Importation of Certain Shrimp and Shrimp Products (DS58, DS61)

1. Importation of Certain Shrimp and Shrimp Products (DS58, DS61) “The Shrimp/Turtle Dispute” By: Marissa Rogers Juan Ramirez Lily Rubin

2. Protect the Sea Turtle • “Trawlers” are large nets pulled through the water column or along a sea bed by one or two boats. • Sea turtles can drown to death when they swim into a trawl net and are unable to escape to the surface to breathe.

3. Trawler Eliminator Devices (TEDs) • 11,000 sea turtles drown every year by shrimp trawls. • TEDs were created to allow turtles to pass out of the net while the shrimp move into the portion that does not allow the shrimp to escape.

4. The timeline • 1987 • United States issued regulations pursuant to the Endangered Species Act of 1973, requiring all US shrimp trawl vessels to use TEDs or tow time restrictions • 1989 • Section 609 enacted on November 21st . • 1990 • Regulations became fully effective and modified to require use of approved TEDs at all times and in areas where shrimp trawling is likely to interact with sea turtles.

5. The timeline cont’d. • 1991 • Guidelines limited scope of import ban to countries in wider Caribbean/western Atlantic region. • 1993 • Guidelines maintained the geographical limitation. • 1995 • December 29th • US Court of International Trade held that the 1991 and 1993 Guidelines violated Section 609. • Directed Departments of State and Commerce to extend ban worldwide, no later than May 1, 1996.

6. The timeline cont’d. • 1996 • April 10 • US Court of International Trade declined request by Department of State to postpone May 1st deadline. • April 19th • US issued 1996 Guidelines extending Sec 609 to shrimp harvested in all foreign countries effective May 1, 1996. • October 8th • India, Malaysia, Pakistan, Thailand jointly requested consultations.

7. The timeline cont’d. • 1997 • January 9th and 30th • Malaysia, Pakistan and Thailand filed complaints with the WTO • February 25th • DSB established two panels in accordance with these requests, and consolidated the two panels into one with the standard terms of reference. • April 10th • DSB established another panel with standard terms of reference at the request of India, and merged this panel with the earlier panel established on February 25th.

8. The timeline cont’d. • 1998 • May 15th • The consolidated Panel Report was circulated to the members of the WTO. • July 18th • United States informed the DSB of its decision to appeal certain aspects of the Panel Report.

9. US Measure at Issue • Section 609 of U.S. Public Law 101-162 • State and Commerce Dept must identify those nations whose fishing practices endanger sea turtles. Once identified, must negotiate and violating nation must adopt TED methodology. • Provides for a ban on imported shrimp harvested in a manner that poses a threat to sea turtles. Nations whose policies are largely similar to ours, in terms of results, may be exempted from the ban and will be completely unaffected by Section 609. • In essence: “prohibits importation of shrimp harvested with technology that may adversely affect sea turtles, unless the President annually certifies to the Congress that: • The harvesting country has a regulatory program governing incidental taking of sea turtles in the course and harvest comparable to the US and US vessels, and • The fishing environment does not pose a threat to sea turtles

10. Case Facts • The 1991 State Department Guidelines to implement Section 609 requires all shrimp trawl vessels to use TEDs at all times. The geographical scope is limited to the wider Caribbean/western Atlantic region. • The 1993 Guidelines eliminates the possibility of exemption from TEDs use by certification of scientific programs being utilized to reduce the mortality of sea turtles in shrimp trawling. • TEDs must now be used on all shrimp trawl vessels. • 1995 US Court of International Trade ruling that Section 609 must be applicable on worldwide basis. • The 1996 Guidelines extends Section 609 to shrimp harvested in all foreign nations as of 1 May 1996.

11. Case Facts contd. • The 1996 Guidelines also allows importation of shrimp if it is declared to be harvested either under conditions that do not adversely affect sea turtles, or in waters under jurisdiction of a certified nation • In essence, if they are harvested in an aquaculture facility; • by commercial shrimp trawl vessels using TEDs comparable to the US; • harvested exclusively by means that do not involve the retrieval of fishing nets by mechanical devices or by vessels using gear that is not TED approved; • or harvested in areas in which sea turtles do not occur.

12. Case Facts contd. • India, Malaysia, Pakistan, and Thailand requested consultation – Failed • A panel was requested and established 25 February 1997. • 1998 Guidelines reaffirmed the 1996 guidelines, with minor modifications, the permission to import TED-caught shrimp from non-certified countries • The U.S. appealed the ruling late 1998.

13. GATT Provisions at Issue • Article XI:1 – General Elimination of Quantitative Restrictions • "No prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licenses or other measures, shall be instituted or maintained by any contracting party" for imports or exports. • Article XX (b) and (g) – General Exceptions • (b) - necessary to protect human, animal or plant life or health; • (g) - relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption;

14. Panel Decisions • Article XI:1 – Section 609 violates this article because the U.S. imposes “prohibitions or restrictions,” with respect to non-certified countries, within the meaning of this article (Para. 7.17) • The U.S. admitted to the violation (Para. 7.15) and was not appealed. • Article XX – U.S. measure constitutes unjustifiable discrimination (Para. 7.49) • Because Section 609 is not within the scope of Article XX, the Panel did not examine parts (b) and (g) of Article XX.

