United States—Import Prohibition of Certain Shrimp and Shrimp Products (The Shrimp-Turtle Case)

In order to reduce sea-turtle deaths caused by shrimp trawling, the United States (defendant) created Turtle Excluder Devices (TEDs), which allowed turtles to safely exit shrimp-trawling nets, and mandated that all shrimp trawlers working off the southeastern U.S. coast use TEDs. Later, Congress passed Section 609, Pub. L. No. 101-162, which prohibited the importation of shrimp into the United States unless the exporting nation obtained certification by implementing a program comparable to the U.S. regulatory scheme addressing the incidental taking of sea turtles. The U.S. State Department only certified 14 named South American and Caribbean nations. Therefore, under Section 609, uncertified nations could not export shrimp to the United States even if they used TEDs. The 14 named nations were given three years to implement TEDs, while all others were given a four-month period. India, Malaysia, Pakistan, and Thailand (plaintiffs) requested that a World Trade Organization (WTO) panel address the issue of whether the U.S. shrimp embargos violated the General Agreement on Tariffs and Trade (GATT). The United States contended that the embargoes came within the GATT Article XX(g) exception, which provided that as long as the measures at issue did not arbitrarily or unjustifiably discriminate against other nations, a party could implement measures related to the conservation of “exhaustible natural resources.” The WTO panel rejected the Article XX(g) argument, and the United States appealed.