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

2. Recent Developments and the Possibility of Future Trade Restrictions

On October 23, 2000, the government of Malaysia requested that the Dispute Settlement Body establish a panel to examine whether the United States had implemented the recommendations and ruling of the Appellate Body.98 Malaysia contended that the United States must drop the shrimp import restrictions altogether to comply with the Appellate Body ruling.99 In June 2001, the WTO panel decided that the United States had effectively implemented the 1998 decision of the WTO Appellate Body.100 This decision was also affirmed by the Appellate Body in October 2001.101

In light of recent cases and events, it is likely that the WTO will continue to be forced to allow the United States' unilateralism so as to maintain the stability of the WTO regime.

The Appellate Body will likely concede some ground to environmental values, as a matter of practicality and reality, in order to maintain the stability and legitimacy of the WTO regime. Even those who disapprove of the acceptance of environmental values into WTO jurisprudence will likely concede to prevent disputes that may weaken the WTO regime.

As environmental standards and awareness in developed countries have increased, environmentalists more often use trade sanctions to promote environmental protection. Thus, there is a real threat of future ban on environmentally destabilizing industries.

IV. MIGHT THAI FARMED SHRIMP SURVIVE A FUTURE BAN UNDER THE WTO?

The Shrimp-Turtle case affects more than just the sea turtles' survival. It also gives important insight into how the WTO will address future efforts to protect the global environment. The decision has far-reaching importance with respect to the evolving relationship between the WTO rules of free trade and environmental measures adopted by member countries. Unlike former decisions, the Panel's analysis was revolutionary and represented a departure from previous GATT and WTO dispute settlement decisions because it did not focus on the issue of extrajurisdictional application of the U.S. law. In other words, Section 609 was not accepted under Article XX, not because it represented an attempt by the United States to prescribe law beyond its jurisdiction, but because it infringed on the sovereignty of other members.

Many commentators, particularly in the United States, have strongly suggested that either the definition or the interpretation of General Exceptions in Article XX be reconsidered to allow for broader use. Moreover, environmental NGOs in developed countries are becoming increasingly active and are likely to increase pressure on the WTO to promote environmental protection. Considering recent WTO developments, it is very likely that the Shrimp-Turtle case will continue to provide the rule in this area, or that the exceptions will become even more flexible to allow unilateral trade sanctions.

A similar issue may arise around the degradation of mangrove forests caused by shrimp farming in many shrimp exporting countries. The mangrove forest's rapid decrease has hurt the economies and stability of developing nations and has destroyed biodiversity. Now that the WTO has accepted unilateral trade measures in Shrimp-Turtle, it is possible that carefully designed unilateral measures could be upheld in a shrimp farming certification program. Developed countries could consider the potential of new laws to limit the ecological dcstructiveness of shrimp farms. Because the first U.S. shrimp ban was imposed only on wild harvested shrimp, the Thai shrimp industry was not seriously affected. However, a ban on aquaculture products would be a completely different story for Thailand as most of the nation's shrimp exports are farmed. Thailand must decide whether change in the shrimp industry is necessary, and if so, what the best policy would be to ensure that the development of shrimp industry is sustainable. This section discusses the history and characteristics of the Thai shrimp industry and addresses the environmental and social problems that shrimp farms generate. Concluding that the shrimp farming industry is ecologically destabilizing, this section considers how external forces from developed countries, international NGOs and environmental conventions, and the WTO may ultimately affect Thailand's domestic policy.