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A Hypothetical Engagement: GATT Article XX(a) and Indonesia's FATWA Against Trade in Endangered Species

By Lisa M. Meissner

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The greatest recognized threat facing biodiversity conservation today is habitat destruction. Other threats include but are not limited to global climate change, encroachment, illegal wildlife trafficking, and overexploitation through intensive agricultural and commercial uses. Although wildlife trafficking is not the main source of biodiversity loss, the pressures generated by the international demand for endangered species and their derivative products adversely affect not only individual species, but also entire ecosystems and rural livelihoods through the removal of flagship species from the environment. In response to the growing threats facing our shared natural world, environmental issues are now being incorporated into multilateral agreements and development bank operations. Despite these positive advancements, however, international trade regimes remain a relatively underdeveloped arena for enforcing environmental controls.
The slow sedimentation of environmental policy objectives within international trade regimes—specifically the World Trade Organization (WTO)—is compounded by the fact that nations continue to artificially separate trade and the environment, rather than uniting them as mutually reinforcing goals. Nevertheless, international environmental policies increasingly rely on trade restrictions in order to implement and enforce their objectives in an attempt to reunite these fields on the international level. For example, on the one hand, environmentalists would use international trade law as a method of compliance enforcement within multilateral environmental agreements; free trade proponents, on the other hand, would perceive such measures as jeopardizing the current regime through cloaked protectionist motives. The adverse nature of trade and environmental conversation thus poses significant challenges to the international community. Within this framework, the top clerical body of the nation-state of Indonesia has taken the progressive step of uniting these two factors through the issuance of a fatwa against all hunting and trade in endangered species. Should Indonesia seek to enforce this fatwa as national policy, however, it is unclear whether such action would endure WTO scrutiny under an Article XX(a) public morals analysis.
Part I will introduce the World Trade Organization’s framework for liberalizing trade, including the exceptions available under Article XX that enable Member States to legislate on matters critical to their domestic constituencies despite trade obligations to the contrary. Part II then broadens the scope of the discussion to consider the association between Islamic Shari’a law and international trade law, and the challenges facing these two regimes in the arena of wildlife trafficking. Lastly, Part III delves into an analysis of a hypothetical situation in which Indonesia adopts, as a matter of national policy, an official fatwa against all trade in endangered species, evaluating the components of the public morals exception of the General Agreement on Tariffs and Trade (GATT) as they apply in light of prevailing WTO jurisprudence.


Katie Carroll

Date 2015
Publication Title Notre Dame Law Review Online
Volume 90
Issue 2
Publisher University of Notre Dame
URL http://scholarship.law.nd.edu/ndlr_online/vol90/iss2/4/
Language English
Additional Language English
Cite this work

Researchers should cite this work as follows:

  1. Animal roles
  2. Animal welfare
  3. Biodiversity
  4. Conservation
  5. Endangered species
  6. Nature
  7. Protection
  8. trade
  9. Wildlife rescue and rehabilitation