The Asian-US Shrimp & Sea Turtle WTO Dispute. Moyra Cassidy Leonard Cheiaua

1. The Asian-US Shrimp & Sea Turtle WTO Dispute. Moyra Cassidy Leonard Cheiaua Yungcheng Chang

2. Background • In 1989, Congress passed Section 609 under the pressure of environmentalist groups in U.S. • Section 609 prohibited the importation of shrimp from countries that did not use Turtle Excluder Devices (TEDs).

3. What is TEDs? • The Turtle Excluder Devices (TEDs) are metal or mesh grids that are placed in shrimp nets in order to keep turtles from being caught. • The annual accidental deaths of sea turtles caused by the non-use of TEDs is about 150,000 • The TEDs can eliminate 97% of accidental sea turtle deaths.

4. What is TEDs?

5. What is TEDs?

6. Regulation and prohibition imposed by the US • The U.S. requires the use of approved TED’s at all times by the domestic, commercial shrimp trawl vessels operation. • US applies a uniform standard through out its territory. • US did not permit imports of shrimp caught in waters of countries that were not certified by the United States regardless if the shrimp harvested by these trawl vessels used TED’s comparable in effectiveness to those in the US.

7. Response to the embargo • India, Malaysia, Pakistan, and Thailand complained to the WTO about the U.S. embargo. • The Dispute Settlement Body (DSB) then began to investigate this complaint against the U.S.

8. Arguments by the complainants • The U.S. did not have the right to force its domestic conservation regulations on other member countries. • Section 609 obstructed the shrimp industry worldwide. • Section 609 discriminated against certain countries.

9. Arguments by the U.S. • Section 609 was under the GATT’s Article XX. • Article XX provided exemptions from normal GATT rules that are “necessary to protect human, animal or plant life or health,” and “relating to the conservation of exhaustible natural resources.

10. Who is affected? • Shrimp industries of East Asia • Local fisherman in East Asia • Ecology of East Asia: sea-turtles • Related Industries • U.S. Consumers • U.S. Shrimp industry • U.S. Environmental Groups

11. U.S Certification Process • Annual Certification is required, by nation • Two basis for certification • Fishing environment does not pose a threat • No turtles (harvest/commercial) • Fishing by artisanal means • Adoption of regulatory program that is comparable to U.S. program and has rate of incidence comparable to U.S. average rate • Shrimp must be accompanied by “Shrimp Exporter’s Declaration Form” attesting to proper methods of shrimping

12. Key Players • U.S. Environmental Groups • U.S. Politicians • U.S. Importers/ U.S. Shrimp Industry • Asian Politicians • Asian Exporters/ Asian Shrimp Industry • WTO

13. U.S. Environmental Group Role • On 2/24/92 the Earth Island Institute filed a suit against the Secretaries of State and Commerce in order to force compliance with the Federal law that requires the ban of shrimp imports from countries who endanger sea turtles through shrimp fishing.* • Earth Island Institute argued that "the defendants failed to certify...that all shrimp harvesting nations have regulatory programs and incidental taking rates of endangered sea turtles comparable to those in the US." In specific, Earth Island claims that India, Indonesia, Thailand, Japan, Mexico, Malaysia, South Korea and Brazil, who are the largest shrimp exporters to the United States, are among the dozens of countries "whose fishing fleets...kill more than 150,000 turtles a year.“ *

14. U.S. Environmental Group Role • Outcome: Earth Island Institute legally forced the U.S. Government to enforce Section 609 of U.S. Public Law 101-102, which requires adequate measures to conserve sea turtles with respect to commercial shrimp operations, for all U.S. imports of shrimp. • This is the case whose outcome caused the dispute.

15. Initial DSB Ruling • May 1998 the DSB panel ruled section 609 to be inconsistent with GATT • U.S. cannot use the reason ‘Exhaustible National resource” to limit import from other countries that do not comply with Domestic conservation practices. • Panel requested the US to bring this measure into conformity with its WTO obligations. • U.S. appealed this initial Decision

16. Issue raised in the Appeal by the U.S. • Whether the panel erred in accepting non-requested information from non-governmental sources. • Whether the Panel erred that the measure at issue constitutes unjustifiable discrimination between countries where the same condition prevails and thus is not within the scope of measures permitted under GATT article XX.

17. Issues raised in the Appeal by the Panel. • “It may be acceptable for a govt to adopt a domestic policy in a single standard applicable to all its citizens through the country. • However it is not acceptable in International trade relations for one WTO member to use the economic embargo to require other members to adopt the same regulatory program without taking into consideration different conditions. • It found that US was more concerned with effectively influencing WTO Members to adopt essentially the same comprehensive regulatory regime as applied by the US to its domestic shrimp trawlers even when preventing TED measures were applied

18. Continued! • It found that the US negotiated seriously with some, but not with all the Members, such as the east Asian countries that export shrimp to the US. • The effect is discriminatory and unjustifiable. • The unilateral grant/denial or withdrawal of the certification to the exporting Members is disruptive and discriminatory. • It found that the United States measure is applied in a maner which amounts to a means not jut of “unjustifiable discrimination” but also of “arbitary discrimination” between countries where the same conditions prevail.

19. Appellate Body Decision • October 1998 the WTO appellate body partially reversed the initial ruling. • Appellate body found that U.S. law section 609 is within the GATT article XX (20) exemption. • The Appellate body found that U.S. had unjustifiably discriminated the East Asian exporters.

20. What did the U.S. do? • November 1998 U.S. revised its domestic law, section 609 to confirm with the WTO appellate findings. • Offered to provide technical assistance to nations requesting assistance • The core prohibition on non TED shrimp remained in effect.

21. Is U.S. complying? • In 2000 Malaysia requested a WTO panel investigation into U.S. compliance? • In 2001 the DSB issued a final report stating that U.S. remains in full compliance.

22. Based on the WTO final ruling, who gains? • U.S. Environmental Groups • Ecology: sea-turtles • U.S. Politicians • U.S. Shrimp Industry • WTO • Long term- East Asian fishermen/ developing country fishermen

23. Based on the WTO final ruling, who loses? • Consumers, who will pay more for the imported shrimp • Local fishermen in East Asia (short-term) • Countries that do not have existing shrimping methods that are certifiably not harming sea-turtles.

24. Recent Developments • 2004 U.S. imposed antidumping duties of up to 113% on shrimp imports from Asian Countries. • U.S. shrimp industry complained of loss of profits due to low price imports . • U.S. shrimp industry complained they are at a disadvantage due to the low-cost farm raised shrimp shipped from Asian countries.

25. U.S department of Commerce • The U.S. Commerce Department did not reference non-TED Asian shrimping as a factor for its decision to implement the new duties.

26. Will the WTO see this case come up again? 90% of the shrimp consumed in the U.S. is imported shrimp. • Will the U.S. punitive duties implementation in 2004 be brought before the WTO? • Was the initial ban against non-TED shrimp designed to protect the fading U.S. shrimp Industry?

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