Itl Khan..docx

Dr. SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERSITY LUCKNOW

A Project on The Shrimp Turtle Case UNDER THE SUPERVISION OF SHAIL SHAKYA

SUBMITTED TO:

SUBMITTED BY:

SHAIL SHAKYA

M B Khan

ASSISTANT PROFESSOR

Roll No: 27, 7thSem.

DSMNRU, Lucknow

Bcom.LL.B(Hons.)

TABLE OF CONTENTS

1. Introduction………………………………………………………………………………3 2. Analyzing the Shrimp-Turtle Case……………………………………………………….4 i. Outstanding Issues Regarding the Shrimp-Turtle Case………………………..4-5 ii. Exhaustible Natural Resources………………………………………………...5-6 iii. Extra-Jurisdictionality………………………………………………………….6-7 iv. The Chapeau Requirements…………………………………………………….7-8 v. Unjustifiable and Arbitrary Discrimination……………………………………8-9 vi. Unilateral Measures…………………………………………………………..9-10 3. Theories Applied in the Shrimp-Turtle Case………………………………………..10-12 4. Implications of the Shrimp-Turtle Ruling in Determining the Future of Environmental Measures in the WTO DSB……………………………………………………………12 i. The Environmentalists‟ perspective………………………………………..12-13 ii. The Trade Communities‟ perspective……………………………………...13-14 iii. The Developing Countries‟ Prospective …………………………………..14-15 iv. Important Issues of Particular Interest to the Trade and Environment Linkage in the WTO……………………………………………………………………16-17 5. Conclusion……………………………………………………………………………..18 6. Bibliography…………………………………………………………………………...19

I.

Introduction Before the Tuna/Dolphin rulings, the prevailing view in the WTO was that Art. XX of the GATT decided any conflicts between free-trade rules and environmental norms in favor of the latter.1 After the GATT Dispute Settlement Panel‟s ruling that a trade embargo on non-dolphin -friendly tuna was illegal under the GATT rules, international attention was drawn to the impact that trade rules can have on domestic environmental policies.2 The WTO system has been under serious attack by environmentalists who believe that its rules have been used to undermine environmental protection. This led to the creation of the Committee on Trade and Environment (CTE) at the end of the Uruguay Round in 1994. From then onwards, the most fundamental and divisive issue confronting the CTE has been whether trade restrictions to protect the environment are permissible under the law of the WTO.4 In recent years, tensions between environment and trade policies have significantly increased, fuelled by a host of trade disputes over issues as diverse as, shrimps, automobiles, furs, or meat of cattle treated with certain growth hormones.

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Robert Howse, The Appellate Body Rulings in the Shrimp/Turtle case: A New Legal Baseline for the Trade and Environment Debate, (2002) 27 Colum. J. Envtl. L. 493 2 United States-Restrictions on Imports of Tuna, (1991), GATT Doc.DS21/R (1991),39th Supp. 155BISD, 30 I.L.M. 1594, 50-51

II.

Analyzing the Shrimp-Turtle Case The importance of the Appellate Body‟s decision in the Shrimp-Turtle Case arises from the hodgepodge of issues it raised in disposing the dispute. The Appellate Body made detailedanalysis on some of the important trade and environment issues and arrived at a decisionconstituting a fundamental departure from the more polarizing previous Tuna/Dolphin rulings. Right after the Appellate Body made its final decision in1998, it has encountered some of the harshest and most scathing criticisms any international law decision has ever faced, both from the environmentalists and the international trade community. In pursuance of their respective policies in future Appellate Body‟s decisions, both sides advanced their own arguments that construe the decision as favoring and disfavoring of trade and environment policies.3 i. Outstanding Issues Regarding the Shrimp Turtle Case As mentioned above, the WTO Appellate Body in the Shrimp-Turtle Case has enunciated arange of issues. It has analyzed and applied various legal theories intended to dispose the claims embodied therein. Space doesn’t permit for the detailed examination of all these issues and theories. Among the many issues surrounding the case, One of the issues concerns the Appellate Body distinction between “the relating to” and“primarily aimed at” requirements under Art. XX of the GATT. Art. XX provides exceptions formeasures that are “necessary” to protect human and animal life and health (XX (b)) and that are “in relation to” the conservation of exhaustible natural resources (XX (g)).As a result, the test of compatibility of measures taken under Art. XX (b) of the GATT has been construed in a rather stricter manner than Art. XX (g). Accordingly, it was established that at least some of environmental concerns can find their way within the ambit of Art. XX (g) of GATT. Art. XX (g) of the GATT gives WTO members the right to deviate from their obligations when adopting measures “relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption”. The term “relating to” was most likely perceived as too loose by Panels dealing with Art. XX (g) of the GATT -type measures and consequently, a series of GATT Panels interpreted it to mean the measure should be “primarily aimed” at the protection of exhaustible natural resources so that Art. XX (g) of the GATT test is deemed to have been complied with. Accordingly, Professor Mavroides concludes that the words “primarily aimed at” in the body of Art. XX (g) of the GATT were perceived to impose a burden comparable to that imposed by the “necessity” test in Art. XX (b) of the GATT.4The Panel report on the U.S Standards for

