TED Case Studies

Asia-US Turtle Dispute



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I. Identification

1. The Issue

The legitimate role of the international trade system, particularly, the World Trade Organization in promoting national and international standards of environmental protection is contentious. Many cases which have come before the WTO involving issues of environmental protection have been ruled in favor of freer trade. The recent case before the World Trade Organization regarding the import ban placed on shrimp from four Asian countries into the United States was significantly related to the role of MEAs and GATT obligations. The sanctions were placed under the authority of US domestic law in an effort to protect species of sea turtles listed as under the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES)as threatened with extinction. This case was the first where an import ban was placed to protect a species pursuant to an MEA. The conflict ususally occurs along lines drawn between the developed and devleoping countries, where the developing countries generally view environmental trade related measures as protectionist in an effort to maintain or gain a comparative advantage. The WTO appellate panel found that although the US sanction qualified for provisional justification under the GATT exception relating to the conservation of natural resources, the measure was not justified.

2. Description


It is estimated that 150,000 endangered sea turtles drown each year from the shrimp trawling techniques used by fishermen. According to the National Research Council, shrimp trawling is a leading cause of sea turtle deaths worldwide. Presently, all species of sea turtles are included in Appendix I of the 1973 Convention on International Trade in Endangered Species ("CITES") and in the International Union for Conservaion of Nature (IUCN) Red List as endangered or vulnerable, and as endangered or threatened under the U.S. Endangered Species Act. Due to the dramatic decline of sea turtle species, the U.S. National Marine Fisheries Service developed and perfected Turtle Excluder Devices (TEDs). TEDs are "hard metal grids or soft webbing panels placed in shrimp nets. Shrimp are able to slip through these bars and are caught in the net, while sea turtles and other large animals strike the rods and are guided outward through a trap door" (NMFS). The NMFS estimated that use of TEDs can reduce sea turtle mortality by up to 97%, potentially making their use the single most effective means towards population recovery. Individual TEDs cost between $50 and $400. (See TEDS case for more on the use of the turtle excluder devices.) In 1987, the US issued regulations pursuant to the Endangered Species Act of 1973 requiring that all United States shrimp trawl vessels to use approved TEDs or tow-time restrictions in specified areas where there was a significant mortality of sea turtles in shrimp harvesting (Public Law 93-205, 16 U.S.C. 1531 et. seq.) Five species of sea turtles fell under the regulations: loggerhead (Caretta caretta), Kemp's ridley (Lepidochelys kempi), green (Chelonia mydas), leatherback (Dermochelys coriacea) and hawksbill (Eretmochelys imbricata). These regulations, which became fully effective in 1990, were modified so as to require the use of approved TEDs at all times and in all areas where there is a likelihood that shrimp trawling will interact with sea turtles, with certain limited exceptions.

In 1989 the State Department enacted Section 609 and limited the geographical scope of the import ban imposed by to countries in the wider Caribbean/western Atlantic region and granted these countries a three-year phase-in period. On 29 December 1995, the U S Court of International Trade directed the Department of State to extend the ban worldwide not later than 1 May 1996 ( Earth Island Institute v. Warren Christopher, 913 Fed. Supp. 559 (CIT 1995) ). As of May 1996, the embargo was extended to over 70 countries around the world. Over over $1 billion in exports to the U.S.are affected and potentially over 100,000 sea turtles are saved each year.

Section 609 currently provides that shrimp or products from shrimp harvested with commercial fishing technology that may adversely affect certain species of sea turtles protected under U.S. law and regulations may not be imported into the United States unless the President certifies to Congress by May 1, 1991, and annually thereafter, that:

a. The government of the harvesting nation has provided documentary evidence of the adoption of a regulatory program governing the incidental taking of such sea turtles in the course of such harvesting that is comparable to that of the United States; and
b. The average rate of that incidental taking by vessels of the harvesting nation is comparable to the average rate of incidental taking of sea turtles by United States vessels in the course of such harvesting; or
c. The particular fishing environment of the harvesting nation does not pose a threat of the incidental taking of such sea turtles in the course of such harvesting. The President has delegated to the Secretary of State the authority to make certifications pursuant to Section 609 (Memorandum of December 19, 1990; 56 FR 357; January 4, 1991).
Originally, the State Department required "shipment by shipment" certification of shrimp imports, which meant that individual shipments of shrimp were certified as having been harvested using Turtle Excluder Devices (TEDs: inexpensive, highly-effective devices sewn into nets which release trapped turtles). (See TEDS case for more on the use of the turtke excluder devices.) Only those shrimpers wishing to export their catch to the U.S. were required to use TEDs. However, because sea turtles are highly migratory species whose survival depends upon the adoption of comprehensive, international conservation policies, many environmental organizations sued the State Department over these regulations in the Court of International Trade (CIT) See Earth Island Institute v Christopher, 942, F. Supp. 597 (CIT 1996). Arguably, a large number of sea turtles would still be killed in shrimp nets if only a fraction of a nation’s shrimping fleet used TEDs. There was also a concern that foreign harvesters will fraudulently claim that shrimp has been harvested with TEDs.

