World Trade Organization caught in the middle: are TEDS the only way out?

I. INTRODUCTION

The international community strives to achieve the common goals of environmental conservation and trade liberalization.(1) In the global community environmental conservation protects biodiversity and encourages efficient use of resources; the free flow of commodities promotes efficiency of labor as well as cooperation and unification among nations. These values are not inherently in conflict. Often, however, environmental protection measures are interpreted as contradictory to free trade rules.(2) It is the system of international trade and the interpretation of its obligations that tend to bring the goals of freer trade and environmental protection into conflict.

The General Agreement on Tariffs and Trade (GATT)(3) is the international system that was designed to promote the liberalization of trade. Parties to this agreement incur three main obligations: Article I requires that members not discriminate against products based on national origin,(4) Article III requires that they not discriminate between similar foreign and domestic products,(5) and Article XI limits the imposition of quantitative import restrictions.(6) Although Article XX creates an exception to these rules for environmental conservation measures,(7) GATT Dispute Resolution Panels (Panels) interpret the obligations of the members broadly, while interpreting the exceptions very narrowly.(8) Thus, environmental conservation measures are rarely justified and often interpreted as conflicting with international trade rules.(9)

The most well known example of the conflict between trade and the environment occurred in the GATT Panel decision of the Tuna/Dolphin case involving the United States and Mexico.(10) The United States placed a ban on all imports of tuna from Mexico because Mexican fisherman employed a method of catching tuna that caught and killed dolphins as well.(11) Although the United States implemented the ban as an environmental protection measure, the GATT Panel found that the United States violated its obligations under GATT.(12)

A similar case recently emerged that again addressed the tension between free trade and the environment. The United States implemented a ban on all imports of shrimp or shrimp products from countries that harvest shrimp with commercial fishing technology that may adversely affect species of sea turtles protected under U.S. laws or regulations.(13) The U.S. ban applied to all shrimp imports from countries such as India, Malaysia, Pakistan, and Thailand.(14) This time, however, the GATT Panel had been replaced by the World Trade Organization (WTO).(15) The GATT parties established the WTO to oversee the agreement's implementation and to formalize a system for dispute resolution.(16) The purpose of the WTO is to maintain a multilateral system of trade while pursuing the optimal use of the world's resources in accordance with the objective of sustainable development.(17) The WTO could have decided the Shrimp/Turtle dispute in line with previous GATT Panel rulings that found environmental conservation measures in violation of GATT rules.(18) However, the WTO is not bound by prior GATT Panel rulings and broke new ground by finally recognizing an environmental protection measure as an Article XX exception to GATT obligations. Although the WTO seemed to be moving in the right direction, it ultimately decided that the United States implemented its environmental protection measure in a manner that violated the chapeau, or introductory provision, of Article XX.

This Article analyzes the conflict between free international trade rules and global environmental conservation. First, this Article introduces the international system of trade liberalization and explains the trade obligations under GATT. Part II discusses the outcomes of prior GATT rulings, focusing on the Tuna/Dolphin case. In Part III, this Article comments on the advent of the WTO and the implications of this new organization for GATT. Part IV focuses on the U.S. shrimp ban, explaining the arguments on both sides of the issue. Part V analyzes these arguments, advocating the position of the United States. Next, this Article summarizes the Report of the Panel on the U.S. shrimp ban, as well as the Appellate Body decision. In conclusion, this Article discusses the outcome of the Shrimp/Turtle case and questions the WTO's interpretation of GATT in light of environmental protection practices.

II. BACKGROUND OF GATT

The General Agreement on Tariffs and Trade (GATT) is the result of a conference among national representatives held in Bretton Woods, New Hampshire in 1944.(19) The purpose of this conference was to develop a method for liberalizing trade between nations, with the hope that freer trade would lead to increased resources and richer economies.(20) In order to promote the efficient use of labor and resources, national representatives created GATT to ensure that member countries engaged in free and fair international trade. To achieve this end, GATT essentially eliminates quantitative trade restrictions, limits the use of tariffs to concessional rates, and subjects other "nontariff" trade barriers to international-law rules.(21) At the core of GATT obligations are two nondiscrimination principles: the most-favored-nation principle and the national treatment principle. The most-favored-nation principle of Article I requires members to treat products from all other GATT members the same.(22) Article I demands equality of treatment for similar products originating in, or destined for, any member country.(23) In essence, a member cannot discriminate among products based on their national origin. The national treatment provision in Article III requires members to treat foreign and domestic products alike.(24) This provision is broadly applied to a member country's "internal" requirements for imported products, including taxes, charges, and other regulations.(25) In other words, the provisions of GATT allow a member to impose its domestic regulations on imported products, but only if the imported product is treated no less favorably than the similar domestic product. One other core obligation, designed to liberalize trade, is the quota provision of Article XI.(26) Article XI limits the use of quantitative restrictions, such as quotas, as a barrier to the importation or exportation of any product.(27)

In recognition that there may be compelling reasons to violate these obligations, however, GATT contains a general exception provision under Article XX.(28) This article allows for conditional exceptions to GATT obligations, even to the core obligations in Articles I, III, and XI.(29) Article XX seems to be aimed at helping to permit environmental rules that come into conflict with trade. The Article makes exceptions for measures necessary to protect human, animal, or plant life,(30) and for measures relating to the conservation of exhaustible natural resources.(31) What constitutes "necessary," "relating to," or "exhaustible natural resource," however, is a matter of contention among GATT Panels.(32) The values found in protecting the environment and promoting international free trade are not unavoidably opposed. It is the interpretation of the meaning of these GATT provisions and how they are applied that tend to bring environmental conservation measures and free trade obligations into conflict.(33)

A. Environmentalist Criticisms of the GATT System

There are many environmental objections to the type of international trading system that GATT creates. Daniel Esty, a staunch environmentalist, identified the following critiques:

   Without environmental safeguards, trade may cause environmental harm by
   promoting economic growth that results in the unsustainable consumption of
   natural resources and waste production.

      Trade rules and trade liberalization often entail market access
   agreements that can be used to override environmental regulations unless
   appropriate environmental protections are built into the structure of the
   trade system.

      Trade restrictions should be available as leverage to promote worldwide
   environmental protection, particularly to address global or transboundary
   environmental problems and to reinforce international environmental
   agreements.

      Even if the pollution they cause does not spill over into other nations,
   countries with lax environmental standards have a competitive advantage in
   the global marketplace and put pressure on countries with high
   environmental standards to reduce the rigor of their environmental
   requirements.(34)

In spite of all of the criticism, GATT Dispute Resolution Panels often favor the liberalization of trade to the detriment of environmental conservation measures. The most well known dispute involved a U.S. ban on the importation of tuna from countries that caught tuna in a manner that killed a large number of dolphins.(35) Although the ban was a barrier to free trade, the United States contended that it instituted the measure to protect part of the natural environment.

B. The GATT Panel Ruling on the Tuna/Dolphin Case

The GATT Panel analysis of the Tuna/Dolphin case demonstrates the conflict between the interpretation of GATT provisions and environmental protection efforts. The Tuna/Dolphin dispute began when the United States attempted to ban imports of tuna from Mexico because Mexico employed the drift net method of capturing tuna, a practice that violates the Marine Mammal Protection Act.(26) Fishermen that use this technique inadvertently trap dolphins in their nets because dolphins tend to swim with schools of tuna.(37) Using drift nets is so detrimental that it threatens the dolphin population.(38)

Mexico challenged the U.S. ban, alleging that it violated GATT obligations.(39) The GATT Dispute Resolution Panel first considered the U.S. position that Article III allowed the restriction.(40) The United States argued that because it also forbade domestic fishermen from using this method of fishing, as required by the national treatment principle, the United States did not violate GATT.(41) The Panel found that Article III was inapplicable to this case because that Article focuses on the differentiation between products and not methods of production.(42) According to the GATT Panel, the U.S. import restriction applied to production methods (the process of catching tuna), not products (the tuna itself), and GATT does not permit production-based trade restrictions.(43) The Panel held that the provisions of GATT did not permit the United States to treat tuna caught in drift nets as a different product than tuna caught by any other method.(44)

The Panel also held that the U.S. restriction violated Article XI of GATT, which limits the use of quotas or other quantitative restrictions that are not in the form of a monetary charge.(45) It found that because the United States allowed the import of tuna caught by other fishing techniques that did not harm dolphins, and because the restriction was not a monetary fine, the ban against Mexican tuna constituted a quantitative restriction in violation of GATT Article XI.(46)

Lastly, the Panel considered the U.S. argument that even if the United States violated its obligations under GATT, the ban fell under an Article XX exception because it was "necessary to protect ... animal ... life or health."(47) The GATT Panel disagreed and interpreted "necessary" to mean that the member country implementing the regulation must have exhausted all reasonably available options to pursue its dolphin protection objectives.(48) The Panel found that the United States could have negotiated multilateral international agreements to achieve the same goals and emphasized that the United States may not unilaterally impose environmental regulations and conservation measures extraterritorially.(49) Thus, the GATT Dispute Resolution Panel urged the United States to accept imports of Mexican tuna caught in a manner that endangers dolphins, even though this method contradicted U.S. environmental laws.

