Tim Wilson, J.D.
 

The United States will appeal a recent World Trade Organization ruling that a U.S. ban on shrimp imports violates international law.⁽¹⁾ The U.S. refuses to allow imports of shrimp from countries that do not meet U.S. standards for protection of endangered species, specifically sea turtles, which are often killed when they are caught in shrimp nets. The U.S. requires shrimp boats in federal waters to use turtle excluder devices (TEDs) to prevent the accidental killing of sea turtles and refuses to allow shrimp to be imported into the U.S. from countries that do not require turtle excluder devices or other measures to protect sea turtles.⁽²⁾

The W.T.O. ruled that the U.S. gave up its right to use an import ban to force other nations to comply with U.S. environmental or endangered species protection standards.⁽³⁾ As a result, the U.S. has stepped up negotiations with India, Pakistan, Malaysia, and Thailand, the countries that filed the complaint with the W.T.O., to form a treaty allowing imports of shrimp from those countries in return for their use of turtle excluder devices or other measures to protect sea turtles.⁽⁴⁾
 

U.S. ACTIONS LEADING TO THE W.T.O. RULING
 

Sea turtles are an endangered species and many sea turtles are accidentally killed when they get caught in shrimp nets. Since 1987, the U.S. has required all shrimp boats in U.S. waters to use TEDs in their nets to protect sea turtles. A TED is a trapdoor installed in a net to allow shrimp to pass to the back of the net while directing sea turtles and other large objects out of the net. TEDs cost between $100 and $300. Attitudes of boat owners toward TEDs vary. Some considering them an unnecessary complication, but others recognize that TEDs prevent sea turtles and other ocean debris from crushing shrimp.⁽⁵⁾

Since 1989, the U.S. has banned imports of shrimp from nations that do not require TEDs or other measures to protect sea turtles. The primary purpose of the law is to protect sea turtles outside of U.S. waters. A secondary purpose is to make the domestic use of TEDs more palatable by protecting U.S. boats using TEDs from competition with foreign boats not using TEDs. The law bans shrimp imports unless the nation of origin complies with U.S. standards for the protection of sea turtles.
 

THE W.T.O. COMPLAINT AND RULING
 

India, Pakistan, Malaysia, and Thailand complained to the W.T.O. that the U.S. ban violated international law. The nations filing the complaint with the W.T.O. claim the U.S. gave up its sovereign right to ban imports when the U.S. became a party to the General Agreement on Trade and Tariffs (GATT). One of the Nations filing the Complaint, Thailand, requires use of TEDs, but objects to being told to do so by the United States.⁽⁶⁾

The U.S. countered that, under Article XX of the G.A.T.T., the U.S. may ban imports when necessary to protect endangered species. G.A.T.T. Article XX specifically allows import bans to protect human, animal, or plant life or health. Article XX also allows import bans to conserve exhaustible natural resources if the ban is made in conjunction with restrictions on domestic production or consumption, such as the U.S. requiring TEDs.

The W.T.O. ruled that Article XI expressed the primary purpose of the G.A.T.T., the elimination of trade barriers, and that Article XX should be applied narrowly. Since Article XX was an affirmative defense to a violation of obligations under Article XI, the W.T.O. ruled that the U.S. had the burden of proof that the shrimp import ban was not arbitrary nor unjustified and that no alternative means existed to protect sea turtles.

The U.S. argued that the shrimp import ban was intended to protect an endangered species and not intended to protect U.S. shrimp boats from competition. The U.S. presented evidence that there is an international consensus on the need to use TEDs to protect sea turtles and that the ban had not led to a decrease in shrimp imports or to a rise in shrimp prices. However, the U.S. did not show that it had exhausted alternative methods, such as treaty negotiations, to persuade other nations to use TEDs.