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In Tuna/Dolphin Case, the GATT Dispute Settlement Panel ruled that the U.S trade measure even if intended for environmental purposes, is not legitimate under the GATT. 4 Petros C. Mavroides, Trade and Environment after the Shrimps-Turtles litigation, (2000), 34JWT, 69.

Reformulated and Conventional Gasoline understood the phrase “relating to” to require that a direct connection be demonstrated between the measure at hand and the regulatory objective sought and hence, the phrase was construed as requiring“substantial relationship” between the measure and the conservation of resources.5 TheAppellate Body in the U.S. - Standards for Reformulated and Conventional Gasoline rejected the legal standard advanced by the Panel, arguing that “the Panel did not try to clarify whether the phrase „direct connection‟ was being used as a synonym for „primarily aimed at‟ or whether a new additional element (on top of primarily aimed) was being demanded.” In paragraph 140 of the Shrimp-Turtles Case, though the Appellate Body seems to accept that the direct connection standard is appropriate in the context of Art. XX (g) of the GATT, the relevant passage reads: This is, essentially, a requirement that a country adopt a regulatory programrequiring the use of TEDs (Turtle Excluding Devices) by commercial shrimptrawling vessels in areas where there is a likelihood of intercepting sea turtles. This requirement is, in our view, directly connected with the policy of conservation of sea turtles. This passage arguably reflects the considered view of the Appellate Body on this issue. In determining whether the U.S. measures and the objective ofconserving sea turtles were related, it stated that “the U.S legislation is not disproportionately wide in its scope andreach in relation to the policy objective of protection and conservation of sea turtles species and that in principle the means are, reasonably related to the ends.”

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Exhaustible Natural Resources In the Shrimp-Turtles Case, one of the most important issues raised was to what extent turtles can be considered to be an exhaustible resource. Only if the question was answered in the affirmative, could the U.S invoke Art. XX (g) of the GATT to justify its measures banning the imports of shrimps. The complainants argued that the expression “exhaustible natural resources” applied only to resources incapable of biological reproduction -- petroleum or coal reserves, for example. This is so because, in the Reformulated Gasoline Case, the Appellate Body has ruled that clean air was an exhaustible natural resource and also because that the complaints argued for the term to be interpreted according to the understanding of this term in 1947. The Appellate Body, rejecting the argument that this term refers to non-living natural resources, held that: We do not believe that “exhaustible” natural resources and“renewable” natural resources are mutually exclusive. One lesson that modern biological

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Appellate Body Report, United States –Reformulated Gasoline, Appellate Body Report, (20 May 1996), WT/DS2/AB/R, (Appellate Body Report), Online: European Journal of international law website, WTO , Para. 46.

