THE “SHRIMP-TURTLE CASE” Introducing Global Law in the administrative justice

THE “SHRIMP-TURTLE CASE”

Introducing Global Law in the administrative justice 

“... We have not decided that the sovereign nations that are Members of the WTO cannot adopt effective measures to protect endangered species, such as sea turtles. Clearly, they can and should. …” (US, “Shrimp-Turtle Case - Appellate Body, 181)

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Although it is a purely academic possibility seen, for some, with great skepticism, the existence of Global Law is today an evidence and something that we cannot deny.
It is the consequence of globalization, a phenomenon that, as Rafael Domingo says, asks for urgent reformulation. 

More and more Humanity is sharing common problems that should be addressed commonly by the Law. Consequently, we need new legal instruments and concepts which restore the notion of the person as the cornerstone of the legal system. 

Global Law can be considered as a legal order that governs the ambit of justice as it affects Humanity as a whole; is a system of systems, compatible with the existing legal systems and traditions. By being compatible, Global Law does not presuppose a break with earlier traditions - just as the law of nations coexisted with International Law working together as two species of the same genus. 

Notwithstanding, Law can only prevail by the free submission and acceptance of the political community, particularly that of its governing. Thus, the new legal order should be proposed and not imposed. 

Having said this, I have decided to assess the existence of Global Law in the area of the Administrative Justice through the “shrimp-turtle” case although I will start my approach with a substantive consideration of the Administrative Law. 

The idea of Global Constitutionalism leads us to Administrative Law. 

The bound between Public Administrative Law and sovereignty is one of the strongest arguments in favour of Global law because we are talking about an Administrative Law that has no link with any particular State. 

This particular discussion started when Sabino Cassese wrote about the possibility of conceiving Administrative Law without a State. Referring to the Southern Bluefin Tuna Case, Cassese found traditional administrative mechanisms such as a Commission with authoritative powers adopting administrative decisions, courts and multiple applicable jurisdictions. 

Later on MacDonald said that where there is a (global) society there is Law expressing a certain stage of development. Yet, he also said that it is not correct to talk about a global society because there is a lot of fragmentation: many global micro societies and many different administrations. 

Another relevant factor is that there is no such thing as a global Constitution. This is paradoxical because, at least historically, Administrative Law is a consequence of constitutional decision making. 

Although Cassese refutes it by talking about global actors - who act in informal ways giving global law its legitimacy – it is important to notice that International Law may pose a threat to the development of Global Administrative Law. 

Being a superior order, Global Law ́s legitimacy comes from the people who need it - which means: from its self-imposition and from the action of global bodies. 

In Mumbai Transport the right to be heard was effectively fulfilled via the participatory rights appointed in the inspection panel operation procedures.
Consequently, the Indian Authorities themselves took into consideration the reasons and arguments set for the affected parties. 

The considerations above came from International Law informal channels: Global Law mechanisms. We can identify a global right of participation in the global administrative procedure. This way the sense global administrative law and domestic administrative law blend together. 

We can also think about the duty to provide reasons, which certain domestic systems only acknowledge in specific fields of the Public Administration - e.g. UK.
But although there is not a uniform treatment of this issue, Global Administrative Law may have some impact imposing this duty in jurisdictions where it is not yet recognized (e.g. Agreement on Safeguards and the GATT 1994). 

In any event, we are dealing with predictions, which means that we cannot be so conclusive: it ́s possible that at a certain point Global Law will absorb International Law. But the reverse is also possible as André Salgado Matos argues. 

Having this said, I will now address the perspective of the possibility of an Administrative Justice in the Global Context.

First of all, and in order to truly understand the “shrimp-turtle” case, it is important to highlight the most relevant aspects of the case. 

In early 1997, India, Malaysia, Pakistan and Thailand brought a joint complaint against a ban imposed by the US on the importation of certain shrimp and shrimp products that had, as its main goal, the protection of sea turtles. 

The US Endangered Species Act of 1973 listed as endangered or threatened the five species of sea turtles that occur in US waters, and prohibited their harassment, hunting, capture, killing or attempting to do any of these within the US, in its territorial sea and the high seas.

Under the act, the US required that US shrimp trawlers use “turtle excluder devices” (TEDs) in their nets when fishing in areas where there is an increased possibility to encounter sea turtles.

Section 609 of US Public Law 101–102, enacted in 1989, dealt with imports and said that shrimp harvested with technology that may adversely affect certain sea turtles may not be imported into the US — unless the harvesting nation was certified to have a regulatory programme and an incidental take-rate comparable to that of the US, or that the particular fishing environment of the harvesting nation did not pose a threat to sea turtles.

