US Import Prohibition of Certain Shrimp and

Shrimp Products

By Jewelyn Wellborn and Michelle Volberg

Overview (WTO Timeline)

Oct. 8. 1996 : India, Malaysia, Pakistan and Thailand apply to confer with the USA in regards to the US ban on “shrimp and shrimp products” . Complainants alleged “nullification and impairment of benefits”.

US Law involved :Section 609 of US Public Law 101-162.and violations of Articles I, XI, and XIII of the GATT 1994”

Jan 1997: Malaysia and Thailand-request WTO Panel establishment. Third party rights are established for Australia, Columbia, Costa Rica, Ecuador, the EC, Guatemala, HK, India, Japan, Mexico, Nigeria, the Phillippines, Senegal, Singapore, and Sri Lanka

Feb. 1997- India also request the establishment of a panel on the same matter.

April 1997, The Panel is composed

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March 1998:Panel Report established and distributed to members. It was concluded that the US import ban on shrimp and products as applied by the US was inconsistent with the Article XI:1 of GATT 1994, and could not be justified under article XX of GATT 1994.

In July 1998: The US makes its intent to appeal report to the WTO public.

Nov. 1998: The DSB adopts the Appellate Body Reports and the Panel Report

Oct. 2000: Malaysia requests that WTO asses whether US has appropriately implemented the recommendations of the DSB Main complaint made by Malaysia is that “by not lifting the import prohibition and not taking the necessary measured to allow the importation of certain shrimp and shrimp products in an unrestrictive manner, the US had failed to cpmply with the recommendations

June 2001: The panel report concludes that “The measure adopted by the US in order to comply with the recommendations and rulings of the the DSB violates Article XI.1 of the GATT 1994

“ In light of the recommendations and rulings of the DSB, Section 609 of the Public Law 101-162, as implemented , and as applied so far by the US authorities was justified under Article XX of the GATT 1994 as long as the conditions stated in the findings of this Report, in particular the ongoing serious good faith efforts to reach a multilateral agreement remain satisfied

“Should any one of the conditions referred above cease to be met in the future, the recommendations of the DSB may no longer be complied with . In such a case, any complaining party in the original case may be entitled to have further recourse to article 21.5 of the DSU

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History of USApproach to Sea Turtle Protection

-In June 1987-the US National Marine Fisheries Service through the USD of Commerce initiated regulation of Shrimp trawlers to have TED’s (Turtle Excluder Devices) as per the Endangered Species Act of 1973

Nov. 21st 1989, Sec 609 of US Public Law 101-162 authorized the US President to build agreements with foreign governments for protection of sea turtles, and to ban shrimp imports “which may affect adversely such species of sea turtles”

Later in 1989, to protest the mandatory requirement of TED’s , and without guarantees that importing countries would not be given unfair competitive advantage, Hundreds of US Shrimp Trawlers blockaded the Houston shipping channel.

1991 protection was extended and mandated for Caribbean and Western Atlantic regions where shrimp were harvested

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Continuation of USApproach to Sea Turtle ProtectionAnnual certification of a harvesting nation’s

regulatory program and use of TED’s was required by the Secretary of State Scope was limited to Caribbean and Western Atlantic

countries

December of 1995, the Earth Island Institute filed with the U.S. Court of International Trade, ending with a decision that the 1991 and 1993 guidelines must be extended to all countries harvesting shrimp for importation to the United States

Revised 1996 guidelines codified the decision into law.

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In the Mix:Environment, Sustainability and

Trade

Image source: Inter American Association for Environmental Defense, http://www.aida-americas.org/aida.php?page=turtles.bycatch_shrimpAustralian Fisheries Management Authority,http://www.afma.gov.au/information/students/methods/ted.htm (5)

International Response to US Shrimp Restrictions

April 1997, Eleven countries filed a complaint to the WTO Dispute Settlement Body in regard to art. 1, 11, 13, of the GATT and countering US claims that Art. 20- B and G of the GATT protected the United States. The traditional WTO proceedings continued over the next 4

years

Main International Players: India, Pakistan, Thailand, Malaysia, Australia, European Communities, Nigeria, Ecuador, and Hong Kong

While the US used the umbrella of environmental protection law, Complainant countries cried foul, charging discrimination, and use of exclusionary trade tactics for protectionism.

