Shrimp/turtle: Untangling the nets

Journal of International Economic Law

Volumn 2, Issue 3, 1999, Pages 477-496

  Appleton, Arthur E ^a  

^a Lalive and Partners   (Switzerland)

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EID: 0033472486     PISSN: 13693034     EISSN: None     Source Type: Journal    
DOI: 10.1093/jiel/2.3.477     Document Type: Article

References (75)

1. Burke, Second Speech on Conciliation with America, The Thirteen Resolutions, 22 March 1775.
2. United States - Import Prohibition of Certain Shrimp and Shrimp Products, AB-1998-4, WT/DS58/AB/R (12 October 1998), (hereinafter 'Appellate Report').
3. See, e.g., Appellate Report ftns. 163-164, 179, and 181-190 and accompanying text wherein statements made during the appellate hearing are recounted and relied upon to make factual findings. Certain of these factual findings relate to issues raised before, but not addressed by the Panel.
4. The Appellate Body based its legal conclusion on the following points: - The 1996 Guidelines and regulatory practices established 'a rigid and unbending standard'. Other sea turtle protection and conservation measures adopted by shrimp exporting countries were 'not taken into account' (¶ 163). - Shrimp caught using methods identical to those required by the US were not permitted entry into the US because the country from where the shrimp originated was not certified. The US measure was found to be more concerned with influencing WTO Members to adopt the same comprehensive regime, than with sea turtle protection (¶ 165). - The US failed to enter into serious across-the-board negotiations with the appellees before the implementation of the US measure (¶ 166). It negotiated with some but not other WTO Members (¶ 172). - Different phase-in periods for the use of turtle excluder devices ('TEDs') existed for different countries (¶¶ 173-174). - Differences existed in efforts made to transfer TEDs technology (¶ 175). - Section 609 of Public Law 101-162, as applied, imposes a single, rigid and unbending requirement that a country must adopt to be certified. Officials do not have flexibility pursuant to these provisions (¶ 181). - The Section 609 certification process is neither transparent nor predictable. There is no formal opportunity for a country to be heard or to respond, and no formal written and reasoned acceptance or denial of certification is issued. No review procedure exists. The process is singularly informal and casual (¶¶ 180-181).
5. DSU Article 1.1 and (Appendix 1).
6. United States - Standards for Reformulated and Conventional Gasoline, AB-1996-1, WT/DS2/AB/R (29 April 1996). This was done without discussion in Reformulated Gasoline (¶ IV).
7. See also Canada - Certain Measures Concerning Periodicals, AB-1997-2, WT/DS31/AB/R (30 June 1997), wherein the Appellate Body completed an analysis of GATT Article III:2 'based on the Panel Report' (§ VI); and European Communities - Measures Affecting the Importation of Certain Poultry Products, AB-1998-3, WT/DS69/AB/R (13 July 1998), wherein the Appellate Body completed an analysis of the Agreement on Agriculture by examining Article 5.5 (¶¶ 154-171). In Shrimp/Turtle the Appellate Body justified such a review based on DSU Article 3.7 which states that the 'aim of the dispute settlement mechanism is to secure a positive solution to a dispute'. DSU Article 3.3 would also appear to support the Appellate Body's reasoning. It provides that 'The prompt settlement of situations in which a Member considers that any benefits accruing to it directly or indirectly under the covered agreements are being impaired by measures taken by another Member is essential to the effective functioning of the WTO and the maintenance of a proper balance between the rights and obligations of Members.'
8. See above n. 3 and accompanying text.
9. In ¶ 124 the Appellate Body stated that 'we believe that the facts on the record of the panel proceedings permit us to undertake the completion of the analysis required to resolve this dispute.'
10. Australia - Measures Affecting Importation of Salmon, AB-1998-5, WT/DS18/AB/R (20 October 1998), at ¶ 241. See also ¶¶ 193, and 279(g).
