Trade and the Environment: the Future of Extraterritorial
Unilateral Measures after the Shrimp Appellate Body
Senior Lecturer in Law, Newcastle Law School
Copyright © 2000 Ilona Cheyne
First published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.
* The author would like to thank the anonymous referee for comments,
and John Alder and Alison Dunn of Newcastle Law School for advice in the preparation of this
It is nearly ten years since the first Tuna-Dolphin report found that
unilateral trade measures for the protection of dolphins were in violation
of GATT rules, thereby signalling the beginning of the modern trade-environment
debate. Since that time the debate has developed and become more complex
and subtle. The WTO Appellate Body has recently been called upon to decide
a dispute which raises very similar issues to the Tuna-Dolphin case.
The Appellate Body used language that was more open to the concerns of
contemporary environmental problems than the Tuna-Dolphin reports.
However, an analysis of its reasoning suggests that the acceptability of
unilateral, and even multilateral, measures to protect the environment under
the GATT rules may not be any greater than before. In addition, the Appellate
Body’s reliance on multilateral environmental agreements and the principle
of sustainable development, although broadly welcomed by environmentalists,
poses significant problems as an interpretative technique.
It is almost ten years since the Tuna-Dolphin I GATT panel report
(US - Restrictions on the Import of Tuna, BISD 39S/155) was
leaked to the public. It caused a furore among environmental activists and
policy-makers because it suggested that GATT parties could not use trade
restrictions to promote environmental protection. That report can be seen
as the beginning of the modern trade-environment debate, since when the
protagonists’ understanding of the complex relationship between their policy
areas has become more detailed and more subtle (see, for example, Esty, 1994;
Sands, 2000; Schoenbaum 1997). However, as the recent Seattle demonstrations
against globalisation would suggest, the trade-environment debate is a long
way from being settled and, if anything, has become more problematic (Chen
The WTO Appellate Body was recently called upon to consider trade-environment
issues in US - Import Prohibition of Certain Shrimp and Shrimp Products,
WT/DS58/AB/R, 12 October 1998 [hereinafter 'Shrimp']. The
Shrimp dispute raised very similar issues to those in the
Tuna-Dolphin case and gave the Appellate Body an opportunity to resolve
many of the uncertainties that had lingered since that earlier dispute. Given
the hostility with which environmentalists received the Tuna-Dolphin I
report and the subsequent Tuna-Dolphin II report (US -
Restrictions on Imports of Tuna, DS29/R, 33 I.L.M. 839 (1994)), it was
also a chance for the Appellate Body to readjust the balance between the
strict application of GATT rules and the need to address contemporary
environmental concerns. In the event, some of the Appellate Body’s reasoning
was comparatively generous to environmental interests, but it also contained
potentially important qualifications.
It is the purpose of this article to examine some of the institutional and
legal background to the Shrimp Appellate Body report, to explore the
meaning of the Appellate Body’s qualifications to its apparent acceptance
of the use of unilateral environmental measures, and to consider the significance
of these qualifications for trade-environment disputes in the future.
One of the biggest changes to have occurred since the Tuna-Dolphin
reports is the establishment of the World Trade Organisation in 1994 (WTO
1994), and the ‘juridification’ of dispute settlement under the Dispute
Settlement Understanding (ibid, Annex 2; hereinafter 'DSU'). The WTO Agreement
attempts, to a limited extent, to soften the impact of trade rules on
environmental protective measures, such as subsidies and standards (Kennedy
1998, pp 394-419). More generally, the preamble of the Agreement recognises
the need to conduct trade in the light of sustainable development. The WTO
also established the Committee for Trade and Environment, in which regular
discussions take place on a number of trade-environment issues. However,
the Committee has been criticised for achieving little in the way of concrete
results, and complaints against environmental measures have almost always
been upheld in dispute settlement hearings (Hansen 1999, pp. 1036-8; Kennedy 1998, pp 422-61).
The limited success of the WTO in addressing the trade-environment conflict
through negotiated compromise has placed its dispute settlement bodies in
a central role. The nature of the WTO dispute settlement procedures therefore
has a particular significance. Under GATT 1947, both parties had to agree
to the establishment of a panel and the purpose of panel reports was essentially
advisory. Reports could only be adopted by consensus and could therefore
be blocked by the losing party (Davey 1987). The DSU, on the other hand,
allows either party to initiate a panel investigation and applies strict
time limits (Articles 6 and 12). The reports are still recommendatory but
failure to implement the recommendations can lead to withdrawal of concessions
authorised by the Dispute Settlement Body (Articles 19 and 22). Adoption
of reports is almost automatic, since they can only be rejected by consensus
(Article 16). Finally, the DSU establishes an appeal procedure to the Appellate
Body (Article 17). The Appellate Body has already developed and clarified
GATT jurisprudence in a more consistent and ‘legalistic’ manner than was
possible in the original ad hoc panel procedure. As the senior adjudicatory
body, the Appellate Body’s concerns are unlikely to be limited to the specific
rights and obligations of the case before it and may be expected to encompass
a wider view of the implications of its interpretation and application of
the WTO Agreement’s provisions (Cone 1999, p 60; Vermulst, Mavroidis and
Waer, 1999, pp 32-33).
It is often said that the above elements of the DSU represent a shift from
the previous ‘power-oriented’ system to a rule-oriented system (Davey 1987;
Jackson 1997). The latter might be expected to impose its obligations more
clearly, firmly and consistently. From this point of view, the imbalance
between the institutional and obligational power of the WTO on the one hand
and the scattered, relatively uninstitutionalised and unevenly strong
environmental treaties becomes more significant
(Esty 1994, pp 77-8). In addition, a rule-oriented system appears
to strengthen the position of developing countries because their rights can
be more objectively protected against economically powerful Members who might
be tempted to pursue environmental policies through unilateral measures (Jackson
1998; Wisthoff-Ito 1999). Indeed, the experience of the WTO has been that
developing countries have brought many more complaints under the DSU than
under the more informal power-based system of GATT 1947 (Dixon 2000, pp 11-2;
Mota 1999, pp 80-1).
