Environmental trade measures under siege: The WTO US shrimp case

Asia Pacific Journal of Environmental Law

Volumn 3, Issue 2, 1998, Pages 157-171

  Hardcastle, Rohan ^a  

^a Federal Court of Australia ^*  (Australia)

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EID: 77950083418     PISSN: 13852140     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (86)

1. Marrakesh Agreement Establishing the World Trade Organization (1994) 33 ILM 1145, Preamble. Presently, there are 132 parties to the Agreement.
2. OECD Environment Ministers Shared Goals for Action, Paris, France, 3 April 1998, http://www.oecd.org, Principle 3 III(f) "recognising ⋯ the use of trade measures taken in the framework of Multilateral Environmental Agreements (MEAs) as an important policy tool"
3. 1992 Rio Declaration on Environment and Development (1992) 31 ILM 874, Principles 12 and 14;
4. 1985 ASEAN Agreement on the Conservation of Nature and Natural Resources, http:/www.asearrsec.org/function/agrenr85.htm, Art. 5;
5. OECD Experience With the Use of Trade Measures m the Convention on International Trade in Endangered Species of WM Fauna and Flora (OECD, Paris: 1997) 59.
6. 3 United States - Restrictions on Imports of Tuna, GATT Doc DS S21/R (3 September 1991) (not adopted) ("Tuna I") andl United Stafes-Restrictions on Imports of Tuna, GATT Doc DS S29/R(16 June 1994) (not adopted) ("Tuna II").
7. General Agreement on Tariffs and Trade (1994) (GATT). GATT is contained in Annex 1A of the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations (1994) 33 ILM 1 (WTO Agreement.) For the purposes of this article "GATT" will refer to Annex 1A of the WTO Agreement.
8. Report of the Committee on Trade and Environment, WT/CTE/1, 12 November 1996 http://www.wto.org, para 167
9. Decision on Trade and Environment, attached to Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, April 1994, http:r//www.wto.org;
10. Framework of Principles for Integrating Economy and Environment in APEC (1994 APEC Environmental Ministerial, Vancouver), http://www.nautilus.org/ aprent/library.
11. GATT Doc DS S58/R (15 May 1998) (hereafter US Shrimp case)
12. also at (1998) 37 ILM 832.
13. These included Australia, Ecuador, El Salvador, European Communities, Guatemala, Hong Kong, Japan, Nigeria, Philippines, Singapore and Venezuela. Their interest in the dispute stemmed from commercial interests. The trade in shrimp is worth A$223 million to Australia, US$624 million to Ecuador and S$161 million to Singapore.
14. The first was submitted by the Centre for Marine Conservation and the Centre for International Environmental Law. The second was submitted by the World Wide Fund for Nature. However, the Panel found that it could not consider these briefs because "pursuant to Article 13 of the DSU, the initiative to seek information and to select the source of information rests with the panel. In any other situations, only parties and third parties are allowed to submit information directly to the Panel. Accepting non-requested information from non-governmental organisations would be, in our opinion, incompatible with the provisions of the DSU as currently applied"; US Shrimp case, note 6 at para 7.08.
15. Centre for International Environmental Law Amicus Brief to the Panel on United States - Import Prohibition of Certain Shrimp and Shrimp Products (17 September 1997, on file).
16. 993 UNTS 243. Although sea turtles are listed in the CITES Appendix, CITES was not an applicable international agreement because CITES concerns trade in endangered species and the subject of the US import prohibition (shrimp) is not an endangered species protected by the import ban. Nothing is said in CITES about the protection of species through "secondary" regulation of another species.
17. C. J. Limpus "Current Declines in Southeast Asian Turtle Populations" in Proceedings of the Thirteenth Annual Symposium of Sea Turtle Biology and Conservation (Jeclcyll Island, 1993) 89.
18. J. A. Mortimer "Marine Turtle Conservation in Malaysia" in Proceedings of the Tenth Annual Symposium of Sea Turtle Biology and Conservation (Hilton Head Island, North Carolina, 1990) 21.
19. "Country Report for Thailand" presented at the Northern Indian Ocean Sea Turtle Workshop and Strategic Planning Session (Orissa, India, 13-18 January 1997) 1-3 (on file).
20. National Research Council Decline of the Sea Turtles: Causes and Prevention (National Academy Press, Washington: 1990) 76 and 145.
21. Note 13 at 5.