In practice, countries that had any of the five species of sea turtles within their jurisdiction, and harvested shrimp with mechanical means, had to impose on their fishermen requirements comparable to those borne by US shrimpers if they wanted to be certified to export shrimp products to the US. Essentially this meant the use of TEDs at all time.

The World Trade Organization (WTO) - that deals with the global rules of trade between nations, having, as its main function, the insurance that trade flows as predictably and freely as possible - was crucial in this case since there was an intervention of the Appellate Body. 

The Appellate Body was established under Article 17 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) and is able to uphold, modify or reverse the legal findings and conclusions of a panel. Its Reports, once adopted by the Dispute Settlement Body (DSB), must be accepted by the parties to the dispute.

In this particular case the Appellate Body said, in its Report that: 

“185.    In reaching these conclusions, we wish to underscore what we have not decided in this appeal. We have not decided that the protection and preservation of the environment is of no significance to the Members of the WTO. Clearly, it is. We have not decided that the sovereign nations that are Members of the WTO cannot adopt effective measures to protect endangered species, such as sea turtles. Clearly, they can and should. And we have not decided that sovereign states should not act together bilaterally, plurilaterally or multilaterally, either within the WTO or in other international fora, to protect endangered species or to otherwise protect the environment. Clearly, they should and do.

“186.    What we have decided in this appeal is simply this: although the measure of the United States in dispute in this appeal serves an environmental objective that is recognized as legitimate under paragraph (g) of Article XX of the GATT 1994, this measure has been applied by the United States in a manner which constitutes arbitrary and unjustifiable discrimination between Members of the WTO, contrary to the requirements of the chapeau of Article XX. For all of the specific reasons outlined in this Report, this measure does not qualify for the exemption that Article XX of the GATT 1994 affords to measures which serve certain recognized, legitimate environmental purposes but which, at the same time, are not applied in a manner that constitutes a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail or a disguised restriction on international trade. As we emphasized in United States — Gasoline [adopted 20 May 1996, WT/DS2/AB/R, p. 30], WTO Members are free to adopt their own policies aimed at protecting the environment as long as, in so doing, they fulfill their obligations and respect the rights of other Members under the WTO Agreement.”

The Appellate Body made clear with its conclusions that under WTO rules, countries have the right to take trade action to protect the environment (in particular, human, animal or plant life and health) and endangered species and exhaustible resources). The WTO does not have to “allow” them this right.

It also said measures to protect sea turtles would be legitimate under GATT Article 20 (i.e. XX) which deals with various exceptions to the WTO’s trade rules, provided certain criteria such as non-discrimination were met.

The US lost the case, not because it sought to protect the environment but because it discriminated between WTO members. It provided countries in the western hemisphere — mainly in the Caribbean — technical and financial assistance and longer transition periods for their fishermen to start using turtle-excluder devices.

For now, the Appellate Body has retained jurisdiction to address these relationships, and has formulated a balancing test that gives the Appellate Body itself wide flexibility in responding to these problems. 

In addition, it will be worth observing the extent to which the Appellate Body must transform itself from a “trade court” to a general international court in order to deal with intersections between trade values and other values. 

This decision shows a measured, analytical approach to teleological interpretation, helping to develop the jurisprudential tools of international law. The Appellate Body recognizes that the unidimensional teleology of the panel is too blunt an instrument for accurate adjudication. 

The Appellate Body also refines its interpretative tools by rejecting a strict “original intent” interpretation of art. XX(g) in favor of a more dynamic interpretation to fit modern circumstances. 

We can state that panels are, for the first time, pointing towards the possibility of taking into account treaties and other international norms extraneous to GATT law.

In practice, this means that future Panels can accept information from non-governmental organisations directly, and that parties to a dispute can attach amicus briefs to their submissions. 

Considering all that has been stated above, it is my belief that International Law can no longer continue to be developed under States' umbrella. 

Despite the fact that great part of the doctrine is still reluctant to accept this, time will make it clear that todays world needs and, thus, is growing in the direction of a truthful Global Law. 

Even more than a transition from International Law to Global Law we need a true global legal system incorporating all legal systems that were mentioned to deal with global issues based on justice, reasonableness, universality, solidarity and horizontality. 

All in all, we face two possible solutions: either International Public Law (including Administrative Law and the Administrative Justice) adapts itself to the new global reality or it becomes marginal. 

Bárbara Miranda Lencastre
140113081

References: 

• “Introduction to Global Law” classes provided by Professors Gonçalo Matias, Rui Medeiros e André Salgado Matos (included in the Transnational Law Curriculum provided by Católica Global School of Law) 
• http://www.wto.org, http://www.pf.uni-lj.s, http://www.ictsd.org, http://law.nyu.edu
• Robert Howse in “The Appellate Body Rulings in the Shrimp/Turtle Case: A New Legal Baseline for the Trade and Environment Debate”