Trade lawyers have increasingly turned their attention to the problem of
non-tariff barriers, such as product standards and subsidies (Jackson 1997,
pp 73-8). WTO Members are entitled to challenge non-tariff barriers under
Articles I, III, and XI, which prohibit discrimination between importing
countries, discrimination between importing and domestic producers, and
restrictions on imports respectively. These types of measures are often the
instrument of choice for implementing national environmental policies. Import
bans and standards are also attractive means to enforce environmental measures
In some cases, using trade-related environmental measures (TREMs) is part
of a multilaterally agreed strategy. For example, the the Montreal Protocol
on Substances That Deplete the Ozone Layer, 1987 provides for import bans
against the importation of CFCs manufactured by third parties, not only to
reduce or eliminate the use of these substances by ensuring lack of supply
but also to discourage free-riding by non-parties (Article 4). The Convention
on International Trade in Endangered Species of Wild Fauna and Flora, 1973
(CITES) requires import restrictions to be imposed on trade in listed species,
on the grounds that trade itself is a significant cause of their endangerment
(Article III). The Basel Convention on the Control of Transboundary Movements
of Hazardous Wastes and their Disposal, 1989 also places import restrictions
on the import and export of dangerous waste, to reduce the risks attached
to excessive movement of waste and to prevent dumping of toxic substances
in countries where no appropriate disposal facilities exist (Article 4).
No complaints have yet been made under the GATT rules against TREMs in
multilateral environmental agreements and they appear, therefore, to have
achieved a level of acceptance within the trade system.
It is seldom denied that multilateral solutions are the best answer to problems
arising from the use of internationally shared resources. However, it is
also clear that multilateral solutions can only be found where there is shared
will and common understanding between the States involved. In cases where
international consensus is difficult or impossible to reach, environmentalists
have argued that States with economic power are entitled to impose unilateral
measures as the only way to achieve high levels of protection, and particularly
in urgent cases such as the potential extinction of a species (Bernazani
2000, pp 210-2). On the other hand, governments of developing countries who
wish to develop their economies through international trade are deeply suspicious
that ‘environmental’ trade barriers are a form of ‘eco-imperialism’ at best,
and disguised protectionism at worst (Kittichaisaree, 1993; Wisthoff-Ito
1999). This opposition is echoed in Principle 12 of the 1992 Rio Declaration
on Environment and Development which acknowledges that unilateral TREMs should
be avoided in favour of multilateral agreements.
However, unilateral measures remain an attractive option for governments
which are driven towards a particular environmental goal and are unwilling
to enter into lengthy and potentially unsuccessful negotiations, or have
already been frustrated in their efforts to find multilateral agreement.
As a result, unilateral TREMs have not been eliminated in practice and have
been the subject of several GATT complaints. The two most important complaints,
because they involve unilateral TREMs affecting the activities of other States
beyond the limits of national jurisdiction, are the Tuna-Dolphin and
In the Tuna-Dolphin dispute, the US had imposed import bans on tuna
caught by the use of dolphin setting with purse seine nets. This method is
peculiar to the Eastern Tropical Pacific Ocean and involves chasing and netting
schools of dolphins in order to catch the tuna often found swimming below
(Buck 1997). The purpose behind the import bans was to protect dolphins which
would otherwise be killed or injured in the process of catching the tuna.
Bans were introduced on tuna from countries where tuna fishers failed to
achieve a level of dolphin mortality comparable with the US tuna industry,
or who might be exporting such tuna as an intermediary nation. The dolphins
in question were not endangered. Two separate complaints were brought before
GATT panels in Tuna-Dolphin I and Tuna-Dolphin II. Both panels
found that the US measures constituted quantitative restrictions on imports
in violation of Article XI. The reasoning of the Tuna-Dolphin II Panel
is more explicit than in Tuna-Dolphin II, and will therefore be the
focus in the following discussion.
In Shrimp, the US had placed import bans on shrimp which had been
caught without the use of turtle excluding devices (TEDs) or shortened towing
times. TEDs are designed to prevent sea turtles from being caught and drowned
in shrimp nets, and short tow times likewise give trapped turtles a chance
of survival (Sam 1999, pp 192, 202). Shrimp could be imported from countries
that had been certified as having a turtle protection programme comparable
to that of the US or from countries where the threat of incidental taking
to sea turtles did not exist (Section 609 of Public Law 101-162, 1989; Bernazani
2000, pp 216-8; Sam 1999, pp 192-3). The key differences between the situation
in Shrimp and that in the Tuna-Dolphin dispute were that the
species of sea turtles in question were migratory through and in US waters,
and that they were all threatened with extinction. Even so, the US import
bans, as in the Tuna-Dolphin reports, were found to be an import
restriction in violation of Article XI.
The key issue in both disputes was whether the bans could be justified under
the general exceptions of Article XX. In Tuna-Dolphin II, the US claimed
that their measures were justified under two of the substantive paragraphs
of Article XX, paragraphs (b) and (g). In Shrimp, its main defence
was paragraph (g). Only paragraph (g) will therefore be examined in detail
here. The relevant parts of the Article read:
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 contracting party 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;
Conceptually, Article XX consists of two parts. The first part is the chapeau
which limits the application of the Article to measures which do not constitute
unjustified or arbitrary discrimination or disguised restrictions on trade.
The second part consists of a number of substantive paragraphs. These paragraphs
define the policies under which violations of other GATT provisions may be
justified and place conditions on how those polices may be pursued. The chapeau,
as written, could fulfil two different functions. First, it could impose
a set of additional substantive restrictions on measures which have already
satisfied the conditions of one of the paragraphs. Second, it could be read
in conjunction with the substantive content of the paragraphs in order to
qualify their meaning and effect.
