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

Third, the Appellate Body found that the United States failed to reach, or even seriously tried to reach, international agreement on the protection of sea turtles78 despite Section 609's requirement of such negotiation.79 However, it should be noted that the Appellate Body did not altogether exclude unilateral trade measures, which may be undertaken as a last resort after extensive negotiation.80

Lastly, the Appellate Body found that the differing treatment afforded to foreign countries was seen as "plainly discriminatory" and "unjustifiable" because the difference in transition periods imposed heavier burdens of compliance on some countries than others.81 Moreover, the United States had transferred TED technology to some exporting countries, but not all,82 so the United States had negotiated seriously with some members but not others. This was also found to be "plainly discriminatory and unjustifiable," especially regarding Section 609's explicit mandate to initiate negotiations.83 For these reasons, the Appellate Body found that the import ban constituted "unjustifiable discrimination" within the meaning of the Chapeau of Article XX.

5. The U.S. Measure Constituted "Arbitrary Discrimination"

Next, the Appellate Body discussed arbitrary discrimination and criticized the same defects in the U.S. law that it had found to be unjustifiable discrimination, such as lack of discretion afforded to foreign governments.84 In addition, the Appellate Body pointed to the lack of transparent, predictable administrative procedures by which to explain or give notice as to why a country was granted or denied certification.85

6. A Member Country May, in Some Circumstances, Impose a Policy that Has an Extrajurisdictional Application

Beyond direct issues in Article XX, the Shrimp-Turtle ruling also implicates the issue of extrajurisdictionality. In the preceding cases, the GATT Panel rejected the extrajurisdictional application of Article XX(b) and (g), concluding that a country can only control production and consumption under its own jurisdiction and that Article XX was intended to only permit trade measures that did not aim at extrajurisdictional production and consumption.86 However, in this case, the Appellate Body noted "in the specific circumstances of the case before us, there is sufficient nexus between the migratory and endangered marine population involved and the United States for purposes of Article XX(g)."87 One way to interpret this decision is that the Appellate Body did not find the U.S. measure to have an extraterritorial effect.88 If that is not the case, it permits environmental measures that have extrajurisdiction. This rationale is related to the "principle of common concern of humankind" based on the growing consensus that the world is ecologically interdependent and that humanity has a collective interest in certain activities or resources, no matter where they take place or are located. Codified examples of this concept can be found in the Climate Change Convention, which acknowledges in its preamble that "change in the earth's climate and its adverse effects are a common concern of humankind,"89 and in the Biodiversity Convention, which affirms that "the conservation of biodiversity is a common concern of humankind."90