Shrimp/Turtle WTO case DS 58

1. Shrimp/Turtle WTO case DS 58 United States Vs. India, Malaysia, Pakistan, and Thailand

2. Background • Not Your Typical Day At Sea • Environmental effects • Lingering Problem • The Effects

3. The issue… US Conservation Policy • Turtle Excluder Devices • Section 609 • Sea turtles are a Shared global resource • 6 0f 7 species are covered under CITES Convention as threatened or endangered

4. US Shrimp Market • Americans consume 900 million lbs of shrimp annually • Shrimp is #1 fresh and frozen seafood in US • The shrimp industry accounts for $10 bil in US consumer spending • 2/3 of this industry derives from imported shrimp

5. US shrimp embargo • 1989 US starts negotiations with other countries to start sea turtle protection policies • Non-certified countries imports of shrimp are banned • 1996 US NGO Earth Island Institute files class action suit against DOS & DOC for narrow interpretation • US embargoed shrimp from trading partners to protect sea turtles • Varying timetables for compliance with US regulations • Previous WTO experience with production process (PPM) with Tuna/Dolphin case

6. Shrimp Turtle WTO Case • Complainants • Malaysia • India • Pakistan • Thailand • GATT Article XI and GATT Article XX • Section 609 of Endangered Species Act (ESA)

7. CASE TIMELINE Oct 8th 1996: 4 nations (India, Malaysia, Pakistan & Thailand) jointly have consultations with the U.S. Nov 19th 1996: Consultations held without resolution Jan 9th – Feb 25th 1997: India, Malaysia, Pakistan & Thailand request DSB to establish a panel to look into the US embargo on importation of shrimp & shrimp products. April 15th 1997: DSB establishes 3 member panel June 17th – 19th 1997 ; Sept 15th – 16th 1997: Panel meets with parties concerned April 6th 1998: Panel issues final report & ruling July 13rd 1998: US appeals against the panel’s ruling Oct 1998: Appellate Body gives its final report

8. Arguments by Plaintiff nations… • Embargo of shrimp and shrimp products was against the MFN principle of Art 1.1 GATT • Ban imposed by the US was inconsistent with Art XI of GATT (Art X1 limits the use of import prohibitions or restrictions) • Ban imposed by the US was in contravention of Art XIII.I as the ban restricted importation of like products.

9. Arguments by the US… • US measures complied with the relevant requirements of Article XX. • Taken measures to protect sea turtles, an endangered natural resource • Complainants didn’t introduce effective shrimp/turtle policies • US is in compliance with the “WTO Agreement”

10. Panel Ruling: April 6th 1998 • Ban Imposed by the US inconsistent with GATT Article XI (Art XI limits the use of import prohibitions or restrictions) • US could not justify its measure under GATT Art XX (Art XX deals with general exceptions to the rules) • The Panel reached the following Conclusions: • The import ban on shrimp and shrimp products as applied by the United States on the basis of Section 609 of Public Law 101-162 is not consistent with Article XI Section 1 of GATT 1994, and cannot be justified under Article XX of GATT 1994. • The Panel made this Recommendation: • United States bring this measure into conformity with its obligations under the WTO Agreement. • July 28th 1998: US appeals against the panel ruling.

11. DS 58 Panel Findings Regarding GATT Article XX • The U.S. measure at issue constituted unjustifiable discrimination between countries where the same conditions prevail • not within the scope of measures permitted under this Article. • Widespread impact of the adoption of measures for conditional market access based on U.S. environmental conservation policy • Other WTO Members likewise unilaterally adopting their own different conditional market access measures would undermine the multilateral trading system.

12. Other Results of the DS 58 Panel • Procedural Legal Interpretation of DSU Article 13: Panel would not consider the information (amicus briefs) submitted by the NGOs • The Panel did not request these submissions. • Article 13 lays out that the initiative to seek and to select the source of information rests with the Panel. • However, any party to the dispute (i.e., a Member of the WTO) is allowed to put forward the briefs, or any part thereof, as part of its own submissions.

13. U.S. Appeal of DS 58 • Did Panel err in not considering information submitted by third party NGOs? • Did Panel err in finding that the measure at issue constituted unjustifiable discrimination between countries where the same conditions prevail and thus is not within the scope of measures permitted under Article XX of the GATT 1994?

14. Summary of Actions of the DS 58 Appellate Body • Reverses the Panel's finding that accepting non-requested information from non-governmental sources is incompatible with the provisions of the DSU. • Reverses the Panel's finding that the United States measure at issue is not within the scope of measures permitted under the chapeau of Article XX of the GATT 1994. • Concludes that the United States measure, while qualifying for provisional justification under Article XX(g), fails to meet the requirements of the chapeau of Article XX, and, therefore, is not justified under Article XX of GATT.

15. Findings of the DS 58 Appellate Body Regarding AMICUS BRIEFS • Panel erred in its legal interpretation that accepting non-requested information from NGO sources is incompatible with the provisions of the DSU. • The legal interpretation adopted by the Panel of the word "seek" in Article 13.1 of the DSU was too strictly technical. • Instead, information could have been requested or not. • However, whether the Panel requested/sought information or not, it still has the discretionary authority either to accept and consider or to reject information and advice submitted to it, in order to prevent a deluge of information.

16. DS 58 Appellate Body Findings REGARDING SCOPE OF ARTICLE XX • Appraisal of Section 609 Under Article XX of the GATT 1994 • Panel erred in its legal interpretation that the U.S. measures fell outside of the scope of the Article. • Rather, Paragraphs (a) to (j) of the Article comprise exceptional measures, whereby the domestic policies embodied in such measures have been recognized as important and legitimate in character.

17. DS 58 Appellate Body Findings REGARDING ARTICLE XX Cont’d • Although qualifying for provisional justification under Article XX(g), the AB finds “unjustifiable” and “arbitrary” discrimination by the U.S. • Measure fails to meet the requirements of the chapeau of Article XX, and therefore, is not justified under this. • Throughout its application and certification processes under Section 609,the U.S. failed to meet certain minimum standards for transparency and procedural fairness in the administration of trade regulations as established under Article X:3 of the GATT 1994.

18. Implementation of Decision • US and parties to the dispute reached agreement on a 13 month compliance period which ended in December 1999 • The US Department of State guidelines for implementing Section 609 was revised and issued after providing notice and an opportunity for public comment. • US provided financial and technical assistance (training in the design, construction, installation and operation of TEDs to any government that requests it)

19. Implications of the Case • Opened NGO participation in WTO cases • Production Process (PPM) for future cases • Eco-imperialism by US? • Enviro-trade related measures with no multilateral agreement (MEA) • WTO treatment as trade issue but did not address environmental concerns

20. WTO JURISPRUDENCE • Development of WTO laws • Must recognize the participation of global actors, including NGOs • Unilateralism and Sovereignty • Execution of trade-related environmental regulations across international boundaries • Narrow legal interpretation versus the spirit of chapeau

21. Updates • Shift to aquaculture as wild shrimp resources are depleted • Aquaculture criticized as polluting • Inter American Convention for Protection and Conservation of Sea Turtles