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United States—Import Prohibition of Certain Shrimp and Shrimp Products—Recourse to Article 21.5 of the DSU by Malaysia

Published online by Cambridge University Press:  27 February 2017

Louise de La Fayette
Louise de La Fayette*
Affiliation:
University of Southampton
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Type
International Decisions
Information
American Journal of International Law , Volume 96 , Issue 3 , July 2002 , pp. 685 - 692
Copyright
Copyright © American Society of International Law 2002

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References

1 Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products- Recourse to Article 21.5 of the DSU by Malaysia, WT/DS58/AB/RW (Oct. 22, 2001) (adopted Nov. 26, 2001) [hereinafter Shrimp/Turtle Appellate Body Report (compliance)]. Official WTO documents, including the materials in the present dispute, are available online at <http://www.wto.org/english/docs_e/docs_e.htm>.

2 General Agreement on Tariffs and Trade 1994, Apr. 15,1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A [hereinafter GATT 1994], in The Legal Texts, infra note 3, at 17, reprinted in 33 ILM 1154 (1994); see infra note 6.

3 Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, in World Trade Organization, The Legal Texts: The Results of The Uruguay Round of Multilateral Trade Negotiations 3 (1999) [hereinafter The Legal Texts], reprinted in 33 ILM 1143 (1994); see infra note 6.

4 Panel Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products—Recourse to Article 21.5 by Malaysia, WT/DS58/RW, (June 15, 2001) (adopted Nov. 21, 2001) [hereinafter Shrimp/Turtle Panel Report (compliance)].

5 Panel Report, United States—Restrictions on Imports of Tuna, GATT B.I.S.D. (39th Supp.) at 155 (1993), re-printed in 30 ILM 1594 (Aug. 16,1991) (unadopted) (usually referred to as Tuna/Dolphin I); Panel Report, United States—Restrictions on Imports of Tuna, GATT Doc. DS29/R, reprinted in 33 ILM 839 (June 16,1994) (unadopted) (usually referred to as Tuna/Dolphin II). The facts were similar to Shrimp/Turtle in that the United States had banned imports of tuna caught in nets that killed dolphins.

6 On January 1, 1995, the WTO Agreement created the World Trade Organization, an intergovernmental organization dedicated to the promotion and enforcement of nondiscriminatory free trade among its members, while also, according to its preamble, “allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development, seeking both to preserve and protect the environment and the means for doing so.” Annexed to the WTO Agreement is the GATT 1994 (almost identical to the GATT 1947), imposing obligations for free trade in goods, with “General Exceptions” set forth in Article XX for trade restrictions in support of overriding public policies—including in paragraph (b) the protection of “human, animal or plant life or health,” and in paragraph (g) the conservation of exhaustible natural resources—on the condition (Article XX, chapeau) that such measures are applied in a nondiscriminatory manner (that is, do not “constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail”) and are not “disguised restriction [s] on international trade.” Also annexed to the WTO Agreement is the Dispute Settlement Understanding (DSU) establishing a compulsory and binding dispute settlement mechanism consisting of a first level of panel reports subject to second-level appeals to the newly created Appellate Body. This “judicialized” system replaced the old “diplomatic” dispute settlement procedure under GATT 1947, which utilized panels of trade officials. Yet, because governments were reluctant to relinquish complete control over the settlement of disputes, the panels and the Appellate Body merely make recommendations to WTO members sitting as the Dispute Settlement Body, which formally adopts their reports. Nevertheless, since a consensus is required in order to reject a recommendation, unappealed panel reports and Appellate Body reports are, in effect, binding on the parties.

7 103 Stat. 988 (1989) (codified at 16 U.S.C. §1537 note (1994)).

8 Turtles in Shrimp Trawl Fishing Operations Protection: Guidelines, 56 Fed. Reg. 1051 (Jan. 10, 1991).

9 See infra note 23 and accompanying text.

10 Panel Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/R (May 15, 1998) (adopted Nov. 6, 1998).

11 Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products, WT/ DS58/AB/R (Oct. 12,1998) (adopted, with modifications, Nov. 6,1998) [hereinafter Shrimp/Turtle Appellate Body Report (merits)].

12 “The actual application of the measure, through the implementation of the 1996 Guidelines and the regulatory practice of administrators, requires other WTO Members to adopt a regulatory program that is not merely comparable, but rather essentially the same, as that [of the U.S. program].” Id., para. 163.

13 At the time that the Shrimp/Turtle proceedings were initiated, the United States had not yet ratified the Inter- American Convention for the Protection and Conservation of Sea Turtles. The Convention was signed in December, 1996, ratified by the United States in 1998, S. Treaty Doc. No. 105-48 (1998), and came into force in May 2001. For further information on the Convention, including its complete text, see <http://www.seaturtle.org/iac/intro.shtml>.

14 See Shaffer, Gregory, Case Report: United States—Import Prohibition of Certain Shrimp and Shrimp Products, 93 AJIL 507 (1999)CrossRefGoogle Scholar.

15 See United States—Import Prohibition of Certain Shrimp and Shrimp Products—Status Report by the United States, WT/DS58/15 (July 15, 1999), Add.l (Sept. 8, 1999), Add.2 (Oct. 15, 1999), Add.3 (Nov. 19, 1999).

16 Revised Guidelines for the Implementation of Section 609 of Public Law 101-162 Relating to the Protection of Sea Turtles in Shrimp Trawl Fishing Operations, 64 Fed. Reg. 36946 (July 8, 1999).

17 Understanding on Rules and Procedures Governing the Settlement of Disputes, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, in The Legal Texts, supra note 3, at 354, reprinted in 33 ILM 1226 (1994).

