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Decisions of the Appellate Body of the World
Trade Organization
Current Survey
United States--Import Prohibition of Certain Shrimp and Shrimp Products
Joel P. Trachtman*
Full text of WTO Appellate Body Report on WTO web site
WTO Appellate Body Report: United States--Import Prohibition of Certain Shrimp and Shrimp Products, AB-1998-4, WT/DS58/AB/R (98-0000), adopted by Dispute Settlement Body, 6 November 1998. United States, Appellant; India, Malaysia, Pakistan and Thailand, Appellees; Australia, Ecuador, the European Communities, Hong Kong, China, Mexico and Nigeria, Third Participants. Division: Feliciano, Bacchus and Lacarte-Muró. Major Topics Addressed by Appellate Body: evidence presented to the panel; exceptions for environmental protection under article XX of GATT.
1. Abstract
The panel in the instant case found that the U.S. measure was unjustified within the meaning of the chapeau of art. XX, and therefore did not qualify for any exception from the prohibition of art. XI. Having addressed the chapeau of art. XX, the panel found that it did not need to address art. XX(b) or (g).1 The panel applied a novel requirement that the measure to be excepted under art. XX must not “undermine the multilateral trading system.”
The Appellate Body rejected the panel’s reasoning and engaged in its own analysis. the Appellate Body reached the same conclusion to the effect that the U.S. measure does not comply with the chapeau after analyzing the availability of an exception under art. XX(g). The Appellate Body interestingly established a balancing test for satisfaction of the requirements of the chapeau and proceeded to examine the U.S. measure using means-ends analysis and a least trade restrictive alternative test analysis. The Appellate Body also found that the U.S. measure contained actual discrimination (discrimination that is not simply the necessary result of the U.S. environmental program) in the way that it was applied.
In addition to the substantive issues, this case raised the issue of whether non- governmental organizations (NGOs) may submit briefs for consideration by the panel. The panel initially answered that since it had not asked for the information submitted by the NGOs in this case, it would not consider their briefs. The Appellate Body adopted a more flexible approach, holding that the panel has complete discretion to consider submissions, even if it has not requested them.
*
Professor of International Law, The Fletcher School of Law and Diplomacy, Tufts
University, Medford, Massachusetts 02155, USA.
1 The
“chapeau” and the relevant exceptions are as follows:
“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 Member 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. . . .”
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This file was last modified:
Tuesday, October 14, 2003 01:14PM