Challenge of U.S. Endangered Species Act (Shrimp/Turtle Case)
WORLD TRADE ORGANIZATION
Topic: Challenge of U.S. Endangered Species Act (Shrimp/Turtle Case)
Venue: World Trade Organization (WTO), Appellate Body Ruling
Contact: To view the full reports of the Appellate Body and the Dispute Settlement Body, see the WTO's website at http://www.wto.org/english/tratop_e/dispu_e/dispu_e.htm.
On October 12, 1998, the Appellate Body of the WTO handed down a decision against section 609 of the U.S. Endangered Species Act, which prohibits the import of shrimp from nations that do not require all their shrimp trawlers to employ turtle-excluder devices (TEDs) in their nets. The Appellate Body upheld the lower WTO panel's ultimate determination: that the U.S. law amounted to "arbitrary and unjustifiable discrimination."(1) While upholding the lower panel's conclusion, the WTO's Appellate Body did limit somewhat one of the most egregious aspects of the lower panel decision. The lower panel had ruled that any measure that limited free trade was inherently illegal under GATT rules, with none of GATT's exceptions applicable. The Appellate Body admitted that this tautology would eviscerate the exceptions altogether. Another aspect of the Appellate ruling that has gotten some attention is the declaration that consideration of amicus curiae ("friend of the court") briefs filed by non-governmental organizations (NGOs) was not necessarily prohibited by GATT rules. Despite attempts to amplify this aspect as a breakthrough for transparency, in fact the Appellate Body ruled that amicus briefs would only be allowed at the discretion of governments involved in a dispute if submitted attached to government submissions.
Background: Four nations, India, Pakistan, Thailand, and Malaysia, challenged at the WTO the portion of the 1989 U.S. Endangered Species Act provisions prohibiting shrimp imports from nations that do not require shrimp fishing techniques that safeguard endangered sea turtles from drowning in shrimp nets. Passed in response to the alarming decrease in endangered sea turtle populations, it expanded the rules covering U.S. shrimp fishers (who complied using inexpensive "trapdoor" devices in nets called Turtle Excluder Devices) to all shrimp sold in the U.S. market, whether domestic or imported.
Lower Panel Decision: The panel concluded that section 609 was inconsistent with GATT Article XI and could not be justified under GATT Article XX exceptions.(2) Also, the lower panel had received briefs from three groups of NGOs, but specifically ruled that they were out of order, and refused to consider them.(3)
Appellate Body Ruling: WTO Legality of Turtle Protection Measure: The Appellate Body held that Section 609 of the Endangered Species Act, as applied, amounted to both unjustifiable and arbitrary discrimination. The Appellate Body directed the U.S. to bring its law into conformity with its GATT obligations. Thus, the U.S. can repeal the law; change the law to meet WTO terms; or keep the law in place as is and pay compensation to the winning countries (for instance in the form of increased tariffs on U.S. goods entering those countries).
While the Appellate Body narrowed the lower panel's holding that no measure limiting free trade, could be permitted even under GATT's Article XX General Exceptions,(4) it still ruled that the U.S. law was not covered by the Exceptions because of the way it was implemented.(6)
The problem the WTO found with the U.S. implementation of the law is that the U.S. determined whether a country's shrimp could enter the U.S. according to whether that country's fishermen were using the Turtle Excluder Devices that had become the U.S. means for complying with the policy. The U.S. did so because the use of TEDs had proved to be the only cost effective means for full compliance. Yet, the
Appellate Body rejected this sort of regulatory discretion, noting that it required "other WTO Members to adopt a regulatory program that is not merely comparable, but rather essentially the same, as that applied to the United States shrimp trawl vessels," and held that "it is not acceptable, in international trade relations, for one WTO Member to use an economic embargo to require other Members to adopt essentially the same comprehensive regulatory program, to achieve a certain policy goal...."(7) From an enforcement perspective, this notion effectively results in the allowance of an environmental goal, but severely limits the possibility of its enforcement.