The Tuna-Dolphin and Shrimp reports were both concerned with
the substantive interpretation of the chapeau and paragraph (g), and the
need to find an appropriate balance between them. The difference between
the reasoning in the two disputes has illuminated some of the fundamental
tensions between liberal trade rules and environmental policy implementation.
Analysis of the dispute settlement bodies’ reasoning in each case can be
divided into three parts: the general approach to interpreting Article XX,
the meaning of paragraph (g), and the function and meaning of the chapeau.
(a) The general approach to interpreting Article XX
The Tuna-Dolphin II Panel decided that the application of Article
XX should be executed in three steps. First, it must be established whether
the policy behind the measure fell within one of the substantive paragraphs.
Second, any conditions contained in that paragraph must be satisfied. Third,
the measure must not be caught by the substantive limitations contained in
the chapeau (para 5.12). The Panel therefore took the view that the chapeau
conditions should be kept distinct from the conditions of the substantive
paragraphs and applied only if the measure had satisfied one of the
In the event, the Tuna Dolphin II Panel found that the US measure
did not satisfy paragraph (g) and, since it also failed under paragraph (b),
the Panel did not need to consider the meaning or possible effect of the
chapeau. In Shrimp, however, the Panel proceeded directly to the chapeau
and reasoned that unilateral acts could never be acceptable because they
would threaten the stability and predictability of the international trading
system. The chapeau was designed to prevent abuse of the exceptions contained
in the rest of Article XX and, interpreting it particularly in the light
of the objective and purpose of the Agreement as a whole, the Panel found
that unilateral measures constituted unjustifiable discrimination (paras
7.45, 7.48-9). As a result, the Shrimp Panel did not consider the
application of paragraph (g) at all.
The Shrimp Appellate Body overturned this line of reasoning. It pointed
out that the Panel’s reasoning was fundamentally flawed because it used the
chapeau to evaluate the design of the measure. The question of design was
a matter for examination under the conditions of paragraph (g), whereas the
chapeau was explicitly limited to the manner in which the measure was applied.
The fact that a policy was legitimate under a paragraph did not eliminate
the need to examine whether the application of the measure satisfied the
conditions of the chapeau (paras 115-7). The latter task was necessary in
order to avoid abuse of the exceptions contained in the substantive paragraphs
(para 116). Overall, therefore, the Appellate Body adopted a similar view
to the Tuna-Dolphin panels, that is, that a measure should first satisfy
one of the substantive paragraphs, and only then should the chapeau be applied
(Neuling 1999, p 44).
(b) The meaning of paragraph (g)
The Tuna-Dolphin II Panel accepted that the policy behind the US measure
was legitimate under paragraph (g). It considered that dolphins, even though
not endangered, could fall within the category of "exhaustible natural resources"
(para 5.13). It also accepted that Article XX did not as a whole preclude
measures with extraterritorial application, and that contracting parties
were permitted as a matter of international law to exercise jurisdiction
over their own nationals acting extraterritorially.
It therefore explicitly accepted that the resources to be protected
could lie outside the territorial jurisdiction of the contracting parties
However, the fact that the policy behind the measure fell within the scope
of a paragraph of Article XX did not necessarily mean that it would satisfy
the conditions contained within that paragraph. Specifically, paragraph (g)
only permits measures "relating to" conservation of the resource in question,
and which are "in conjunction with" restrictions on domestic production or
consumption. The Panel agreed with previous panel findings that "relating
to" meant "primarily aimed at" (para 5.22). It argued, however, that the
US measures could only have effect if other countries changed their policies
in response to them. Any increased protection of dolphins would be an indirect
consequence of the measures and therefore they could not be considered to
be primarily aimed at conservation (paras 5.23-4). In addition, the Panel
did not consider that measures which were essentially coercive in nature
could be "primarily aimed at" conservation or rendering domestic measures
effective because such measures would allow one contracting party to force
others to choose between their existing national policies or the loss of
their rights under the GATT (paras5.25-5.27).
There are several criticisms that can be made of the Panel's analysis, of
which two are of particular relevance to the later developments in
Shrimp. First, the Panel had applied similar arguments to paragraph
(b) and to paragraph (g), thereby confusing the two. The condition in paragraph
(b) is that the measure must be "necessary" to protect animal life. By bringing
both under the heading of indirectness and coercion, the Panel conflated
the meaning of "relating to" and "necessary". Such an approach is not easily
defended on a textual level. It does not reflect the ordinary meaning of
the words which would suggest that "relating to" should impose a less onerous
test than "necessary". Neither was it entirely consistent with previous GATT
jurisprudence (GATT 1987, para 4.6). Second, the Panel’s concern about the
use of unilateral measures to coerce other contracting parties into changing
their policies was focused on the substantive provisions contained in paragraph
(g), with no reference to the chapeau. Arguably the result of this reasoning
distorted the function of Article XX by unbalancing the different elements
contained in it. It made paragraph (g) so strict that no unilateral measure
could satisfy it, and excluded the chapeau from its intended role of safeguarding
the GATT system and the rights of other contracting parties (Cheyne 1995,
The Appellate Body has now given an apparently radical re-interpretation
of paragraph (g) and the chapeau, but whether it has effectively reimposed
the same restrictions as the panels in the Tuna-Dolphin dispute is
a question which requires careful consideration. The Appellate Body’s
interpretation of the chapeau has received the most interest and attention
but, as will be discussed below, its reading of paragraph (g) is in some
ways more significant.
In Shrimp, the Appellate Body considered the question of whether the
sea turtles involved constituted "exhaustible natural resources" under paragraph
(g). Like the Tuna-Dolphin panels, the Appellate Body took the view
that "renewable" and "exhaustible" were not mutually exclusive terms (para
128). This in itself was not surprising in light of previous jurisprudence,
but what was particularly encouraging to environmentalists was the Appellate
Body's acceptance that the language of Article XX should be interpreted in
the light of present environmental concerns. It was able to do this, not
because Article XX itself had been redrafted in the Uruguay Round, but because
the preamble of the WTO Agreement identified sustainable development as an
objective of the Organisation and demonstrated that the signatories were
aware of contemporary environmental concerns
(para 129). Furthermore, the Appellate Body took a deliberately
modern view of the term "resources", noting that it should be interpreted
in an "evolutionary" fashion in the light of modern developments (para 130).