Many parties to GATT found flaws in decisions, such as this one, that essentially precluded any environmental regulation that affected trade. In an effort to further liberalize trade while considering environmental issues, the parties to GATT established the World Trade Organization (WTO).(50) The WTO formalized the structure of resolving disputes and oversees the original GATT rules.

III. ADVENT OF WTO

The newly created WTO provides that the rules of trade must coincide with efforts to protect and conserve the environment.(51) The WTO Dispute Settlement Body is the successor organization to the GATT Dispute Resolution Panel and is now charged with overseeing the agreement's implementation.(52) At its inception, founders called upon the WTO to consider environmental concerns in relation to international trade. Expressing the challenge, the preamble to the WTO proclaims the commitment to the "optimal use of the world's resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so."(53) In addition to this lofty preamble, the WTO established a new Committee on Trade and Environment (CTE).(54) CTE is responsible for making appropriate recommendations on "the need for rules to enhance the positive interaction between trade and environment measures for the promotion of sustainable development."(55) With a new focus on environmental effects and increased awareness of the need for global participation in environmental conservation, the WTO should interpret GATT provisions in line with environmental concerns. An opportunity soon arose for the WTO to apply its environmental protection goals to its dispute resolution practice.

IV. SHRIMP/TURTLE CASE

In 1996, the Indian, Malaysian, Pakistani, and Thai governments challenged the U.S. ban on shrimp imports from countries that had not implemented sea turtle conservation measures comparable to those in the United States.(56) Because every species of sea turtle is now in danger of extinction,(57) the United States implemented the ban to encourage foreign nations to reduce the amount of sea turtle by-catch (the unintentional catch of nontarget species in fishing operations) while trawling for shrimp.(58)

Sea turtles are an ancient and unique part of the world's biological diversity.(59) Sea turtles are also a shared global resource; they are highly migratory creatures and are often found in international waters.(60) Sea turtles are an integral part of the marine ecosystem. They make seagrass beds more productive, cause nutrients to be recycled more quickly, and give grass beds a higher protein content, all of which benefit other sea creatures.(61) Furthermore, because sea turtles feed hundreds of miles from their nesting grounds, sea turtles serve an important role in nutrient cycling by transporting massive quantities of nutrients from their feeding grounds to nutrient-deficient coastal habitats near their nesting beaches.(62) The extinction of this species will harm other sea creatures that rely on the same marine ecosystem.(63)

Faced with the knowledge that humans caused the decline of this species, the international community has responded to the growing peril of the sea turtle.(64) Since 1975, all species of sea turtles have appeared in Appendix I to the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES), which includes "all species threatened with extinction which are or may be affected by trade."(65) Similarly, all species of sea turtles that occur in waters subject to U.S. jurisdiction have been listed as either endangered or threatened under the Endangered Species Act of 1973 (ESA).(66)

Recognizing the endangered status of the sea turtle, the U.S. government subjected domestic commercial shrimpers to stringent regulations regarding shrimp trawling.(67) These regulations required the installation of turtle excluder devices (TEDs) in their shrimping nets to prevent the incidental drowning of endangered sea turtles.(68) A TED is a simple, cheap, and highly effective solution to the incidental capture of sea turtles while trawling.(69) A TED is a cage-like mechanism installed in the net that directs large, unintentionally caught objects, such as sea turtles, toward an opening and out of the net.(70) This mechanism has worked well in the United States, but sea turtle populations continue to decline because turtles are migratory creatures and other countries have not required that shrimp trawlers use TEDs.(71)

Realizing that domestic measures would be of limited effectiveness unless a similar level of protection was afforded throughout the turtles' migratory range, Congress added section 609 to the ESA to encourage international compliance.(72) Section 609(a) of the statute prompts the Secretory of State to initiate treaty negotiations with foreign governments to protect sea turtles, and section 609(b) prohibits the importation of shrimp from nonconforming nations.(73) Only countries that have been certified by the Secretary of State, affirming that their sea turtle conservation program complies with the requirements set forth under section 609, are authorized to export shrimp to the United States.(74)

The adoption of section 609 was meant to ensure that any foreign country exporting to the United States implemented a shrimping program and had incidental sea turtle take rates comparable to those in the United States.(75) The State Department issued guidelines to help determine whether a foreign nation's shrimping program and sea turtle take rates were similar to U.S. rates.(76) Because studies found that the incidental capture and drowning of sea turtles in shrimp trawl nets has caused the greatest number of human-induced sea turtle deaths,(77) the United States encouraged the use of turtle excluder devices in all shrimp trawls. Although TEDs are the primary means of ensuring a comparable take rate, foreign countries can also comply with section 609 requirements by demonstrating that they use other turtle-safe shrimping practices.(78) In order to eliminate the threat that shrimp trawling poses to sea turtle survival, it is imperative that all nations trawling in waters likely to contain sea turtles comply with this environmental conservation measure.

Even though the language of section 609 states that sea turtle protection requirements apply to all countries, the State Department promulgated regulations making section 609 applicable to only fourteen nations in the wider Caribbean/western Atlantic region.(79) Environmental groups joined together and, convinced that the federal government had failed to implement the statutory directives of section 609 by curbing the number of affected countries, brought suit seeking an expanded geographic scope.(80) Their litigation was successful and the Court of International Trade, in Earth Island Institute v. Christopher,(81) held that the requirements of section 609 of the ESA must apply to every country in the world.(82) This ruling spawned a dispute between several Asian nations and the United States.

After the Earth Island Institute decision that the U.S. ban on imports of shrimp extended to all countries, several nations, including India, Malaysia, Pakistan, and Thailand complained to the United States.(83) They argued that the ban detrimentally affected their shrimping industry, and that, based upon the Tuna/Dolphin rulings, the U.S. ban violated GATT principles.(84) These nations asked the WTO Dispute Settlement Body (DSB) to establish a Panel to rule on the validity of the ban.(85) In response, the United States held steadfast to its environmental conservation laws protecting the life and health of endangered sea turtles.(86) Pursuant to requests made by India, Malaysia, Pakistan, and Thailand, the DSB established a Panel to examine the U.S. shrimp ban.(87) The DSB Panel considered briefs submitted by the complainants and by the United States in order to come to its conclusion.

