¹ These devices are relatively inexpensive, costing between $75 and $400 in the United States, although the “harder” varieties (which are increasingly being required) start in the $200 range. Not much is known about the cost of TEDs in developing countries where labor is cheaper, although an Indian newspaper has stated that they are “inexpensive, costing only Rs 3.000” (around U.S. $75), and a member of the U.S. National Marine Fisheries Service on a visit to India was told that the cost was actually in the $8 to $12 range. If properly installed and used, TEDs are said to be up to 97% effective in permitting turtles to escape from shrimp trawl nets, while resulting in a negligible loss of shrimp catch. Discussion of the author with a member of the National Marine Fisheries Service (Nov. 1997). See also United States—Import Prohibition of Certain Shrimp and Shrimp Products, U.S. Panel Submission, para. 23. Thailand disagreed with the U.S. contention. See id., Thailand’s Second Panel Submission, paras. 5, 19–22.

² The relevant provisions of Article XX 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.

General Agreement on Tariffs and Trade [GATT], as amended, reprinted in GATT, The Results of the Uruguay Round of Multilateral Trade Negotiations: The Legal Texts 486 (1994) [hereinafter GATT 1994].

³ The leatherback, the green, the hawksbill and the olive ridley.

⁴ WTO Doc. WT/DS58/AB/R, para. 116 (Oct. 12, 1998) [hereinafter AB Report].

⁵ Sea Turtle Conservation; Shrimp Trawling Requirements, 52 Fed. Reg. 24,244 (1987). The regulations were opposed by many U.S. shrimpers, who nicknamed TEDs “trawler elimination devices.” See Kathleen Doyle, Turtle Excluder Device Regulations: Laws Sea Turtles Can Live With, 21 N.C. Cent. L.J. 256, 271–82 (1995).

⁶ Pub. L. No. 101–162, §609(b), 103 Stat. 1038 (1989).

⁷ Section 609 was introduced and promoted by the senators from Louisiana in large part to help “our shrimpers in Louisiana.” They argued that if the United States, notwithstanding their opposition, was going to impose these costs on their constituents, it was going to impose them on everyone else who wanted to compete in the U.S. market. See 135 Cong. Rec. S12191 (1989).

⁸ Turtles and Shrimp Trawl Fishing Operations Protection: Guidelines, 56 Fed. Reg. 1051 (1991). See also Revised Guidelines for Determining Comparability of Foreign Programs for the Protection of Turtles in Shrimp Trawl Fishing Operations, 58 Fed. Reg. 9015 (1993).

⁹ Earth Island Inst. v. Christopher, 913 F.Supp. 559 (Ct. Int’l Trade 1995) (emphasis added). The Department of State then issued new guidelines, which, among other matters, permitted shrimp to be imported to the extent they were certified by a foreign government official to have been caught by TEDs, even if the foreign government in question did not have a “comparable regulatory program” mandating the use of TEDs. These guidelines were again challenged by the same groups and found by the U.S. Court of International Trade to be contrary to section 609.

¹⁰ See United States—Restrictions on Imports of Tuna, 30 ILM 1594 (1991) (unadopted panel report, Aug. 16, 1991) [hereinafter Tuna-Dolphin I); and United States—Restrictions on Imports of Tuna, 33 ILM 839 (1994) (unadopted panel report, June 16, 1994) [hereinafter Tuna-Dolphin II].

¹¹ Third Party Submission by the European Communities to the panel (on file with author). See also AB Report, paras. 65–74 (remarks by the Communities).

¹² United States—Import Prohibition of Certain Shrimp and Shrimp Products, WTO Doc. WT/DS58/R, para. 7.62 (May 15, 1998) [hereinafter Panel Report].

¹³ Id., para. 7.61. The panel repeated eight times that the U.S. environmental measures “undermine,” “threaten” and “put at risk” the trading system. See id., paras. 7.44, 7.45, 7.51, 7.55, 7.60, 7.61.

¹⁴ See AB Report, para. 110.

¹⁵ The three briefs were submitted: (1) by the Earth Island Institute, the Humane Society, and the Sierra Club; (2) by the Center for International Environmental Law, the Center for Marine Conservation, the Environmental Foundation Ltd., the Mangrove Action Project, the Philippine Ecological Network, Red Nacional de Acción Ecológica, and Sobrevivencia; and (3) by the Worldwide Fund for Nature and the Foundation for International Environmental Law and Development.

¹⁶ The Appellate Body did not, however, set any procedural guidelines for the submission of amicus briefs, an issue that remains open.

