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38 Cornell Int'l L.J. 459 (2005)
The Seduction of the Appellate Body: Shrimp/Sea Turtle I and II and the Proper Role of States in WTO Governance

handle is hein.journals/cintl38 and id is 467 raw text is: The Seduction of the Appellate Body: Shrimp/Sea Turtle I and II and the Proper Role of States in WTO Governance J. Patrick Kellyt A b stract ......................................................... 4 59 Introduction ..................................................... 460 I. The Evolutionary Interpretation Methodology ........... 465 II. The Vienna Convention and Interpreting Articles XX(b) & (g ) ....................................................... 4 7 7 III. Implications for Global Governance and Suggested Interpretive Strategies .................................... 482 Abstract 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 evo- lutionary 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 mar- kets to unilaterally impose their preferred environmental policies, and presum- ably 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 sev- t Professor of Law, Widener University School of Law; Director, Nairobi International Law Institute. J.D. Harvard Law School; B.A. University of Delaware. I would like to thank Jeff Dunoff, Joel Trachtman, James Gathii, and Andrew Strauss for their helpful comments and Yang Kan and Andrew Dupre for their invaluable research assistance. Earlier versions of this paper were presented at faculty workshops at the law schools of the University of Michigan, the University of Technology, Sydney, Australia, and Temple University. 38 CORNELL INT'L L.J. 459 (2005)

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