The Seduction of the Appellate Body: Shrimp/Sea Turtle I and II and the Proper Role of States in WTO Governance

34 Pages Posted: 18 Mar 2008 Last revised: 4 May 2014

J. Patrick Kelly

Widener University Delaware Law School

Date Written: September 2, 2005

Abstract

The Article proposes new interpretations of GATT Article XX to minimize the harmful effects of recent WTO jurisprudence that threaten to undermine the goals of the trading system and diminish the role of states in policymaking. In the Shrimp/Turtle cases the WTO's Appellate Body (AB) utilized an evolutionary methodology to interpret the conservation of exhaustible natural resources exception in Article XX(g) to permit the unilateral regulation by one country of how goods are produced (PPMs) in other countries. Such an expansive approach to interpretation permits wealthy nations with large markets to unilaterally impose their preferred environmental policies, and presumably other PPM social policies, on nations at a different level of economic development. Developing nations dependent on export markets for economic development would be forced to choose between unwanted costs that reduce their comparative advantage or the loss of market access.

The Article criticizes the AB's evolutionary methodology as a form of Naturalism inconsistent with the AB's delegated authority, contrary to the consent-based structure of governance at the WTO and the clearly articulated views of the majority of Member nations, and incompatible with the original understanding of the Article XX(g) exception. The Article then suggests several interpretive strategies to minimize the harmful potential of unilateralism and to restore balance to global policy negotiations.

Keywords: World Trade Organization, WTO dispute settlement, WTO Appellate Body, International trade, globalization, trade and environment, international legal theory, social policy, emergency exception, international adjudication, international trade policy, global governance, developing countries, GATT

JEL Classification: K33, K32, O19, F18, Q17, Q27, Q56, F5

Suggested Citation

Kelly, J. Patrick, The Seduction of the Appellate Body: Shrimp/Sea Turtle I and II and the Proper Role of States in WTO Governance (September 2, 2005). Cornell International Law Journal, Vol. 38, 2005. Available at SSRN: https://ssrn.com/abstract=1106895

J. Patrick Kelly (Contact Author)

Widener University Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States

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