Presentation on theme: "US Import Prohibition of Certain Shrimp and Shrimp Products"— Presentation transcript:
1 US Import Prohibition of Certain Shrimp and Shrimp Products This presentation will cover said WTO case in which the US was the respondent.The primary complainants were India, Malaysia, Pakistan, and ThailandWe will cover;The History and Context of the CaseThe primary issues of the US Law in the mixThe Complainants Case against the US, and the US defenseWTO case rulingsThe Environment, Sustainability- and its relationship with tradeWTO Laws in the case GATTUS Compliance Measures/Malaysia’s challenge aig. Usa.Public opinion of caseRelavent casesPolicy implicationsPolicy recommendationsQuestionssourcesBy Jewelyn Wellborn and Michelle Volberg
2 Overview (WTO Timeline) Oct : 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 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, Japan, Mexico, Nigeria, the Phillippines, Senegal, Singapore, and Sri LankaFeb India also request the establishment of a panel on the same matter.April 1997, The Panel is composed(1)The following two slides break down the steps involved during this 6 year WTO case.In short; The main events wereThe primary complainants: Malaysia, India, Pakistan, and Thailand-applied to confer with the US- in regards to the US ban on Shrimp and Shrimp products( US Law involved Sec of US Public Law )1997: Request of WTO Panel Est. (one year later) Malaysia and ThailandIndia jumps on the boatApril 1997 Panel composed
3 March 1998:Panel Report established and distributed to members 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 ReportOct. 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 recommendationsJune 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 , 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 of the DSU(1)1998 First panel report written and distributed. US Ban on Shrimps was found to be inconsistent with the GATT, Article 11:1 and could not be justified under article 20 of the GATT.Later Us appealed this rulling,Malaysia contested US’s compliance.WTO ruled in favor of Malaysia, US lost.
4 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 TED’s (Turtle Excluder Devices) as per the Endangered Species Act of 1973Nov. 21st 1989, Sec 609 of US Public Law 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 TED’s , 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)As per point two: the goal was to level the playing field for us shrimpers, when in competition w/ foreign shrimpers as per regulations.> This helped environmentalists as well,,, to exert pressure on foreign governmentsAs per point 3- president gave authorization to dept of state to make the required certifications> The department of state interpreted the section and applied itonly to countries on the wider carribiean and the western atlanitc regionFind a picture of protest“US only made the agreements (preferential) treatment- with wester atlantic and carribeanAs per slide three-The department complied
5 Continuation of US Approach to Sea Turtle Protection Annual certification of a harvesting nation’s regulatory program and use of TED’s was required by the Secretary of StateScope was limited to Caribbean and Western Atlantic countriesDecember 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 StatesRevised 1996 guidelines codified the decision into law.(2)To ensure compliance, the 1996 guidelines required a “Shrimp Exporter’s/Importer’s Declaration” form to certify that shrimp were harvested with protections for sea turtles. The State Dept was also to work with the Indian Ocean region to bring about similar agreements to those in the Caribbean.
6 In the Mix: Environment, Sustainability and Trade Me: As we have said- the US used the idea of Turtle protection, to limit trade with other shrimp harvesters, who could not adopt the US’s regulations.The Complainants cited discrimination in their case and brought the UN Agenda 21 to their defense. These are 21 acts agreed upon in RIO in The mission of this summit and Agenda 21 was :“Agenda 21 is a comprehensive plan of action to be taken globally, nationally and locally by organizations of the United Nations System, Governments, and Major Groups in every area in which human impacts on the environment.”The offending act the complainants brought to the wto was Principle 12:Section 12:States should cooperate to promote a supportive and open international economic system that would lead to economic growth and sustainable development in all countries, to better address the problems of environmental degradation. Trade policy measures for environmental purposes should not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade. Unilateral actions to deal with environmental challenges outside the jurisdiction of the importing country should be avoided. Environmental measures addressing trans boundary or global environmental problems should, as far as possible, be based on an international consensus.This principle spells out what was wrong with the US’s actions in this case. Instead of addressing “environmental measures” that are “ global” through “ international consensus”-the US created its own regulation and law without consulting WTO members that would be affected by this “environmental law”. Unilateral-vs-MultilateralWTO Stances: Sustainable development and protection and preservation of the environment are fundamental goals of the WTO. They are enshrined in the Marrakesh Agreement, which established the WTO, and complement the WTO’s objective to reduce trade barriers and eliminate discriminatory treatment in international trade relations. While there is no specific agreement dealing with the environment, under WTO rules members can adopt trade-related measures aimed at protecting the environment provided a number of conditions to avoid the misuse of such measures for protectionist ends are fulfilled.Image source:Inter American Association for Environmental Defense,Australian Fisheries Management Authority,http://www.afma.gov.au/information/students/methods/ted.htm (5)
7 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 yearsMain International Players: India, Pakistan, Thailand, Malaysia, Australia, European Communities, Nigeria, Ecuador, and Hong KongWhile the US used the umbrella of environmental protection law, Complainant countries cried foul, charging discrimination, and use of exclusionary trade tactics for protectionism..JewelynThe European Communities:” Article xx, may in certain circumstances, be relied upon to justify measures taken to protect the global commons (globally shared environment resources) or resources located outside the territory of a contracting party, provided, of course, that the other conditions of applications of the relevant exception in articl xx, and the introductory clause thereof, are complied with. “-the countries that files the complaint, were:India, Pakistan, Thail, Malaysia, Austrailia, Ecuador, EC, HK,Nigeria,(missing two countries)ART 1. MFN Treatments (against)ART 6. ANTIDUMPING AND COUNTERVEILING DUTIESART 13 non discriminatory eadministration of quantitative restrictionsEnvironmental problems should be assessed based on international consensus…….