The environmental groups won in the CIT and the State Department was required to begin implementing "country by country" certification regulations. These regulations meant that shrimp could only be exported to the US from "certified" : countries in which virtually all shrimpers were required to use TEDs. To be certified, these countries were also required to develop comprehensive national policies protecting sea turtles. In Novemver, 1996, the CIT issued a clarifying opinion which stated that the State Department could allow entry into the United States of any shrimp or products from shrimp harvested by citizens or vessels of nations which have not been certified in accordance with Section 609 so long as the harvest was accomplished in a manner which did not adversely affect sea turtles (e.g. shrimp harvested in an aquaculture facility under certain circumstances; shrimp harvested by manual rather than by mechanical methods; or shrimp harvested in areas in which sea turtles do not occur). However, shrimp and products from shrimp harvested with turtle excluder devices (TEDs) could not be imported unless the harvesting nation was certified in accordance with Section 609. Earth Island Institute v. Christopher, 948 F. Supp. 1062 (CIT 1996). See also SHRIMP and SHRIMP2

Under the authority of Sea Turtle Protection Law, the US placed an import ban on shrimp and shrimp products from India, Malaysia, Thailand and Pakistan. In 1996, these four countries had filed a joint complaint with the World Trade Organization against the United States requesting the establishment of a Dispute Settlement Panel (DSP) and alledging that the sanctions amounted to unfair and unjustified discrimination. These countries claimed that the trade measure discriminates against countries that do not require the use of TEDs in violation of GATT principles which prevents arbitrary discrimination between identicial products from different countries. GATT also requires that there be no trade discrimination between identical products made using different process and production methods. The complainants characterized the US embargo as a "disguised restriction on international trade."

The US in defending the import ban, claimed that the import ban was justified under Article XX of the GATT which allows a WTO member to legitimately place its national environmental goals ahead of its general obligations not to raise trade restrictions or apply discriminatory trade measures. For a sanction to be justified under Article XX, the law must be 'relating to the conservation of an exhaustible natural resource', yet not an 'arbitrary or unjustifiable discrimination' between countries.

The WTO Panel found that Section 609, as applied, conditioned access to the US market for a given product on the adoption of conservation policies that the US considers to be comparable to its own in terms of regulatory programmes and incidental taking. The Panel reasoned that in light of the context of the term "unjustifiable" and the object and purpose of the WTO Agreement, the US measure constituted unjustifiable discrimination between countries where the same conditions prevail and thus not within the scope of measures permitted under Article XX. Consequently, they found that the US measure at issue was not within the scope of measures permitted under the chapeau of Article XX.

… [W]e are of the opinion that the chapeau [of] Article XX, interpreted within its context and in the light of the object and purpose of GATT and of the WTO Agreement, only allows Members to derogate from GATT provisions so long as, in doing so, they do not undermine the WTO multilateral trading system, thus also abusing the exceptions contained in Article XX. Such undermining and abuse would occur when a Member jeopardizes the operation of the WTO Agreement in such a way that guaranteed market access and nondiscriminatory treatment within a multilateral framework would no longer be possible. …
In our view, if an interpretation of the chapeau of Article XX were to be followed which would allow a Member to adopt measures conditioning access to its market for a given product upon the adoption by the exporting Members of certain policies, including conservation policies, GATT 1994 and the WTO Agreement could no longer serve as a multilateral framework for trade among Members as security and predictability of trade relations under those agreements would be threatened. This follows because, if one WTO Member were allowed to adopt such measures, then other Members would also have the right to adopt similar measures on the same subject but with differing, or even conflicting, requirements. … Market access for goods could become subject to an increasing number of conflicting policy requirements for the same product and this would rapidly lead to the end of the WTO multilateral trading system.
( Panel Report, para. 7.45.).