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US and the WTO Laws Section 609, US Public Law, 101-162. (1997)This Law imposes an

import ban on “shrimp harvested in ways that could damage sea turtles” The US would however, give shrimp harvesters yearly certificates to allow imports if it was proven that the harvesters: Environment “posed no threat” to “incidental” capture of sea turtles The Harvesting country or jurisdiction adopted a required Turtle Exclusion

Device (TED’s) comparable to the TED’s in use in the United States

This Law was objected to by many WTO members including- India, Pakistan, Thailand, Malaysia, Australia, Ecuador, The EC, Hong Kong and Nigeria.

The complainants issue was that this Law was discriminatory to other members of the WTO-and a trade restraint. They alleged that this Law violated Articles XI, and XII of the

1994 GATT.

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Breakdown of Complainants Main Disputes

Art. 1 Of GATT: Most Favored Nation Status. Complainants argued that the application of sec 609 constituted “unjustifiable discrimination between countries where the same conditions prevail.”

Art 11 of GATT: General Elimination of Quantitative Restrictions: The complainants argued that the application was too rigid in its design, thus putting specific countries that lacked the ability to adapt the US TED devices at an extreme trade disadvantage.-If the other countries had not been certified by the US, they were unable to import

Art 13-Non-discriminatory Administration of Quantitative Restrictions: Complainants were disputing that US restrictions as per law 609 were, inequitable not taking regional environmental or socioeconomic conditions for each country into account

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Case against the US “Unjustifiable Discrimination”

Here the complainants alleged that the creation of Section 609 law created a regulatory constraint that conflicts with the 1996 WTO guidelines that “require other WTO members to adopt a regulatory program that is not merely comparable , but rather essentially the same, as that applied to the United States shrimp trawl vessels.”

The complainants felt that the “application of section 609” was to establish “ a rigid and unbending” regulatory system that gives the U.S. the power to determine the trade rights of other countries to import shrimp to the US.

What gives the US the power? The complainants objected to the US’s utilization of an economic embargo- as a condition to force other countries to adopt the exact same regulatory system (TEDS) without taking socioeconomic disparities, and conditions that existed in the complainants territories.

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US Defense/Appeal

Article XX: General Exceptions. Subject to the requirement that such measures are not 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/ Nothing in this agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures (b) necessary to protect human animal or plan 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..

(b). … “This Agreement shall be construed to prevent the adoption or enforcement by any Member of measure 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 and consumption”

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WTO Decisions Appellate Body Report-April 1998:

WTO DSB concluded that US violated Art 11. of the GATT (1994)

The US measures were not justified under article XX of the GATT, because it used a economic embargo to require a regulatory program that was “ essentially the same” as the US law

In the Appeal, the Panel found that the U.S. could technically meet the requirements of Article XX (g), but it failed to meet the proper conditions outlined in the chapeau of the Article that describes the situations in which the exceptions apply

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US Compliance measures As a result of WTO rulings the US state department issued the following

amendments to its initial law pro

B. SHRIMP HARVESTED IN A MANNER NOT HARMFUL TO SEA TURTLES

“ The Department of State has determined that the import prohibitions imposed pursuant to Section 609 do not apply to shrimp or products of shrimp harvested under the following conditions, since such harvesting does not adversely affect sea turtle species: (a) Shrimp harvested in an aquaculture facility in which the shrimp spend at

least 30 days in pond prior to being harvested. (b) Shrimp harvested by commercial shrimp trawl vessels using TEDs

comparable in effectiveness to those required in the United States. (c) Shrimp harvested exclusively by means that do not involve the retrieval of

fishing nets by mechanical devices, such as winches, pulleys, power blocks or other devices providing mechanical advantage, or by vessels using gear that, in accordance with the US program described above, would not require TEDs.(

d) Shrimp harvested in any other manner or under any other circumstances that the Department of State may determine, following consultation with the NMFS, does not pose a threat of the incidental taking of sea turtles. The Department of State shall publish any such determinations in the Federal Register and shall notify affected foreign governments and other interested parties directly.”

the State Department also agreed to assess and consider other regulatory programs provide by complainants governments in addition to their own.

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Malaysia Challenges U.S. Compliance

1998 - Malaysia stated that the U.S. had not implemented measures to bring Sec. 609 into compliance

They returned to the DSB, as allowed under Article 21.5 of the GATT, and the matter was referred to the original panel

Malaysia indicated that only a complete repeal of the ban on U.S. shrimp imports; the U.S. viewed only a revised application of the restrictions was necessary.

