WTO Shrimp-Turtle Dispute
The WTO Shrimp-Turtle dispute is arguably the most important environment-related case to come before the trade body tribunal. The dispute centres on a 1989 US law (Section 609 of the Endangered Species Act) that requires the US government to certify that all shrimp imported to the country are caught with methods (such as use of “turtle excluder devices,” or TEDs, that reduce the number of turtles caught in shrimp nets by some 90%) that protect sea turtles from incidental drowning in shrimp trawling nets. The US-imposed trade embargo was expanded in May 1996 to include all shrimp-exporting countries, and currently affects some 40 nations. India, Pakistan, Malaysia, and Thailand lodged complaints at the WTO in early 1997, claiming that Section 609 violated a number of WTO rules. On April 6, 1998, a dispute settlement panel ruled against the shrimp embargo, arguing that it represented the kind of unilateral measure that ‘insofar as [it] could jeopardise the multilateral trading system, could not be covered by Article XX.’ GATT Article XX allows WTO-inconsistent measures to be taken for environmental and health reasons.
Due to the nature of the dispute and the impact of the US law on developing countries, the case is characterised by a three-way tension between trade, environment and development. Most writings on the topic have been published from the environmental perspective, as the Shrimp-Turtle dispute represents a focal point for calls from non-governmental organisations to reform the GATT/WTO dispute settlement system. The issue is still topical; the Appellate Body Report is due in late September/early October 1998 and tensions are running high. Little analytical commentary has been published thus far, although much more is to be expected in the coming year. As a result, only eight articles are provided here; even so, some may lack objectivity. This list should be read in conjunction with that of the GATT Tuna-Dolphin Dispute (Recommended Readings Vol. 1 No. 9).
United States — Import Prohibition of Certain Shrimp and Shrimp Products: Report of the Panel
World Trade Organization
This reading is the WTO panel report on the Shrimp-Turtle dispute. A legally-worded document, it concerns the joint complaint by India, Malaysia, Pakistan and Thailand against a ban on importation of shrimp and shrimp products from these countries imposed by the United States under Section 609 of US Public Law. Violations of Articles I, XI and XIII of GATT 1994, as well as nullification and impairment of benefits, are alleged. The Panel found the import ban to be inconsistent with WTO rules, and not justifiable under Article XX of GATT. The Report has spawned controversy around how the WTO balances unilateral trade measures, development, and environmental features into its dispute settlement process.
April 6, 1998. WT/DS58/R, Geneva. WTO.
http://www.wto.org/wto/dispute/distab.htm
WTO Shrimp-Turtle Case
Gregory Shaffer
Gregory Shaffer offers a concise legal breakdown of the Shrimp-Turtle Dispute that is easy to follow and recommended for newcomers to the topic. He provides a brief background, a comparison with the Tuna-Dolphin case, and descriptions of the legal processes surrounding interpretations of the GATT/WTO Agreements. Written before the release of the panel report, the article is still useful as it suggests options for how the Panel could rule based on different approaches it might take. Overall, Shaffer takes a relatively objective approach to the dispute, and engages in speculation as to how different Panel decisions might affect further interpretation of the GATT/WTO Agreements.
18 February 1998. Washington: International Trade Reporter, Vol. 15, No. 7. pp. 294 - 301.
Turtle Excluder Device Regulations: Laws Sea Turtles Can Live With
Kathleen Doyle Yaninek
Yaninek’s article traces the history of turtle excluder device regulations, from the enactment of the Endangered Species Act under which they were issued, through the controversy with the shrimp industry (which fought against their adoption), to recent legislation that would extend TED regulations beyond U.S. waters. The use of alternative laws to protect sea turtles is also examined. Though her paper predates the establishment of the WTO Panel, it provides important context with respect to the impact of shrimp trawling on populations of sea turtles.
1995. 40 pp. North Carolina Law Journal, 256.