The exhaustibility of sea turtles was recognised at least partly because
all the species concerned were registered as endangered under CITES (para
132). At this stage, therefore, the Appellate Body indicated a willingness
to balance environmental concerns with the restraints of the GATT rules by
interpreting the latter in the light of relevant international environmental
When it came to the controversial Tuna-Dolphin finding that paragraph
(g) did not allow Members to impose measures extrajurisdictionally, however,
the Appellate Body’s vagueness was significant. It noted that the sea turtles
in question were migratory and could be found within waters under US
jurisdiction, but explicitly refused to explore the question of whether paragraph
(g) imposed any jurisdictional limits or the extent to which such limits,
if they existed, restricted the right of Members to take environmental protection
measures. However, the Appellate Body apparently deemed that some connection
was necessary, since it introduced a new test: it recognised that the migratory
patterns of the sea turtles gave rise to a "sufficient nexus" between the
sea turtles and the US for the measures in question to fall under the policy
described in paragraph (g) (para 133).
The Appellate Body went on to take a relatively liberal view of the conditions
which the US measures were required to satisfy. It recalled that the test
it had applied in Gasoline to determine whether a measure was "primarily
aimed at" a policy objective was whether there was a "substantial relationship"
between the two (para 136; WTO 1996, p 19). Even the fact that the US measure
was designed "to influence" other countries towards adopting specific technology
when shrimp fishing (a view which echoed the characterisation of similar
measures by the Tuna-Dolphin panels as "coercive") was not enough
to exclude it from the protection of Article XX (para 138; Ahn 1999, pp 845-50).
The Appellate Body found that the measure was "not a simple, blanket prohibition"
on imports unrelated to the possible effects it might have on the protection
of turtles during shrimp fishing. This was because there were two conditions
inherent in the scheme which suggested a genuine and practical focus on the
protection of turtles: the import ban did not affect shrimp caught without
threat to turtles, nor did it exclude shrimp caught within waters of countries
that had been certified as using the appropriate technology. As a whole,
the Appellate Body considered that the US measure was "not disproportionately
wide in scope and reach in relation to" its policy objectives. In addition,
the means were "reasonably related to the ends" (paras 138-41). Thus the
Appellate Body evidently applied a reasonableness or proportionality test
in order to assess whether a measure satisfied the "primarily aimed at"
This line of reasoning was considerably more liberal in its interpretation
of paragraph (g) than in the Tuna-Dolphin reports. However, the Appellate
Body had also signalled in Gasoline that the chapeau should be employed
more actively than had previously been the case, and therefore it was not
surprising that it proceeded to use it as a counterbalance to its broad
interpretation of paragraph (g).
(c) The chapeau
As noted above, the Tuna-Dolphin panels did not need to consider the
application of the chapeau because they had resolved the question of unilateral
measures entirely under paragraph (g). The most detailed jurisprudence on
the chapeau has therefore been developed more recently by the Appellate Body.
In Shrimp, the Appellate Body’s view of the chapeau was that it
constituted the Members’ recognition for the need "to maintain a balance
of rights and obligations" between the right to invoke Article XX and the
substantive rights protected by other GATT provisions (para 156). This approach
was very similar to the idea that the chapeau was there to prevent abuse
of the substantive exceptions contained in Article XX. The Appellate Body
put it yet another way: the chapeau embodied the principle of good faith
(para 158). The line of equilibrium between the party invoking Article XX
and other Members invoking their rights under other provisions must be drawn
so that the competing rights do "not cancel out the other" nor "distort and
nullify or impair" the balance of rights contained in the WTO Agreement (para
159). At this stage, the Appellate Body had effectively restated the same
idea several times, and in very general terms. To complete the picture, it
warned that the line of equilibrium was "not fixed and unchanging", and that
it moved according to the "kind and shape" of the measures in question and
the specific facts of each case (ibid).
In the case of environmental measures, the chapeau should be interpreted
in the light of the concept of sustainable development as contained in the
WTO Agreement preamble. This added "colour, texture and shading" to the
interpretation of the WTO Agreement and its annexes, including GATT 1994
(para 153). In further support of the need to interpret the GATT provisions
in the light of environmental concerns, the Appellate Body also referred
to the Decision of Ministers at Marrakesh to establish the Committee on Trade
and Environment, the reference in that Decision to the Rio Declaration and
Agenda 21, and the Committee’s terms of reference (paras 154-5).
The only conditions of the chapeau examined by the Appellate Body concerned
unjustifiable discrimination and arbitrary discrimination. The Appellate
Body had previously noted that the wording of the chapeau was “not without
ambiguity” and, in particular, the separate
terms “arbitrary discrimination, “unjustifiable discrimination”, and
“disguised restriction” should be read together because “they impart meaning
to one another” (WTO 1996, pp 21-2). Thus unjustifiable discrimination could
include restrictions, and disguised restrictions could include discrimination.
Ultimately, however, the overriding policy was "avoiding abuse or illegitimate
use of the exceptions to substantive rules" (ibid).
In considering the application of "unjustifiable discrimination", the Shrimp
Appellate Body returned to the issue of coercion. As noted above, it
had accepted for the purposes of paragraph (g) that it was acceptable for
a measure to "influence" other countries, provided that the measure was not
disproportionate in its impact and was designed so that there was a reasonable
relationship between the means and the ends. However, under the chapeau,
the actual and intended coercive effect of the US measure was re-characterised
by the Appellate Body as "[p]erhaps the most conspicuous flaw" (para 161).