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sciences teach us is that living species, though in principle, capable of reproduction and, in that sense, “renewable”, are in certain circumstances indeed susceptible of depletion, exhaustion and extinction, frequently because of human activities. Living resources are just as “finite” as petroleum, iron ore and other living resources. And later, it asserted that:Given the recent acknowledgement by the international community of theimportance of concerted bilateral or multilateral action to protect living naturalresources, and recalling the explicit recognition by WTO members of the objective of sustainable development in the preamble of the WTO Agreement, we believe it is too late in the day to suppose that Art. XX (g) of the GATT 1994 may be read as referring only to the conservation of exhaustible mineral or other nonliving natural resources. We hold that, in line with the principle of effectiveness in treaty interpretation, measures to conserve exhaustible natural resources, whether living or non-living, may fall within Art. XX (g). The Appellate Body noted that the generic term “natural resources” was not static in its content but rather “by definition evolutionary” and therefore, had to be interpreted within the framework of the entire legal system prevailing at the time of interpretation. It then cited examples from several multilateral environmental agreements in which the term was used to include living and non-living natural resource. To support its conclusion that the turtles were “exhaustible,” the Appellate Body noted that they were listed under CITES as being in danger of extinction. In this regard, Hawse notes that the Appellate Body was bound to reject the appellant’scontention on the meaning of “exhaustible natural resources” due to the creation of a newinterpretive context with the incorporation of GATT 1947 in to the WTO framework in 1994. It was able to do this not because Article XX itself has been redrafted in the Uruguay Round, but because the preamble of the WTO Agreement identified sustainable development as an objective of the Organization and demonstrated that the signatories were aware of contemporary environmental concerns. Extra-Jurisdictionality Another important issue that the Appellate Body raised but did not decide was whether Art. XX(g) requires a territorial nexus between the exhaustible resource and the WTO member seeking to justify its measure. Merely noting that all of the endangered species of turtles could be observed at one time or another in U.S waters, the Appellate Body stated that were a nexus required, it existed under these facts. However, while it is now clear that Art. XX (g) covers resources that occur outside a nation‟s territory, the degree of connection required between the country enacting the measure and the resource in question remains problematic.

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In the previous Tuna/Dolphin case, it was ruled that Art. XX (g) is limited to measures that conserve resources within the jurisdiction of the party taking such measures. The Appellate Body in the Shrimp-Turtle Case, however, rejected this because sea turtles in the Indian Ocean are not within the jurisdiction of the U.S. However, this portion of the Appellate Body‟sopinion is of particular interest because it emphasizes the migratory nature of the species in question. It stated: The sea turtles species here at stake, i.e., covered by Section 609, are all known to occur in waters over which the U.S exercise jurisdiction. Of course, it is not claimed that all populations of these species migrate to, or traverse, at one time or another, waters subject to U.S jurisdiction…We do not pass upon the question of whether there is an implied jurisdictional limitation in Art. XX (g), and if so, the nature or extent of that limitation. We note only that in the specific circumstances of the case before us, there is a sufficient nexus between the migratory and endangered marine populations involved and the US for purposes of Art. XX (g). The establishment of “sufficient nexus” between the U.S and turtle species in the Indian Ocean strongly suggests that any jurisdictional limitations on Art. XX (g) in future litigations would be artificial if it distinguished Shrimp-Turtle as a case that dealt only with migratory species. In this context, it seems that the Appellate Body has come up with a new approach in extending the jurisdictional limitation of the GATT exception. However, due to the imprecise argument it forwarded, it is still questionable as to whether it is laying a new jurisprudential framework abrogating the previous limitations. The Chapeau requirements Another key decision by the Appellate Body is the finding that the U.S measure met the requirements of Art. XX (g), but not the chapeau.In the chapeau under Art. XX of the GATT, the words “discrimination between countries where the same conditions prevail” and “disguised restrictions on international trade” provide little guidance on what conditions are relevant or what constitutes a disguise. Accordingly, the Appellate Body in the ShrimpTurtle Case focused on the manner in which a measure is applied, rather than the content of the measure.In defining the role of the chapeau, the Appellate Body focused on the theme of reasonableness. It stated :The chapeau is, in fact, but one expression of the principle of good faith One application of this general principle, the application widely known as the doctrine ofabuse de driot, prohibits the abusive exercise of a state‟s rights and enjoins that wheneverthe assertion of a right “impinges up on the field covered by a treaty obligation, it must be exercised bona fide, that is to say, reasonably. The Appellate Body broke down the chapeau analysis to first ask whether a

v.

