An Analysis of Shrimp/Turtle II: The WTO Makes Room for Environmental Trade Restrictions Chris Wold, Associate Professor & Randi Black, IELP Law Clerk August 15, 2005 In Shrimp/Turtle I,1 the WTO’s Appellate Body declared U.S. shrimp/turtle regulations in violation of its GATT obligations, because the U.S. required all foreign nations to have sea turtle conservation programs that were “essentially the same” as the U.S. regulations, including mandatory use of Turtle Excluder Devices (TEDs). The United States also failed to make good faith efforts to negotiate an international agreement to protect sea turtles with Southeast Asian countries, as the U.S. Congress had directed, although it concluded such an agreement with countries in the Western Hemisphere.2 Under those earlier regulations (“Original Guidelines”), the United States imposed import restrictions on shrimp caught without using TEDs. In light of this ruling, the United States revised its regulations (the “Revised Guidelines”) to require sea turtle conservation programs that were “comparable in effectiveness” to the U.S. program. It also entered into negotiations to protect sea turtles with Southeast Asian countries. When Malaysia challenged these efforts as inadequate in Shrimp/Turtle II,3 the Appellate Body upheld the Revised Guidelines. In so ruling, the Appellate Body opened the door for trade restrictions to protect natural resources. Background The United States adopted Section 609 of Public Law 101-162, an amendment to the Endangered Species Act, to effectuate the country’s policy to protect sea turtles from incidental mortality during shrimp harvesting. Section 609 requires shrimp harvesting nations to apply for and receive “certification” consistent with guidelines promulgated by the U.S. State Department prior to importing shrimp to the United States. Section 609 bans the importation of shrimp until the State Department, on behalf of the President, certifies that a (1) harvesting nation has a regulatory program governing the incidental taking of sea turtles in the course of shrimp harvesting that is comparable to that of the United States, and (2) the average rate of incidental taking of sea turtles by the vessels of the harvesting nation is comparable to the average rate of incidental taking of sea turtles by U.S. shrimp vessels. In the alternative, a harvesting nation could show that its particular fishing environment does not pose a threat to the incidental taking of such sea turtles in the course of such harvesting.
United States–Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body, WT/DS58/AB/R (decided Oct. 12, 1998) (adopted Nov. 6, 1998), reprinted in 38 I.L.M. 121 (1999). Report of the Panel, WT/DS58/R (decided May 15, 1988) (adopted as modified by the Appellate Body Nov. 6, 1998), reprinted in 37 I.L.M. 834 (1998) (Shrimp/Turtle I). 2 See Chris Wold & Glenn Fullilove, Analysis of the WTO Appellate Body's Decision in Shrimp/Turtle (February 24, 2000), at: http://www.lclark.edu/org/ielp/turtlebriefing.html. 3 United States–Import Prohibition of Certain Shrimp and Shrimp Products, Resource to Article 21.5 of the DSU by Malaysia, WT/DS58/AB/RW (decided Oct. 22, 2001) (adopted Nov. 21, 2001), reprinted in 41 I.L.M. 149 (2002). Report of the Panel, WT/DS58/RW (decided June 15, 2001) (adopted as modified by the Appellate Body Nov. 21, 2001) (Shrimp/Turtle II).
The Original Guidelines adopted by the State Department for implementing Section 609 allowed a harvesting nation to show it had a regulatory program comparable to that of the United States only if it required the use of TEDs approved by the U.S. National Marine Fisheries Service (NMFS) and proved that it had a credible enforcement effort that includes monitoring for compliance and appropriate sanctions. In practice, however, the U.S. State Department certified harvesting nations — and permitted those nations to export shrimp to the United States —...