The Appellate Body also found instances of what it labeled discrimination. For instance, it noted that the U.S. had negotiated pacts on turtle protection with some, but not all, countries. Thus, the Appellate Body concluded, the imposition of a ban would discriminate against some countries.(8)
The Appellate Body also ruled that the different time periods different countries had to implement the policy -- even though the difference was caused by a court ruling -- resulted in discrimination. (Fourteen Caribbean and western Atlantic nations had three years to adopt TEDs, while a 12-29-95 Court of International Trade ruling had required world-wide implementation within five months.) The Appellate Body ruled: "[T]his does not relieve the United States of the legal consequences of the discriminatory impact of the decisions of that Court. The United States...bears responsibility for acts of all its departments of government, including its judiciary."(9)
Finally, the Appellate Body found that the process for nations to certify their compliance with Section 609 was neither transparent nor predictable.(10) It noted that the State Department gives applicants for certification no formal opportunity to be heard, issues no written decision explaining its reasons for approval or denial, and provides countries that are denied certification no procedure for appeal. Thus, the Appellate Body held that this process denied applicants basic fairness and due process. This aspect of the ruling has been received with some irony considering NGOs and other groups have long criticized the WTO for not being transparent, predictable or accessible to them.
Amicus briefs: the Appellate Body noted that the U.S. had attached the three briefs to its submission and thus the briefs were "at least prima facie an integral part of that participant's submission."(11) Thus the Appellate Body admitted the three briefs as part of the U.S. submission. However, the Appellate Body did not say that briefs submitted independently would be permitted: "[A]cess to the dispute settlement process of the WTO is limited to Members of the WTO. . .access is not available. . .to individuals or international organizations, whether governmental or non-governmental. . . . Only Members. . .have a legal right to make submissions to, and have a legal right to have those submissions considered by, a panel."(12)
This WTO process contrasts sharply with the rule in the United States court system in which any interested group can submit an amicus curiae brief. The U.S. rule recognizes that amici will often have a unique perspective and that their interests will not be otherwise represented. For example, in a case before the U.S. District Court in Massachusetts, the National Foreign Trade Council sued the Commonwealth of Massachusetts, arguing that a law penalizing companies doing business with Myanmar (formerly Burma) is unconstitutional. The European Union (EU), though not a party to the case, was allowed to submit an amicus brief which was specifically cited in the court's decision.(13)
Another limitation to the WTO approach is that interested parties with views that diverge friom their governments' have no way to submit their view. For example in the 1997 WTO case involving the EU ban of meat grown with artificial growth homnones, Public Citizen, a U.S. NGO, submitted a brief supporting the EU position. That brief was returned to Public Citizen by the WTO dispute panel with a note admonishing the group for submitting unsolicited information. Obviously, as the party challenging the E.U. law, the U.S. would not have included Public Citizen's brief in its own submission.
Political: The WTO Appeleate ruling is unusually politically savvy for a WTO deicsion. For instance, in an effort to placate what had been intense environmental group protest of the lower panel ruling, the Appellate Body makes several non-binding comments with no legal weight, such as: "We have not decided that the protection and preservation of the environment is of no significance to the Members of the WTO. Clearly, it is. We have not decided that the sovereign nations that are Members of the WTO cannot adopt effective measures to protect endangered species, such as sea turtles. Clearly, they can and should."(14)
While the U.S. Trade Represenatative's office attempted to use these rhetorical offerrings to announce it had a victory with the ruling - despite having lost its appeal - this charm strategy did not work on environmental groups. For example, Charles Arden Clarke of World Wildlife Fund International's trade research unit noted that the decision "denies individual countries the right to restrict trade even when species, in this case sea turtles, are endangered and the complainant countries have signed international environmental agreements to protect them."(15) David Schorr, director of World Wildlife U.S.'s sustainable commerce unit, said that the decision proved the WTO is "simply not competent to decide issues that require a mature balance between liberalized trade and other legitimate policy goals."(16)
1. World Trade Organization, "United States - Import Prohibition of Certain Shrimp and Shrimp Products," Report of the Appellate Body, Oct. 12, 1998, at 76.
2. Id., at 5.
3. Id., at 35.
4. Article XX reads in relevant part: "Subject to the requirement that such measures are not 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, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any Member of measures: (b) necessary to protect human, animal or plant life or health; (g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption; . . . ."(5)
5. Report of the Appellate Body, supra note 1, at 41.
6. Report of the Appellate Body, supra note 1, at 75.
7. Id., at 64-65 (emphasis original).
8. Id., at 65.
9. Id., at 71.
10. Id., at 73.
12. Id., at 35-36 (emphasis original).
13. See Michael S. Lelyveld, "Massachusetts Sanctions Struck Down," Journal of Commerce, Nov. 4, 1998, 1A.
14. Id., at 75.
15. John Zarocostas, "U.S. Loses Appeal on Saving Sea Turtles," Journal of Commerce, Oct. 14, 1998, 1A, 3A.