US Import Prohibition of

Certain Shrimp and Shrimp

Products

By Jewelyn Wellborn and Michelle Volberg
Overview (WTO Timeline)
Oct. 8. 1996 : India, Malaysia, Pakistan and Thailand apply to confer with the
USA in regards to the US ban on shrimp and shrimp products .
Complainants alleged nullification and impairment of benefits.
US Law involved :Section 609 of US Public Law 101-162.and violations of
Articles I, XI, and XIII of the GATT 1994
Jan 1997: Malaysia and Thailand-request WTO Panel establishment. Third
party rights are established for Australia, Columbia, Costa Rica, Ecuador, the
EC, Guatemala, HK, India, J apan, Mexico, Nigeria, the Phillippines, Senegal,
Singapore, and Sri Lanka
Feb. 1997- India also request the establishment of a panel on the same
matter.
April 1997, The Panel is composed
(1)


March 1998:Panel Report established and distributed to members. It was concluded that the
US import ban on shrimp and products as applied by the US was inconsistent with the Article
XI:1 of GATT 1994, and could not be justified under article XX of GATT 1994.
In July 1998: The US makes its intent to appeal report to the WTO public.
Nov. 1998: The DSB adopts the Appellate Body Reports and the Panel Report
Oct. 2000: Malaysia requests that WTO asses whether US has appropriately implemented the
recommendations of the DSB Main complaint made by Malaysia is that by not lifting the
import prohibition and not taking the necessary measured to allow the importation of certain
shrimp and shrimp products in an unrestrictive manner, the US had failed to cpmply with the
recommendations
June 2001: The panel report concludes that The measure adopted by the US in order to
comply with the recommendations and rulings of the the DSB violates Article XI.1 of the
GATT 1994
In light of the recommendations and rulings of the DSB, Section 609 of the Public Law
101-162, as implemented , and as applied so far by the US authorities was justified under
Article XX of the GATT 1994 as long as the conditions stated in the findings of this Report,
in particular the ongoing serious good faith efforts to reach a multilateral agreement
remain satisfied
Should any one of the conditions referred above cease to be met in the future, the
recommendations of the DSB may no longer be complied with . In such a case, any
complaining party in the original case may be entitled to have further recourse to article
21.5 of the DSU
(1)
History of US
Approach to Sea Turtle Protection
-In June 1987-the US National Marine Fisheries Service through the USD
of Commerce initiated regulation of Shrimp trawlers to have TEDs (Turtle
Excluder Devices) as per the Endangered Species Act of 1973
Nov. 21
st
1989, Sec 609 of US Public Law 101-162 authorized the US
President to build agreements with foreign governments for protection of
sea turtles, and to ban shrimp imports which may affect adversely such
species of sea turtles
Later in 1989, to protest the mandatory requirement of TEDs , and
without guarantees that importing countries would not be given unfair
competitive advantage, Hundreds of US Shrimp Trawlers blockaded the
Houston shipping channel.
1991 protection was extended and mandated for Caribbean and Western
Atlantic regions where shrimp were harvested
(2), and (4)


Continuation of US
Approach to Sea Turtle Protection
Annual certification of a harvesting nations regulatory
program and use of TEDs was required by the Secretary of
State
Scope was limited to Caribbean and Western Atlantic countries
December of 1995, the Earth Island Institute filed with the
U.S. Court of International Trade, ending with a decision that
the 1991 and 1993 guidelines must be extended to all
countries harvesting shrimp for importation to the United
States
Revised 1996 guidelines codified the decision into law.
(2)

In the Mix:
Environment, Sustainability and Trade
Image source:
Inter American Association for Environmental Defense, http://www.aida-americas.org/aida.php?page=turtles.bycatch_shrimp
Australian Fisheries Management Authority,http://www.afma.gov.au/information/students/methods/ted.htm (5)
International Response to US Shrimp
Restrictions
April 1997, Eleven countries filed a complaint to the WTO Dispute
Settlement Body in regard to art. 1, 11, 13, of the GATT and countering
US claims that Art. 20- B and G of the GATT protected the United
States.
The traditional WTO proceedings continued over the next 4 years
Main International Players: India, Pakistan, Thailand, Malaysia,
Australia, European Communities, Nigeria, Ecuador, and Hong Kong
While the US used the umbrella of environmental protection law,
Complainant countries cried foul, charging discrimination, and use of
exclusionary trade tactics for protectionism.

.