A. Arguments of the Complainants

In their submissions to the DSB Panel, the complainants advanced several arguments to demonstrate why the ban on the importation of shrimp to the United States should be invalidated. First, they contended that each government had adopted its own sea turtle protection plans and that the United States had no right to force its conservation measures on other countries.(88) Second, complainants argued that the United States cannot declare that its conservation measures are superior to those of other nations.(89) Third, they argued that by implementing section 609 regulations, the United States violated its obligations under GATT.(90) The complainants specifically cited a U.S. violation of GATT Articles I, XI, and XIII.(91) They also countered the U.S. argument that the ban fell under an Article XX exception.(92) The nations affected by the shrimp ban requested that the DSB Panel find the U.S. regulation invalid.(93)

1. Nations Affected by the Ban Already Have Comprehensive Sea Turtle Protection Programs

The Indian, Pakistani, Malaysian, and Thai governments each asserted that they had developed a comprehensive sea turtle conservation program and that the United States could not take unilateral actions that infringed upon the sovereign rights of each country.(94) The countries also argued that the United States could not establish environmental and conservation policies outside of its jurisdiction.(95) Each nation claimed a history of implementing environmental programs to protect sea turtles. For example, part of the Thai culture is a "traditional belief that it is sinful to kill sea turtles."(96) In 1946, Thailand passed the Fisheries Act, which prohibited the catching, harvesting, or harming of any sea turtle.(97) That Act also required that "any accidentally caught sea turtles must be released into the sea immediately."(98) In addition, India, Malaysia, Pakistan, and Thailand have all ratified the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), which lists every species of sea turtle as in danger of becoming extinct.(99)

These countries also claimed to have implemented extensive legislative initiatives and conservation programs for the preservation of endangered sea turtles. In Thailand, for example, the Department of Fisheries currently administers programs for the collection of sea turtle eggs from nesting beaches to be taken to a center for incubation.(100) The goal of these restoration programs is to cultivate and release five thousand baby sea turtles a year.(101) Additionally, Thailand has instituted other programs that protect the natural habitat of the sea turtle, ensuring a better survival rate.(102) The countries opposing the U.S. requirements for importation of shrimp recognized the imperiled situation of sea turtles and thus implemented conservation measures of their own. Nations adversely affected by the shrimp ban argued that the United States was not justified in imposing the ban simply because other nations had different sea turtle conservation measures.

2. United States Violation of GATT Article XI

The complainants also argued that the shrimp ban pursuant to section 609 of the ESA is inconsistent with U.S. obligations under Article XI of GATT.(103) Article XI:1 provides that

   no prohibitions or restrictions other than duties, taxes or other charges,
   whether made effective through quotas, import or export licenses or other
   measures, shall be instituted or maintained by any contracting party on the
   importation of any product of the territory of any other contracting party
   or on the exportation or sale for export of any product destined for the
   territory of any other contracting party.(104)

Opponents to the regulation argued that the U.S. ban on imports of shrimp pursuant to section 609 constituted a "prohibition or restriction other than duties, taxes or other charges" on the importation of a product.(105) The importation of shrimp into the United States was contingent upon the United States certifying that the exporting nation had adopted and enforced sea turtle conservation measures comparable to those in the United States.(106) This type of prerequisite to importation is prohibited by Article XI: 1 because it is not in the form of a monetary charge.(107)

Nations opposing the U.S. ban also cited to the ruling of the GATT Panel in the Tuna/Dolphin cases for further support that the United States violated its obligations under GATT by enacting the shrimp ban.(108) The U.S. restrictions on the importation of tuna were almost identical to the restriction of shrimp imports at issue in the Shrimp/Turtle case. In the Tuna/Dolphin case, the GATT Panel reviewed the validity of embargoes on tuna maintained by the United States. The U.S. tuna ban applied to nations that failed to implement conservation measures comparable to the measures adopted by the United States to prevent the incidental take of dolphins by commercial tuna fisherman.(109) In the Tuna/Dolphin case, the GATT Panel found that the U.S. ban on the importation of tuna violated Article XI.(110) Arguably, U.S. measures to unilaterally impose sea turtle conservation measures by instituting a ban on the importation of shrimp also violated Article XI.

3. U.S. Violation of GATT Article XIII

Nations opposing the U.S. shrimp ban also argued that the implemented measures violated Article XIII of GATT.(111) Article XIII:1 espouses the like treatment principle and provides that "[n]o prohibition or restriction shall be applied by any contracting party on the importation of any product of the territory of any other contracting party ... unless the importation of the like product of all third countries ... is similarly prohibited or restricted."(112) Under section 609 of the ESA, the United States restricted the importation of shrimp from countries that have not been certified as adopting sea turtle conservation measures comparable to U.S. measures, while "like products" from other countries that have been certified are authorized to be imported freely into the United States.(113) The nature of the product remains the same, yet the United States restricts the entry of shrimp based on the method of harvest. The complainants argued that the manner in which they harvested shrimp did not change the nature of the shrimp itself.(114) Thus, shrimp imported from certified countries that are permitted entry into the United States are "like" shrimp from noncertified countries that are denied entry. Complainants claimed that this differential treatment of "like products" from certified and noncertified countries violates Article XIII.(115)

Furthermore, complainants argued that U.S. measures under section 609 were inconsistent with Article XIII because the importation of shrimp was not "similarly" prohibited among nations,(116) The nations initially affected by section 609, before the Earth Island litigation expanded the scope of section 609,(117) received a three year phase-in period before TEDs were required on shrimp trawl vessels operating in areas populated by sea turtles.(118) After the Court of International Trade's decision, newly affected nations, including the complainants before the WTO, were only given four months to begin using TEDs on shrimp trawl vessels that harvested in areas likely to affect sea turtles,(119) Thus, the importation of like products from nations that were initially affected, and those that had newly become affected, were not "similarly" prohibited as required by Article XIII.(120)

4. U.S. Violation of GATT Article I

The next argument that complainants made was that the U.S. shrimp ban violated Article I of GATT.(120) Article I espouses the most-favored-nation principle and provides that

   with respect to all rules and formalities in connection with importation
   and exportation ... any advantage, favor, privilege or immunity granted by
   any contracting party to any product originating in or destined for any
   other country shall be accorded immediately and unconditionally to the like
   product originating in or destined for the territories of all other
   contracting parties.(122)

Because certified nations are given the authority to import shrimp into the United States, and noncertified nations are not authorized to import the very same product, certified nations have received a privilege that other nations should also receive. The complainants further argued that because the nations initially affected by section 609 were granted a three-year phase-in period, while newly affected nations were not, the products of the initially affected nations have received an "advantage, favor, privilege or immunity" that similar products originating in other nations, which section 609 now affects, have not received.(123) Therefore, the complainants argued that U.S. conservation measures under section 609 violated the most-favored-nation principle of Article I.

5. Shrimp Ban Does Not Constitute an Exception under GATT Article XX

Lastly, the opponents of conservation measures promulgated under section 609 argued that the embargo was not authorized by the general exceptions to GATT defined in Article XX(b) and Article XX(g).(124) Nations affected by the U.S. shrimp ban argued that the Article XX exceptions cannot be invoked to justify a measure that applies to animals not within the jurisdiction of the country enacting the measure.(125) The language of Articles XX(b) and XX(g) does not expressly permit or deny a contracting party the authority to take measures concerning animals or resources located within the jurisdiction of another contracting party.(126) However, the rules of international law applicable in relations between the parties of the Charter of the United Nations recognize the sovereign equality of states and the principle of noninterference in the internal affairs of another state.(127) In light of these rules, it should be presumed that Articles XX(b) and XX(g) do not extend to measures taken by the United States that affect animals or resources within the jurisdiction of other nations. U.S. measures, under section 609, to protect and conserve endangered sea turtles violate U.S. obligations under GATT and should be voided as against free international trade.(128) Opponents to the ban urged the WTO to follow previous GATT Panel rulings and find in favor of liberalizing trade rather than restricting it.