22. In the US Shrimp case the US submitted that a completely installed TED, which could be installed in the shrimp trawl net with a simple single cut, ranged in price from US$75-50O. TEDs constructed in developing countries with local materials cost a lot less.
23. Amicus Brief to the Panel on United States - Import Prohibition of Certain Shrimp and Shrimp Products, note 9. Although there are other conservation strategies - including tow-time regulations and time and area closures, they are not as effective as TEDs because they do not adequately protect large juveniles and adult turtles. Increasing the numbers of large juvenile and adult sea turtles is necessary because they are responsible for the greatest contribution to the growth of sea turtle populations.
24. These consisted of regulations under the Endangered Species Act 1973 (US).
25. In October 1996, the US Court of International Trade ruled that the embargo on shrimp and shrimp products enacted by section 609 applies to "all shrimp and shrimp products harvested in the wild by citizens or vessels of nations which have not been certified": Trade Island Institute v. Christopher 942 F Supp (Federal Supplement) 597 (1996) (US).
26. Department of State (US) Report of the Secretary of State to the Congress of the United States on the Status of Efforts for the Conservation & Protection of Sea Turtles Pursuant to Public Law no. 101-162 (Department of State, Washington: 1996) 4.
27. See "Revised Notice of Guidelines for Determining Comparability of Foreign Programs for the Protection of Turtles in Shrimp Trawl Fishing Operations" (19 April 1996) 61 Fed Reg 17342 (US)
28. Revised Notice of Guidelines for Determining Comparability of Foreign Programs for the Protection of Turtles in Shrimp Trawl Fishing Operations. Ibid.
29. Revised Notice of Guidelines for Determining Comparability of Foreign Programs for the Protection of Turtles in Shrimp Trawl Fishing Operations. Ibid.
30. For a discussion of the WTO/GATT jurisprudence on Article XX see: Rohan Hardcastle "Australian G A1 1 -inconsistent Trade Measures under Multilateral Environmental Agreements" (1998) 20 Environmental and Planning Law Journal 199.
31. US Shrimp case, note 6 at para 3.183.
32. There are five established principles that justify an exercise of extraterritorial jurisdiction. These are the:(1) territorial principle; (2) nationality principle; (3) protective principle; (4) passive personality; and (5) universality principle. None of these principles could be used in the US Shrimp case to justify the US extraterritorial measure. For a discussion of jurisdiction at international law
33. see F. A. Mann "The Doctrine of International Jurisdiction Revisited After Twenty Years" (1984) 186 Recueil des Cours 19;
34. D. W. Bowett "Jurisdiction: Changing Patterns of Authority Over Activities and Resources" (1982) 53 British Yearbook of International Law 1.
35. While the GATT panels in the Tuna Dolphin cases adopted different approaches regarding the territorial application of Article XX(b) and (g), the basic principle that they endorsed was that Article XX can not be used to validate measures that are designed to have extrajurisdictional effect.
36. See M. Schlagenhof 'Trade Measures Based on Environmental Processes and Environmental Methods" (1995) 29 Journal of World Trade 123 at 169.
37. Earth Island Institute v. Christopher 913 F Supp 599 (1995) (US).
38. Despite noting that there was no dispute between the parties that section 609 violates Article XI:1, the Panel went on to analyse the GATT-consistency of section 609. This approach is inconsistent with the principle of judicial economy practiced by panels and the Appellate Body; Canada - Measures Affecting Exports of Unprocessed Herring and Salmon, BISD 35S/98, (adopted 22 March 1988), para 4.1
39. US Shrimp case, note 6 at para 7.17.
40. Ibid at para 7.15.
41. Ibid at para 7.22.
42. Ibid at para 7.26.
43. M. Schlagenhof 'Trade Measures Based on Environmental Processes and Environmental Methods" (1995) 29 Journal of World Trade 123 at 169. Ibid.
44. Ibid at para 7.30.
45. The introductory clause of Article XX.
46. US Shrimp case, note 6 at para 7.29.
47. United States Standards for Reformulated Gasoline and Conventional Gasoline, WTO Doc WT/DS2/9 (29 May 1996) 25.
48. US Shrimp case, note 6 at para 7.40.
49. Ibid at para 7.41.
50. 1155 UNTS 331. Note, however that the international law principle of good faith is not easily defined
