Two Hopeful Readings of Shrimp-Turtle

Abstract

The WTO Appellate Body in Shrimp-Turtle reached a good, defensible, and probably just result - a result that is more environmentally friendly than might be readily apparent and one that is more consonant with the redistributive values that should underlie notions of sustainable development. I make two simple moves. From law and economics, I note that Shrimp-Turtle displays the reciprocal nature of most liability determinations. In the absence of transaction costs, efficiency is indifferent as to which party is liable. Following the critical legal studies insight on the indeterminancy of legal rules, I observe that the Appellate Body was effectively unbound by the GATT text in making its decision. What remains then are redistribution arguments. By imposing unilateral measures, the United States has exercised a kind of eminent domain over the sea turtles (removing them from the commons for their own salvation). I would ask that the United States compensate the other parties to the commons for the withdrawal of the associated shrimp resource. Environmental protection on the cheap is unsustainable. Shrimp-Turtle stands for the proposition that rich countries that support (and have the resources to support) the preservation of species and other worthy environmental goals should compensate those countries that suffer the economic effects of their measures.