare to be
submittedto the Committeeon Ways and Means of the House of Representativesand the Committeeon
Finance of the Senate, whichmayvote to indicatetheiragreementor disagreementwiththe revisedtext.Such
a vote,however,is not bindingon the Departmentof State. SeeUruguayRound AgreementsAct of 1994, 19
U.S.C. ?3533(g) (1994).
41
See 1999 Proposed Guidelines,supranote 40.
42
Telephone interview, supranote 40.
43 WTO CNN, Oct. 12, 1998 (visited Feb. 8, 1999)
rejectsU.S. ban on shrimpnetsthatharmsea turtles,
Khttp://www.cnn.com/US/9810/12/world.trade.ruling).
41 See Complainants in WTOShrimpCaseSlamAppellate Reportat DSB, INSIDE U.S. TRADE,Nov. 13, 1998, at 7-8
(summarizingand citingcommentsof the complainingpartiesbeforethe WTO DispUteSettlementBody).

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514 THE AMERICAN OF INTERNATIONAL
JOURNAL LAW [Vol. 93

argumentsin themain U.S. appellantsubmission,"and not on thosein theNGO briefs.45

On the other hand, a panel's acceptance of amicus briefscould also benefitbusiness
interests(and their legal representatives)seeking greater influence over the WTO
litigationprocess by submittingtheirown factualand legal argumentsto WTO panels.
The United States may have lost the legal case. Yet because the Appellate Body has
recognized the potential legitimacyof unilateral measures, the developing country
complainantsmayultimately be promptedto upgrade theirenvironmentalregulations.
The U.S. Departmentof State has taken the Appellate Body's decision into account in
fashioningproposed revisionsto itsguidelines.46It has done so in such a manner that,
as a practical matter, foreign shrimpers wishing to export to the U.S. market should still
be forced to use TEDs. If the complainantsseek WTO arbitrationagainst the United
States for failure to comply with the Appellate Body's decision, the controversial Shrimp-
Turtlecase will surface once more.

GREGORY SHAFFER
of WisconsinLaw School
University

InternationalCriminal Tribunal for theformerYugoslavia- commandresponsibility-multiple

defendants-rape constitutingtortureas grave breach of 1949 Geneva Conventionsand
ofconflictin Bosnia and Herzegovina
violationof laws or customsof war- characterization
PROSECUTOR V. DELALIC. No. IT-96-21-T.
InternationalCriminalTribunal forthe formerYugoslavia,Nov. 16, 1998.
On November16, 1998,a trialchamberof the InternationalCriminalTribunalforthe
formerYugoslavia (ICTY) issued itsjudgment in the Celebicicase against four defen-
dants.' The chamberfound the defacto commanderof the Celebici prison camp liable
under the principle of command responsibilityfor various acts of tortureand ill-
treatmentat the camp. It also found twoother accused guiltyof gravebreaches of the
Geneva Conventionsand violationsof the lawsor customsof warfortheiractionsat the
camp. A fourthaccused, indictedonlyunder the principleof command responsibility,
was found not guiltyon all counts owingto the lack of a superior-subordinate
relation-
ship.Those accused convictedof multipleoffenseswereordered to servetheirsentences
concurrently.
The indictmentagainst the four accused, three Bosnian Muslimsand one Bosnian
Croat,alleged thatin 1992 Bosnian Muslimand Croatforcestookcontrolofvillageswith
predominantlyBosnian Serb populations in and around the Konjic municipalityin
centralBosnia and Herzegovina.The persons therebydetained were held in a prison
camp in the villageof Celebici,wheredetaineeswere killed,tortured,sexuallyassaulted
and subjectedto crueland inhumantreatmentbythefouraccused. The accused, a camp
guard (Esad Landzo), the camp commander (ZdravkoMucic), the camp deputycom-
mander and later commander (Hazim Delic), and the coordinator of the Bosnian
Muslim and Bosnian Croat forcesin the area and later a commander in the Bosnian
Army(Zejnil Delalic), werechargedwithoffensesunder internationalhumanitarianlaw
constitutinggrave breaches of the Geneva Conventionsand violationsof the laws or
customsofwarpursuantto Articles2 and 3 of theICTY's Statute.2Landio and Delic were

45 AB Report,para. 91.
46
See 1999 ProDosed Guidelines. subranote 40.
' Prosecutorv. Delalic, Mucic, Delic &
Landzo,judgement, No. IT-96-21-T (Nov. 16, 1998) (Karibi-Whyte
(presiding),Odio Benito & Jan, JJ.)[hereinafter Judgement].
2 InternationalTribunal for the Prosecutionof Persons ResponsibleforSerious Violationsof International
HumanitarianLaw Committedin theTerritory of the FormerYugoslaviasince 1991,Statute,UN Doc. S/25704,

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