11. In Shrimp/Turtle, the Appellate Body was represented by Feliciano (Presiding Member), Bacchus and Lacarte-Muró. In Australia Salmon the Appellate Body was represented by Ehlermann (Presiding Member), Beeby and El-Nagger.
12. See Article 4.1, Working Procedures for Appellate Review, WT/AB/WP/3 (28 February 1997), (hereinafter 'Working Procedures').
13. Appellate Report at ¶ 166.
14. Many treaty interpreters would have been more hesitant to use language from the Preamble to interpret substantive obligations.
15. Namibia (South West Africa) Advisory Opinion (1971) I.C.J. Rep., p. 31 (¶ 53). The terms 'static' and 'evolutionary' were taken from this opinion.
16. Canada - Measures Affecting Exports of Unprocessed Herring and Salmon, L/6268, adopted 22 March 1988, BISD 35S/98, at ¶ 4.4; United States - Prohibition of Imports of Tuna and Tuna Products from Canada, L/5198, adopted on 22 February 1982, BISD 29S/91, at ¶ 4.9.
17. As noted above, Article 19.2 states that the 'Appellate Body cannot add to or diminish the rights and obligations provided in the covered agreements'.
18. United States - Section 337 of the Tariff Act of 1930, 176439, adopted on 7 November 1989, BISD 36S/345, at ¶ 5.9. In United States-Restrictions on Imports of Tuna, DS21/R (unadopted), 3 September 1991, BISD 39S/155, at ¶ 5.22, the quoted language is repeated, but the Panel wrongly attributes the phrase 'and not a positive rule establishing obligations in itself to the Section 337 Panel Report. Such a rule might more easily be derived from ¶ 4.6 of the Herring and Salmon Report, above n. 16.
19. Herring and Salmon, above n. 16, at ¶ 4.6 (quoted with approval in Reformulated Gasoline at p.18 (§ III (B)).
20. GATT Article XX(b) excepts certain trade measures 'necessary to protect human, animal or plant life or health'.
21. GATT Article XX(g) excepts certain trade measures 'relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption'.
22. See, e.g., Reformulated Gasoline, above n. 6, at 23 (§ 4) wherein the Appellate Body stated that: One of the corollaries of the 'general rule of interpretation' in the Vienna Convention is that interpretation must give meaning and effect to all the terms of a treaty. An interpreter is not free to adopt a reading that would result in reducing whole clauses or paragraphs of a treaty to redundancy or inutility (citation to international law sources omitted).
23. Appleton, 'GATT Article XX's Chapeau: A Disguised "Necessary" Test?: The WTO Appellate Body's Ruling in United States-Standards for Reformulated and Conventional Gasoline', 6 RECIEL 131, 136 (1997).
24. See, e.g., the Section 337 Panel Report, above n. 18, at 392-393, ¶ 5.26 (discussing Article XX(d)). This interpretation was applied to Article XX(b) in Thailand - Restrictions on Importation of and Internal Taxes on Cigarettes, DS10/R, adopted 7 November 1990, BISD 37S/200, at ¶ 75.
25. The TBT Agreement is the Agreement on Technical Barriers to Trade. The term 'necessary' is also used in Articles 2 and 3 of the SPS Agreement (Agreement on the Application of Sanitary and Phytosanitary Measures). SPS Article 3.2 provides that SPS measures which conform to international standards, guidelines and recommendations are deemed necessary for purposes of GATT 1994. Both Agreements are a portion of the WTO Agreement. See GATT, 'The Results of the Uruguay Round of Multilateral Trade Negotiations: The Legal Texts' (1994).
26. Appellate Report at ¶¶ 108-110.
27. Id. at ¶ 110.
28. Italics added.
29. Italics added.
30. Appellate Report at ¶ 110.
31. Italics added.
32. A 'party to the dispute' is not defined in the DSU. A definition of this phrase, which appears in and is applicable to the Working Procedures, does not include third parties. See Article 1 of the Working Procedures for Appellate Review.
33. Appellate Report at ¶ 91.