measure is applied in a manner that constitutes “arbitrary or unjustifiable discrimination between countries where the same conditions prevail,” An important point that the Appellate Body embarked on its analysis of this issue is its reading of the chapeau as requiring an effort at international cooperation. We shall first see its analysis with regard to the chapeau requirements. Unjustifiable and Arbitrary Discrimination The Appellate Body found that the American regulation failed the chapeau test that the measure should not constitute “arbitrary or unjustifiable discrimination” for four reasons. First, the regulations required the WTO members to adopt “essentially the same policy” as that applied in the U.S without taking in to account other policies and measures a country may have adopted that would have a comparable effect on sea turtle conservation. Second, the U.S applied the same standard without taking into consideration whether it was appropriate for the conditions prevailing in other countries. Third, the U.S failed to engage in “serious, across-the-board negotiations with the objective of concluding bilateral or multilateral agreements for the protection and conservation of sea turtles, before enforcing the import prohibition.” Fourth, the U.S pursued negotiations with countries in the Americas but not in South and Southeast Asia and gave the former three years to adopt TED requirements while the latter had only four months. In this regard, it concluded that having successfully negotiated the Inter-American Convention, the U.S had demonstrated that there was an alternative course of action reasonably available to achieve its goal of turtle conservation. As regards the issue of arbitrary discrimination, the Appellate Body found that “lack offlexibility embodied in the American requirement to adopt essentially the same policy without consideration for differences in prevailing conditions constituted not only unjustifiable, but also arbitrary discrimination.” It also held that the lack of transparency in the certification process through which U.S officials determined whether a country could be exempted from the import ban constituted arbitrary discrimination. There was no opportunity for the applicant country to be heard, no opportunity to respond to arguments made against it, no notice given of a negative decision, no reasons provided for the decision, and no procedure for review or appeal. Therefore, it concluded that the lack of due process in the denial of certification constitutedarbitrary discrimination compared to those who were granted certification.97 The decision by the Appellate Body on this point has, as indicated above, been seriously attacked by environmentalists for raising the standard of review of the chapeau, thereby closing the door on member countries‟ ability to initiate the much needed unilateral environmental measures.

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So far, we have been dealing with the specific issues that have formed a ground of analysis for the Appellate Body finding the U.S measure illegal. Underlying the legal reasoning in all these and the other issues is the theory it adopted to resolve the dispute. I will now turn to examining the bunch of literature on the theory adopted in the Shrimp-Turtle Case. Unilateral Measures The other and maybe the most important aspect of the debate is the unilateral character of the measure‟s application.6 Allegedly, recognizing the political sensitivity of striking down an environmentally-friendly statute in favor of trade, the Appellate Body concluded its decision in the Shrimp-Turtle with a recitation of what it did not decide: “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.” In paragraph 121, the Appellate Body even went so far as to indicate that unilateralism may, in fact, be a common aspect and application of Art. XX (g): It appears to us…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 It is not necessary to assume that requiring from exporting countries compliance with or adoption of, certain policies (although covered in principle by one or another of the exceptions) prescribed by the importing country renders a measure aproiri incapable of justification under Art. XX. Such an interpretation renders most, if not all, of the specific exceptions of Art. XX inutile, a result abhorrent to the principles of interpretation we are bound to apply. The analysis, however, contains much nuanced sentences. It still raises the question of whether unilateralism will prevail (even after all the other hoops have been jumped through).7 For this reason, Professor John Jackson regards the Appellate Body decision on the issue as an evidence of jurisprudence in process, and hence, according to him, the answer to the question of whether a unilateral measure can be justified under Art. XX of the GATT is not yet known. In this decision, the Appellate Body has put an end to the longstanding interpretation of the GATT, according to which conditioning market access to prior acceptance of environmental policies was in violation of the

Julie Kosterlitz, Shell Game, (1998)30 Nat‟l J. , 2105. John Jackson, Comments on shrimp/Turtle and the Product/Process Distinction, (2000) 11EJIL, 306.

GATT. However, as asserted by Professor Gaines, the practical application of such an assertion is open for debate for the reasons stated below.8 Even if the Appellate Body recognized the right of WTO member states to impose unilateral measures under the Art. XX (g) exception, however, it found the U.S. measure illegal because the measure didn‟t pass the test of the chapeau under Art. XX. It is notable that the Appellate Body did not necessarily exclude unilateral measures, but that it required serious negotiations before taking unilateral actions as a last resort. The Appellate Body referred to sections of a number of MEAs that declare multilateral actions to be the most effective conservation measures. It cited Principle 12 of the Rio Declaration which states that “Unilateral actions to deal with environmental challenges outside the jurisdictions of the importing country should be avoided. Environmental measures addressing transboundary or global environmental problems should, as far as possible, be based on international consensus.” It concluded that “the unilateral character of the application of Section 609 heightens the disruptive and discriminatory influence of the [measure at stake] and underscores its unjustifiability.”

III.