8 US and the WTO LawsSection 609, US Public Law, (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 turtlesThe Harvesting country or jurisdiction adopted a required Turtle Exclusion Device (TED’s) comparable to the TED’s in use in the United StatesThis 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)The point here, is that even though law 609 implies that comparable “TED’s” could be adopted, the law was reserving the right for the US to have regulatory power over this;Unilateralism vs MultilateralismUSA: used unilateral regulatory control to prevent imports to come to their country- that they deemed unsafe for turtle protection. If this had been agreed upon in the WTO the complainants would not have cried foul;
9 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 importArt 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)3: US intl ’court of trade relations directed the US Dept of state to specifically assist the gulf countries to meet these standards, but expand this help to other countries.
10 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 US’s 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)
11 US Defense/AppealArticle 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)spelled out certain exceptions to WTO provisions- that would protect their own shrimp trawlers,Introducing environmental
12 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 lawIn 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)When the US joined the WTO in 94, they came under the impression that the WTO would utilize formed trade and environment committingWTO’S official stance, DOHA agenda includes environment/trade developments, at a standstillXx chapeau: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 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;The situation arose because caribbean countries had three years to set up TED’s other countries only had 4 months.Application of discriminationDSB adopted appelate body report on Nov
13 US Compliance measures As a result of WTO rulings the US state department issued the following amendments to its initial law proB. 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)TRADEORGANIZATIONWT/DS58/RW15 June 2001( )Original: EnglishUNITED STATES - IMPORT PROHIBITION OF CERTAIN SHRIMP AND SHRIMP PRODUCTSRecourse to Article 21.5 by MalaysiaReport of the Panel
14 Malaysia Challenges U.S. Compliance Malaysia stated that the U.S. had not implemented measures to bring Sec into complianceThey returned to the DSB, as allowed under Article 21.5 of the GATT, and the matter was referred to the original panelMalaysia 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)DSU – Dispute Settlement UnderstandingOct. 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 recommendationsJune 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 , 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)
15 US ResponseDecember 2000, National Wildlife Federation of the United States filed an amicus curiae brief requesting the Panel reject Malaysia’s 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 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.NWF filed on behalf of environmental groups in Chile, India, Kenya, and the U.S. ????? SOURCE???
16 Public Opinion: WTO loses This slide, is yet another example of the Media, and Publics distaste for the WTO’s relationship with the environment.
17 Relevant Cases Tuna Dolphin GATT Case (TUNA Case) Green Turtle in Persian Gulf (GREEN)Measures Affecting Importation of Salmon (WTO)(8)Salmon – Canada v. Australia
18 Broader PictureEnvironmentalism- This Case highlights whether or not the WTO can administer environmental enforcement (US SIDE)-Unilateral vs Multilateral Regulation-This Case throws light on the WTO’s 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 lawsBecause 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?
19 Policy Implications Global Trade vs. Environmental Regulation International Law is based on Customary LawThere’s no true comprehensive environmental policy under the WTOEnvironmental policy will increasingly be considered by national policy makers that will affect their international partnersLaws that rely on trade barriers to achieve environmental objectives
20 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 relationshipWTO should develop more specific guidance for countries seeking to redress environmentally motivated concerns and policiesCountries should take more stock in the chapeau of GATT Article XX when considering new environmental policies that have effects on trade
21 Thank You Any questions? Thanks ya’ll. Merci. Auf Wiedersehen. Au Revior.
22 Sourcesnone given, "Dispute Settlement;Dispute DS58." WTO.ORG. World Trade Organization. 28 Sep <http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds58_e.htm>.Janis, Mark W.. Noyes, John, International Law: Cases and Commentary (American Casebook Series). Second Edition, Thompson/West, 2005May, Clifford. "Vietnamese Join Us Shrimp Fishermen in Protest." NY Times Sep <http://query.nytimes.com/gst/fullpage.html?res=9B0DE2DA1639F93AA15750C0A &partner=rssnyt&emc=rss >.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 recordsnone given, “Trade and Environment”, 28. Sept. 2008None given, World Trade Organization- Report of the Panel, WT/DS58/RW15 ( )Original: English “UNITED STATES - IMPORT PROHIBITION OF CERTAIN SHRIMP AND SHRIMP PRODUCTS-Recourse to Article 21.5 by Malaysia” June 2001, WTO.ORG, Catalogue recordsNone Given,“The Sea Turtles Warning”, NY Times (1857-Current file); Apr 10, 1998; Proquest Historical Newspapers The New York Times ( )None Given, “Dispure Settlement;Dispute DS18” -“Austrailia-measures affecting the import of Salmon”None Given,“REPORT OF THE UNITED NATIONS CONFERENCE ON ENVIRONMENT AND DEVELOPMENT”, United Nations., Sept , andhttp://www.un.org/esa/sustdev/documents/agenda21/index.htmNone given, The Basics of the WTO,Mathew, Sebastian, “Shell Out: The Shrimp Turtle Dispute at the WTO: Conserving Sea Turtles and Protecting Livelihoods,” International Collective in Support of Fishworkers, 2001