The Asian-US Shrimp

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

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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).

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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.

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What is TEDs?

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What is TEDs?
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Regulation and prohibition imposed by the US

• The U.S. requires the use of approved TEDs 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 TEDs
  comparable in effectiveness to those in the US.

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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.

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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.

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Arguments by the U.S.

• Section 609 was under the GATTs 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.

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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

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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 Exporters
  Declaration Form attesting to proper methods of
  shrimping

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Key Players

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

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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.

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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.

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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

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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.

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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

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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.

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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.

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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.

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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.

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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

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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.

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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.

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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.

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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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vs.