Although the WTO Appellate Body found that the U.S. law is justified under Article XX(g) of the GATT by determining that sea turtles are 'exhaustible natural resources' in dire need of international protection, and that the U.S. law is directly aimed at conservation of these species, they found that the State Department’s implementation of the law constituted 'arbitrary and unjustifiable' discrimination. The State Department’s guidelines for certifying countries were deemed too rigid.

The Tuna-Dolphin was similar to this case where the U.S. was also brought before the GATT dispute panel for violating international trade laws. In the Tuna - Dolphin case, the GATT panel ruled that the Marine Mammal Protection Act violated international trade laws because it extended national environmental laws beyond U.S. territories without the support of existing, international agreements. The panel also rejected the MMPA for its "discriminatory nature" because of the inadequacy of the MMPA's scientific basis. In shrimp - turtle case at hand, the turtles are protected as endangered under other international agreements and furthermore, the scientific basis for protection of sea turtles was not at issue. See TUNA TUNA(2) and TUNA3.

3. Related Cases

CLEAN AIR ACT
ESKIMO
GREEN
HAWKSBIL
JPWHALE
LOBSTER
MANGROVE
MEXWHALE
NWHALE
SALMON
SALMON2
SHRIMP
SHRIMP2
SWIFT
TEDS
TUNA
TUNA(2)
TUNA3

KEYWORDS

(1) Measure = IMBAN
(2) Scope = MULTI
(3) Environmental Problem = Species Loss Sea (SPLS)

4. Draft Author:

Usha Maharajh, Spring 1999. AMERICAN UNIVERSITY, SCHOOL OF INTERNATIONAL SERVICE

II.WTO AND THE ENVIRONMENT


Since the inception of the Havana Charter of 1948, the world trading system was "regulated" by General Agreement on Tariffs and Trade (GATT). GATT established the rules and regulations to strengthen the trading system. Two underlying prinicples are trade without discimination and freer trade.

Article I contains the Most Favored Nation (MFN) principle which prohibits Members from discriminating between its trading partners, consquently granting all countries equally a MFN status. If a country improves the benefits that it gives to another country, it must extend the same benefit to all other WTO members, granting each country a MFN position. The principle of freer trade is a major tenent of the trading system. Since the creation of GATT, there has been eight rounds of trade negotiations securing the lowering of trade barriers and strengthening the trading system.
Article XI:1 of GATT 1994 provides for the general elimination of quantitative restrictions on imports and exports. Article XI:1 applies to all measures instituted or maintained by a Member prohibiting or restricting the importation, exportation or sale for export of products other than measures that took the form of duties, taxes or other charges.
Article XX Despite the move towards free trade, the GATT recognizes exception to permit unilateral trade restrictions relating to the preservation of the environment. Article XX (General Exceptions)requires 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". Article XX, paragraphs (b) and (g)provides that nothing in the GATT 1994 might be construed to prevent the adoption and enforcement of measures "necessary to protect human, animal or plant life or health" and of measures "relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production and consumption."
At the end of the Uruguay Rounds in Marrakesh in 1994, when the World Trade Organization (WTO) was formally created, the Trade Ministers also decided to create a comprehensive work program on trade and environment in the WTO. The WTO is a legally recognized body which deals with the rules of trade between nations, incorporating and amending the GATT. Whereas the GATT dealt with only trade in goods, the WTO agreements also cover services and intellectual property. Although trade and environment issue was not included in the Uruguay negotiations, such concerns were discussed in the results of the negotiations. The Preamble recognizes that international trade and economic relations under the WTO Agreements should allow for "optimal use of the world’s resources in accordance with the objective of sustainable development", and should seek "to protect and preserve the environment". The new Agreements on Technical Barriers to Trade and on Sanitary and Phytosanitary Measures explicitly take into account the use of measures to protect human, animal and plant life and health and the environment.

WTO Committee on Trade and Environment
In recognition of the results of the UN Conference on Environment and Development in 1992 (the Earth Summit)regarding the importance of the contribution of the multi-lateral trading system to better protect and conserve environmental resources and promote sustainable development, the WTO created a Committee on Trade and Environment (CTE)in 1995. The CTE was given the primary functions to: (a)identify the relationships between trade and the environmental measures to promote sustainable development, and (b) to make recommendations on whether any modifications to the provisions of the multilateral trading system are required.

