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The Use of Turtle Excluder Devices to Protect Sea
Turtles
It is estimated that 150,000 endangered sea turtles drown each year
from the shrimp trawling techniques used by fishermen. Trawling is the
primary technique for catching shrimp, and according to the National Research
Council, is a leading cause of sea turtle deaths worldwide. However,
for every five pounds of catch, only one pound consists of shrimp, the
other four pounds consist of other products including fish, turtles and
even marine mammals.
Due to the dramatic decline of sea turtle species, the U.S. National Marine Fisheries Service developed Turtle Excluder Devices (TEDs). TEDs are "hard metal grids or soft webbing panels placed in shrimp nets through which shrimp are able to slip through these bars, 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. The use of TEDs reduce shrimp harvest by 2-3 percent. Individual TEDs cost between US$50 and $400. (See TEDS case ).
Regulatory Background
In 1978, the US issued regulations pursuant to the Endangered
Species Act of 1973 requiring that all US 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).
In 1989, the State Department added Section 609 of the Sea Turtle
Protection Law to the Endangered Species Act extending the protection
of sea turtles by placing an import ban on shrimp and shrimp products harvested
with technology that may adversely affect certain sea turtles .
Section 609 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; andCertification
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).
Old 1996 GUIDELINES
According to the 1996 Guidelines issued by the CIT, certification
shall be made if the regulatory program includes: (i) the required
use of TEDs that are comparable in effectiveness to those used
in the US; 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 a voluntary arrangement between industry
and government. Other measures that the harvesting nation undertakes for
the protection of sea turtles are also to be considered 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 US program ...". (61 Federal Register 17342, 19 April 1996). These regulations meant that shrimp could only be exported to the US from 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.
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 TEDs. Only those shrimpers wishing to export their catch to the U.S. were required to use TEDs. However, given the highly migratory nature of sea turtles, 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 further concern that foreign harvesters will fraudulently claim that shrimp has been harvested with TEDs. In 1996, the environmental groups had won in the CIT and the State Department was required to begin implementing "country by country" certification regulations in lieu of a "shipment by shipment basis". 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.
New 1998 GUIDELINES
On June, 1998 however, the CTE vacated the 1996 decision. The
Department of State has modified the guidelines to one again allow the
import of shrimp on a "shipment by shipment basis". TED caught shrimp
is therefore not subject to the import prohibition of Section 609.
To alleviate the possibility of fraud, in the case of an exporter from
an uncertified nation, both the exporter and a government official must
indicate that the shrimp was not harvested in a manner which did not adversely
affect the sea turtles (63 federal Register, number 167, 28 August, 1998).
Non-certified countries
The State Department could allow entry into the US 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:
Application of Section 609
Initially, Section 609 was applied only to the countries in the wider
Caribbean/western Atlantic region. In 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.
Case before the WTO
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 WTO against the US requesting the establishment of a Dispute Settlement Panel (DSP). The complainants alleged that the trade measure discriminated against countries that do not require the use of TEDs in violation of GATT principles. GATT principles prevent arbitrary discrimination between identical products from different countries made using different process and production methods. The complainants further characterized the US embargo as a "disguised restriction on international trade."
The US position
The US 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, GATT requires that the relevant law must
be "relating to the conservation of an exhaustible natural resource", yet
not amounting to an "arbitrary or unjustifiable discrimination" between
countries.
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 also found that the implementation of the law constituted "arbitrary and unjustifiable" discrimination. The State Department’s 1996 guidelines for certifying countries were deemed too rigid.
Proposed regulation in compliance with WTO rulings
In an effort to comply with the WTO ruling, the U.S. State Department
proposed revised regulation Guidelines in March of 1999, relying heavily
on the implementation of the shipment-by-shipment importation standard
(Federal Register: March 25, 1999. Volume 64, Number 57). The
Department of State noted that the time at which the WTO complaint arose,
the US did not permit imports of shrimp harvested by vessels using TEDs
comparable in effectiveness to those used in the US, unless the harvesting
nation was certified . As a result, shrimp caught using methods
identical to those employed in the US had been excluded from the US market
solely because they had been caught in waters of uncertified nations.
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, instead of requiring foreign programs to be essentially
the same as the U.S. program, 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. They will also take
into account any 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.
March
1999 proposed regulations.
III. 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 US on December 13, 1996. The Convention calls for member
countries to adopt comprehensive measures requiring the use of 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.
For more information on the Convention, visit http://www.seaturtle.org/iac/
Cooperative agreements such as this present an effective means of conserving
natural resources in a manner consistent with WTO
objectives.
KEYWORDS
(1) Measure = IMBAN
(2) Scope = MULTI
(3) Environmental Problem = Species Loss Sea (SPLS)
II.WTO AND THE ENVIRONMENT 
Article IAt 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.
Article I contains the Most Favored Nation (MFN) principle which prohibits Members from discriminating between its trading partners, consequently 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 tenet 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
Article XI:I 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 exceptions to permit unilateral trade restrictions relating to the preservation of the environment. 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." 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".
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, in Marrakesh in 1994, decided to establish a Committee on Trade and
Environment (CTE). The CTE was formally established 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.
The CTE is to operate within the limits of trade and trade-related
aspects of environmental policies of significant trade implications for
the WTO members; and to uphold and safeguard the principles of the multilateral
trading system.
Some argue that the CTE's agenda may be too broad, and has "done little
to bring about any concrete action in ensuring a reconciliation or balance
between trade and environment issues" (James Cameron, cited in Duncan
Brack, Trade and Environment: Conflict or Compatibility).
