Redefinition and Elaboration of an Obligation to Pursue International Negotiations for Solving Global Environmental Problems in Light of the WTO Shrimp/Turtle Compliance Adjudication between Malaysia and the U.S.

Abstract

The linkage of the duty to negotiate over transboundary environmental problems to one of the requirements in the chapeau of Article XX of the GATT 1994, as shown in the original Shrimp/Turtle decision, proved to be indicative of the willingness of the WTO jurisprudence to embrace significant environmental mandates beyond trade rules. Yet, it remains an unsolved issue with respect to how and to what extent the United States that applied an import ban against shrimp products from Asian nations shall remedy the failure to seek negotiations with those complaining members, which should have been implemented before. In particular, such an omission, as Malaysia claimed, guaranteed the lift of the trade embargo. The article aims to examine whether the recent Shrimp compliance reports, based on Article 21.5 of the WTO’s Understanding on Rules and Procedures Governing the Settlement of Disputes, have fulfilled an accurate and balanced reinterpretation over the obligation to pursue negotiations. It is found that the WTO jurisprudence in this compliance adjudication generally favors the position of the United States, ruling that the flaw of non-negotiation on an international basis can be fixed by later performance without the removal of the trade restriction. It seems to imply that the multilateral negotiation’s obligation for solving international environmental problems does not definitely precede a unilateral measure in any circumstance, although a plain interpretation of the Shrimp ruling does warrant the supremacy of such an obligation. In effect, the compliance adjudication relatively reduced the burden of a country whose trade restriction has already been considered to be provisionally legitimate under individual exceptional clause, such as paragraph (b) or (g) in Article XX. Nevertheless, to reach a balanced result, the judicial organs of the WTO fairly commended the United States to continue the tasks of negotiations in good faith, though no conclusion of a specified multilateral environmental agreement is required.

Keywords: WTO, Shrimp/Turtle, Trade Restriction, Unjustifiable Discrimination, DSU, Compliance Report, MOU, International Negotiations, Good Faith