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

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 chose 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.