B. Arguments of the United States

The United States argued that its shrimp ban did not violate GATT principles. The United States claimed that its ban was an environmental protection measure designed to prevent the extinction of endangered sea turtles.(129) It argued that the measures under section 609 are justified because TEDs are the most cost-efficient and effective means of protecting sea turtles.(130) The United States also claimed that its methods did not interrupt trade, and in addition, constituted an exception under Article XX of GATT.(131) The United States advised the DSB Panel to consider the urgency and necessity of its shrimp ban and urged the WTO to find, for the flint time, that an environmental protection measure was valid and consistent with international trade rules.(132)

1. Section 609 is Consistent with Articles I and XIII

The United States implied in its argument that the imposition of its shrimp ban did not violate the differential treatment provisions of GATT Articles I or XIII.(133) The United States claimed that the implementation of its rule requiring the use of TEDs on all shrimp trawls in areas likely to affect endangered sea turtles did not treat the complainants differently than any other nation.(134) The United States contended that sea turtles needed protection, and that TEDs proved to be the most efficient, effective, and inexpensive way of providing that protection.(135) There is an international consensus that sea turtles are endangered, and the international community has agreed that sea turtles need to be protected and conserved. This is illustrated through multilateral environmental agreements, such as CITES, that put international environmental standards into place.(136) Scientific research shows that the incidental capture and drowning of sea turtles in shrimp trawl nets is the single largest human-induced cause of sea turtle deaths and has caused the steep decline in sea turtle populations.(137) The use of TEDs has become a multilateral environmental standard, enabling the international community to conserve endangered species while also minimizing the unintentional mortality of nontarget species in fishing operations.(138) Therefore, the United States impliedly argued that it did not violate GATT Articles I or XIII by requiring the use of TEDs on all shrimp trawls that interact with sea turtles both within the United States and without.(139) Because there is multilateral recognition that TEDs are the best method for preventing sea turtle by-catch in shrimp trawls, the United States argued that section 609 treats the nations of India, Malaysia, Pakistan, and Thailand no differently than other nations.(140)

2. U.S. Measures Qualify as an Exception under GATT Article XX

Secondly, the United States argued that even if section 609 violated other GATT provisions, its sea turtle conservation measures fall within the scope of Articles XX(g) and XX(b) and are therefore consistent with GATT.(141) Articles XX(g) and XX(b) promise that nothing in GATT prevents a WTO member from adopting or enforcing measures relating to the conservation of natural resources, or necessary to protect animal life or health.(142) The United States argued that the international community has recognized sea turtles as a shared natural resource,(143) and the requirements of section 609 relate to the conservation of sea turtles because TEDs are an extremely effective way to prevent further sea turtle mortality.(144) In addition, the United States contended that the ban was necessary in order to protect the continued existence of endangered sea turtles. The United States argued that section 609 is a valid environmental conservation measure because the international community has agreed that sea turtles are on the brink of extinction,(145) and methods other than the use of TEDs have proven insufficient to protect sea turtle populations.(146)

3. Section 609 Does Not Represent a Disguised Restriction on Trade

The United States also argued that its conservation measures are consistent

with the chapeau of GATT Article XX.(147) The chapeau of Article XX requires that measures falling under the exception "not [be] applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade."(148) The United States argued that its conservation measures under section 609 were narrowly tailored to the particular conditions of each exporting country and did not constitute unjustifiable discrimination between countries or a disguised restriction on trade.(149)

Furthermore, the United States argued that section 609's requirements present reasonable alternatives while promoting effective sea turtle conservation measures. U.S. law required all domestic commercial shrimp trawl vessels to use TEDs in areas and at times when there is a likelihood of intercepting sea turtles.(150) In applying section 609 requirements globally, the statute only banned the importation of shrimp "harvested with commercial fishing technology which may adversely affect" sea turtle species.(151) U.S. law does not ban the importation of all shrimp from foreign nations. In fact, there are several categories of shrimp to which section 609 does not apply because they are not harvested with commercial fishing technology that may adversely affect sea turtles.(152) Section 609 does not apply to shrimp harvested in aquaculture facilities, shrimp harvested by commercial shrimp trawl vessels using TEDs, shrimp harvested by means that do not involve retrieval of fishing nets by mechanical devices, or to shrimp harvested in areas where sea turtles are not present.(153) The United States, therefore, was not imposing its production methods on other nations. Nations could choose from among several methods of harvesting shrimp that fell within the appropriate scope of U.S. sea turtle conservation measures. The United States contended that the requirements of section 609 are very narrowly construed and leave room for countries to implement the methods that work best for that country.(154) The sea turtle protection measures are not a means of arbitrary discrimination nor a disguised restriction on trade; therefore, the measures are exempt from U.S. obligations under GATT.(155)

V. ANALYSIS OF THE ARGUMENTS IN THE SHRIMP/TURTLE CASE

A WTO ruling favorable to the United States on this issue would have marked a change from the way provisions of GATT historically have been interpreted because restrictions on trade are not often upheld on environmental conservation grounds. The WTO still has the obligation of promoting free trade among nations, but in this new age of heightened environmental awareness, it has the duty to encourage conservation of resources and protection of the environment. Taking into consideration both sides of the issue, the United States had the stronger argument and the WTO should have ruled in its favor.

The international community is in agreement that sea turtles are on the brink of extinction and need protection.(156) The United States is one of the two largest consumers of shrimp in the world and the harvesting of shrimp is a major cause of sea turtle deaths.(157) As such, the United States has the burden of ensuring that its consumption does not further contribute to the depletion of sea turtle populations. The ability of the United States to reduce the impact of its shrimp consumption is critical to protection of the endangered sea turtles.(158) Studies show that the use of TEDs in shrimp trawls represents the most environmentally sound and effective way of protecting this endangered species while allowing shrimping activities to continue relatively unimpeded.(159) By requiring the use of TEDs on all shrimp trawls that interact with sea turtles both within the United States and without, the United States seeks to ensure that its shrimp consumption will not harm sea turtle populations.

The validity of such measures is illustrated in the 1982 United Nations Convention on the Law of the Sea, which requires nations to ensure, through proper conservation and management measures, that the maintenance of living resources is not endangered by overexploitation.(160) Nations must take into consideration "the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened."(161) As the need increases for stricter regulation of by-catch, other measures have been taken by the international community. In 1992, the United Nations Conference on Environment and Development adopted Agenda 21, which emphasized the need to promote the development and use of selective fishing gear and practices that minimize by-catch.(162)

The new multilateral agreement for the Western Hemisphere further strengthens the environmental standard of minimizing by-catch through cost-effective fishing gear and techniques.(163) Concluded in 1996, the adoption of the Inter-American Convention for the Protection and Conservation of Sea Turtles requires that shrimp trawl vessels use recommended properly installed and functional TEDs.(164) Properly installed TEDs approach ninety-seven percent efficiency in allowing sea turtles to escape from shrimp trawl nets, while limiting shrimp loss rates to between one and three percent.(165) TEDs also release debris and other forms of by-catch from shrimp trawl nets.(166) TED use has become a multilateral environmental standard because of its effectiveness and efficiency.

Prompted by the success of TEDs, the United States proposed to the Asian region an international agreement for the protection of sea turtles.(167) The United States understood that an agreement that only afforded protection to sea turtles in one region of the world would not succeed unless countries in other regions adopted comparable measures. The governments of India, Malaysia, Pakistan, and Thailand, however, declined to enter into multilateral negotiations.(168) In light of the rejection of an international environmental standard protecting sea turtles, and recognition that U.S. conservation measures would be ineffective without restrictive import provisions, the United States implemented regulations pursuant to section 609 of the ESA.(169)

However, the complainants argued they had already adopted sea turtle conservation programs.(170) In response, the United States found that the sea turtle conservation measures adopted by the complainants would not protect sea turtle populations adequately. The protection of eggs and hatchlings alone does not translate into significant increases in population size.(171) Other strategies, such as reducing the amount of time shrimp trawls can be under water or closing areas that are susceptible to sea turtle habitation during certain times of the year, do not adequately prevent the death of large juvenile and adult sea turtles.(172) Juvenile and adult sea turtles are responsible for the greatest contribution to the growth of sea turtle populations.(173) Due to natural conditions, there is an extremely high mortality rate of sea turtles before they reach breeding age.(174) Even if a one hundred percent survival rate of baby sea turtles in their first year could be achieved, most would still not survive to adulthood in the wild.(175) The continued survival of juvenile and adult sea turtles that have already matured past the hatchling stage is more important to the survival of the species as a whole.(176) The use of TEDs is the most sound and effective method available to protect juvenile and adult sea turtles while allowing human shrimping activities to continue.(177)

Furthermore, U.S. conservation measures in section 609 are consistent with the like treatment principle of GATT Article XIII and with the most-favored-nation principle of GATT Article I.(178) These principles require that the United States treat shrimp from India, Malaysia, Pakistan, and Thailand in exactly the same manner as U.S. shrimp and shrimp from other member countries.(179) Section 609 does treat shrimp from all nations equally. U.S. fishermen are required to obey section 609 regulations.(180) Similarly, as long as an importing country employs one of the turtlefriendly shrimping techniques enumerated in section 609, that country's shrimp are freely admitted into the United States.(181) The complainants in this case are concerned with a restriction on their production methods, not the products themselves.(182) Arguably, however, shrimp harvested in a manner that is harmful to endangered sea turtles should be interpreted as an entirely different product, as it applies to the rules of GATT. In order to promote international environmental conservation and deter destructive trade practices, embargoes on harmful shrimping practices must be allowed.(183) Shrimp harvested in a way that endangers the lives of sea turtles is a different product than shrimp harvested using sea turtle-friendly techniques. Seen in this light, the U.S. shrimp ban is consistent with the non-discrimination principles espoused in Articles I and XIII.