US and the WTO Laws
Section 609, US Public Law, 101-162. (1997)This Law imposes an import ban on
shrimp harvested in ways that could damage sea turtles The US would however,
give shrimp harvesters yearly certificates to allow imports if it was proven that the
harvesters:
Environment posed no threat to incidental capture of sea turtles
The Harvesting country or jurisdiction adopted a required Turtle Exclusion
Device (TEDs) comparable to the TEDs in use in the United States
This Law was objected to by many WTO members including- India, Pakistan,
Thailand, Malaysia, Australia, Ecuador, The EC, Hong Kong and Nigeria.
The complainants issue was that this Law was discriminatory to other members
of the WTO-and a trade restraint.
They alleged that this Law violated Articles XI, and XII of the 1994 GATT.

(2)

Breakdown of Complainants Main
Disputes
Art. 1 Of GATT: Most Favored Nation Status. Complainants argued that
the application of sec 609 constituted unjustifiable discrimination
between countries where the same conditions prevail.
Art 11 of GATT: General Elimination of Quantitative Restrictions: The
complainants argued that the application was too rigid in its design, thus
putting specific countries that lacked the ability to adapt the US TED
devices at an extreme trade disadvantage.-If the other countries had not
been certified by the US, they were unable to import
Art 13-Non-discriminatory Administration of Quantitative Restrictions:
Complainants were disputing that US restrictions as per law 609 were,
inequitable not taking regional environmental or socioeconomic conditions
for each country into account
(2)


Case against the US
Unjustifiable Discrimination
Here the complainants alleged that the creation of Section 609 law created a
regulatory constraint that conflicts with the 1996 WTO guidelines that require
other WTO members to adopt a regulatory program that is not merely
comparable , but rather essentially the same, as that applied to the United
States shrimp trawl vessels.
The complainants felt that the application of section 609 was to establish a
rigid and unbending regulatory system that gives the U.S. the power to
determine the trade rights of other countries to import shrimp to the US.
What gives the US the power? The complainants objected to the USs
utilization of an economic embargo- as a condition to force other countries to
adopt the exact same regulatory system (TEDS) without taking socioeconomic
disparities, and conditions that existed in the complainants territories.
(2)
US Defense/Appeal
Article XX: General Exceptions. Subject to the requirement that such
measures are not applied in a manner which would constitute a means of
arbitrary or unjustifiable discrimination between countries where the same
conditions prevail, or a disguised restriction on international trade/ Nothing
in this agreement shall be construed to prevent the adoption or
enforcement by any contracting party of measures (b) necessary to
protect human animal or plan life or health; (g) relating to the conservation
of exhaustible natural resources if such measures are made effective in
conjunction with restrictions on domestic production or consumption..
(b). This Agreement shall be construed to prevent the adoption or
enforcement by any Member of measure necessary to protect human ,
animal or plant life or health
(g) relating to the conservation of exhaustible natural resources if such
measures are made effective in conjunction with restrictions on domestic
production and consumption
(1),(2)
WTO Decisions
Appellate Body Report-April 1998:
WTO DSB concluded that US violated Art 11. of the GATT (1994)
The US measures were not justified under article XX of the GATT,
because it used a economic embargo to require a regulatory program that
was essentially the same as the US law
In the Appeal, the Panel found that the U.S. could technically meet the
requirements of Article XX (g), but it failed to meet the proper conditions
outlined in the chapeau of the Article that describes the situations in which
the exceptions apply
(3)


US Compliance measures
As a result of WTO rulings the US state department issued the following amendments to its
initial law pro
B. SHRIMP HARVESTED IN A MANNER NOT HARMFUL TO SEA TURTLES
The Department of State has determined that the import prohibitions imposed pursuant to
Section 609 do not apply to shrimp or products of shrimp harvested under the following
conditions, since such harvesting does not adversely affect sea turtle species:
(a) Shrimp harvested in an aquaculture facility in which the shrimp spend at least 30 days
in pond prior to being harvested.
(b) Shrimp harvested by commercial shrimp trawl vessels using TEDs comparable in
effectiveness to those required in the United States.
(c) Shrimp harvested exclusively by means that do not involve the retrieval of fishing nets
by mechanical devices, such as winches, pulleys, power blocks or other devices providing
mechanical advantage, or by vessels using gear that, in accordance with the US program
described above, would not require TEDs.(
d) Shrimp harvested in any other manner or under any other circumstances that the
Department of State may determine, following consultation with the NMFS, does not pose a
threat of the incidental taking of sea turtles. The Department of State shall publish any such
determinations in the Federal Register and shall notify affected foreign governments and
other interested parties directly.
the State Department also agreed to assess and consider other regulatory programs provide
by complainants governments in addition to their own.
(6)
Malaysia Challenges
U.S. Compliance
1998 - Malaysia stated that the U.S. had not implemented measures to bring Sec.
609 into compliance
They returned to the DSB, as allowed under Article 21.5 of the GATT, and the
matter was referred to the original panel
Malaysia indicated that only a complete repeal of the ban on U.S. shrimp imports;
the U.S. viewed only a revised application of the restrictions was necessary.
Malaysia came back in 2000 to request the DSB to re assess US compliance. The
contested that:
..by not lifting the import prohibition and not taking the necessary measures to
allow the importation of certain shrimp and shrimp productions in an unrestrictive
manner
2001 -WTO Panel concluded that the U.S. and Malaysia should continue to work
together to seek multilateral agreements on these issues. So long as the U.S.
continues to act in good faith to apply the law with assistance to trading partners,
the Panel would support the United States.