34. The US language, quoted in ¶ 86 of the Appellate Report, is that the views contained in the non-member briefs were 'the independent views of those organizations'. The Appellate Body also noted that: 'The United States is not adopting these views as separate matters to which the Appellate Body must respond.' Id. It further stated that: 'The United States agrees with the legal arguments in the submissions of the non-governmental organisations to the extent those arguments concur with the US arguments set out in our main submission.' Id. These statements recounted from a letter submitted by the US to the Appellate Body allowed the Appellate Body to conclude that the US had accepted the briefs in 'a tentative and qualified manner'. Appellate Report at ¶ 91.
35. This Ruling is quoted in part in ¶¶ 83-84 of the Appellate Report. The Preliminary Ruling was released on Monday 10 August 1998. (The appellees' submissions had been filed late Friday 8 August 1998.) A revised Ruling was released by the Appellate Body on 11 August 1998.
36. This brief, generally supportive of the appellant's position, was communicated to the Appellate Body after the deadline for filing the appellant's submission.
37. Appellate Report at ¶ 83.
38. Appellate Report at ¶¶ 83-86.
39. See above n. 34 wherein the exact US language is quoted. This exchange is recounted in the Appellate Report at ¶ 86.
40. This lettered was copied to all parties and third parties.
41. Appellate Report at ¶ 89.
42. Id.
43. A review of the Decision reveals that the appellees took different approaches with respect to this question. Malaysia chose to respond to the arguments made by non-members in Exhibits 1-3 of its appellee's submission. The Joint Appellees chose not to respond until the Appellate Body handed down its Preliminary Ruling accepting the non-member submissions and offered the Joint Appellees and third parties a second opportunity to respond. Appellate Report at ¶ 85.
44. One of the non-member briefs appended to the US appellate submission contained an extensive rendition of the facts. This would seem to have been something of an anomaly in an appellate procedure devoted to 'issues of law covered in the panel report and legal interpretations developed by the panel'.
45. This issue is not addressed in the Appellate Body's Report. There is nothing in the Appellate Report which would suggest that 'third participants' (third parties that have chosen to file a written submission) would not be permitted to annex non-member briefs to their submissions.
46. The Notice itself was four paragraphs long. Paragraph 1 cited the applicable rules authorizing an appeal, and paragraph 4 concerned service of process. The substantive portion of the US Notice provided: The United States seeks review by the Appellate Body of the panel's finding that the United States measure at issue is not within the scope of measures permitted under the introductory sentence ('chapeau') of Article XX. This finding is in error, and is based on erroneous findings on issues of law and on related legal interpretations with respect to the interpretation and application of the Article XX chapeau. The United States also seeks review by the Appellate Body of the panel's procedural finding that accepting non-requested information from non-governmental sources is incompatible with the provisions of the Understanding on Rules and Procedures Governing the Settlement of Disputes.
47. Appellate Report at ¶ 96.
48. Id. at ¶ 952E
49. Id. at ¶ 95.
50. Id. at ¶ 97.
51. European Communities - Regime for the Importation, Sale and Distribution of Bananas, AB-1997-3, WT/DS27/AB/R (9 September 1997), at ¶¶ 148-152. In the Bananas case the Appellate Body required a 'specific mention' of the challenged Panel finding in the Notice of Appeal or the appellant's submission. Bacchus was a Member of both divisions.
52. Appellate Report at ¶ 97.
53. See Guatemala - Anti-Dumping Investigation Regarding Portland Cement from Mexico, AB-1998-6, WT/DS60/AB/R (2 November 1998), at ¶ 86-89, wherein, as a result of additional inquiries made by the Appellate Body to the Mexican delegation during the Appellate Hearing, the Appellate Body ruled that Mexico's request for a panel was defective because it 'did not identify the final anti-dumping duty as the "specific measure at issue" as is required by Article 6.2 of the DSU'.