Although the U.S. measure is consistent with GATT obligations, the ban is inconsistent with GATT Article XI.(184) The shrimp ban is a restriction on trade that is not economic. Article XI attempts to eliminate quantitative prohibitions and only allows restrictions in the form of "duties, taxes or other charges."(185) The U.S. shrimp ban is normally not permitted under Article XI; however, the ban qualifies as an exception under GATT Article XX.(186)

Articles XX(b) and XX(g) of GATT provide the necessary flexibility to take measures to conserve and protect the environment by exempting conservation measures from GATT obligations.(187) Article XX(g) refers to measures "relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption."(188) U.S. measures to protect sea turtles established through section 609 meet these qualifications. The international community acknowledges that sea turtles are an important natural resource.(189) The fact that virtually all species of sea turtles face the danger of extinction demonstrates that sea turtles are an exhaustible resource.(190) Furthermore, several countries have entered international agreements recognizing the dire position of the sea turtle and encouraging conservation efforts.(191)

Finally, the U.S. measure to protect sea turtles was made in conjunction with the requirement that all U.S. domestic commercial shrimpers install TEDs on their shrimping vessels.(192) Section 609 applies comparable standards to U.S. domestic shrimp and to imported shrimp and directly relates to the conservation of sea turtles.(193) It is intended to conserve and protect sea turtles by requiring that shrimp imported into the United States have not been harvested in a manner that will harm sea turtles. Section 609 seeks to protect the life and health of these endangered animals by ensuring that the number of sea turtles accidentally caught in shrimp trawl nets is significantly reduced.(194) Section 609 also seeks to conserve this valuable natural resource and ensure that sea turtles continue to be part of the world's biodiversity.(195) The U.S. measure to protect endangered sea turtles meets the requirements of Article XX(g) and is exempt from GATT obligations.

Article XX(b), in the alternative, refers to measures "necessary to protect human, animal or plant life or health."(196) Sea turtles are animals, and the measures taken under section 609 involve efforts to protect sea turtles and prevent them from unnecessary, incidental death due to humans trawling for shrimp.(197) Section 609 is intended to protect and conserve the life and health of sea turtles by requiring that shrimp imported into the United States have not been harvested in a manner that will harm these animals.(198) In addition, U.S. measures under section 609 are necessary because all species of sea turtles are in danger of extinction, and the international community has agreed that sea turtle conservation is necessary to a balanced biodiversity, as evidenced by multilateral agreements such as CITES.(199)

The notion that section 609 conservation measures relating to TEDs are necessary is strengthened by the fact that other measures employed to protect sea turtles are not sufficient to allow sea turtles to recover from the brink of extinction.(200) The incidental mortality of sea turtles in shrimp trawl nets constitutes the largest cause of human-induced sea turtle deaths.(201) Other measures to protect sea turtles, including protecting nesting beaches, banning the harvest of sea turtle eggs, and incubating baby sea turtles have proven ineffective in increasing the number of juvenile and adult sea turtles.(202)

Of measures available to protect sea turtles, only TEDs have the potential to protect large juvenile and adult sea turtles.(203) Other conservation measures have not been shown to have any significant effect on the number of sea turtles that survive to adulthood and reproduce.(204) Methods other than the use of TEDs are insufficient to allow sea turtle populations to recover from their drastic decline.(205) Furthermore, in regions where TEDs are used in conjunction with other sea turtle conservation measures, there are encouraging signs of increases in sea turtle populations.(206) Conservation measures under section 609 also fall within the Article XX(b) exception and are exempt from GATT obligations.

The U.S. measures also comply with the general spirit of Article XX. The chapeau of Article XX requires that measures falling under this exception "not [be] applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade."(207) U.S. conservation measures under section 609 and the certification process are carefully tied to the particular conditions of each country exporting shrimp to the United States.(208) The criteria for certification under section 609 are finely tailored to conditions in the exporting country's shrimp fishery.(209) For example, nations that have fisheries in cold waters where sea turtles are not present are certified by the Secretary of State.(210) Nations that harvest shrimp through manual means are also certified under section 609.(211) Finally, nations requiring the use of TEDs in areas where there is a likelihood of intercepting sea turtles are certified.(212) All nations that have adopted sea turtle conservation programs comparable to the U.S. program, including requirements for the use of TEDs in waters where there is a likelihood of intercepting sea turtles, are certified under section 609.(213) Therefore, the United States has consistently applied section 609 in a manner that relates to exporting countries based on specific and reasonable criteria tied to the goal of conserving sea turtles.

Further, these measures are not a disguised restriction of trade. The United States has spent much time and effort in disseminating TED technology to other nations.(214) The United States has contributed many resources toward helping foreign nations develop and use TED technology effectively.(215) Congress enacted section 609 to conserve and protect sea turtles, not to protect domestic production. Section 609 is narrow in its scope and does not constitute a means of arbitrary discrimination or a disguised restriction of trade. Therefore, the WTO should find the U.S. shrimp ban exempt from GATT obligations and a valid sea turtle protection measure.

Finally, the United States is not acting outside of its jurisdiction. Therefore, the measure is not barred from constituting an Article XX exception. Several endangered species of sea turtles are found in U.S. waters.(216) Because many sea turtles spend time in U.S. waters, the United States is not extraterritorially dictating conservation measures for foreign property. Although turtles migrate through other territories, U.S. protection measures constitute protections of its own resources, though temporarily found elsewhere. Thus, the United States has an interest in preserving the continued survival of sea turtles that do indeed migrate within its jurisdiction. The shrimp ban and section 609 are valid environmental conservation measures that do not violate the rules of GATT. The WTO should have found in favor of the U.S. regulation and upheld the environmental law on Article XX grounds.

VI. REPORT OF THE PANEL ESTABLISHED BY THE WTO DISPUTE SETTLEMENT BODY

In February 1997, the WTO Dispute Settlement Body (DSB) established a Panel to examine the U.S. shrimp ban at the request of India, which was consolidated with the Panel already established at the request of Malaysia, Pakistan, and Thailand.(217) After meeting with the parties to the dispute, and considering the arguments of third parties and scientific experts, the DSB Panel issued its final report to the parties on April 6, 1998.(218) In a lengthy and detailed account of the situation, the Panel found in favor of the complainants.(219)

The DSB Panel found that the United States violated Article XI of the WTO Agreement.(220) It held that the U.S. ban on the import of shrimp from noncertified countries constituted an invalid restriction on trade because it was not in the form of a monetary charge.(221) The Panel determined that the U.S. shrimp ban pursuant to section 609 was not consistent with Article XI, which limits the imposition of quantitative import restrictions.

