## Facts

- The United States restricted imports of certain shrimp and shrimp products under Section 609 of U.S. Public Law 101-162 and related implementing measures.
- The measure conditioned market access on whether exporting countries maintained sea-turtle protection programs comparable to the U.S. approach, including use of turtle excluder devices (TEDs) on shrimp trawlers in specified circumstances.
- India, Malaysia, Pakistan, and Thailand challenged the measure in WTO dispute settlement, alleging it operated as an import prohibition inconsistent with GATT 1994.
- A WTO panel found the measure to be a prohibited quantitative restriction and rejected justification under GATT Article XX.
- The United States appealed legal findings and interpretations.
- After adoption of the Appellate Body report, the United States revised its guidelines to increase flexibility, transparency, and procedural safeguards and to emphasize technical assistance and cooperative efforts; Malaysia later initiated DSU Article 21.5 compliance proceedings.
- In 2001 compliance proceedings, WTO adjudicators concluded the revised application satisfied Article XX, while continuing to treat the underlying measure as a restriction within Article XI:1.

## Issues

1. Whether the U.S. shrimp import restriction constituted a prohibited “prohibition or restriction” under GATT 1994 Article XI:1.
2. Whether the measure was justified under GATT Article XX, particularly Article XX(g) (conservation of exhaustible natural resources) or Article XX(b) (protection of life or health).
3. Whether, even if within Article XX(g), the measure was applied consistently with the Article XX chapeau’s ban on arbitrary or unjustifiable discrimination and disguised restrictions on trade.
4. Whether WTO panels have authority to accept and consider (or reject) amicus curiae submissions from nongovernmental entities.

## Decision

- The Appellate Body upheld the finding that the measure was inconsistent with GATT Article XI:1 as a prohibited quantitative restriction.
- The Appellate Body found the measure was provisionally justified under Article XX(g):
  - Sea turtles qualify as “exhaustible natural resources,” including living, migratory species.
  - The import condition was sufficiently related to the conservation objective.
  - The measure was “made effective in conjunction with” domestic restrictions because the United States also imposed TED-related requirements on domestic shrimp trawl vessels where turtle interactions were likely.
- The Appellate Body nonetheless concluded the measure, as applied, failed the Article XX chapeau because it resulted in arbitrary or unjustifiable discrimination, including:
  - Requiring exporting members to adopt essentially the same regulatory program rather than allowing comparably effective alternatives.
  - Insufficient efforts to pursue multilateral solutions with the complainants compared to other regions.
  - Unequal and opaque certification procedures, including disparate treatment and limited process protections.
- The Appellate Body stated panels possess discretion to accept and consider, or to reject, amicus curiae briefs; nothing in the DSU categorically bars such consideration.
- In DSU Article 21.5 compliance proceedings, WTO adjudicators found that revisions emphasizing flexibility, transparency, due process, technical assistance, and cooperative engagement brought the measure’s application within Article XX(g) and into conformity with the chapeau.

## Legal Principles

- GATT Article XI:1 prohibits import prohibitions and quantitative restrictions other than duties, taxes, or other charges.
- Article XX analysis is two-step: (1) determine whether the measure fits within a listed exception (e.g., XX(g)); (2) determine whether the measure’s application satisfies the chapeau.
- “Exhaustible natural resources” in Article XX(g) is interpreted broadly and can include living, migratory species.
- A measure may be “made effective in conjunction with restrictions on domestic production or consumption” when it operates even-handedly by pairing import conditions with meaningful domestic restrictions aimed at the same conservation objective.
- Under the Article XX chapeau, otherwise permissible measures are impermissible if applied with rigid, non-flexible conditions; discriminatory certification practices; lack of transparency and process protections; or without comparable, good-faith efforts at international cooperation where similar conditions prevail.
- WTO panels have authority to accept and consider, or reject, unsolicited amicus curiae submissions.

## Conclusion

The WTO Appellate Body held that the U.S. shrimp import restriction breached GATT Article XI:1 and, although capable of falling within the environmental exception of Article XX(g), was unlawful because its application discriminated arbitrarily and unjustifiably among exporting members; later implementation changes emphasizing flexibility, procedural fairness, and cooperative efforts cured the chapeau defect in compliance proceedings.


United States—Import Prohibition of Certain Shrimp and Shrimp Products, WTO Doc. WT/DS58/AB/R (Oct. 12, 1998)