Theories Applied in the Shrimp-Turtle Case There exists a spectrum of views about the extent to which the WTO system is, and should be, integrated in to the broader body of international law. At one end of this spectrum is the view that the WTO and its dispute settlement system is essentially a closed system that is independent of public international law rules and principles.9 This view considers the WTO legal system as a “closed” or “self-contained” regime. A “self- contained regime” is a subsystem of international law intended to exclude the application of other legal consequences more or less, totally.10 Accordingly, academics from this school of thought are critical of the Appellate Body‟s use of outside legal rules and obligations to interpret the WTO texts, limiting the applicable law to WTO covered agreements only. At the other end of the spectrum is the view that WTO Panels can refer to in principle, all valid and legal international law binding on the disputing parties, in order to decide on a WTO claim. This view portrays international law as a “system” of international law in the sense of an “operating system” within which treaties, custom and international organizations maintain a minimum of coherence and interaction between the different branches of international law. Within the system, states are presumed to enforce their treaty obligations in good faith. The good faith principle implies that states are presumed to have negotiated all their treaties taking into account all their other international law obligations (general principles, custom and treatyobligations). In this sense, States‟ obligations are cumulative. Accordingly,

8

Gains Sanford, The WTO's Reading of the GATT Article XX Chapeau: A Disguised Restriction on Environmental Measures, (2001) 22 U. Pa. J. Int'l Econ. L. ,743. 9 G. Marceau, A Call for Coherence in International Law: Praises for the Prohibition against ‘Clinical Isolation’ in WTO Dispute Settlement, (1999)33 J. of World Trade , 107. 10 J. Combacau and D. Alland, Primary and Secondary Rules in the Law of State Responsibility: Categorizing International Obligations, (1985),47 Netherlands Year Book of International Law, 117.

they should be interpreted taking in to account other relevant and applicable rules between the same parties, with a view to avoiding conflicts with other relevant rules of international law applicable to the relations between the same countries. The precedent the Appellate Body laid on this issue remains a point of divergence among the two schools of thought. First, because the Appellate Body has not formulated a coherent legal reason to justify its use of other agreements and law to interpret WTO obligations. Second, because some WTO members have questioned its view on the use of non-WTO law persistently. Some academic commentators argue that the Shrimp-Turtle Case stands witness to the increased openness of the WTO regime to other branches of international law, in particular international environmental law. Among the various reasons raised to strengthen the Appellate Body‟s application of this uniting theme is its adoption of the “evolutionary interpretation” of the phrase “exhaustible natural resources”. In making this decision, it stated: The words of Art. XX (g), “exhaustible natural resources”, were actually crafted more than 50 years ago. They must be read by the treaty interpreter in the light ofcontemporary concerns of the community of nations about the protection andconservation of the environment From the perspective embodied in the preamble of the WTO Agreement, we note that the generic term “natural resources” in Art. XX (g) is not “static” in its content or reference but is rather “by definition, evolutionary”. Accordingly, the Appellate Body used non-WTO law (other international law) to interpret the phrase in accordance with the “customary rules of interpretation of public international law” referred to in Article 3.2 of the DSU. The use of these treaties to interpret WTO provisions has been construed as recognition of the harmonizing approach to international law, making other non-WTO conventions applicable before the WTO Panel. For example, Jackson argues that the language in the Shrimp-Turtle Case follows the international law approach described above. He substantiates his contention by quoting the Appellate Body‟s decision that “the various conventions that incorporate environmental policies are part of the interpretive material that the Panels and the Appellate Body should use.”

IV.

Implications of the Shrimp-Turtle Ruling in Determining the Future of Environmental Measures in the WTO DSB The implications of the case within the larger scope of the trade-environment debate have been the subject of opinion both on the environmental and international trade communities. On the environmentalists‟ side, the Appellate Body‟s decision was met with both relief and disappointment. Although they were relieved that the extreme positions taken by the Dispute Panel were rejected, they were disappointed that yet another environmental protection law was not fully protected by Art. XX. They questioned whether any law with an important environmental goal could sustain a WTO challenge. On the other hand, the trade communities, in camaraderie with