Regarding the argument that the United States also violated Articles I and XIII, the DSB Panel found it unnecessary to decide those issues because it already found that the United States violated the WTO Agreement.(222) Instead, the Panel chose to focus on the U.S. defense under Article XX.(223) The U.S. defense under Article XX was based on the argument that section 609 is an environmental conservation measure. In its report, however, the DSB Panel noted that although Article XX can accommodate a wide range of environmental conservation measures, members to the WTO Agreement commit themselves to certain obligations that limit their ability to adopt certain measures.(224) The issue before the DSB Panel was whether the United States could claim Article XX as a defense to its measure conditioning access to the U.S. shrimp market on the adoption of certain conservation policies by exporting members.(225)

The DSB Panel began its analysis by determining the scope of Article XX. Article XX contains a chapeau that defines the conditions to which the rest of Article XX applies.(226) This chapeau relates to the manner in which a measure is applied and states that a measure shall not constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail.(227) The chapeau further states that a measure shall not constitute a disguised restriction on trade.(228) The DSB Panel determined that the U.S. measure must first comply with the chapeau of Article XX before it will engage in an analysis of whether or not the measure qualifies under Article XX(g) or Article XX(b).(229) Interpreting the chapeau of Article XX within the context of GATT and the WTO Agreement, the Panel found that a member may only deviate from GATT obligations if the deviation does not undermine the WTO multilateral trading system.(230) The DSB Panel went on to say that "[s]uch undermining ... would occur when a Member jeopardizes the operation of the WTO Agreement in such a way that guaranteed market access and nondiscriminatory treatment within a multilateral framework would no longer be possible."(231)

Thus, the DSB Panel held that conditioning access to markets for a given product upon the adoption of certain policies by exporting members would threaten the security and predictability of trade relations under those agreements. The DSB Panel concluded that the U.S. measure at issue constituted unjustifiable discrimination and was not within the scope of measures permitted under the chapeau of Article XX.(232) It recommended that the DSB request that the United States modify its measure to be consistent with its obligations under GATT and the WTO Agreement.(233) On July 13, 1998, the United States notified the DSB of its decision to appeal the findings in the Panel report.(234)

VII. WTO APPELLATE BODY DECISION

On July 23, 1998, the United States filed an appellant's submission with the Appellate Body.(235) In August the appellees fried their submissions, and the oral hearing of the appeal was held on August 19 and 20, 1998.(236) The main issue before the Appellate Body was whether the DSB Panel erred in finding that section 609 was outside the scope of Article XX and constituted a means of arbitrary and unjustifiable discrimination.(237) In its report dated October 12, 1998, the Appellate Body found error in the analysis of Article XX by the DSB Panel and reversed its decision in part; however, it ultimately held that the U.S. measure was applied in a manner that amounted to arbitrary and unjustifiable discrimination, and did not qualify for an exception under Article XX.(238)

The Appellate Body criticized the method of analysis employed by the DSB Panel.(239) It first found that "the Panel did not expressly examine the ordinary meaning of the words of Article XX."(240) The introductory provisions of Article XX refer to the manner in which the measure at issue is applied.(241) The Appellate Body found that the DSB Panel erred in focusing on the design of the measure rather than the manner in which the measure was applied.(242) Instead of analyzing how the application of section 609 might constitute unjustifiable discrimination, the Panel continued to focus on a situation "where a Member has taken unilateral measures which, by their nature, could put the multilateral trading system at risk."(243) The Panel did not explain how it came to the conclusion that the U.S. measure discriminated unfairly.

Further, the Appellate Body found that the Panel's test in determining whether the measure was permitted under Article XX was flawed.(244) The Panel erred in scrutinizing the GATT and WTO Agreement rather than the context of the chapeau of Article XX.(245) The Appellate Body held that maintaining the multilateral trading system is an underlying premise of the WTO Agreement; however, it concluded that preserving the multilateral trading system is not an obligation under the chapeau of Article XX.(246) Moreover, the Appellate Body found that conditioning access to markets on whether members comply with policies proscribed by the importing member falls within the scope of exceptions under Article XX.(247) The chapeau of Article XX allows measures that are recognized as exceptions to substantive obligations established in GATT.(248) A contrary holding by the Appellate Body would undermine the purpose of Article XX and render its provisions useless. Thus, the Appellate Body reversed the Panel's legal conclusion that section 609 was not within the scope of measures permitted under the chapeau of Article XX.(249)

Furthermore, the Appellate Body attempted to complete the correct legal analysis in order to determine whether the requirements of section 609 were justified under Article XX.(250) The Appellate Body determined that the correct analytical procedure was first to study the measure under the specific provisions of Article XX before considering whether the measure was justified under the chapeau.(251) Therefore, the Appellate Body began its analysis by considering whether section 609 was justified under Article XX(g).(252) Based on the international recognition of the need for protection and conservation of living natural resources, the Appellate Body found that sea turtles were considered an exhaustible natural resource for purposes of Article XX(g), and that there was a substantial relationship between section 609 and the legitimate policy of conserving endangered sea turtles.(253) The Appellate Body concluded that section 609 was a reasonable measure relating to the conservation of an exhaustible natural resource under Article XX(g).(254)

The Appellate Body found it unnecessary to consider the measure under Article XX(b) because the United States sought justification for section 609 only if its measure did not fall under the scope of Article XX(g).(255) Because the measure did qualify under paragraph.(g) of Article XX, the Appellate Body turned to the second step in its analysis. It studied the chapeau of Article XX and addressed whether the application of the U.S. measure constituted either a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail or a disguised restriction of trade.(256)

The Appellate Body recognized that the WTO members need to maintain a balance between the right of a member to invoke an exception under Article XX and the duty to preserve the substantive rights of the other members under GATT.(257) The Appellate Body found that section 609 guidelines require WTO members to adopt a turtle conservation program that is essentially the same as that applied to domestic shrimp trawl vessels. That policy creates a rigid standard by which the United States determines whether an exporting country may have access to the U.S. shrimp market.(258) Furthermore, in analyzing whether the application of section 609 amounted to unjustifiable discrimination, the Appellate Body found that the United States engaged in differing treatment among different countries.(259) The United States required other members to adopt essentially the same regulatory program as the United States, without considering the different conditions that actually occur in other regions.(260) Furthermore, the United States negotiated seriously with some countries, such as the fourteen countries within the Caribbean/western Atlantic region; however, there was no evidence that the United States undertook negotiations for a sea turtle conservation agreement with others, including the appellees.(261)

The Appellate Body also found that the length of the phase-in period was different for certain countries.(262) The fourteen countries in the Caribbean/western Atlantic region were allowed three years for their shrimp trawl vessels to adjust to the U.S. requirements. Other countries, such as the appellees, were given only four months to implement the required TED technology. Further, the Appellate Body found that the United States displayed greater effort in disseminating TED technology to the Caribbean/ western Atlantic countries than to the appellees.(263) Because of these differences in the application of section 609 to various shrimp exporting countries, the Appellate Body held that those differences constituted unjustifiable discrimination within the meaning of the chapeau of Article XX.(264)

Moreover, the Appellate Body held that the U.S. measure was applied in a manner that amounted to a means of arbitrary discrimination.(265) Accordingly, section 609 was not justified as an exception to GATT obligations under Article XX. The Appellate Body concluded that although the U.S. measure serves an environmental objective that is recognized as legitimate under Article XX(g), it has been applied in a manner contrary to the requirements of the chapeau of Article XX; it constitutes arbitrary and unjustifiable discrimination between members of the WTO.(266) Therefore, section 609 does not qualify for the Article XX exception. At the end of its report, the Appellate Body recommended that the DSB request that the United States bring its measure into conformity with U.S. obligations under GATT and the WTO Agreement.(267)

VIII. CONCLUSION

Despite the improved analysis of the Appellate Body, its arguments still contain flaws. Although much progress has been made in opening doors to an international market, environmental protection is also a global concern that must be addressed. By allowing some countries to continue harmful and wasteful environmental practices, conservation measures adopted by others become ineffective. The global community must continue to encourage free trade while also recognizing the need to conserve resources, protect endangered species, and develop environmental standards. Although environmental protection measures could, in the short run, inhibit trade to some extent, conservation of the environment may be the best way to ensure the continued existence of the resources upon which trade depends. In recognizing that environmental conservation measures will retain the resources necessary for trade, the WTO has the opportunity to begin the process of reconciling the goals of environmental conservation and free trade.

(1) See generally Charles R. Fletcher, Greening World Trade: Reconciling GATT and Multilateral Environmental Agreements Within the Existing World Trade Regime, 5 J. TRANSNAT'L L. & POL'Y 341 (discussing why reconciliation of trade and environmental policy should be an important goal in the international community).

(2) See, e.g., GATT Dispute Settlement Panel Report on U.S. Restrictions on Imports of Tuna, Aug. 16, 1991, 30 I.L.M. 1594 (1991) [hereinafter Tuna/Dolphin I].

(3) General Agreement on Tariffs and Trade, Oct. 30, 1947, 55 U.N.T.S. 187 [hereinafter GATT].

(4) Id. art. I.

(5) Id. art. III.

(6) Id. art. XI.

(7) Id. art. XX.

(8) Tuna/Dolphin I, supra note 2, at 1619.

(9) See, e.g., Tuna/Dolphin I, supra note 2.