51. J. F. O'Connor Good FaitJi in International Law (Dartmouth, Brookfield, Vt: 1991).
52. The preamble to the WTO Agreement provides that Members are "resolved ... to develop an integrated, more viable and durable multilateral trading system [and] ... determined to preserve the basic principles and to further the objectives underlying this multilateral trading system".
53. Tuna I, note 3 at para 5.27.
54. Tuna II, note 3 at para 5.26.
55. A. Mattoo and P. C. Mavroidis 'Trade, Environment and the \VTO: The Dispute Settlement Practice relating to Article XX of GATT" in E. U. Petersmann (ed) International Trade Law and the GATT/WTO Dispute Settlement System (Kluwer Law International, London: 1997) 331;
56. J. Klabbers "Jurisprudence in International Trade Law: Article XX of GATT" (1992) 26 Journal of World Trade 63.
57. US Shrimp case, note 6 at para 7.44.
58. See for example United States Standards for Reformulated and Conventional Gasoline, WTO Doc WT/DS2/R (29 January 1996) para 2.6.
59. For a discussion of the "necessity" test see Mattoo and Mavroidis, note 45 at 334.
60. United States Standards for Reformulated and Conventional Gasoline, note 47 at para 6.24; Tuna 11 note 3 at para. 5.35; United States - Section 337 of the Tariff Act of 1930 (No 7 1990) BISD 345 at para 5.26.
61. Ibid at para 7.48.
62. Ibid at para 7.49.
63. For examples of this recognition see OECD Environment Ministers Shared Goals for Action (OECD, Paris, 3 April 1998), Principle 3.111(f) and Rio Declaration on Environment and Development, note 2.
64. See note 5.
65. US Shrimp case, note 6 at para 7.42.
66. Ibid at para 7.61.
67. Ibid at para 7.56.
68. Ibid at para 7.55.
69. Ibid at para 7.56.
70. Ibid at para 7.61.
71. A. Chua "Precedent and Principles of WTO Panel Jurisprudence" (1998) Berkeley Journal of International Law (forthcoming).
72. A. Chua "Precedent and Principles of WTO Panel Jurisprudence" (1998) Berkeley Journal of International Law (forthcoming). Ibid.
73. See for example domestic legislation implementing the CITES: Wild Animal and Plant Protection and Regulation of International and Provincial Trade Act 1992 RSC (Revised Statutes of Canada) C40-41 (Canada) s. 6(2); Endangered Species (Import and Export) Act 1989 (Singapore) s. 4(1); and Wildlife Protection (Regulation of Exports and Permits) Act 1992 (Australia) ss. 21 and 22. For an analysis of the Australian legislation, see Hardcastle, note 24.
74. For a discussion of multilateral environmental trade measures see C. Wold, "Multilateral Environmental Agreements and the GATT" (1996) 26 Environmental Law 841 and D. Goldberg et al (eds) The Use of Trade Measures in Select Multilateral Environmental Agreements (United Nations Environment Programme, Nairobi: 1995).
75. (1987) 26 ILM 1541 (1987) 26 ILM 1529.
76. US Shrimp case, note 6 at para 7.50.
77. Established by the WTO General Council in January 1995. The Committee's mandate and terms of reference are contained in the MarraJcesh Ministerial Decision on Trade and Environment of 15 April 1994.
78. Report of the Committee on Trade and the Environment, note 5 at para 171.
79. US Shrimp case, note 6 at para 7.60.
80. For a recent discussion of this issue see: Mattoo and Mavroidis, note 45.
81. The CTE was established in January 1995 to research and make recommendations on the relationship between environmental trade measures and obligations under the WTO.
82. Report of the WTO Committee on Trade and Environment, note 5 at para 167.
83. Panel Reports must be automatically adopted by the Dispute Settlement Body, which is the General Council of the WTO, within 60 days of their issuance unless one of the disputants formally notifies the Dispute Settlement Body of its decision to appeal to the Appellate Body or there is a consensus against adoption
84. Understanding on Rules and Procedures Governing the Settlement of Disputes (1994) 33 ILM 112, Annex 2, Art. 16.4. The United States issued a notification to appeal the Panel decision on 13 July 1998. The notification stated that the Panel's finding "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"
85. Notification - United States - Import Prohibition of Certain Shrimp and Shrimp Products WT/DS58/11. http://www.wto.org.wto/ddf/ep/public.
86. Panels comprise three independent individuals such as persons who have served on or presented a case to a panel or taught or published on international trade law or policy; Understanding on Rules and Procedures Governing the Settlement of Disputes, Art. 8.