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

Over the following decade, the State Department issued several different sets of guidelines to implement the turtle protection legislation. The 1991 Guidelines required all shrimp trawl vessels to use TEDs at all times, reduce tow times for vessels under twenty-five feet, or otherwise engage in a statistically reliable and verifiable scientific program to reduce the mortality of sea turtles caused by shrimp trawling.42 The 1991 Guidelines only applied to those nations trawling in the Caribbean and Western Atlantic regions and allowed three years for the complete phase-in of a comprehensive program.43 In 1993, the State Department revised the 1991 Guidelines and required that in order to receive certification, affected nations (as determined in 1991 Guidelines) had to commit to requiring TEDs on all commercial shrimp trawling vessels by May 1, 1994, subject to a limited number of exceptions.44 In 1995, a coalition of environmental organizations led by the Earth Island Institute filed suit in the Court of International Trade (CIT),45 challenging the geographical limitation on the import ban as insufficient to carry out the purpose of Congress and claiming that Section 609 did not restrict its applications to any particular region.46

The CIT held that the 1993 Guidelines were not a proper enforcement of Section 609 and that the U.S. law must be enforced against all those who capture shrimp throughout the world.47 The U.S. State Department adopted the decision in Guidelines published in 1996, which stated that any shrimp harvesting nation that did not meet the certification criteria by May 1, 1996 would face an import ban.48 In January 1998, India, Pakistan, Malaysia, and Thailand requested that the GATT Dispute Settlement Body form a panel to resolve this conflict under the GATT.

B. THE PERSPECTIVES AND LEGAL ARGUMENTS OF THE PARTIES

1. The Complainants' Perspective

The complainants - India, Pakistan, Malaysia, and Thailand - claimed that the shrimp import prohibition violated GATT Article I, Article XI, and Article XIII and that the measure was inconsistent with the general exceptions to the GATT outlined in Article XX.49

The complainants argued that the U.S. policy attempted to dictate how they allocated their scarce resources and infringed on their national democratic autonomy. They also argued the panel should prevent the expansion of U.S. unilateralism.50 Although they accepted that the intent of the U.S. law was credible, they argued the measure was partially intended to protect the U.S. local shrimp industry.51

Under the 1996 Guidelines, even shrimp caught in trawl nets that were equipped with TEDs could not be imported into the United States unless the exporting country was certified. To become certified, a country had to show that all shrimp, whether consumed domestically, exported to the United States, or exported to other member countries, was harvested using TEDs.52 Thus, the purpose of the shrimp import restriction was not simply to prevent importation into the United States of shrimp caught with technologies that might pose a threat to sea turtles. The larger purpose was to dictate the national environmental policy on an international scale.53