An Analysis of Shrimp/Turtle II: The WTO Makes Room for Environmental Trade Restrictions Chris Wold, Associate Professor & Randi Black, IELP Law Clerk August 15, 2005 In Shrimp/Turtle I,1 the WTO’s Appellate Body declared U.S. shrimp/turtle regulations in violation of its GATT obligations, because the U.S. required all foreign nations to have sea turtle conservation programs that were “essentially the same” as the U.S. regulations, including mandatory use of Turtle Excluder Devices (TEDs). The United States also failed to make good faith efforts to negotiate an international agreement to protect sea turtles with Southeast Asian countries, as the U.S. Congress had directed, although it concluded such an agreement with countries in the Western Hemisphere.2 Under those earlier regulations (“Original Guidelines”), the United States imposed import restrictions on shrimp caught without using TEDs. In light of this ruling, the United States revised its regulations (the “Revised Guidelines”) to require sea turtle conservation programs that were “comparable in effectiveness” to the U.S. program. It also entered into negotiations to protect sea turtles with Southeast Asian countries. When Malaysia challenged these efforts as inadequate in Shrimp/Turtle II,3 the Appellate Body upheld the Revised Guidelines. In so ruling, the Appellate Body opened the door for trade restrictions to protect natural resources. Background The United States adopted Section 609 of Public Law 101-162, an amendment to the Endangered Species Act, to effectuate the country’s policy to protect sea turtles from incidental mortality during shrimp harvesting. Section 609 requires shrimp harvesting nations to apply for and receive “certification” consistent with guidelines promulgated by the U.S. State Department prior to importing shrimp to the United States. Section 609 bans the importation of shrimp until the State Department, on behalf of the President, certifies that a (1) harvesting nation has a…