It appeared from this statement that after all the Appellate Body was going
to reach the same result as the Tuna-Dolphin and Shrimp panels.
However, the Appellate Body qualified its point. The reason why the US measure
was unacceptably coercive in Shrimp was that it required other countries
to adopt essentially the same policies and practices as the US. It was applied
through the relevant guidelines and certification practice in a "rigid and
unbending" manner (para 163). The conditions under which certification would
be granted, for example, were exclusive. No account was taken of other practices
that might be carried out, even if they were comparable in effect. Therefore
the requirement was that other countries should follow effectively identical
policies and practices to those of the US, rather than comparable ones (paras
161-2). The Appellate Body found that importation of shrimp might be banned
simply because of a procedural problem, as opposed to a substantive finding
of failure to reach the standards of the US measure, and that this constituted
unjustifiable discrimination (para 165). In other words, the intention behind
the measure appeared to be more a desire to persuade other countries to adopt
essentially the same regime as the US than a wish to achieve the same level
of turtle protection.
In addition, the Appellate Body noted that the US had negotiated with some
but not all shrimp-fishing countries, had imposed procedural requirements
for certification which differed between countries, and had made greater
efforts to transfer TED technology to some countries than others (paras 172-5).
All these factors could be characterised as discrimination which, in the
absence of evidence to the contrary, was unjustifiable.
These two arguments sat comfortably with the Appellate Body’s stated test,
namely the ordinary meaning of "unjustifiable discrimination" in the application
of a measure. They also suggested that the problems that disqualified the
measure could be overcome - all that would be necessary would be to ensure
greater flexibility in the certification process and in the investigation
of the facts when deciding whether to impose an import prohibition (Grosko
1999). The possibility of curing discriminatory defects was also present
in the Appellate Body’s finding of arbitrary discrimination which arose,
inter alia, from lack of transparency and fairness in the US certification
process (paras 177-84).
However, the Appellate Body added another issue which was not merely procedural
and which struck fundamentally at any attempt to protect unilateral actions
within the WTO regime, namely the importance of seeking multilateral solutions.
The Appellate Body decried the failure of the US to involve other shrimping
countries in "serious, across-the-board negotiations" with a view to finding
a cooperative solution to their concerns
(para 166). By accepting that an attempt to find a multilateral
solution would be sufficient, it partially met the argument that it is sometimes
not possible to achieve multilateral consensus. However, the Appellate Body's
approach did not fully meet the argument that some environmental problems
are so urgent that there is no time even to attempt multilateral agreement.
The test the Appellate Body imposed was simply that an international agreement
should have been "reached or seriously attempted" (para 167). In support
of this, it pointed out that the US Congress had directed that multilateral
solutions should be sought, that protection of migratory species such as
sea turtles demanded cooperative efforts on the part of all countries involved
in shrimp fishing, and that the desirability of multilateral agreements in
the management of international environmental problems had been recognised
by the WTO itself and in the Rio Declaration and other international instruments
(paras 167-8). More specifically, the Appellate Body referred to the
Inter-American Convention for the Protection and Conservation of Sea Turtles
1996 (para 169-70). It should be noted, however, that not only is this convention
not in force but, at the time of the Appellate Body’s findings, had been
ratified by only one of its signatories (Venezuela). Nonetheless, the Appellate
Body seized upon the consensual nature of its provisions and, in particular,
Article XV of the Convention which provided that the parties would, in relation
to the Convention’s subject matter, comply with the WTO Agreement on Technical
Barriers to Trade and Article XI of GATT 1994. All of these instruments were
found to mark the line of equilibrium that the parties themselves had determined
as appropriate for the purposes of justifiable discrimination.
The Appellate Body was sufficiently aware of the likely reaction by
environmentalists to its finding that the US measures constituted unjustifiable
discrimination that it put in an unusual rider. It emphasised that it had
not decided that environmental protection was of no interest to the WTO,
nor that Members could not adopt effective measures to protect sea turtles
or to enter into bilateral or multilateral agreements to do so (para 185).
However, there are many questions about what it did decide, some of which
will be examined in the next section.
Some Areas of Uncertainty
The Shrimp Appellate Body report raises important questions of
interpretation and intriguing issues about the constitutional role of the
Appellate Body (Hansen 1999, pp.1042-7). The balancing test it identified for assessing whether
discrimination is unjustifiable under the chapeau gives it considerable
discretion in determining the rights and obligations of WTO Members. Although
the thrust of its reasoning was in favour of negotiation between the Members
and the achievement of consensual solutions to common problems, ultimately
the application of the ‘balancing’ test rests in the adjudicatory forum -
a result which may be surprising to Member governments. The use of Members’
own acts to identify their intentions and understandings may give the colour
of objectivity, but it should not distract attention from the fact that the
Appellate Body’s analysis has rendered future adjudications on the effect
of Article XX less predictable and more politically problematic.
This is essentially a constitutional problem. Space does not permit detailed
examination of this issue, but the Shrimp case should not be considered
without acknowledging the significant shift it represents towards the Appellate
Body’s power to determine, purely on a case-by-case basis, whether a
Member’s acts constitute unjustifiable discrimination within the terms of
GATT 1994. Although it is probably too early to consider the need for a
non-justiciability principle within the WTO system, the role of the Appellate
Body could profitably be reconsidered and reassessed (Jackson 2000, pp 305-7;
More specifically, the Appellate Body’s reasoning leaves considerable
uncertainties, in particular about the meaning of "serious attempt", the
use of external sources such as multilateral agreements and the principle
of sustainable development, and the implications of the "sufficient nexus"
test introduced under paragraph (g).
(a) The meaning of "serious attempt"
The Appellate Body suggested that a WTO Member proposing to introduce unilateral
TREMs must be able to show that it had first made a "serious attempt" to
achieve international consensus. It found on the evidence that the US had
not discharged this burden, but did not offer a principled basis on which
such a test could be applied in other cases.