II. Legal Clusters

5. Discourse and Status: DISagree and COMPlete

In 1989, the United States enacted Section 609 of the Sea Turtle Protection Law which provides that shrimp harvested with technology that may adversely affect certain sea turtles may not be imported into the United States, unless the President certified to Congress that the harvesting nation has a regulatory programme. A regulatory programme includes, "a requirement that all commercial shrimp trawl vessels operating in waters in which there is a likelihood of intercepting sea turtles use TEDs at all times. TEDs must be comparable in effectiveness to those used in the United States ...". Moreover, the average incidental take rate "will be deemed comparable if the harvesting nation requires the use of TEDs in a manner comparable to that of the US program ...". According to the 1996 Guidelines, certification shall be made if the program includes: (i) the required use of TEDs that are "comparable in effectiveness to those used in the United States. Any exceptions to this requirement must be comparable to those of the United States program … "; and (ii) "a credible enforcement effort that includes monitoring for compliance and appropriate sanctions." The regulatory program may be in the form of regulations, or may, in certain circumstances, take the form of a voluntary arrangement between industry and government. Other measures that the harvesting nation undertakes for the protection of sea turtles will also be taken into account in making the comparability determination. The average incidental take rate "will be deemed comparable if the harvesting nation requires the use of TEDs in a manner comparable to that of the U.S. program … " (61 Federal Register 17342, 19 April 1996).

India, Malaysia, Pakistan and Thailand filed a complaint with the WTO and requested the WTO Panel to find that Section 609: (a) were contrary to Articles, XI:1 and XIII:1 of GATT 1994;and (b) were not covered by the exceptions under Article XX(b) and (g) of GATT 1994. India, Pakistan and Thailand additionally requested the Panel to find that Section 609 was contrary to Article I:1 of GATT 1994. The complainants argued that the embargo on shrimp and shrimp products was inconsistent with the MFN principle embodied in Article I:1 of GATT because physically identical shrimp and shrimp products from different nations were treated differently by the US upon importation based solely on the method of harvest and the policies of the foreign government under whose jurisdiction the shrimp were harvested.The complainants argued that the US embargo on imports of shrimp and shrimp products violated Article XI:1. They felt that the import prohibition was arbitrary, discriminatory and was nothing else but a disguised restriction on international trade with a view to protecting their domestic shrimp industry with a total disregard to international law.

The United States on the other hand, claimed that the measures at issue adopted pursuant to Section 609 are justified under Article XX(b) and (g) of GATT. The US concluded that the right of WTO Members to take measures under Article XX to conserve and protect natural resources was reaffirmed and reinforced by the Preamble to the WTO Agreement. The complainants in turn argued that Article XX(b) and (g) cannot be invoked to justify a measure which applies to animals not within the jurisdiction of the Member enacting the measure. And furthermore, since Section 609 allows the United States to take actions unilaterally to conserve a shared natural resource, it is therefore in breach of the sovereignty principle under international law.

These countries further argued that Section 609 was inconsistent with Article XIII:1 of GATT 1994 because it restricted the importation of shrimp and shrimp products from countries which had not been certified, while "like products" from other countries which had been certified could be imported freely into the US. The US permitted or denied entry of shrimp and shrimp products based on the method of harvest. However, the method of harvest did not affect the nature of the product, as noted by the Tuna II Panel (Panel Report on United States - Restrictions on Imports of Tuna, circulated 16 June 1994, not adopted, DS29/R.). See also the TUNA and TUNA2 cases. Shrimp products which may be imported into the US pursuant to Section 609 were "like" shrimp products from non-certified countries which were denied entry. WTO Members are required that there be no trade discrimination between identical products made by using different process and production methods.

A particular area of focus within the WTO and more specifically in the CTE have been the relationship between WTO provisions and use of trade measures applied pursuant to multilateral environmental agreements (MEAs). All species of sea turtles appeared on Appendix I to CITES. Under the terms of CITES, trade in these species must accordingly be subject to "particularly strict regulation in order not to endanger their survival and must be authorized only in exceptional circumstances". As a consequence of their listing on Appendix I to CITES, international trade in sea turtles, and in their eggs, parts and products, was virtually prohibited. As members of CITES, they recognized that sea turtles were threatened with extinction. Shrimp were not covered as an endangered species under the provisions of CITES, and therefore could not under those provisions be put under an import prohibition. If the US believed that other nations needed to take specific actions to protect sea turtles within their jurisdiction or on the high seas, the answer was to seek amendment to CITES or to negotiate other consensual international agreements to address the problem. The US did not - and could not - show that CITES authorized an import embargo on a non -endangered species - shrimp - in order to protect or conserve an endangered species - sea turtles.

