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

E. THE IMPLICATIONS OF THE APPELLATE BODY'S DECISION

Under the Shrimp-Turtle decision, there may now be a way for a WTO member to use trade sanctions to protect the environment. The Shrimp-Turtle decision has numerous international and domestic implications for environmental disputes in international trade.

1. Rights of a Member Country to Impose Environmental Regulations on Other Members

First, the Appellate Body did not find the U.S. legislation in violation of the GATT, but only the manner in which it was applied. As a result, a member country may be allowed to impose its domestic environmental regulations on other members so long as certain requirements are met. Further, the Appellate Body's analysis in the Shrimp-Turtle case represented a departure from previous GATT and WTO dispute settlement decisions because it did not focus on the extrajurisdictional application of the U.S. law.91 In other words, Section 609 was rejected under Article XX because it infringed on the sovereignty of other member, countries not because it represented an attempt by the United States to prescribe law beyond its jurisdiction. Under the reasoning of the WTO Appellate Body in Shrimp-Turtle, a member's conservation measure will not necessarily be deemed to fall outside Article XX just because it seeks to conserve resources located outside its jurisdiction.92

Second, unilateral trade restrictions aimed at protecting the environment could be valid under Article XX, though the Appellate Body established stringent requirements pertaining to the implementation of measures like Section 609.93 To be consistent with the Chapeau of Article XX, there must be multilateralism and transparency in such a measure's implementation; there can be no national biases in its domestic implementation; it must consider different conditions in exporting countries and the importing country cannot treat nations differently, for example, in terms of transition period or amount of effort the importing country makes to aid the exporting countries in complying. Additionally, the importing country cannot enforce trade sanctions unreasonably, for example, as the United States did by excluding shrimp caught using methods identical to those employed in the United States, if they were caught in waters of non-certified countries.94

Presumably, member countries may enact and apply environmental measures in international trade so long as they respect the rules set forth in the Shrimp-Turtle case. In other words, unilateral measures would be acceptable when there has been a genuine effort to develop an international agreement on environmental standards. Further, the WTO cited many international environmental agreements, revealing that the WTO is now willing to consider international law from outside its own system even if it might not support the objective of free trade.95 The Appellate Body also acknowledged the need to broaden the scope of environmental exceptions in its decision.96 The total approach illustrates a major change in the way environmental issues are perceived internationally, because in addition to acknowledging the principle of sustainable development as "generally accepted," the Appellate Body based a part of its analysis on this principle.97