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critics from the developing countries, berate the Appellate Body‟s stand in laying what they characterized as a harmful jurisprudence that threatens to undermine the goals of the trading system. The following pages are devoted to the treatment of the range of deliberations in this regard. I will begin by examining the merits of the decision that environmentalists consider as welcoming environmental policies. The Environmentalists’ Perspective The environmentalists, despite their disappointment for the actual outcome of the case, praise the Appellate Body‟s decision for reversing the age old view that environmentally motivated measures cannot sustain the WTO‟s approval. They count a number of issues that they think will ensure the WTO DSB will not reject future trade measures taken in pursuance of environmental objectives embodied in MEAs. According to Pauwelyn, the Appellate Body‟s interpretation of the GATT Art. XX through the lens of the WTO‟s Preamble is one of such areas. By doing so, he argues that the Appellate Body took a significant step towards ensuring that GATT is interpreted consistently with evolving principles of international environmental law. It made use of the GATT Preamble, which explicitly acknowledges “the objective of sustainable development” and the importance of protecting and preserving the environment. This approach led the Appellate Body to conclude that Art. XX is “not static in its content or reference but is rather by definition, evolutionary.” It stated: The words of Art. XX (g), “exhaustible natural resources” were actually crafted more than 50 years ago. They must be read by a treaty interpreter in the light of contemporary concerns of the community of nations about the protection and conservation of the environment From the perspective embodied in the preamble of the WTO Agreement, we note that the generic term “natural resources” in Art. XX (g) is not “static” in its content or reference but is rather “by definition, evolutionary.” 126 The Appellate Body‟s interpretation of the requirements of Article XX in this manner, it is argued, lowers the bar that environmental policies must clear. Moreover, by embracing future use of Article XX for unilateral policies and by articulating a contemporary understanding of “exhaustible natural resources,” that includes living resources, the Appellate Body has opened the door to greater use of Article XX‟s environmental exceptions. He also argues that the Appellate Body has laid the jurisprudence that even though a particular MEA provision may not be legally binding on all WTO members, or not even on all disputing parties in a particular case, such an agreement may still play a role under Art.31 of the Vienna Convention.11 This happens if it can be said to reflect the “common intentions” of WTO members, or if it can be said to reflect the “ordinary meaning” of a WTO treaty term. This was arguably the case when the Appellate Body referred to certain treaties that were not binding even on the disputing parties, let alone on all WTO members. Pauwelyn argues that, though the Appellate

The Vienna Convention reads: Article 31 (1).

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Body remained silent as to the legal basis for this reference to non-WTO treaties, the non-WTO treaties it referred to, though not legally binding on all WTO members, reflected the “common intentions” of all WTO members and/or the “ordinary meaning” of the term “exhaustible natural resources” as is used in Art. XX (g) of GATT 1994. This is an essential point in setting the precedent for the applicability of MEAs in resolving future disputes in the WTO. The Trade Community’s Perspective The International trade community also makes its criticism against the Shrimp-Turtle Case, targeting the Appellate Body‟s backing of unilateralism. The international trade community protests the Shrimp-Turtle holding on the ground that it gives the possibility for countries to unilaterally impose extraterritorial trade restrictions based on individual, domestic agendas-perhaps more importantly –without necessitating changes to the WTO rules. A representative critic in this regard, Alan Oxley, the former Australian Ambassador to the GATT and Chairman of the GATT Contracting Parties, holds that: This judgment of the Appellate Body follows the example set by the most activist of the U.S. Supreme Court judges. It has interpreted WTO provisions to permit restrictions which the membership of the WTO has previously indicated, overwhelmingly and emphatically, they do not support There is now an urgent need to quarantine or, better reverse, the opening for widespread imposition of trade restrictions on environmental grounds which the Appellate Body has now legitimized. There are also other oppositions against the decision on what the trade community views as dangerous precedents that the Appellate Body laid. Among these is the concern that Art. XX (g) can have extraterritorial reach laying the precedent for the violation of state sovereignty .12 There is also the fear that trade restrictions can be imposed on a product if the way it is processed has negative environmental consequences as determined by the importer, not by a neutral judicial organ. Countries have different national environmental priorities and resources, as well as different goals with regard to tapping the global trade system. What one country or society might find objectionable as far as production process is concerned may not be perceived as such by another. Accordingly, the critics argue, the U.S measure defeats the basis of all international trade–the capacity of WTO members to exploit their comparative advantage. Some also express the fear that international declarations and conventions, regardless of whether or not they have widespread support or adherence, may create legitimate grounds to trigger the use of the exceptions under Art. XX. There are other critics arguing that non-trade elements of the Preamble, e.g., “sustainable development,” now diminish the standing of the international trade responsibilities of the WTO as its primary purpose. In its Preamble, the WTO purports to have a commitment to “an

< www.worldgrowth.org/pages/PDFs/shrimp-turtle.pdf.>, 3.