(10) Id.

(11) GATT: Kantor Says United States Will Ask for Full Review in Tuna-Dolphin Ruling, 11 Int'l Trade Rep. (BNA) 814 (May 25, 1994) (giving a brief synopsis of the Tuna/Dolphin case).

(12) Id.

(13) Act of Nov. 21, 1989, 16 U.S.C. [sections] 1537 (1994).

(14) Environment: Four Asian Nations Ask United States for WTO Consultations on Shrimp Ban, 13 Int'l Trade Rep. (BNA) 1593 (Oct. 16, 1996) [hereinafter Four Asian Nations].

(15) Agreement Establishing the World Trade Organization, Apr. 15, 1994, 33 I.L.M. 1144 (1994) [hereinafter WTO].

(16) Id. art. III.

(17) Id. pmbl.

(18) See, e.g., Tuna/Dolphin I, supra note 2.

(19) JOHN H. JACKSON, THE WORLD TRADING SYSTEM: LAW AND POLICY OF INTERNATIONAL ECONOMIC RELATIONS 27 (1989).

(20) Id. at 27-39.

(21) See generally GATT: Multilateral Trade Negotiations Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Apr. 15, 1994, 33 I.L.M. 1125 (1994). GATT 1994 is the original 1947 GATT as amended through the Uruguay Round.

(22) GATT art. I.

(23) Id.

(24) Id. art. III.

(25) Id.

(26) Id. art. XI.

(27) Id.

(28) Id. art. XX.

(29) Id.

(30) Id. art. XX(b).

(31) Id. art. XX(g).

(32) Tuna/Dolphin I, supra note 2.

(33) Thomas J. Schoenbaum, International Trade and Protection of the Environment: The Continuing Search for Reconciliation, 91 AM. J. INT'L L. 268 (1997).

(34) DANIEL C. ESTY, GREENING THE GATT: TRADE, ENVIRONMENT, AND THE FUTURE 49 (1994).

(35) CENTER FOR INT'L ENVTL. LAW, REPORT ON GATT TUNA-DOLPHIN II: ENVIRONMENTAL PROTECTION CONTINUES TO CLASH WITH FREE TRADE 2 (1994).

(36) Id. at 1.

(37) Id.

(38) Id.

(39) Id. at 2.

(40) GATT: Dispute Resolution Panel Report on United States Restrictions on Imports of Tuna, June 1994, 33 I.L.M. 839 (1994) [hereinafter Tuna/Dolphin II].

(41) Id. [paragraph] 5.29.

(42) See Schoenbaum, supra note 33, at 273 (discussing GATT panel decision in Tuna/Dolphin case).

(43) Id.

(44) Id.

(45) Id.

(46) Id.

(47) Tuna/Dolphin I, supra note 2, [paragraph] 5.23.

(48) Id. [paragraph] 5.28.

(49) Id.

(50) WTO, 33 I.L.M. 1126 (1994).

(51) Id.

(52) See Chris Wold, Multilateral Environmental Agreements and the GATT: Conflict and Resolution? 26 ENVTL. L. 841, 847-48 (1996) (explaining the creation of the WTO).

(53) WTO, 33 I.L.M. 1144 (1994).

(54) Trade and Environment, GATT Ministerial Decision of April 14, 1994, 33 I.L.M. 1267, 1267-69 (1994).

(55) Id. at 1268.

(56) Four Asian Nations, supra note 14, at 1593.

(57) NATIONAL RESEARCH COUNCIL, NATIONAL ACADEMY OF SCIENCES, DECLINE OF THE SEA TURTLES: CAUSES AND PREVENTION 16 (1990).

(58) Paul Stanton Kibel, Justice for the Sea Turtle: Marine Conservation and the Court of International Trade, 15 UCLA J. ENVTL. L. & POL'Y 57, 57-59 (1996-97).

(59) Kathleen Doyle Yaninek, Turtle Excluder Device Regulations: Laws Sea Turtles Can Live With, 21 N.C. CENT. L.J. 256 (1995).

(60) Id. at 258-63.

(61) IUCN/SSC MARINE TURTLE SPECIALIST GROUP, IUCN SPECIES SURVIVAL COMM'N, A GLOBAL STRATEGY FOR THE CONSERVATION OF MARINE TURTLES 3 (1995).

(62) Id.

(63) Id.

(64) Yaninek, supra note 59, at 263-65.

(65) Convention on International Trade in Endangered Species of Wild Fauna and Flora, opened for signature Mar. 3, 1973, 993 U.N.T.S. 243, 245 [hereinafter CITES].

(66) 16 U.S.C. [subsections] 1531-1544 (1994).

(67) 50 C.F.R. [subsections] 217, 222, 227 (1998).

(68) Id.

(69) See NATIONAL RESEARCH COUNCIL, supra note 57, at 127.

(70) Id.

(71) Id. at 147.

(72) 16 U.S.C. [sections] 1537 (1994).

(73) Id.

(74) Turtles in Shrimp Trawl Fishing Operations Protection, 56 Fed. Reg. 1051, 1051 (Jan. 10, 1991).

(75) Revised Notice of Guidelines for Determining Comparability of Foreign Programs for the Protection of Turtles in Shrimp Trawl Fishing Operations, 61 Fed. Reg. 17,342 (Apr. 19, 1996).

(76) Id.

(77) NATIONAL RESEARCH COUNCIL, supra note 57, at 145.

(78) Revised Notice of Guidelines for Determining Comparability of Foreign Programs for the Protection of Turtles in Shrimp Trawl Fishing Operations, 61 Fed. Reg. 17,342 (Apr. 19, 1996).

(79) 56 Fed. Reg. at 1051.

(80) Earth Island Inst. v. Christopher, 913 F. Supp. 559 (Ct. Int'l Trade 1995).

(81) Id.

(82) Id. at 580.

(83) Four Asian Nations, supra note 14.

(84) Environment: Asian Nations Ask WTO to Nullify U.S. Law Requiring Turtle Protection to Export Shrimp 14 Int'l Trade Rep. (BNA) 1104 (June 25, 1997).

(85) Id.

(86) Id.

(87) World Trade Organization, Report of the Panel: United States--Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/R (May 15, 1998). [hereinafter Panel Report].

(88) First Submission of Thailand, United States--Import Prohibition of Certain Shrimp and Shrimp Products 1, 6 (May 20, 1997), available in 1997 WL 304829 [hereinafter Submission of Thailand].

(89) Id. at 6. (outlining Thailand's long history of protecting sea turtles within its jurisdiction).

(90) Id at 7.

(91) Id. at 7-23.

(92) Id.

(93) Id.

(94) Id. at 6-7.

(95) Id.

(96) Id. at 6.

(97) Id.

(98) Id.

(99) CITES, supra note 65.

(100) Submission of Thailand, supra note 88, at 6.

(101) Id.

(102) Id. at 6-7.

(103) Id. at 7-8.

(104) GATT art. XI.

(105) Submission of Thailand, supra note 88, at 7.

(106) Revised Notice of Guidelines for Determining Comparability of Foreign Programs for the Protection of Turtles in Shrimp Trawl Fishing Operations, 61 Fed. Reg. 17,342 (Apr. 19, 1996).

(107) GATT art. XI.

(108) Tuna/Dolphin I, supra note 2, at 1595.

(109) Id.

(110) Id.

(111) Submission of Thailand, supra note 88, at 8.

(112) GATT art. XIII.

(113) 16 U.S.C. [sections] 1537 (1994).

(114) See Submission of Thailand, supra note 88, at 8.

(115) Id.

(116) Id.

(117) See supra notes 79-82 and accompanying text.

(118) Earth Island Inst. v. Christopher, 913 F. Supp. 559, 578 (Ct. Int'l Trade 1995).

(119) Submission of Thailand, supra note 88, at 8.

(120) Id.

(121) Id. at 9.

(122) GATT art. I.

(123) Submission of Thailand, supra note 88, at 9.

(124) Id. at 9-23.

(125) Id. at 18.

(126) GATT art. XX.

(127) Submission of Thailand, supra note 88, at 10.

(128) Id. at 22.