Panel and Appellate Findings

With regard to Article XX , the Panel considered that certain unilateral measures, insofar as they could jeopardize the multilateral trading system, could not be covered by Article XX. General international law and international environmental law clearly favour the use of negotiated instruments rather than unilateral measures when addressing transboundary or global environmental problems, particularly when developing countries are concerned. A negotiated solution is preferred, both from a WTO and an international environmental law perspective. They considered that the US adopted measures which, irrespective of their environmental purpose, were clearly a threat to the multilateral trading system and were applied without any serious attempt to reach, beforehand, a negotiated solution. The Panel found that the US measure was not within the scope of measures permitted under the chapeau of Article XX, and did not find it necessary to examine whether the US measure is covered under the exception in Article XX(b) or (g). As a result, they found that Section 609 violates Article XI:1 of GATT 1994. Also, they did not find it necessary to review the allegations of the complainants with respect to Articles I:1 and XIII:1.

The Panel also noted that under CITES, each of the complainants currently was obligated to take trade measures to conserve natural resources located in the jurisdiction of other countries. More specifically, the question was whether the US had the obligation to accept imports of shrimp regardless of the resulting impact on the environment, or whether the US had retained the right to limit such imports in furtherance of a bona fide conservation measure. Since the inception of the GATT, the United States, as well as many other nations, including the complainants under CITES, had continued to hold and to exercise the right, as preserved by Article XX, to regulate trade for the purpose of conserving exhaustible natural resources outside their jurisdiction. Second, the WTO Agreements did not provide for unfettered trade at all costs. CITES required that action be taken with respect to the importation, sale, handling or exportation of the endangered species itself, once it came within the jurisdiction of the party. Moreover, CITES was a multilateral agreement evidencing broad consensus regarding appropriate measures that should be taken to protect and conserve endangered species. The measure at issue in this dispute, by contrast, sought to bar access to the US market for imports of a species that was not endangered - shrimp - and represented a unilateral determination of the appropriate means to conserve resources outside the jurisdiction of the United States. The only action that was in fact required or authorized under CITES was the prohibition of trade in, or possession of, certain endangered species themselves (Article VIII - Measures to be Taken by the Parties); i.e. CITES required that action be taken with respect to the importation, sale, handling or exportation of the endangered species itself once it came within the jurisdiction of the party. Therefore, CITES did not authorize the US action in this dispute nor did it illustrate why the Panel should find that the US action fell within one of the general exceptions to the GATT. CITES only demonstrated that for exceptions to these general principles of international law to be tolerated by the international community, there had to be international agreement.

The Appellate Body reversed 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, and concluded that the US 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 the GATT 1994. The Panel did not inquire specifically into how the application of Section 609 constitutes "a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade." the Panel did not look into the object and purpose of the chapeau of Article XX. Rather, the Panel looked into the object and purpose of the whole of the GATT 1994 and the WTO Agreement, which object and purpose it described in an overly broad manner. Conditioning access to a Member's domestic market on whether exporting Members comply with, or adopt, a policy or policies unilaterally prescribed by the importing Member may, to some degree, be a common aspect of measures falling within the scope of one or another of the exceptions (a) to (j) of Article XX. Paragraphs (a) to (j) comprise measures that are recognized as exceptions to substantive obligations established in the GATT 1994, because the domestic policies embodied in such measures have been recognized as important and legitimate in character. The Appelate Body stated that it was not necessary to assume that requiring from exporting countries compliance with, or adoption of, certain policies (although covered in principle by one or another of the exceptions) prescribed by the importing country, renders a measure a priori incapable of justification under Article XX.

6. Forum and Scope: WTO and MULTI

The establishment of the Dispute Settelment Body (DSB) is heralded as one of the most important outcomes of the creation of the WTO in 1995, and as a central element in providing security and predictability to the multilateral trading system. Under the old GATT, a procedure for settling disputes existed but there was no fixed timetables, and rulings were easier to block. The Uruguay Round agreement resulted in the creation of a more structured dispute settlement system is based on clearly-defined rules, with timetables for completing a case.