On April 6, 1988, the W.T.O. ruled that the U.S. could not use Article XX to force its environmental standards on other nations. The W.T.O. ruled that allowing one Nation to dictate environmental standard to others could lead to many Nations imposing conflicting standards on each other. The W.T.O. ruled that the U.S. had taken unilateral action without first trying to negotiate with other Nations to form multilateral standards for the protection of sea turtles.
 

THE TUNA DOLPHIN PRECEDENT
 

The W.T.O. decision follows precedent. In 1993, the G.A.T.T. Dispute Resolution Panel, the predecessor of the W.T.O., decided that a U.S. ban on tuna imports violated G.A.T.T. Article XI, even though the purpose was dolphin protection. In that case the U.S. banned imports of tuna unless the country of origin met U.S. standards for the protection of dolphins. The W.T.O. decision held that the U.S. improperly relied on Article XX, which cannot be used unless all other alternatives, including the negotiation of international cooperative agreements, have been exhausted.⁽⁷⁾

These W.T.O. decisions can be seen as a rejection of U.S. unilateralism in global environmental policy. The Tuna Dolphin decision cited the United Nations Conference on the Environment and Economic Development Principal 12, which states, "Unilateral actions to deal with environmental challenges outside the jurisdiction of the importing countries should be avoided. Environmental measures addressing transboundary or global environmental problems should, as far as possible, be based on international consensus."⁽⁸⁾ These W.T.O. decisions represent a rejection of U.S. unilateralism in global environmental policy.
 

THE EFFECTS OF THE W.T.O. RULING
 

The W.T.O. has little power to force the U.S. to obey its rulings. The only enforcement mechanism available to the W.T.O. is to allow Nations harmed by the U.S. import ban to levy compensating tariffs on exports from the U.S. to those Nations.⁽⁹⁾ The W.T.O. cannot force the U.S. to stop the import ban.

The W.T.O. decision does not affect the use of TEDs in U.S. waters. The U.S. will continue to require TEDs to be used by all shrimp boats in U.S. waters. At present, no foreign boats are allowed to harvest shrimp is U.S. waters, however any foreign boats licensed to do so will be required to use TEDs.

The U.S. has taken action in two ways. First, on May 13, the U.S. Trade Representative announced that the U.S. would appeal the W.T.O decision and that the U.S. would continue to enforce the ban during the appeal. Even if the appeal is denied, the import ban is likely to remain in effect.

Second, the U.S. has begun negotiating with the complaining Nations to form a treaty creating multilateral standards for the protection of sea turtles. The result of the W.T.O. decision, regardless of the success of the appeal, is likely to be a multilateral agreement on the protection of sea turtles. There is an international consensus on the need to protect sea turtles. This consensus, combined with the insistence of the U.S. on enforcing its import ban, and the importance of U.S. markets, make it likely that a multilateral treaty can be negotiated and that the U.S. import ban will be modified to enforce that multilateral agreement in a way that complies with the G.A.T.T.
 

ENDNOTES
 

1. USTR Press Release, March 17, 1998, Office of the United States Trade Representative, Washington, D.C., WWW.USTR.GOV.

2. Section 609 of Public Law 101 - 162.

3. World Trade Organization, United States - Import Prohibition of Certain Shrimp and Shrimp Products, Final Report, April 6, 1998.

4. WTO Press Release, May 18, 1998, Second Ministerial Conference of the World Trade Organization, Geneva, Switzerland, WWW.WTO.ORG/ANNIV/PRESS.

5. Telephone interview with Will Seidel, National Marine Fisheries and Wildlife Service, Pascagoula, Mississippi.

6. Thailand Environmental Institute, Home Page, May 20, 1998, www.tei.or.th/.

7. World Trade Organization, United States - Restrictions on Imports of Tuna from Mexico, Panel Report Not Adopted by the GATT Contracting Parties, 39th Supp. BISD 155 ( 1993).

8. United Nations Conference on the Environment and Development, 31 ILM 874, 978 (1992).

9. Article XXIII of the General Agreement on Trade and Tariffs.
 

University of Mississippi