Branches of international environmental law - Introduction to International Environmental Law - page 139

Reasoning of the GATT and WTO dispute
settlement process in the Tuna/Dolphin and
Shrimp/Turtle disputes
In the Tuna/Dolphin dispute between the United States and Mexico, the GATT
did not give suffi cient consideration to environmental issues. This caused con-
cern because it considered free trade issues almost exclusively, to the detriment
of environmental and animal protection. The reasoning of the WTO Appellate
Body in the comparable Shrimp/Turtle case was radically different. The message
of the Appellate Body can be interpreted that if a particular import prohibition
can be justifi ed by the implementation of a multilateral environmental agree-
ment, the import prohibition is presumed to be in line with the WTO rules.
It is interesting to note that although the decisions gave opposite signals as
to the interaction of free trade rules with issues of international environmental
protection, the cases had quite unexpected end results. The Tuna/Dolphin dis-
pute ended temporarily in 1992 with an agreement to avoid endangering
dolphins. This agreement very quickly resulted in a reduction of dolphin deaths
from fi shing. The one-sided action of the USA had violated free trade rules but
paradoxically achieved the result that the USA had sought from the outset: tuna
fi shing now takes the welfare of dolphins into account.
The Shrimp/Turtle dispute turned out to be more complex. Having lost the
case, the USA attempted to negotiate with the Asian shrimp fi shing nations,
but Malaysia brought the case to the WTO dispute settlement procedure again.
Malaysia held that according to the Appellate Body decision, the USA should
have lifted its import prohibition. The USA disagreed. The Appellate Body
fi nally held that the USA need not lift the prohibition because it had observed
the Appellate Body's decision and attempted to negotiate in good faith. Today,
shrimp can be imported to the USA exclusively by those states that observe the
US legislation preventing endangerment of sea turtles through shrimp fi shing.
Both cases still continue to be problematic. For a long time, the USA's action
in the Tuna/Dolphin case seemed to have achieved the best possible result. How-
ever, Mexico has once again taken the USA to WTO dispute settlement in the
same case. Conversely, the USA's action in the Shrimp/Turtle case resulted in
victory and in an end result that is not the best possible outcome: the USA now
gets to decide according to its own terms who can import shrimp and under
what conditions.
From the perspective of the development of free trade rules, however, the
Shrimp/Turtle case is much more important as it matches the perspectives of
free trade and environmental protection in a balanced way: it demonstrates to
states that one-sided protective action through import, even beyond one's own
jurisdiction, can be acceptable in certain circumstances under free trade rules.
The fragmentation of international environmental law
Fragmentation is a problem of international law generally but also of its branches
including international environmental law. International environmental law is
made up of a body of a large number of agreements and soft-law instruments