(129) See generally NATIONAL RESEARCH COUNCIL, supra note 57 (concluding that one of the main causes of sea turtle deaths is the incidental capture of turtles in shrimp trawling, and discussing several solutions to help prevent further sea turtle decline).

(130) Id.

(131) Amicus Brief from the Center for Marine Conservation to the Panel on United States--Import Prohibition of Certain Shrimp and Shrimp Products 27 (July 28, 1997) [hereinafter CMC Amicus Brief].

(132) First Submission of the United States, United States--Import Prohibition on Certain Shrimp and Shrimp Products I (June 9, 1997) [hereinafter Submission of U.S.].

(133) Id. at 17.

(134) Id.

(135) NATIONAL RESEARCH COUNCIL, supra note 57, at 147.

(136) CITES, supra note 65.

(137) Submission of U.S., supra note 132, at 13.

(138) Id. at 9.

(139) See id. at 1.

(140) Id. at 27-28; see also supra notes 22-31 and accompanying text.

(141) Submission of U.S., supra note 132, at 22; see also CMC Amicus Brief, supra note 131, at 27.

(142) GATT art. XX.

(143) Submission of U.S., supra note 132, at 1.

(144) Id. at 25.

(145) Id. at 6; see supra note 65 and accompanying text.

(146) Submission of U.S., supra note 132, at 14.

(147) Id. at 25-28.

(148) GATT art. XX.

(149) Revised Notice of Guidelines for Determining Comparability of Foreign Programs for the Protection of Turtles in Shrimp Trawl Fishing Operations, 61 Fed. Reg. 17,343 (Apr. 19, 1996).

(150) Id.

(151) 16 U.S.C. [sections] 1537 (1994).

(152) Id.

(153) Id.

(154) Id.

(155) Submission of U.S., supra note 132, at 22.

(156) NATIONAL RESEARCH COUNCIL, supra note 57, at 119.

(157) CMC Amicus Brief, supra note 131, at 6.

(158) Id.

(159) NATIONAL RESEARCH COUNCIL, supra note 57, at 128-29, 147.

(160) United Nations Convention on the Law of the Sea, U.N. Doc. A/CONF.62/122 (1982), reprinted in 21 I.L.M. 1261, 1281 (1982).

(161) Id.

(162) Report on the United Nations Conference on Environment and Development, U.N. Doc. A/CONF. 151/26 (1992).

(163) Inter-American Convention for the Protection and Conservation of Sea Turtles, art. IV(h) (1996) (copy on file with the Center for Marine Conservation). 164 Id. Annex III(3).

(165) NATIONAL RESEARCH COUNCIL, supra note 57, at 128.

(166) Id. at 127.

(167) Submission of U.S., supra note 132, at 8-16 (arguing that the Asian region should negotiate a multilateral agreement because the use of TEDs has become a multilateral environmental standard). 168 Id. at 11.

(169) 16 U.S.C. [sectios] 1537 (1994).

(170) See Submission of Thailand, supra note 88, at 7.

(171) Selina S. Heppell et al., Models to Evaluate Headstarting as a Management Tool for Long-Lived Turtles, 6 ECOLOGICAL APPLICATIONS 556, 563 (1996).

(172) NATIONAL RESEARCH COUNCIL, supra note 57, at 126-27.

(173) BIOLOGY AND CONSERVATION OF SEA TURTLES, SEA TURTLE CONSERVATION STRATEGY 568 (Karen A. Bjorndal ed., 1982) [hereinafter CONSERVATION STRATEGY]. 174 Heppell et al., supra note 171, at 557.

(175) Id.

(176) Id. at 563.

(177) Id.

(178) GATF arts. I, XIII.

(179) Id.

(180) 50 C.F.R. [subsections] 217, 222, 227 (1998).

(181) Revised Notice of Guidelines for Determining Comparability of Foreign Programs for the Protection of Turtles in Shrimp Trawl Fishing Operations, 61 Fed. Reg. 17,343 (Apr. 19, 1996).

(182) Submission of Thailand, supra note 88, at 2-5.

(183) ESTY, supra note 34, at 249-50.

(184) GATT art. XI.

(185) Id.

(186) Submission of U.S., supra note 132, at 22 n.60.

(187) GATT arts. XX(b), XX(g).

(188) GATT art. XX(g).

(189) See CONSERVATION STRATEGY, supra note 173, at 568 (outlining elements of an international sea turtle conservation policy).

(190) Id. at 567; see also id. at 185 (stating that most species of sea turtles are in decline).

(191) CITES, supra note 65, at 245, 268.

(192) 50 C.F.R. [subsections] 217, 222, 227 (1998).

(193) Revised Notice of Guidelines for Determining Comparability of Foreign Programs for the Protection of Turtles in Shrimp Trawl Fishing Operations, 61 Fed. Reg. 17,343 (1996).

(194) 16 U.S.C. [sections] 1537 (1994).

(195) Id.

(196) GATT art. XX(b).

(197) 16 U.S.C. [sections] 1537 (1994).

(198) Id.

(199) See CITES, supra note 65.

(200) Heppell et. al., supra note 171, at 563.

(201) NATIONAL RESEARCH COUNCIL, supra note 57, at 145.

(202) BIOLOGY AND CONSERVATION OF SEA TURTLES, HEADSTARTING AS A MANAGEMENT TOOL 613 (Karen A. Bjorndal ed., 1995); Selina S. Heppell et al., Population Model Analysis for the Loggerhead Sea Turtle, Caretta caretta, in Queensland, 23 WILDLIFE RESEARCH 152 (1996)

(203) Heppell et. al., supra note 202, at 153.

(204) Id. at 152.

(205) See generally WORLD CONSERVATION UNION, A MARINE TURTLE CONSERVATION STRATEGY AND ACTION PLAN FOR THE NORTHERN INDIAN OCEAN (1997) (discussing various strategies to prevent sea turtle decline).

(206) REPORT OF THE MARINE TURTLE EXPERT WORKING GROUP, KEMP'S RIDLEY SEA (LEPIDOCHELYS KEMPII) TURTLE STATUS REPORT 3-4 (1996).

(207) GATT art. XX.

(208) Revised Notice of Guidelines for Determining Comparability of Foreign Programs for the Protection of Turtles in Shrimp Trawl Fishing Operations, 61 Fed. Reg. 17,342 (Apr. 19, 1996).

(209) Id.

(210) Id.

(211) Id.

(212) Id.

(213) 16 U.S.C. [sections] 1537 (1994).

(214) Submission of U.S., supra note 132, at 28.

(215) Id.

(216) Yaninek, supra note 59, at 257-58.

(217) Panel Report, supra note 87, at 1.

(218) Id. at 2.

(219) Id. at 299.

(220) Id. at 280.

(221) Id.

(222) Id. at 283.

(223) Id. at 286.

(224) Id.

(225) Id.

(226) GATT art. XX.

(227) Id.

(228) Id.

(229) Panel Report, supra note 87, at 287.

(230) Id. at 288.

(231) Id. at 291.

(232) Id. at 293.

(233) World Trade Organization, Report of the Appellate Body: United States--Import Prohibition of Certain Shrimp and Shrimp Products, WT/D558/AB/R, at 5 (Oct. 12, 1998).

(234) Id.

(235) Id.

(236) Id.

(237) Id. at 34.

(238) Id. at 76.

(239) Id. at 39-45.

(240) Id. at 42.

(241) Id.

(242) Id.

(243) Id. (quoting Panel Report, supra note 87, at 298).

(244) Id. at 43.

(245) Id.

(246) Id.

(247) Id. at 45.

(248) Id.

(249) Id.

(250) Id.

(251) Id. at 45-46.

(252) Id. at 46.

(253) Id. at 46-51.

(254) Id. at 54.

(255) Id. at 55.

(256) Id. at 56.

(257) Id. at 60.

(258) Id. at 63.

(259) Id. at 65.

(260) Id.

(261) Id. at 70.

(262) Id. at71.

(263) Id. at 72.

(264) Id.

(265) Id. at 75.

(266) Id.

(267) Id. at 76.

CORINNE SAM, Student, Northwestern School of Law of Lewis & Clark College, J.D. expected May 1999; B.A. Honors 1995, University of California at Santa Barbara. The author would like to thank Professors James Bailey and Chris Wold for their guidance and insightful comments.