18 Shrimp/Turtle Panel Report (compliance), supra note 4, para. 6.1(b).

19 Appellate Body Report, European Communities—Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R (Mar. 12,2001) (adopted Apr. 5,2001); see David, A. Wirth. Case Report: European Communities— Measures Affecting Asbestos and Asbestos-Containing Products, 96 AJIL 435, 437–39 (2002)Google Scholar.

20 Appellate Body Report, Canada—Measures Affecting the Export of Civilian Aircraft—Recourse by Brazil to Article 21.5 of the DSU, WT/DS70/AB/RW (July 21, 2000) (adopted Aug. 4, 2000).

21 See supra note 6.

22 Shrimp/Turtle Appellate Body Report (compliance), supra note 1, para. 137 (quoting the original Appellate Body report in Shrimp/Turtle).

23 The litigation by Earth Island Institute, the Turtle Island Restoration Network, and others was critical to the WTO proceedings, for it was the initial 1996 decisions in that litigation—see Earth Island Institute v. Christopher cases at 19 Ct. Int’l Trade 1461 (Dec. 29,1995), 20 Ct. Int’l Trade 460 (Apr. 10,1996), and 20 Ct. Int’l Trade 1221 (Oct. 8,1996)—that compelled the United States to ban imports of shrimp from all uncertified states within a time period that allowed no opportunity for negotiating a multilateral agreement. In order to comply with WTO requirements, in 1998 the United States began to certify shrimp imports on a shipment-by-shipment basis, a departure from its previous policy of certifying the country of export. The new policy prompted a further challenge by environmental NGOs, leading to a Court of International Trade decision invalidating shipment-by-shipment certification, which Malaysia complained was contrary to the GATT as held in the original Appellate Body report. Aware of the importance of the decision for the WTO case, the judge had delayed judgment for a year, while he considered the international implications. Finally, in July 2000 he declined to order any changes in the implementation of Section 609, pending the outcome of an appeal. That appeal may be further appealed to the Supreme Court. See Earth Island Institute v. Daley, 23 Ct. Int’l Trade 215 (Apr. 2, 1999); Turtle Island Restoration Network v. Mallett, 110 F.Supp.2d 1005 (Ct. Int’l Trade July 19, 2000). (In May 1999, the Sea Turtle Restoration Project became independent of Earth Island Institute and formed the Turtle Island Restoration Network to continue the same work.)

24 Rio Declaration on Environment and Development, June 14, 1992, UN Doc. A/CONF.151/5/Rev.l (1992), reprinted in 31 ILM 874 (1992).

25 Memorandum of Understanding on the Conservation and Management of Marine Sea Turtles and Their Habitats of the Indian Ocean and South-East Asia, July 14, 2000 (entered into force September 1, 2001). For information and text, see the Web site of the Convention on Migratory Species, <http://www.wcmc.org.uk/cms/>. Of the twenty-one states that participated in the negotiations, nine have signed: Australia, Comoros, Iran, Myanmar, Philippines, Sri Lanka, United Arab Republic, United States, and Vietnam.

26 Shrimp/Turtle Appellate Body Report (compliance), supra note 1, para. 154.

27 Ministerial Declaration, WTO Ministerial Conference, Fourth Session, Doha, 9-14 November 2001, WT/MIN(01)/DEC/W/1 (Nov. 14, 2001).

28 The appeal in the Reformulated Gasoline case, see Appellate Body Report, United States—Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R (Apr. 29, 1996) (adopted May 20, 1996), was the very first heard by the Appellate Body.

29 May 23, 1969, 1155 UNTS 331, reprinted in 8 ILM 679 (1969).

30 Gabčíkovo-Nagymaros Project (Hung./Slovk.), 1997 ICJ Rep. 7 (Sept. 25).

31 Shrimp/Turtle Appellate Body Report (merits), supra note 11, para. 155.

32 The issue of like products and process and production methods (PPMs) arises in relation to GATT Article III, which requires foreign products physically “like” domestic products to be accorded “national” treatment. Heretofore, WTO members have insisted that only the physical characteristics of the finished product be taken into account in determining “likeness”; the method of production was irrelevant. In relation to tuna or shrimp, however, the trade restriction was due not to any characteristic of the product itself, but to the harvesting method—a PPM—which was lethal to dolphins and Turtles.

33 See supra note 25 and accompanying text.

34 The International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts, UN Doc. A/CN.4/L.602/Rev. 1 (2001), were noted by the UN General Assembly in Resolution 56/83, adopted December 12, 2001. Text and commentaries are available online at the ILC’s Web site, <http://www.un.org/law/ilc/>. See Crawford, James, The International Law Commission’s Articles on State Responsibility (2002)Google Scholar.

35 Most disappointingly, the Appellate Body mentioned the MOU only in two footnotes (para. 133 n.96; para. 152 n. 117), did not address Malaysia’s second argument, and disregarded the compliance panel’s crucial Finding that the United States was entitled to impose its ban on shrimp imports only as a temporary measure, pending the adoption of an international agreement. In those footnotes, the Appellate Body noted that (1) the MOU’s conservation plan required parties to reduce the incidental capture and mortality of sea turtles during fishing activities and to develop and use gear, devices, and techniques to minimize the incidental capture of sea turtles, and (2) the United States considered the MOU not to be legally binding, whereas Malaysia claimed that it was. The Appellate Body failed to note, however, that the MOU does not endorse the use of trade measures to enforce compliance. This omission is significant, as the panel had indicated that a permanent import ban would be justified among the parties only if included as an enforcement measure in a multilateral agreement.