Thai shrimp, sea turtles, mangrove forests and the WTO: Innovative environmental protection under the international trade regime

Georgetown International Environmental Law Review, Summer 2003 by Ramangkura, Varamon

Until the 1990s, international trade law and international environmental law developed independently of each other.28 Since then, however, disputes over the intersection between free trade and environmental protection before GATT and the WTO have received significant international attention. The conflict arises because of differences in priorities. Environmentalists in developed countries want to use trade sanctions as a tool to protect the environment. On the other hand, proponents of free trade believe that its benefit outweighs environmental concerns and fear that economic protectionism will appear under the guise of environmental measures.29

However, in October 1998, the WTO issued its most important ruling to date on the status of environmental trade measures in the Shrimp-Turtle case. In that decision, the WTO held that countries may defend a unilateral import ban as a permissible environmental measure under the GATT, as long as they avoid unfair discrimination.30 These unilateral trade measures may be used against imports produced through processes that harm natural resources located outside the boundaries of the importing countries or against imports from countries that have environmental policies deemed inadequate by importing countries.31

Because environmentalists find trade policies to be one of the most attractive ways of inducing countries to enact environmental policies, and because the WTO has become the most influential international institutions in the area of trade, the WTO will have to continue responding to the conflict over trade and environmental protection among its 144 member countries.32

III. WTO'S SHRIMP-TURTLE CASE

A. THE ORIGIN OF THE PROBLEM: U.S. SEA TURTLE PROTECTION UNDER THE ENDANGERED SPECIES ACT

In 1973, the sea turtle was listed as an endangered species under the Endangered Species Act (ESA).33 The National Academy of Sciences (NAS) reported in 1990 that the process of harvesting shrimp results in the death of turtles that are caught in the nets and unable to surface for oxygen34 and that the use of large nets killed more sea turtles than all other human activities combined.35 Today, at least four species of sea turtles are facing extinction, including the loggerhead, the green leatherback, the hawksbill, and the Kemp's ridley.36 In 1986, the Turtle Excluder Device (TED) was created in response to the threat posed by shrimp trawlers.37 TEDs are trap doors in shrimp nets that allow turtles to escape while still trapping shrimp.38 It is believed that the TED can reduce the mortality of sea turtles by ninety-seven percent.39

In 1990, the United States imposed regulations requiring U.S. vessels to use TEDs or to implement shrimp fishing restrictions (tow time restrictions) in areas notorious for incidental killings of sea turtles during shrimp harvesting.40 Congress took the TED regulation one step further by enacting Section 609 of Public Law 101-162, which required the U.S. State Department to conduct bilateral and multilateral negotiations linking the protection of sea turtles to the importation of shrimp and shrimp products.41