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open, non-discriminatory and equitable multilateral trading system on the one hand,” and to the “protection of the environment, and promotion of sustainable development on the other.” The critics go on arguing that yet, the Appellate Body never wholeheartedly addresses or applies these dual principles whereas a non-trade organization probably would have. The Developing Countries’ Perspective Siding with the international trade community, but with a peculiar concern for their peculiar realities, developing country members of the WTO also decry the so-called riddance of the previous anti-environmentalist edifice by the Appellate Body. They fear that the decision sanctions US unilateralism by permitting the grant of trade advantages conditional on the adoption of US-style domestic policies in exporting developing countries. The critics on this side argue that as is so often the case in such disputes, it is an industrialized country where domestic pressure for international species conservation is perhaps greater, that is implementing policies that affect developing countries, where the main concern is for development. This raises the thorny issue of “eco-imperialism”. In this regard, the questions that arise are: Should the U.S be allowed to impose its environmental standards on other countries? Don‟t such policies put an unfair burden on developing countries? As indicated above, some people would argue with the aim of the policy- to protect endangered sea turtles- but whether the US should be allowed to make other countries accept its own shrimp fishing standards to achieve this is a moot point In this regard, the former Indian Minister for Environment, Kamal Nath, suggested that greater trading opportunities will enable developing countries to invest more in environmental protection and give them an opportunity to correct historical imbalances. He further maintains that till then, there should be a moratorium on linking trade with environment. Professor Kelly also argues that permitting individual nations to unilaterally regulate how goods are produced in other countries as a condition of entry treads on the fundamental social policy decisions of other societies.13 He argues that such “judicial activism” undermines the ability of developing countries to participate in international policy formation because only the largest, most developed nations possess the market power to impose their social policy on other nations. The approach by the Appellate Body in this regard enthused some of these critics to blame the Appellate Body for illegitimate judicial activism under the influence by the rich northern environmental NGOs. A fairly representative criticism in this regard is that of Jagdish Bhagwati, a preeminent economist at Columbia University and a former adviser to the U.N. on globalization who writes: I have some sympathy for the view that the dispute settlement Panels and the Appellate court must defer somewhat more to the political process instead of making

J. Patrick Kelly, The Seduction of the Appellate Body: Shrimp/Turtle I and II and the Proper Role of States in WTO Governance, (2005) 38 Cornell Int‟l L.J., 462.

law in controversial matters. I have little doubt that the jurists were reflecting the political pressures brought by the rich-country environmental NGOs and essentially made law that affected the developing countries adversely, and in the process increasing the latter‟s disquiet over the anti-developing-country turn they fear the WTO to be under pressure to take. Unless the WTO legal process understands that NGOs do not necessarily speak for developing countries, contrary to their assertions, the WTO will stand in danger of accentuating the problems of the North-South divide that are opening up so sharply after Seattle.

iv.

Important Issues of Particular Interest to the Trade and Environment Linkage in the WTO As indicated above, the wooly reasoning by the Appellate Body in the Shrimp-Turtle Case has subjected the issue of trade measures in the WTO to groundswell of legal comments and theoretical analyses. The Appellate Body decision has left a number of issues undecided and nebulous, paving the way for further explanations and speculations on the fate of disputes in the WTO arising from environmentally motivated trade measures. Therefore, future efforts are necessary on a number of important issues that are crucially important to the relationship between trade and the environment and the Appellate Body spawned in its decision in the Shrimp-Turtle Case. One of such issues is the finding that the term “exhaustible natural resources” in GATT Art. XX “must be read by a treaty interpreter in the light of contemporary concerns of the community of nations about the protection and conservation of the environment”. Accordingly, as opposed to previous rulings, it found that the term includes non-living resources. Here, it is important to stipulate what the implication of adopting “evolutionary interpretation” by the Appellate Body and accepting MEAs as a modality of action is in this regard. What is the implication of the Appellate Body‟s reference to a number of MEAs in arriving at such finding? Can we say that in this regard, all/at least some MEAS reflect the “common intention” of WTO members and hence, have to be applied to all disputes involving WTO members? Does this mean that the terms of reference to the Art. XX environmental exceptions of the GATT should exist in the MEAs? As indicated above, the environmentalists welcome the decision by referring to these issues as marking the strengthening of environmental position within the trade-environment debate. However, failing explicit recognition of environmental policies and in light of the intense debate on the mode of incorporation of environmental objectives in the WTO, the answers to the questions seems to be somehow complicated. The other important issue concerns environmentally motivated unilateral trade measures adopted by the WTO members. The Appellate Body‟s decision has, in