Shrimp Trade and Sea Turtle Conservation
Finding an objective assessment of such a highly politicized topic as the Shrimp-Turtle case can prove difficult. For this reason, ICTSD has published a brief summary of the facts of the case, including its history, WTO legal context, its similarity to the Tuna-Dolphin controversy, and a paragraph on an ‘alternative’ multi-lateral solution to the dispute. The article also contains a page of facts and figures that provide the reader with pertinent information regarding the case in an at-a-glance format.
April 1997. 2 pp. Bridges Executive Summary, Vol. 1 No. 1. Geneva: ICTSD.
A Primer on the Shrimp-Sea Turtle Controversy
David E. Kaczka
This article provides an in-depth review of the context and substantive surrounding the Shrimp-Turtle debate. First, the provisions of the disputed measure are summarised, and the application of Section 609 is discussed. Second, the nature of the threat posed to sea turtle populations by shrimp trawlers is reviewed, and alternatives to control the adverse effects are highlighted. Third, the dispute is considered within the framework of the general principles of international law, and the GATT consistency of Section 609 is analysed. Finally, the potential implications of the Shrimp-Turtle Panel’s decision are considered. Though Kaczka supports the U.S. measures to protect sea turtles in a general sense, he concludes that sea turtle conservation needs to be addressed in a larger context.
1997. Review of European Community and International Environmental Law, Vol. 6, Iss. 2, pp. 171 - 180.
Settling Trade-Related Disputes over the Protection of Marine Living Resources: UNCLOS or the WTO?
Richard J. McLaughlin
Making specific reference to the Shrimp-Turtle dispute, Richard J. McLaughlin explores the trade-environment implications of the United Nations Convention on the Law of the Sea (UNCLOS) and the WTO. He argues that trade restrictions imposed by the U.S. for marine conservation purposes may, under certain circumstances, provide a targeted State Party with the basis for a dispute settlement claim under UNCLOS. McLaughlin concludes that, given the track record of GATT/WTO dispute settlement decisions on environmental matters, the U.S. should consider UNCLOS as a potentially viable alternative forum to WTO/GATT for disputes over the conservation of marine living resources.
1999. Georgetown International Environmental Law Review, Volume X, No. 1., pp. 29 - 96.
2000.
1. The Anatomy of a Ban; 2. Turtles, Shrimp and a Ban
These two short articles (1-2 pp. each) provide a development perspective to the Shrimp-Turtle dispute. They are published by the Centre for Science and Environment (CSE), an NGO based in India which has reported on the Shrimp-Turtle case for a number of years. The CSE opposes the use of trade sanctions to conserve the global environment, arguing that economically powerful nations have the unfair advantage of being able to impose effective trade sanctions against less economically powerful nations. Though the articles condemn the U.S. trade measure, the CSE also targets the Indian government for laxity in the enforcement of its own laws relating to sea-turtle conservation. The volumes of Down To Earth that contain these articles also contain pertinent related pieces on trade and environment.
1. September 15, 1996. Down to Earth, CSE.
2. June 15, 1998. Down to Earth, Vol. 7, No. 2. CSE.
http://www.oneworld.org/cse/html/dte/dte980615/dte_edit.htm
The WTO Shrimp-Turtle Ruling: International Trade versus the Global Environment
Matthew Stillwell and Charles Arden-Clarke
Stillwell and Arden-Clarke’s critique of the April 1998 Shrimp-Turtle ruling is one of the first of its kind from the environmental school. The briefing examines how, and even whether, the Report considers relevant legal and conservation arguments and facts crucial to a balanced settlement of the dispute. The authors conclude that the Panel failed to achieve such a balanced settlement, and argue that if the decision is adopted, the Report would escalate conflicts between the WTO and domestic and international environmental law and policy.
May 1998. Dispute Settlement in the WTO: A Crisis for Sustainable Development. Center for International Environmental Law (CIEL), Oxfam, and Community Nutrition Institute. pp. 2 - 5.
Some organisations have also submitted amicus briefs to the WTO. These include the World Wildlife Federation, CIEL/Center for Marine Conservation, and Earth Island Institute/Humane Society of the United States/Sierra Club.