The US on the other hand, claimed that the measures adopted pursuant to Section 609 were 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 US 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 MEAs. Under the terms of CITES, trade in these species (sea turtles) 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 in 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. However, 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. The complainants reasoned that 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 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 favor 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.
Appellate Ruling
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. They concluded that the Section
609 itself was not inconsistent with U.S. obligations under the WTO Agreement,
and while qualifying for provisional justification under Article XX (g)
relating to the conservation of exhaustible natural resources, the
regulation fails to meet the requirements of the chapeau of Article XX,
and, therefore, is not justified under Article XX of the GATT 1994.
The Appellate Body report found that implementation of Section 609, in
their cumulative effect, were inconsistent with U.S. obligations under
the WTO Agreement.
They reasoned that 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 Appellate 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.
Consequently, the Appellate Body recommended that the US revise its implementation of Section 609 accordingly. On November 25, 1998, the US announced that it will change its law accordingly to implement the WTO recommendations and rulings.
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.
b. Geographic Site: SOUTH ASIA
However, because of the highly migratory nature of sea turtles, the conservation of sea turtles involves more than these five nations, and requires international cooperation.
c. Geographic Impact: USA
Most species of sea turtles disperse and migrate over vast distances, without regard to national boundaries. Sea turtles spend their lives at sea, where they migrate between their foraging and their nesting grounds, but reproduce on land. Sea turtles also inhabit the same waters as shrimp.
V. Trade Clusters 
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 unless 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. The average incidental rate will be comparable if the harvesting nation requires the use of TEDs in a manner comparable to the US program.
b. Indirectly Related to Product: YES (TURTLE)
c. Not Related to Product: NO
d. Related to Process: YES (SPECIES LOSS SEA)
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.
| COUNTRY | SHRIMP AND PRAWN PRODUCTS (not frozen).
Classified as HTS 0306.13.00 |
OTHER PREPARED SHRIMP
Classified as HTS 1605.20.10 |
| India | Decline from $10.9 million to $6.8 million (from October to November, 1996) | $1.6 million in October 1996 to only $935,500 in November 1996 and only $750,500 in December 1996 |
| Malaysia1 | $9.1 million in 1995 to $4.86 million in 1996 | |
| Pakistan2 | $1.8 million in October 1996 to $707,000 in November and $115,000 in December 1996. | - |
| Thailand3 | Between May 1996 and December 1996 - 18% decline in from the same period in 1995. | - |
1Malaysia: 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 1996, it was US$4.86 million. About 95 per cent of the shrimp exported to the US were wild harvested.
2Pakistan: 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 program 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.
3Thailand: May 1996 and December 1996 is the period during which Thailand was not certified. On November 1996, the US had certified Thailand pursuant to Section 609.
Exports to the US: 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). However, according to the US in its report to the WTO
Appellate Panel, the measures did not disrupt the importation of shrimp.
Although 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 embargo simply 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.
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
Effect of TEDs
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 of Import Ban
According to the experts at the WTO hearing, the embargo imposed by
the US served to shift the trade in shrimp without reducing the alleged
mortality of sea turtles in the affected countries. In fact, there
is no indication that fishing effort decreased in any of the affected countries
even though their exports to the US declined during the embargo period.
For instance, India had indicated that other markets for their non-TED
shrimp were found. Therefore, shrimp previously
destined for the US market before 1 May 1996 could shift to existing
markets that do not require the use of TEDs for their imported shrimp.
The embargo imposed by the United States has readjusted trade in shrimp
without reducing the alleged mortality of sea turtles in the affected countries.
A number of countries in their third party submissions indicated that they
did not have trawl fleets and did not allow trawling in their waters, but
were involved with trade in shrimp (WTO Panel Report, October 1998.
WT/DS 58 /R p.162).
EFFECT: PRODUCT
VII. Other Factors2. CIEL (Center for International Environmental Law), (1997),
Amicus Brief to the Panel on United States - Import
Prohibition of Certain Shrimp and Shrimp Imports, Center for Marine
Conservation, Red Nacional de Acción
Ecológica, The Environmental Foundation Ltd., and The Philippine
Ecological Network.
3. Crouse, D.T., M. Donnelly, M.J. Bean, A. Clark, W.R. Irvin,
C.E. Williams, (1992), The TED Experience:
Claims and Reality, Center for Marine Conservation, Environmental
Defense Fund, and National Wildlife
Federation.
4. Duncan Brack, ed., Trade and Environment: Conflict or Compatibility,
London, Royal Institute of International
Affairs and Earthscan Publications, 1998.
5. FIELD (Foundation for International Environmental Law and
Development), (1997), WWF Amicus Brief to WTO
Shrimp-Turtle Dispute, World Wide Fund for Nature, Gland, Switzerland.
6. Limpus, C.J. (1995), Global overview of the status of marine
turtles: A 1995 viewpoint, in: K.A. Bjorndal (ed.),
(1995), Biology and Conservation of Sea Turtles (revised edition),
Smithsonian Institution Press, Washington,
D.C.
7. National Research Council, (1990), Decline of the Sea Turtles:
Causes and Prevention, National Academy Press,
Washington D.C.
8. World Trade Organization, Report of the Panel: United States
- Import Prohibition of Certain Shrimp and Shrimp Products,
WT/DS58/R, 15 May 1998 (98-1710).
9. World Trade Organization, Report of the Panel: United States
- Import Prohibition of Certain Shrimp and Shrimp Products,
WT/DS58/AB/R, 12 October 1998 (98-0000).
SEA TURTLE LINKS
Sea
Turtle Survival League/Caribbean Conservation Corp.
TRADE LINKS
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