¹⁷ While not addressing Article XX(g), the panel had observed that, even if the U.S. restrictions fell within the scope of paragraph (g), they were unjustifiable under the “chapeau” of Article XX.

¹⁸ See WTO Panel Report, United States—Standards for Reformulated and Conventional Gasoline, 35 ILM 274, 299 (Jan. 29, 1996). The panel held that “clean air” was an exhaustible natural resource and that the U.S. measure thus fell within the scope of Article XX(g).

¹⁹ The second Tuna-Dolphin panel held that the primary aim of the U.S. measures was “to force other countries to change their policies with respect to persons and things within their own jurisdiction, since the embargoes required such changes in order to have any effect on the conservation of dolphins.” Tuna-Dolphin II, supra note 10, para. 5.24.

²⁰ AB Report, para. 133.

²¹ See id., para. 187(c). For reasons of judicial economy, the Appellate Body did not address whether the U.S. import ban was also “necessary to protect human, animal or plant life or health” under Article XX(b). Id., para. 146.

²² The Shrimp-Turtle panel used the same rationale under the chapeau of Article XX as applied by the Tuna-Dolphin panels under Article XX (g). All three panels held that the respective import embargoes were impermissible because they were “types” of measures that could “undermine” the trading system. The Tuna-Dolphin II panel claimed, “Under such an interpretation the General Agreement could no longer serve as a multilateral framework for trade among contracting parties.” Tuna-Dolphin II, supra note 10, para. 5.26. The Shrimp-Turtle panel cited the Tuna-Dolphin II decision with approval. See Panel Report, supra note 12, para. 7.46.

²³ AB Report, paras. 129–31, 155.

²⁴ Id., para. 156 (emphasis of “balance” added).

²⁵ Id., para. 159 (emphasis added).

²⁶ Id.

²⁷ Id., para. 161.

²⁸ Id., para. 164.

²⁹ Id., para. 165.

³⁰ Id., paras. 166–70.

³¹ This was the result of a decision of the U.S. Court of International Trade, a body for which the United States “bears responsibility.” Id., para. 173.

³² Id., para. 175.

³³ Id., para. 180.

³⁴ Id.

³⁵ AB Report, para. 182. Paragraph 3 of Article X, for example, requires parties to “administer in a uniform, impartial and reasonable manner” their laws and regulations, and to “maintain … judicial, arbitral or administrative tribunals or procedures for the purpose, inter alia, of the prompt review and correction of administrative action.” GATT 1994, supra note 2.

³⁶ See supra note 9.

³⁷ AB Report, para. 161.

³⁸ See Agriculture: EU Promises Decision on Hormone Dispute by May 13 WTO Implementation Deadline, 16 Int’l Trade Rep. (BNA) 191 (Feb. 3, 1999).

³⁹ See 63 Fed. Reg. 46,094 (1998). This followed a successful government appeal of an earlier judgment by the Court of International Trade. See Earth Island Inst. v. Albright, 147 F.3d 1352 (Fed. Cir. 1998). The U.S. court of appeals decision is discussed in 15 Int’l Trade Rep. (BNA) 1063 (June 17, 1998). The revised guidelines are again being challenged before the trade courts by the Earth Island Institute and other environmental organizations. The decision reported at 16 Int’l Trade Rep. (BNA) 638 (Apr. 14, 1999) is being appealed.

⁴⁰ Telephone interview with a representative of the U.S. Department of State (Feb. 8, 1999). On March 25, 1999, the Department of State published a Notice of Proposed 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. 14,481 (1999) [hereinafter 1999 Proposed Guidelines]. The 1999 Proposed Guidelines were subject to public comment for a 30-day period (until April 24, 1999). Once finalized, the revised guidelines are to be submitted to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate, which may vote to indicate their agreement or disagreement with the revised text. Such a vote, however, is not binding on the Department of State. See Uruguay Round Agreements Act of 1994, 19 U.S.C. §3533(g) (1994).

⁴¹ See 1999 Proposed Guidelines, supra note 40.

⁴² Telephone interview, supra note 40.

⁴³ WTO rejects U.S. ban on shrimp nets that harm sea turtles, CNN, Oct. 12, 1998 (visited Feb. 8, 1999) <http://www.cnn.com/US/9810/12/world.trade.ruling>.

⁴⁴ See Complainants in WTO Shrimp Case Slam Appellate Report at DSB, Inside U.S. Trade, Nov. 13, 1998, at 7–8 (summarizing and citing comments of the complaining parties before the WTO Dispute Settlement Body).

⁴⁵ AB Report, para. 91.

⁴⁶ See 1999 Proposed Guidelines, supra note 40.