15. Appellate Body Decision • Reversed the Panel’s order of analysis • Justification should have been two tiered • Provisional justification by reason of characterization • Further appraisal of the same measure under the chapeau of this article • Reversed the Panel’s legal conclusion • The issue can fall within the scope permitted under the chapeau • Condition access to the domestic market can fall within the scope of any of the 10 exemptions (a) to (j) • The U.S. does have premise to exercise Section 609 based on exemption (g). Sea turtles are considered an exhaustible natural resource, and because the law is not disproportionately wide in its scope, it is a measure relating to the conservation of this resource. • Because US shrimp trawlers are required to use TEDs in areas and at times where there could be sea turtles, this measure then becomes effective in conjunction with the restrictions on domestic production, as required by part (g)

16. Appellate Body Decision Contd. • Concurs that the U.S. measure, in its application, constitutes unjustifiable and arbitrary discrimination • Unjustifiable – Requires all other members to adopt a program that is not comparable, but the same, as in the U.S. This measure does not account for different conditions, and no real negotiations were conducted before enforcing the import prohibition. • Arbitrary Discrimination – Same program as U.S. is to rigid and inflexible, and the certification processes for this Law appear to be informal and casual.

17. DSB Rulings • November 6, 1998, DSB adopted both Panel and Appellate reports. • 13 months was granted for the US to comply with the DSB recommendations and rulings.

18. Efforts to Comply • In an effort to comply with the WTO ruling, the U.S. State Department proposed revised regulation Guidelines in March of 1999. • These efforts relied heavily on the implementation of the shipment-by-shipment importation standard. • *Federal Register: March 25, 1999.  Volume 64, Number 57. 

19. The proposed guidelines take into account that the Department of State modified its implementing Guidelines on August 28, 1998 to “allow the importation of shrimp harvested by vessels using TEDs, even if the exporting nation is not certified pursuant to Section 609” • Furthermore: • the proposed revisions make clear that the Department of State will fully consider any evidence that another nation may present that its program to protect sea turtles in the course of shrimp trawl fishing is comparable to the U.S. program. • Demonstrated differences in foreign shrimp fishing conditions, as it may affect the extent to which sea turtles are subject to capture and drowning in the commercial shrimp trawl fisheries, will also be taken in to consideration. How was 609 modified?

20. Fundamental Changes • Removes the “certification” requisite • Replaces mandatory compliance with exact U.S. practices and standards, to “comparable” practices and standards. • Takes different conditions into account. • Focus on shipment by shipment standards.

21. Enforceability: • “The new policy is based on an unenforceable rule that allows into the U.S. all shrimp carried by any ship with turtle protection technology, regardless of whether the ship had actually caught the shrimp.” –The Public Citizen • The focus on case-by-case, boat specific evaluation might lead to “shrimp trafficking”, the transfer of shrimp caught on boats which wouldn’t pass evaluation onto those which will. • This solution also means expenses become the burden of countries that wish to protect environmental standards. Previously, the burden of proof was on the exporting commercial interests. Criticisms & Concerns

22. National Sovereignty: • Multi-lateral/Multi-national organizations are dictating (directly or indirectly) policy which limits the ability of sovereign nations from enforcing laws targeted at environmental protection. Criticisms & Concerns

23. Environment: In conjunction with the decisions in other cases, the shrimp-turtle decision has raised concern of many environmental advocates. • The US weakened the Clean Air Act to comply with Venezuela Gas WTO ruling. Dolphin protection laws were undermined due to WTO pressures from Mexico. • Whether based on fact or emotion, there is a large contingent voicing its concerns that The WTO always rules against environmental measures when they conflict with commerce. • Development: Environmental protection regulations have the strongest negative economic/trade repercussions on least developed countries. Criticisms & Concerns

24. Environmental barriers are often considered to be strongly discriminatory, penalizing the least developed countries. An examination of the impact of environmental measures on market access has been included on the agenda of the trade round which opened in Doha. It is vital that the issues in this field be clarified if the environment is not to become an alibi for reintroducing barriers to trade which have been suppressed elsewhere Environmental Protection & Protectionism

25. “The purpose of the WTO is to regulate world trade. However, it is now being used as the forum through which to resolve other international issues, such as protection of the environment. The fact that the WTO is the arena in which global environmental issues are being argued and decided is frightening. By stepping beyond the bounds of regulating trade, the WTO is creating a precedent by which global environmental decisions are made in a trade (rather than scientific) framework and in a manner that does not include public participation” Slippery Slope for the WTO?

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