Malaysia came back in 2000 to request the DSB to re assess US compliance. The contested that:

“..by not lifting the import prohibition and not taking the necessary measures to allow the importation of certain shrimp and shrimp productions in an unrestrictive manner”

2001 -WTO Panel concluded that the U.S. and Malaysia should continue to work together to seek multilateral agreements on these issues. So long as the U.S. continues to act in good faith to apply the law with assistance to trading partners, the Panel would support the United States.

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US ResponseDecember 2000, National Wildlife Federation of the

United States filed an amicus curiae brief requesting the Panel reject Malaysia’s appeal. Included environmental groups from: Chile, India,

Kenya, and the U.S.

The U.S. Issued “Revised Guidelines for the Implementation of Section 609 of Public Law 101-162 Relating to the Protection of Sea Turtles in Shrimp Trawl Fishing Operations” to amend its 1996 guidelines which brought them into compliance, they argued, under the chapeau of Article XX.

May 3, 1999, twelve countries were certified as having a comprehensive TEDs program by the U.S. Secretary of State. Pakistan was also acknowledged July 6, 2000.

Public Opinion: WTO loses

Relevant CasesTuna Dolphin GATT Case (TUNA Case)

Green Turtle in Persian Gulf (GREEN)

Measures Affecting Importation of Salmon (WTO)

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Broader Picture Environmentalism- This Case highlights whether or not the

WTO can administer environmental enforcement (US SIDE)-

Unilateral vs Multilateral Regulation-This Case throws light on the WTO’s ability to protect developing countries that feel that regulatory measures are preventing them from open trade with other WTO members (USA) based on offending members national laws

Because the WTO continues to limit itself to primarily addressing trade implications only when it comes to policies, does this preclude other international forums to which countries can redress issues if they want to challenge an environmental regulation?

Policy ImplicationsGlobal Trade vs. Environmental Regulation

International Law is based on Customary Law

There’s no true comprehensive environmental policy under the WTO

Environmental policy will increasingly be considered by national policy makers that will affect their international partners

Policy RecommendationsPrior to making a specific policy initiatives with

trade implications, approach major partners and discuss the regulation and how it will effect trade relationship

WTO should develop more specific guidance for countries seeking to redress environmentally motivated concerns and policies

Countries should take more stock in the chapeau of GATT Article XX when considering new environmental policies that have effects on trade

Thank YouAny questions?

Thanks ya’ll. Merci.

Auf Wiedersehen. Au Revior.

Sources1. none given, "Dispute Settlement;Dispute DS58." WTO.ORG. World Trade Organization. 28 Sep 2008

<http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds58_e.htm>.

2. Janis, Mark W.. Noyes, John, International Law: Cases and Commentary (American Casebook Series). Second Edition, Thompson/West, 2005

3. May, Clifford. "Vietnamese Join Us Shrimp Fishermen in Protest." NY Times 29.3.1987 1. 27. Sep 2008 <http://query.nytimes.com/gst/fullpage.html?res=9B0DE2DA1639F93AA15750C0A961948260&partner=rssnyt&emc=rss>.

4. none given, United States - Import Prohibition of Certain Shrimp and Shrimp Products - Recourse to Article 21.5 of the DSU by Malaysia - Communication from the Appellate Body, WTO.ORG-,Catalogue records

5. none given, “Trade and Environment”, http://www.wto.org/english/tratop_e/envir_e/envir_e.htm, 28. Sept. 2008

6. None given, World Trade Organization- Report of the Panel, WT/DS58/RW15 (01-2854)Original: English “UNITED STATES - IMPORT PROHIBITION OF CERTAIN SHRIMP AND SHRIMP PRODUCTS-Recourse to Article 21.5 by Malaysia” June 2001, WTO.ORG, Catalogue records

7. None Given,“The Sea Turtles Warning”, NY Times (1857-Current file); Apr 10, 1998; Proquest Historical Newspapers The New York Times (1851-2005)

8. None Given, “Dispure Settlement;Dispute DS18” -“Austrailia-measures affecting the import of Salmon” http://<www.wto.org/english/tratop_e/dispu_e/cases_e/ds18_e.htm>

9. None Given,“REPORT OF THE UNITED NATIONS CONFERENCE ON ENVIRONMENT AND DEVELOPMENT”, United Nations., Sept. 27.2008, http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm, andhttp://www.un.org/esa/sustdev/documents/agenda21/index.htm

10. None given, The Basics of the WTO, http://www.iisd.org/TRADE/handbook/3_4_1.htm,

11. Mathew, Sebastian, “Shell Out: The Shrimp Turtle Dispute at the WTO: Conserving Sea Turtles and Protecting Livelihoods,” International Collective in Support of Fishworkers, 2001