WTO members are encouraged to consult with each other and settle "out of court," and the WTO director-general is available at all stages to mediate or help achieve a conciliation. When a WTO member has a complaint against another member, it may request that a Dispute Settlement Panel (DSP) be established. The DSP is established by the (DSB) by the 2nd DSB meeting. The panel is composed of three appointed members consisting of "well qualified governmental and/or non-governmental individuals." Third parties having a substantial interest in a matter before a panel are allowed an opportunity to be heard by the panel and to make written submissions to the panel. First rulings are made by a panel. There are normally 2 meetings with the parties and 1 meeting with third parties. A Panel Report is issued to the parties within 6 months of the Panel's composition, or 3 months if urgent. The Panel Report is circulated to the DSB, up to 9 months from the panel's establishment. Within 60 days, the DSB adopts the Panel report, unless appealed. If a party has notified its decision to appeal, the report by the panel is not considered for adoption by the DSB until after completion of the appeal.

Each appeal is heard by three members of a permanent seven-member Appellate Body set up by the Dispute Settlement Body. The appellate body is composed of persons of "recognized authority, with demonstrated expertise in law,international trade and the subject matter of the covered agreements generally," and unaffiliated with any government. If a panel ruling is appealed, there is 6 months from the time of notification of appeal to the issuance of an appellate report. An appeal is limited to issues of law covered in the panel report and legal interpretations developed by the panel. The proceedings of the Appellate Body are confidential. The appellate report is circulated to the DSB which can accept or reject the appeals report within 30 days, again, rejection is only possible by consensus. All final rulings or decisions are made by the WTO's full membership. No single country can block these. The Uruguay Round agreement made it impossible for the country losing a case to block the adoption of a ruling. Under the previous GATT procedure, rulings could only be adopted by consensus, where a single objection could block the ruling. After the Uruguay Round, rulings are automatically adopted unless there is a consensus to reject a ruling. The losing party then reports its proposed implementation of the ruling within a "reasonable period of time." In cases of non-implementation, the parties negotiate compensation pending full implementation. If no agreement or compensation is reached, the DSB authorizes retaliation pending full implementation. In January 1997, Malaysia and Thailand requested the establishment of a panel. At the next DSB in February 1997, the DSB established a panel. Australia, Colombia, the EC, Philippines, Singapore, Hong Kong, India, Guatemala, Mexico, Japan, Nigeria and Sri Lanka reserved their third-party rights. At the April meeting, the DSB agreed to establish a panel in respect to IndIa's request, but incorporated this with the panel already established in respect to the other complainants. The report of the Panel was circulated to Members on 15 May 1998. On 13 July 1998, the US notified its intention to appeal certain issues of law and legal interpretations developed by the Panel. The Appellate Body reversed the Panel's finding that the US measure at issue is not within the scope of measures permitted under the chapeau of Article XX of GATT 1994, but concluded that the US measure, while qualifying for provisional justification under Article XX(g), fails to meet the requirements of the chapeau of Article XX. The report of the Appellate Body was circulated to Members on 12 October 1998. The DSB adopted the Appellate Body Report and the Panel Report, as modified by the Appellate Body Report, on 6 November 1998.

U.S. government choices were to bring the domestic law into compliance with WTO trade rules, suffer trade sanctions imposed by the countries that brought this case to the WTO, or ignore the WTO’s ruling and face the possibility of retaliation. In December, 1998, the U.S. Administration announced that it will comply with the WTO ruling.

The Inter-American Convention for the Protection and Conservation of Sea Turtles
The Inter-American Convention is the first comprehensive regional agreement protecting sea turtles and their habitats. The United States played a lead role in negotiating the Convention, which was completed in 1996 and signed by the United States on December 13, 1996. The Convention calls for member countries to adopt comprehensive measures requiring the use of Turtle Excluder Devices (TEDs) in shrimp fisheries, prohibit the intentional "take" of and trade in sea turtles and their products, promote the conservation of sea turtle habitats and nesting beaches, and engage in cooperative research efforts on sea turtle populations and the threats they face.

7. Decision Breadth:

134
All 134 WTO member countries are affected by the ruling. This dispute dealt with issues that were central to how the rules of the multilateral trading system interacted with the ability of WTO Members, both individually and collectively, to meet critical environmental objectives.