(1), (2)

US Response
December 2000, National Wildlife Federation of the United
States filed an amicus curiae brief requesting the Panel
reject Malaysias appeal.
Included environmental groups from: Chile, India, Kenya, and
the U.S.
The U.S. Issued Revised Guidelines for the Implementation
of Section 609 of Public Law 101-162 Relating to the
Protection of Sea Turtles in Shrimp Trawl Fishing
Operations to amend its 1996 guidelines which brought
them into compliance, they argued, under the chapeau of
Article XX.
May 3, 1999, twelve countries were certified as having a
comprehensive TEDs program by the U.S. Secretary of
State. Pakistan was also acknowledged July 6, 2000.
Public Opinion: WTO loses
Relevant Cases
Tuna Dolphin GATT Case (TUNA Case)
Green Turtle in Persian Gulf (GREEN)
Measures Affecting Importation of Salmon (WTO)



(8)
Broader Picture
Environmentalism- This Case highlights whether or not the WTO
can administer environmental enforcement (US SIDE)-
Unilateral vs Multilateral Regulation-This Case throws light on the
WTOs ability to protect developing countries that feel that
regulatory measures are preventing them from open trade with
other WTO members (USA) based on offending members national
laws
Because the WTO continues to limit itself to primarily addressing
trade implications only when it comes to policies, does this
preclude other international forums to which countries can redress
issues if they want to challenge an environmental regulation?

Policy Implications
Global Trade vs. Environmental Regulation
International Law is based on Customary Law
Theres no true comprehensive environmental policy
under the WTO
Environmental policy will increasingly be considered by
national policy makers that will affect their international
partners
Policy Recommendations
Prior to making a specific policy initiatives with trade
implications, approach major partners and discuss the
regulation and how it will effect trade relationship
WTO should develop more specific guidance for
countries seeking to redress environmentally motivated
concerns and policies
Countries should take more stock in the chapeau of
GATT Article XX when considering new environmental
policies that have effects on trade
Thank You
Any questions?

Thanks yall. Merci.

Auf Wiedersehen. Au Revior.
Sources
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<http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds58_e.htm>.
2. Janis, Mark W.. Noyes, John, International Law: Cases and Commentary (American Casebook Series). Second Edition,
Thompson/West, 2005
3. May, Clifford. "Vietnamese Join Us Shrimp Fishermen in Protest." NY Times 29.3.1987 1. 27. Sep 2008
<http://query.nytimes.com/gst/fullpage.html?res=9B0DE2DA1639F93AA15750C0A961948260&partner=rssnyt&emc=rss
>.
4. none given, United States - Import Prohibition of Certain Shrimp and Shrimp Products - Recourse to Article 21.5 of the
DSU by Malaysia - Communication from the Appellate Body, WTO.ORG-,Catalogue records
5. none given, Trade and Environment, http://www.wto.org/english/tratop_e/envir_e/envir_e.htm, 28. Sept. 2008
6. None given, World Trade Organization- Report of the Panel, WT/DS58/RW15 (01-2854)Original: English UNITED
STATES - IMPORT PROHIBITION OF CERTAIN SHRIMP AND SHRIMP PRODUCTS-Recourse to Article 21.5 by
Malaysia June 2001, WTO.ORG, Catalogue records
7. None Given,The Sea Turtles Warning, NY Times (1857-Current file); Apr 10, 1998; Proquest Historical Newspapers The
New York Times (1851-2005)
8. None Given, Dispure Settlement;Dispute DS18 -Austrailia-measures affecting the import of Salmon
http://<www.wto.org/english/tratop_e/dispu_e/cases_e/ds18_e.htm>
9. None Given,REPORT OF THE UNITED NATIONS CONFERENCE ON ENVIRONMENT AND DEVELOPMENT, United
Nations., Sept. 27.2008, http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm,
andhttp://www.un.org/esa/sustdev/documents/agenda21/index.htm
10. None given, The Basics of the WTO, http://www.iisd.org/TRADE/handbook/3_4_1.htm,
11. Mathew, Sebastian, Shell Out: The Shrimp Turtle Dispute at the WTO: Conserving Sea Turtles and Protecting
Livelihoods, International Collective in Support of Fishworkers, 2001