324
2 The Reference to UNCLOS in the Appellate Body Report
on US-Shrimp
As it is well known, the US-Shrimp Case concerned the compatibility with WTO
law of the United States’ ban on imports of shrimps caught with fishing technology
harmful to sea turtles, an endangered species under the 1973 Convention on
International Trade of Endangered Species (CITES).
7
In order to justify the violation of its commitments under Art. XI GATT,
8
the United States invoked Art. XX
GATT—the so called “general exception clause”—laying out, in subparagraphs
from (a) to (j), a number of specific circumstances under which the WTO Members
may be exempted from GATT rules.
9
In particular, the respondent relied on Art.
XX(g) covering measures “relating to the conservation of exhaustible natural
resources if such measures are made effective in conjunction with restrictions on
domestic production or consumption”. Accordingly, the Appellate Body had to
determine whether sea turtles could be regarded as “exhaustible natural resources”
within the meaning of that provision. The complainants (India, Malaysia, Pakistan
and Thailand) sought a narrow interpretation of the relevant phrase as including
only non-renewable resources, such as minerals. Said expression, in their view, does
not encompass animal species, the latter being living resources and, consequently,
able to reproduce themselves. They also stressed that issues involving living
resources should be considered under the separate exception in Art. XX(b), which
specifically exempts measures “necessary to protect human, animal or plant life or
health” (hence natural living resources), by subjecting them to different and stricter
requirements than those provided by Art. XX(g). In fact, in order to be prima facie
justified under the latter subparagraph, a measure must meet the “related to” test,
which is much broader and easier to satisfy than the more rigid “necessity” test
imposed by subparagraph (b).
10
According to the complainants, this difference in
7 Section 609 of US Public Law 101–162 (“Section 609”) made access to the United States’ shrimp
market contingent on the adoption by exporting States of a sea turtle conservation programme
comparable to that of the United States themselves.
8 Art. XI(1) GATT provides for the general elimination of quantitative restrictions: “[n]o prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licences or other measures, shall be instituted or maintained by any contracting
party on the importation of any product of the territory of any other contracting party or on the
exportation or sale for export of any product destined for the territory of any other contracting
party”.
9 Recourse to the exceptions provided by Art. XX GATT is qualified by the introductory clause, or
chapeau, of this provision (“[s]ubject 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 the measures listed in subparagraphs from (a) to (j). A comprehensive discussion of the
various issues raised by Art. XX GATT is provided by Picone and Ligustro (2002), p. 321 ff.
10 Initially, GATT Panels interpreted the expression “related to” in Art. XX(g) as requiring substantively the same standard of review as Art. XX(b). It was the Appellate Body in the US-Gasoline
M. I. Papa
2 The Reference to UNCLOS in the Appellate Body Report
on US-Shrimp
As it is well known, the US-Shrimp Case concerned the compatibility with WTO
law of the United States’ ban on imports of shrimps caught with fishing technology
harmful to sea turtles, an endangered species under the 1973 Convention on
International Trade of Endangered Species (CITES).
7
In order to justify the violation of its commitments under Art. XI GATT,
8
the United States invoked Art. XX
GATT—the so called “general exception clause”—laying out, in subparagraphs
from (a) to (j), a number of specific circumstances under which the WTO Members
may be exempted from GATT rules.
9
In particular, the respondent relied on Art.
XX(g) covering measures “relating to the conservation of exhaustible natural
resources if such measures are made effective in conjunction with restrictions on
domestic production or consumption”. Accordingly, the Appellate Body had to
determine whether sea turtles could be regarded as “exhaustible natural resources”
within the meaning of that provision. The complainants (India, Malaysia, Pakistan
and Thailand) sought a narrow interpretation of the relevant phrase as including
only non-renewable resources, such as minerals. Said expression, in their view, does
not encompass animal species, the latter being living resources and, consequently,
able to reproduce themselves. They also stressed that issues involving living
resources should be considered under the separate exception in Art. XX(b), which
specifically exempts measures “necessary to protect human, animal or plant life or
health” (hence natural living resources), by subjecting them to different and stricter
requirements than those provided by Art. XX(g). In fact, in order to be prima facie
justified under the latter subparagraph, a measure must meet the “related to” test,
which is much broader and easier to satisfy than the more rigid “necessity” test
imposed by subparagraph (b).
10
According to the complainants, this difference in
7 Section 609 of US Public Law 101–162 (“Section 609”) made access to the United States’ shrimp
market contingent on the adoption by exporting States of a sea turtle conservation programme
comparable to that of the United States themselves.
8 Art. XI(1) GATT provides for the general elimination of quantitative restrictions: “[n]o prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licences or other measures, shall be instituted or maintained by any contracting
party on the importation of any product of the territory of any other contracting party or on the
exportation or sale for export of any product destined for the territory of any other contracting
party”.
9 Recourse to the exceptions provided by Art. XX GATT is qualified by the introductory clause, or
chapeau, of this provision (“[s]ubject 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 the measures listed in subparagraphs from (a) to (j). A comprehensive discussion of the
various issues raised by Art. XX GATT is provided by Picone and Ligustro (2002), p. 321 ff.
10 Initially, GATT Panels interpreted the expression “related to” in Art. XX(g) as requiring substantively the same standard of review as Art. XX(b). It was the Appellate Body in the US-Gasoline
M. I. Papa