Branches of international environmental law - Introduction to International Environmental Law - page 138

Since the foundation of the WTO, environmental considerations have
gained ground. Instead of being specialized exclusively in international trade
law, the members of the WTO Appellate Body are fi rst and foremost
experts in general international law. In its decision in the US Gasoline
Standards case, the Appellate Body explicitly stated that the WTO rules do
form part of international law. This wider perspective to the free trade rules
is especially obvious in the Shrimp/Turtle case, which has a similar basis to
Tuna/Dolphin .
The United States prohibited the import of shrimp products from any countries
whose shrimp nets did not include a device required by US law to prevent sea
turtle deaths. Four Asian states took the issue to the WTO Dispute Settlement
Panel, which considered the US import prohibition to be against the WTO
rules.
The Appellate Body, however, took a different approach in 1998. It deemed
that a member state can impose an import prohibition by virtue of the environ-
mental exception rule if the objective of the prohibition is to conserve common
natural resources - including those beyond the territory of the state. The Appel-
late Body further required the shared natural resource to have a 'suffi cient
nexus' to the prohibiting state. According to the Body, the sea turtle is clearly a
common natural resource: it migrates in the seas of the world, as well as in areas
under US jurisdiction. It is also (unlike the dolphin) defi ned as an endangered
species under the Convention on International Trade in Endangered Species of
Wild Fauna and Flora (CITES).
However, given the specifi c facts of this case, the Appellate Body determined
that the USA had violated the free trade duties, for instance by not starting
negotiations with the exporting states in good faith before it imposed the import
prohibition.
Although the end result in both cases was similar (the import prohibi-
tion by the USA was deemed to violate free trade rules), the decision in
the Shrimp/Turtle case in many ways displays a sea change in the attitude
of the Appellate Body towards evaluating international trade law in the
wider context of other principles of international law, including environ-
mental law. The Appellate Body made reference to several environmental
agreements in its decision. Its opinion can be interpreted as follows: if a
certain import prohibition can be justifi ed by the implementation of a
multilateral environmental treaty, the import prohibition is presumptively
in line with the WTO rules. This is an important signal to many environ-
mental treaties that apply restrictions of export and import in pursuing
their objectives.