On a quantitative level, it should not be too difficult to assess evidence
of negotiation, such as detailed proposals, responses to objections and time
spent. However, the qualititative aspects of the test would be more difficult.
It would involve an understanding of how much a Member would be expected
to sacrifice or compromise before being entitled to move from multilateral
negotiations to unilateral action (Neuling 1999, pp 46-7). If, for example,
there was failure to reach multilateral agreement because the opposing points
of view were philosophically irreconcilable, to say that the frustrated State
was then entitled to impose unilateral measures would be to accept that one
WTO Member had the right to impose its own values on others. This would go
much further than would have been possible under the Tuna-Dolphin
analysis and would therefore grant new legitimacy to unilateral TREMs under
Article XX. But the Appellate Body did require that the attempt be "serious",
which would surely not be the case for negotiations which were begun on the
basis that only one outcome was acceptable. Neither would it fit easily with
the ethos of protecting substantive legal rights contained in the other
provisions of the WTO Agreement. In other words, this sort of case raises
the question of whether the line of equilibrium which the Appellate Body
seeks to identify from the intentions of the Members as a whole can effectively
be drawn by only one.
In a case where the reason for failure to achieve compromise was disagreement
not about values but rather about cost, it may also be questioned whether
one Member should have the power to impose heavy costs on others in order
to achieve its own value-objectives. In such a case, would "serious" have
to include an offer of technical or financial assistance? In the
Tuna-Dolphin and Shrimp disputes, for example, there was no
apparent disagreement about the desirability of protecting dolphins and sea
turtles. The fundamental disagreement was about whether the costs of that
protection were too great to make it worthwhile and who should bear them.
Another question would concern the urgency of an environmental problem. Would
the fact that a species was in danger of extinction, for example, affect
the acceptable length of time for negotiations or alter the level of compromise
that a State negotiating in good faith ought to offer? For example, the
Shrimp dispute concerned an endangered species, whereas the
Tuna-Dolphin dispute was concerned with avoiding needless deaths and
cruelty but not with the threat of extinction. Would this have meant that
different levels of effort would have been required in each case?
Another puzzling aspect of the Appellate Body’s reasoning was its view that
the protection of migratory species by definition required international
cooperation. It stated this in strong language:
“. . the protection and conservation of highly migratory species of sea turtles
. . . demands concerted and cooperative efforts on the part of the many countries
whose waters are traversed in the course of recurrent sea turtle migration”
Expressed in this form, it is a finding of fact which excludes any alternative
solution. If this view were to be applied to any transboundary conflict,
then any attempt at multilateral agreement which failed would not be sufficient
in practice to satisfy the chapeau. But this would suggest that the Appellate
Body’s apparent acceptance of unilateral action consequent on the failure
of a "serious attempt" at negotiation is meaningless.
(b) Use of external sources
The Appellate Body invoked two types of external sources as an aid to
interpretation of Article XX: multilateral agreements, and the principle
of sustainable development. The use of these external sources partially answers
criticisms that the panels in the Tuna-Dolphin dispute took a
‘blinkered’ view of the issues. It has often been argued that the terms of
reference of a GATT or WTO dispute settlement body are by definition too
narrow to be an appropriate forum for dealing with environmental policies.
In addition, it has been claimed that a trade body would not in any case
have the required expertise to understand and evaluate environmental issues.
As one might expect, therefore, the Appellate Body’s attempt to introduce
and employ environmental treaties and concepts has been largely welcomed
by environmentalists. At the same time, it raises several intriguing questions.
(i) Multilateral agreements
The first question that should be asked about the Appellate Body’s use of
multilateral agreements is why such agreements should be considered relevant
at all and, if relevant, the extent to which they affect the substantive
obligations contained in the WTO Agreement. The Appellate Body’s argument
was as follows. Article XX was designed to permit a certain level of
discrimination within the confines of the relevant paragraphs, subject to
the need to ensure that any such discrimination did not constitute an abuse.
Whether discrimination constituted an abuse or not depended on whether it
was "unjustifiable". Since that term could not be defined by reference to
other GATT provisions (because Article XX as a whole was intended as an exception
to them), and the wording of the chapeau was ambiguous, it was necessary
to look elsewhere for guidance. It was therefore legitimate to explore external
sources in order to discover the intentions of the Members, not to define
their precise obligations, but to draw the “line of equilibrium” between
the exercise of substantive rights and the appropriate application of the
exceptions under Article XX. It should be noted that this is significantly
different to the argument that external agreements should be treated as
overriding later treaties (Vienna Convention 1969, Article 30), or taken
into account as a subsequent agreement on the interpretation of the WTO Agreement
or as subsequent practice in its application (ibid, Article 31). The Appellate
Body’s approach to the effect of external instruments is considerably more
vague than these provisions, and gives it far more discretion as to their
selection and legal effect.
However, there are problems about which external instruments should be chosen
for examination, and how much weight they should be given according to their
subject-matter, clarity and legal effect. The Appellate Body referred, for
example, to CITES and the Rio Declaration. One of the reasons given for finding
that the US had not seriously attempted to find a multilateral solution to
the problem of shrimp fishing was that it had not raised the issue under
the aegis of CITES. It is notable, however, that CITES is concerned with
trade in sea turtles, not shrimp. It is not a generalised treaty but one
which deals with a very specific aspect of conservation. One might question,
therefore, how significant it was that the US did not raise its concerns
about shrimp fishing in that forum. The Rio Declaration is ‘soft’ law, and
is intended to be implemented through the programme laid down in Agenda 21.
Although Principle 12 of the Declaration states that transboundary environmental
problems should be tackled through consensus “as far as possible”, it is
an interesting development that a non-binding provision could be translated
into something which had direct legal effects within the WTO Agreement (Sands
2000, pp 300-1). The Appellate Body also gave particular weight to the
Inter-American Convention which the US had signed but not at that time ratified.
