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

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

• The Shrimp/Turtle Dispute
• By
• Marissa Rogers
• Juan Ramirez
• Lily Rubin

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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.

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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.

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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.

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The timeline contd.

• 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.

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The timeline contd.

• 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.

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The timeline contd.

• 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.

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The timeline contd.

• 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.

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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

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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.

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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.

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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.

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GATT Provisions at Issue

• Article XI1 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

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Panel Decisions

• Article XI1 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.

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Appellate Body Decision

• Reversed the Panels 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 Panels 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)

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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.

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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.

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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. 

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How was 609 modified?
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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.

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Criticisms Concerns
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Criticisms Concerns
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Criticisms Concerns
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Environmental Protection Protectionism
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Slippery Slope for the WTO?
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