8. Legal Standing:

Treaty

III. Geographic Clusters

9. Geographic Locations

a. Geographic Domain: ASIA

b. Geographic Site: SOUTH ASIA

c. Geographic Impact: USA

10. Sub-National Factors:

NO

11. Type of Habitat:

OCEAN
Most species of sea turtles are distributed around the globe, in subtropical or tropical areas. Sea turtles spend their lives at sea, where they migrate between their foraging and their nesting grounds, but reproduce on land. ssea turtles also inhabit the same waters as shrimp.

IV. Trade Clusters

12. Type of Measure:

IMPORT BAN (IMBAN)
Section 609 of US public law provides that shrimp harvested with technology that may adversely affect certain species of sea turtles protected under uS laws and regulations may not be imported into the US unles there is an annual certification to Congress that the harvesting nation has a regulatory program and an incidental take rate comparable to that of the US, or that the fishing environment does not pose a threat to the incidental taking of turtles. Thus, US law requires a comparable regulatory program and a comparable incidental taking of sea turtles to that of the US.

13. Direct v. Indirect Impacts:

DIRECT

14. Relation of Trade Measure to Environmental Impact

a. Directly Related to Product: YES (TURTLE)

b. Indirectly Related to Product: YES (SHRIMP)

c. Not Related to Product: NO

d. Related to Process: YES (SPECIES LOSS SEA)

15. Trade Product Identification:

SHRIMP

This includes shrimp or products of shrimp wherever harvested in the wild with commercial fishing technology which may affect adversely those species of sea turtles the conservation. The Department of State published revised guidelines (1996 Guidelines) which define "shrimp or shrimp products harvested in conditions that does not affect sea turtles" to include:
(a) Shrimp harvested in an aquaculture facility ... ;
(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 or by vessels using gear that, in accordance with the US programme ... would not require TEDs;
(d) Species of shrimp, such as the pandalid species, harvested in areas in which sea turtles do not occur.

The product can either be in the raw or as an intermediate of final product type. With regard to India, two major Harmonized Tariff Schedule (HTS) categories of shrimp had been affected by the embargo: HTS 0306.13.00, Shrimps and Prawns, Not Frozen and HTS 1605.20.10, Other Prepared Shrimp and Prawn Products.

16. Economic Data

India, as a result of its large size and a coastline extending more than 8,085 kilometres, has a well-developed but fragmented fishing industry. The number of mechanized vessels in India was estimated to be 47,000. The US embargo had had a ripple effect on the entire Indian shrimping industry. This embargo harmed India's commercial shrimp vessels, as the foreign demand for wild harvested shrimp declined. The US action had also had the effect of causing a great deal of uncertainty within the Indian shrimp industry. The socio -economic condition of the coastal community in India was closely linked with fishing and the embargo had adversely affected their livelihood. The embargo had also created great difficulties to many processing units in India. There were a number of collection centres where raw materials from various sources were collected, iced and sent to the processing units for processing. The embargo had forced these centres to maintain separate tubs and storage facilities for material from different sources, which had lead to considerable waste of time and under -utilization of facilities already created. With regard to pakistan,the decline in shipments had had a negative impact on Pakistan's fishermen and shrimp industry. The US embargo had a negative psychological effect on Pakistan's shrimp industry. There was difficulty in disseminating information concerning the US embargo to the small fishing villages in the small fishing villages. There were a great deal of uncertainty in Pakistan's shrimp industry.
Individual TEDs cost between $50 and $400.

