Global Standards for National Administrative Procedure

Article excerpt

I

INTRODUCTION

In 1989, the United States imposed an embargo on the importation of shrimp from countries that used fishing methods harmful to marine turtles. The shrimp were not a protected endangered species, but the marine turtles were. The embargo was thus motivated by the rightful concern to protect an animal species from extinction. Claiming this embargo to be a violation of Article XI of the General Agreement on Tariffs and Trade 1994 (GATT 1994), which provided for the general elimination of quantitative restrictions on trade, India, Malaysia, Pakistan, and Thailand commenced proceedings on the basis of the Dispute Settlement Understanding (DSU) of the World Trade Organization (WTO).

In United States--Import Prohibition of Certain Shrimp and Shrimp Products (Shrimp-Turtle), (1) the WTO Appellate Body concluded that Section 609 of Public Law 101-162 (2) "has been applied by the United States in a manner which constitutes arbitrary and unjustifiable discrimination between Members of the WTO ...[:]" (3)

   [W]ith respect to neither type of certification under Section 609(b)
   (2) is there a transparent, predictable certification process that is
   followed by the competent United States government officials. The
   certification processes under Section 609 consist principally of
   administrative ex parte inquiry or verification by staff of the
   Office of Marine Conservation in the Department of State with staff
   of the United States National Marine Fisheries Service. With respect
   to both types of certification, there is no formal opportunity for
   an applicant country to be heard, or to respond to any arguments that
   may be made against it, in the course of the certification process
   before a decision to grant or to deny certification is made.
   Moreover, no formal written, reasoned decision, whether of acceptance
   or rejection, is rendered on applications for either type of
   certification, whether under Section 609(b)(2)(A) and (B) or under
   Section 609(b)(2)(C). Countries which are granted certification are
   included in a list of approved applications published in the Federal
   Register; however, they are not notified specifically. Countries
   whose applications are denied also do not receive notice of such
   denial (other than by omission from the list of approved
   applications) or of the reasons for the denial. No procedure for
   review of, or appeal from, a denial of an application is provided.
   (4)

This decision was made pursuant to Article XX of the GATT 1994, according to which "such measures are not [to be] applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade...." (5) It follows that for states to respect the prohibition on arbitrary discrimination between countries where the same conditions prevail, as required by the GATT norm, they must respect the principle of due process. Though usually established by national laws, the principle of due process also can enter national administrative law through another door: by being established at the international level and then applied at the national one.

The Shrimp-Turtle case concerning the U.S. import prohibition is not the only case in which an international treaty or international organization imposed procedural principles upon state administrations. (6) This article will examine some of these principles and evaluate the way they operate in the global context.

This topic illustrates the degree to which global law penetrates national legal systems by dictating principles and criteria that national administrations must respect and that private actors may wield in their own interest. Though belonging to different national legal systems, these rules are nevertheless subject to the global system. We have come to expect and accept international organizations that set substantive standards (establishing, for example, legal levels of pollution or limiting the genetic manipulation of agricultural products), so it is easy to argue that national administrations ought to respect global substantive goals, standards, and criteria. …