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WTO and Environment
The report of the WTO Appellate Body in the dispute between Malaysia and the US over the restrictions on import into the US of shrimp and shrimp products represents a clear move away from the understanding that GATT/WTO rules shall not regulate process and production methods, i e, as opposed to product characteristics. The report not only tramples upon the sovereign rights of states to have their own environmental protection regimes, but also goes a long way to legitimise green protectionism. It further raises the issue of the place and function of the dispute settlement system in the WTO scheme of things. Unless important third world countries like India act to prevent the dispute settlement machinery from assuming an extraconstitutional role, their trade and development cause would suffer irredeemable damage.
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Introduction
On October 22, 2001, three weeks before the Doha Ministerial Declaration was adopted and included the subject of trade and environment in the future work programme, the Appellate Body of the World Trade Organisation (WTO) submitted its report in the United States – Import Prohibition of Certain Shrimp and Shrimp Products: Recourse to Article 21.5 of the DSU by Malaysia case (hereafter Shrimp Turtle II).1 In this case Malaysia had challenged the compliance of the US with the recommendations of earlier Panel and Appellate Body Reports in United States-Import Prohibition of Certain Shrimp and Shrimp Products (hereafter Shrimp Turtle I).2 The Appellate Body Report in Shrimp Turtle II legitimises, subject to the conduct of ‘good faith’ negotiations to arrive at a bilateral or multilateral arrangement, the use of unilateral trade measures to realise environmental protection goals. The United States Trade Representative (USTR) Robert B Zoellick has, unsurprisingly, welcomed the report and stated that the “Appellate Body report…shows that the WTO as an institution recognises the legitimate environmental concerns of its Members” [USTR 2001].
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