54. See Annex I and Articles 21-24, and 27 of the Working Procedures for Appellate Review, and DSU Article 17.5.
55. See, e.g., United States - Restrictions on Imports of Tuna, DS21/R (unadopted), (3 September 1991), BISD 39S/155, at ¶¶ 5.27 and 5.32; and United States - Restrictions on Imports of Tuna, DS29/R (unadopted), (16 June 1994), at ¶¶ 5.27 and 5.39.
56. The Appellate Body found that: 'conditioning access to a Member's domestic market on whether exporting Members comply with, or adopt, a policy or policies unilaterally prescribed by the importing member may, to some degree, be a common aspect of measures falling within the scope of one or another of the exceptions (a) to (j) of Article XX.' Appellate Report at ¶ 121.
57. Appellate Report at ¶¶ 125-145. In examining the 'relating to' test of Article XX(g), the Appellate Body examined whether the US regulatory requirement that shrimp exporters adopt a programme comparable to that of the US is 'directly connected' with its sea turtle conservation policy (id. at ¶ 140). It also examined whether the 'design' of the measure is not 'disproportionately wide in its scope and reach in relation to the policy objective'; and more specifically if the 'means' (the measure) are 'reasonably related to the ends' (sea turtle conservation) and if the means and ends relationship is 'a close and real one' and thus 'substantial' (id at ¶ 141). The decision confirms the demise, already suggested in Reformulated Gasoline, of the 'primarily aimed at' test. See Reformulated Gasoline at pp. 14-19 (§ III(B)).
58. Whether shrimp are caught in conformity with US sea turtle protection rules is not discernible in the final product. The final product is thus being distinguished based on non-product-related processes and production methods.
59. See Reformulated Gasoline at p. 22 (¶ IV); and Appellate Report at ¶¶ 156 and 158.
60. Appellate Report at ¶ 156.
61. The US success in negotiating the Inter-American Convention was viewed by the Appellate Body as demonstrating the feasibility of a reasonably available alternative international approach to sea turtle conservation. Appellate Report at ¶¶ 169-171. The discussion of an alternative GATT-consistent course of action reasonably available to the US will suggest to some, as did similar language in Reformulated Gasoline, the existence of a 'necessary' requirement in the chapeau. This is probably not the case. The Appellate Body would certainly refrain from reading a 'redundant' necessary test into the chapeau in the light of the explicit necessary requirements in Article XX (a), (b), and (d). See Reformulated Gasoline, above n. 6, at pp. 26-27 (§ IV), (citing the Reformulated Gasoline Panel's language with approval).
62. Appellate Report at ¶ 161.
63. Id. at ¶¶ 161-165.
64. Id. at ¶ 161.
65. Id. at ¶¶ 163-165.
66. Id. at ¶¶ 166-172.
67. Id. at ¶ 177.
68. Id.
69. Id. at ¶¶ 180-182.
70. Id. at ¶¶ 180-182.
71. The Appellate Body found that the appellant's lack of a transparent and predictable certification process, the lack of a formal opportunity to be heard or to respond, and the lack of a formal written reasoned decision on acceptance or rejection of certification amounts to a denial of basic fairness and due process. Id. at ¶¶ 180-181.
72. Reformulated Gasoline, above n. 6, at pp. 27-28 (§ IV).
73. See Appellate Report at ¶¶ 117-122. A political motive can be inferred from the Appellate Body's decision to begin its analysis with Article XX(g) rather than the chapeau. The Panel Report was not appealed with respect to this point and none of the parties to the dispute favoured such an approach. By beginning its analysis with Article XX(g), the Appellate Body was able to produce a more environmentally sensitive decision. Had this dispute been resolved based on the co-operation issue present in both Shrimp/Turtle and Reformulated Gasoline, the Appellate Body's decision would have been much shorter, and many important political points omitted.
74. These ambiguities often reflect instances when the negotiators could not reach a clear accord.
75. See Reformulated Gasoline, above n. 6, at p. 23 (§ IV).