some cases, been interpreted to mean that unilateralism is acceptable to some degree. This is even though in the WTO, decision by consensus is the over-riding theme and that no one country should solely dictate the rules. In this regard, confusion still reigns as to whether sovereign states can or should be able to unilaterally effectuate environmental goals through the channels of trade. Are unilateral trade measures for environmental purposes permissible under the WTO? If permissible, what prior actions with trading partners are necessary before such measures as the U.S measure in the Shrimp-Turtle Case can be upheld? What is the implication, on the relationship between WTO rules and MEAs, of the Appellate Body‟s requirement that multilateral negotiations should precede unilateral measures? As indicated above, the Appellate Body has scolded the U.S for failing to engage in “serious, across-the-board” negotiations. This raises many practical questions: should the negotiations necessarily result in an international agreement? Since Art. XX is intended to permit countries to protect important non-trade interests and the word “party” in the Appellate Body‟s reasoning is singular, the answer seems to be not. But, if the negotiations do not result in an actual agreement, then how much of a diplomatic effort must the importing nation make? Could an importing nation table a take-it-or-leave-it proposal and remain “serious”? Or must it enter in to protected negotiations? If so, to what extent must it compromise its environmental objectives in order to strike a deal? And if negotiations are unsuccessful, will Dispute Panels review the negotiating record to determine whether the importing nation acted in good faith and showed sufficient flexibility? Could an importing nation use a trade measure as a bargaining tactic to force other countries to negotiate? On the question of extrajurisdictionality discussed above, the Appellate Body seems to set an implied rule that trade measures can be applied even if they purport to encourage other countries to change their environmental policies. However, the Appellate Body‟s language on this issue is carefully hedged. It stated “it is not necessary to assume that requiring from exporting countries compliance with, or adoption of, certain policiesrenders a measure a priori incapable ofjustification. Whether this will provide effective guidance to panels dealing with similar circumstances is unclear, but this certainly leaves room for future litigation. The only thing ruled out is an assumption that a measure designed with this intent is unjustified. Therefore, it is not clear whether an environmental measure taken under the WTO can have an extra-territorial reach. It is not also clear whether the natural resources, for the conservation of which the measure is to be taken, should necessarily exist within the country‟s boundary, or a measure for the conservation of any other natural resource in the globe can qualify. There is also the fear that there could arise a series of “slippery slope” problems in placing limits on the kind of unilateral measures that are permissible while creating a large loophole that will be difficult and potentially expensive to police through

adjudication. It becomes questionable as to whether unilateral trade measure are also available for process regulations in other areas such as labor policies under Art. XX (a) or health and safety policies under Art. XX (b).

CONCLUSION The Shrimp-Turtle Case constitutes one of the most important decisions ever decided by the WTO Appellate Body that touch upon trade and environment issues. The case left analysts with mixed feelings as far as the relationship between trade liberalization and environmental protection is concerned. At one hand, it provided some important clarifications in favor of the right of governments to protect the environment through unilateral measures. On the other hand, the government taking such measures at the case at hand once again found itself to be in violation of its World Trade Organization obligations. Due to the uncertain position of the WTO on these issues, the Shrimp-Turtle case remains a battlefront for the unwon race between the international trade community and the environmentalists. As indicated above, though many commentators construe it as favoring or disfavoring their own stream, trade or environment, an objective assessment is needed to articulate the exact precedent that the Appellate Body laid down. This will have much significance in determining the place of environmental policies in the WTO.

SELECT BIBLIOGRAGHY A. STATUTE 1. GATT 1994 2. WTO Agreement 3. The Vienna Conventions B. ARTICLES 1. C.MavroidesPetros, Trade and Environment after the Shrimps-Turtles litigation. 2. Jackson John, Comments on shrimp/Turtle and the Product/Process Distinction. C. WEBSITES 1. www.worldgrowth.org 2. www.ejil.org/journal 3. www.wto.org