Indeed, only one of the signatories had ratified it, although the Appellate
Body referred to all the signatories misleadingly as "parties" (para 170).
It would have been equally possible to conclude from the lack of ratification
that the signatories might be reconsidering their views as expressed in the
Even if it is accepted that the Appellate Body was entitled to use these
external sources in order to define the intentions of the Members towards
the chapeau, its analysis would have had more authority if it had indicated
its understanding of the different legal effects carried by these instruments
in international law and had explained how those different legal effects
might affect their influence on the interpretation of the WTO Agreement.
Another aspect of applying international agreements is the question whether
individual WTO Members, or groups of Members, should be able to affect the
interpretation of Article XX by their activities outside the organisation.
In Shrimp, the parties to the dispute had all participated in, or
had a connection with, the external instruments referred to by the Appellate
Body. Its interpretation of Article XX for those particular WTO Members would
therefore be relevant, but how would the Appellate Body tackle the problem
of other Members who had a different pattern of international commitments
and activity (Neuling 1999, pp 44-5)? One possibility is that it could pursue
consistency by applying exactly the same interpretation as determined in
a previous dispute, but this would mean that Article XX’s meaning might depend
on which parties brought which type of dispute first. Alternatively, the
Appellate Body could give a different interpretation of the chapeau according
to the identity of the parties and their acceptance of external policy and
legal instruments. This would mean that it would be relevant, say, to refer
to what the relevant individual Members had said in the Committee on Trade
and Environment or in other public statements, both inside and outside the
WTO. This would fit with the Appellate Body’s view that the chapeau should
be interpreted on a case-by-case basis, but at the risk of allowing individual
Members to alter the balance of their rights and obligations under the WTO
Agreement by external acts, and of sacrificing internal consistency.
Furthermore, how would the Appellate Body apply its reasoning to Members
who were parties to the same external instruments but disagreed about their
application? How, for example, would the Appellate Body deal with a comparable
dispute in the context of whaling between the US and Japan where both are
members of the International Whaling Commission but disagree about the
application of the ‘scientific research’ exception to the whaling moratorium
(McLaughlin 1999, pp 928-34; Rueda 2000, p 662)?
(ii) Sustainable development
Unlike multilateral agreements, sustainable development has been explicitly
drawn into the WTO Agreement by way of the preamble. The wording shows that
efforts "both to protect and preserve the environment and to enhance the
means for doing so" must be "in a manner consistent with [the parties’]
respective needs and concerns at different levels of economic development."
There is no substantive provision defining or implementing the concept of
sustainable development in the WTO Agreement, unless one includes the limited
environmental provisions which soften the impact of some trade rules. Even
outside the WTO, there is no precise and universally accepted definition
of the concept and, without some concrete scheme of implementation to particular
facts, some would say that it is not amenable to judicial application at
all (Lowe 1999). It is a principle which guides the making of political,
social, environmental and economic choices, but the complexity of issues
and the incommensurability of values involved would normally exclude any
The Appellate Body gave a reasonably vague role to the principle of sustainable
development in the interpretation and application of Article XX. It merely
suggested that it could be used to give "colour, texture and shading". It
used the idea of sustainable development to support the finding that turtles
constituted "exhaustible natural resources". It avoided making a finding
on whether paragraph (g) contained jurisdictional limitations, but it is
reasonable to ask whether the concept of sustainable development would equally
apply to that question. It would also be interesting to know, for example,
whether the concept of sustainable development could affect the interpretation
of substantive rights under the Agreement. For example, it might have a
significant impact on the question of whether Article III permits the sale
of imported products to be restricted on the basis of process and production
methods that take place in the importing country. (Ahn 1999, pp 852-5; Neuling
1999, p 46).
(c) The test of "sufficient nexus" in paragraph (g)
Although there are difficult questions arising from the Appellate Body’s
development of the chapeau, arguably the most problematic as far as
environmentalists are concerned lie in its interpretation of paragraph (g).
Although it apparently applied that provision more liberally than the
Tuna-Dolphin panels, it also imposed a new and ill-defined test of
The Appellate Body deliberately avoided the question of whether paragraph
(g) contained any jurisdictional limits. It did, however, introduce a condition
not explicit in the wording, namely the necessity for a linkage between the
policy behind the measure and the interests of the implementing country.
On the facts of the case, the Appellate Body did no more than state that
there was "sufficient nexus" between the sea turtles and the US for the policy
in question to be acceptable. As a result, of course, it did not offer a
principle on which such questions might be decided in the future, although
the policy-interest linkage is likely to be a crucial issue in the future.
In Shrimp, the nexus appeared to be jurisdictional, in that the Appellate
Body made reference to the fact that the sea turtles at issue were migratory
and had populations which traversed or lived in US waters (para 133).
The first conclusion one could draw from such a limitation is that the dolphins
in the Tuna-Dolphin dispute would have been excluded from consideration
because they were not connected to US-controlled waters. If this were the
case, then the scope of paragraph (g) would exclude the possibility of taking
action to protect animals or plants living beyond national jurisdiction where
no migration or other transboundary movement took place (Neuling 1999, pp
45-6). This would be true even under a multilateral agreement, unless the
Appellate Body were prepared to treat the design of a measure under paragraph
(g) the same way as it did the application of a measure under the chapeau.
Since the task of interpreting the substantive paragraphs is one of textual
interpretation, as opposed to determining the ‘line of equilibrium’ inherent
in avoiding the abuse of the exceptions contained in Article XX, it is difficult
to see how the same reasoning could be applied.
One possibility is that the Appellate Body could accept that the existence
of a multilateral agreement protecting species living entirely beyond national
jurisdiction would create a sufficient nexus in its own right. This would
obviously raise problems of applying consistent WTO law if only some Members
were party to that agreement. In addition, it would work differently from
the nexus created by the jurisdictional connection since it would require
the existence of a multilateral agreement, rather than accepting that a
unilateral measure could be introduced in the case of failure to reach
Another possible nexus might be defined by reference to the term "resource".