17. Impact of Trade Restriction:

MEDIUM
Estimated sea turtlies saved each year: 100,000 (potentially).
US exports:: over $1 billion in exports to the U.S are affected ( the National Wildlife Federation, data is as of May 1996. The embargo which has been extended to over 70 countries around the world.)
India: US import data indicated that the value of imports of fresh shrimp from India classified in HTS category 0306.13.00 (Shrimps and prawn products, not fozen) fell from US$10.9 million to US$6.8 million, a decline of nearly 60 per cent, from October to November 1996. The decline in Indian shrimp sales classified under HTS 1605.20.10 (Other Prepared Shrimp and Prawn Products) had been even more dramatic, falling from approximately US$1.6 million in October 1996 to only US$935,500 in November 1996 and only US$750,500 in December 1996. This rapid decline in shipments had hurt the Indian shrimp industry, which was already suffering on the account of a disease that struck some of India's coastal districts during 1995 and 1996.
Malaysia: Its exports of shrimps to the US market - its fifth largest importer of that product - constituted about 5.6 per cent of its total export of shrimp in 1995. According to Malaysia in the WTO hearings, the enforcement by the US of Section 609 had significantly affected the shrimp export industry. In 1995 the total value of exports of shrimp to the US was US$9.1 million. In 1996, it was US$4.86 million. About 95 per cent of the shrimp exported to the US were wild harvested.
Pakistan: The shrimp embargo had dramatically decreased shrimp exports to the United States and disrupted Pakistan's domestic shrimp market. Although shrimp was harvested in Pakistan exclusively by manual means, the United States insisted that Pakistan implement a programme requiring the use of TEDs. Because Pakistan remained uncertified, it had led to a dramatic impact on shrimp sales to the US. The embargo had decimated Pakistan's exports to the US. The value of imports of fresh shrimp from Pakistan classified in HTS category 0306.13.00 fell from US$1.8 million in October 1996 to US$707,000 in November and only US$115,000 in December.
Thailand: Statistics prepared by the Global Trade Information Service compiled from official US import statistics, showed that between May 1996 and December 1996, the period during which Thailand was not certified, exports of shrimp from Thailand to the US had declined by approximately 18 per cent from the same period in 1995 (on November 1996, the US had certified Thailand pursuant to Section 609).
United States: According to the US, the measures did not disrupted the importation of shrimp. Even though the measures were in effect throughout the last two thirds of 1996, 1996 US shrimp imports in 1996 were within 1 per cent of the average annual level from 1993-1995. The steady volume of total imports into the United States however did not mean that the measure did not disrupt trade in the effected countries. It meant that the measure had resulted in preference for countries that had been certified and that other nations had to alter trading patterns by sending only exempted shrimp to the US.

18. Industry Sector:

FOOD

19. Exporters and Importers:

CASE EXPORTERS: India, Pakistan, Thailand, Malaysia
CASE IMPORTER: United States

V. Environment Clusters

20. Environmental Problem Type:

Species Loss Sea
Shrimp fishing is cited as the primary threat to the survival of sea turtles. As part of the shrimp fishing process, trawlers drag their nets along the bottom of oceans for hours at a time, catching virtually all marine life in their nets. Sea turtles become trapped in the nets and usually drown from being unable to get to the surface air in time. It is estimated that 150,000 sea turtles drown each year from this process. Studies ahow that the use of TEDs reduces the sea turtle mortality by as much as 97%.

21. Name, Type, and Diversity of Species

Name: Sea Turtles. loggerhead

Diversity: Seven species of sea turtles are currently recognized: the green turtle ( Cheloniamydas), loggerhead (Caretta caretta), flatback (Natator depressus), hawksbill (Eretmochelys imbricata), leatherback (Dermochelys coriacea), olive ridley (Lepidochelys olivacea), and Kemp's ridley (Lepidochelys kempi).

22. Resource Impact and Effect:

HIGH IMPACT
The U.S. National Marine Fisheries Service (NMFS)estimated that use of TEDs can reduce sea turtle mortality by up to 97%. Arguably, the use of TEDs are potentially the single most effective means towards population recovery.

EFFECT: PRODUCT

23. Urgency and Lifetime:

Adult females nest in multi-year cycles, coming ashore to lay clutches of about 100 eggs in nests they dig on the beach. After about 50 to 60 days of incubation, the hatchlings dig their way out of the nest and head for the sea. Few survive and reach the age of reproduction (10-50 years, depending on the species). Little is known about the existence of sea turtles at seas. Presently, all species of sea turtles are included in Appendix I of the 1973 Convention on International Trade in Endangered Species ("CITES"). All species appear in the IUCN Red List as endangered or vulnerable. Shrimp trawling is a leading cause of sea turtle deaths worldwide -- killing an estimated 150,000 sea turtles each year. Other primary threats are from habitat destruction caused by development in and around nesting habitats, poaching and predation of sea turtle hatchlings, and harvesting and trading of sea turtles and their eggs. See the National Wildlife Federation. It is widely believed that because sea turtles are highly migratory species, the only way to effectively protect them is through comprehensive international conservation policies, combined with strong national legislation requiring the use of TEDs on warm-water, mechanized trawlers.

24. Substitutes:

LIKE

VI. Other Factors

25. Culture:

NO

26. Trans-Boundary Issues:

NO

27. Rights:

NO

28. Relevant Literature