The mere fact that sea turtles migrated through US waters was considered
to be sufficient, and this suggests that the Appellate Body was taking into
account an aspect of control, ownership or exploitability. This could, logically,
be extended further to species that were exploited by a country outside its
territorial limits. Such an extension could be supported by the fact that
the exploiting State would have a reason for protecting that species which
is akin to the domestic interests which are clearly protected by Article
XX. However, exploitability (or instrumental value) is potentially a very
Instrumental value may consist of the ability to use a species for commercial
purposes. Safeguarding the viability of tuna or shrimp populations would
fall under that heading, but not dolphins or sea turtles. A wider version
of instrumental value would include existence value and enlightened
anthropocentrism (Passmore 1980). Existence value would place a value on
a species whether or not it was commercially exploitable - the desire of
sections of the American public to protect dolphins would be a good example
of such a value (Cheyne 2000). To accept the existence of this type of value
as grounds for unilateral TREMs (at least after multilateral negotiations
had failed) would raise the same questions as posed above about whether
individual Members should be able to impose their environmental values on
other Members. Enlightened anthropocentrism would apply to the potential
extinction of a species, and represents a precautionary approach to the possible
implications of that extinction on the survival of the human race. This would
be an easier ground for finding a sufficient nexus because it could be brought
under the colour, texture and shading of sustainable development, if the
Appellate Body were willing to introduce that argument into the interpretation
of substantive provisions of the WTO Agreement. Prevention of extinction
might also be an attractive goal to allow WTO Members to pursue, even
unilaterally, if it helped to prevent the kind of criticism that has been
levelled at the GATT and WTO since the Tuna-Dolphin reports and most
vociferously in Seattle.
The "sufficient nexus" problem affects even very well established treaties,
including some that were cited by the Appellate Body in support of its argument
that multilateralism is the appropriate means to tackle international
environmental problems. Trade measures introduced to promote protection of
the ozone layer or to slow climate change, or to restrict trade under CITES,
may be challenged by WTO Members who are not party to the relevant multilateral
agreements. For example, the Montreal Protocol is designed to reduce the
threat of damage to the ozone layer. It cannot work unless all parties work
together to control trade in ozone-depleting substances, and yet the above
analysis suggests that only those States directly threatened by ozone depletion
might be entitled to use Article XX(g) in order to defend their actions under
the GATT. The Basel Convention would also be affected in so far as parties
restrict or prohibit the export of hazardous wastes to other countries unless
they are satisfied that proper waste disposal facilities are available. This
is not based on a resource connection with the exporting State, but is an
altruistic concern with the protection of health and environment in other
countries. Likewise, CITES requires its parties to restrict trade in listed
species, regardless of whether any members of those species live in their
Other global issues may arise which are not covered by substantive international
obligations. Although the Appellate Body has accepted the specific role of
sustainable development, and therefore the need to accommodate environmental
policies, it is likely to be asked in the future to accommodate other types
of non-trade issues such as labour rights and human rights (Charnovitz 1999,
Garcia 1999). The question of what constitutes sufficient nexus where one
Member wishes to restrict imports on the basis of social policies implemented
in the importing country will be a crucial part of resolving these types
of conflicts by panels and the Appellate Body.
The Shrimp Appellate Body report is not easy to categorise from a
trade-environment point of view. On the one hand, the Appellate Body employed
language and references that suggest that it is more in tune with contemporary
environmental concerns than earlier dispute settlement bodies. On the other,
its interpretation of the scope of paragraph (g) may place barriers in the
way of unilateral, and perhaps multilateral, TREMs, and throws into doubt
its apparently liberal stance on the balance between trade and environmental
The Appellate Body's employment of a ‘balancing line’ in the application
of the chapeau has the virtue that the underlying arguments and conflicting
values inherent in the trade-environment conflict must be presented in a
public and reasoned manner. However, a case-by-case approach, drawing from
sometimes conflicting and partial evidence of Members' intentions, and the
inherently mobile nature of the line itself, all place the Appellate Body
in a central role which blurs the division between law and politics, adjudication
The Appellate Body's legal reasoning in Shrimp is sufficiently ambiguous
and flexible in its interpretation of both the chapeau and paragraph (g)
that it is nearly impossible to predict how trade-environment disputes may
be resolved in the future. The anti-globalisation demonstrations in Seattle
were just one sign of frustration with the slow progress made in negotiating
forums such as the Committee on Trade and Environment and the difficulty
in satisfying the requirements of Article XX before dispute settlement bodies.
If the Appellate Body is not to contribute to this frustration, it must
strengthen its environmentally sympathetic language with transparent and
This is not to say that trade rules should always be sacrificed to environmental
values, nor that developing countries' concerns about protectionism and
'eco-imperialism' should be dismissed. But it does mean that the Appellate
Body will have to tackle the types of values behind environmental policies
much more explicitly and much more selectively. It needs to recognise the
significance of policies which are concerned, for example, with the threat
of irreversible harm or with protecting the global commons against free-riders,
as opposed to policies which represent essentially cultural or species bias.
Relying on jurisdictional or exploitation connections or on the ability of
countries to reach a level of consensus is not a sufficiently sophisticated
approach in the light of contemporary environmental concerns.
As Jackson has pointed out, the problem with a slippery slope is not that
one starts down it, but that one needs to know how one's descent can be stopped
before reaching the bottom (Jackson 2000, p 304). The Appellate Body has
shown some ambiguity about whether it is ready to allow Members to start
down the slippery slope and, if necessary, what mechanisms might be used
in order to prevent a headlong descent. In principle, its willingness to
accept unilateral TREMs under Article XX has opened up the possibility of
moving away from the old exclusive certainties of the Tuna-Dolphin
jurisprudence. It must now complete the task by clarifying and refining the
conditions under which unilateral extraterritorial measures may play an
appropriate role under the WTO Agreement.
Top | Contents
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