Shrimp-Turtle A Case For Developing Countries

Group 6:Alisha SukhijaArnab MoitraKamaldeep SinghParitosh SainiSanchit GuptaSumit Kumar Jain

(a)

• Why Did US Demand TED?

• TED – Alternative

(b)

• Where US flouted rules

• Other such cases

(c)

• Defense by Developing Countries

• WTO Rulings & Implications

(d)• Conclusion

Agenda

1973 Endangered Species Act is approved

1987 Voluntary guidelines are issued for including turtle exclusionary devices

1989 & 1991Legislation is negotiated to protect all sea turtles in American waters, including Central America and the Caribbean.

1996A full prohibition of all shrimp from any country that does not have sufficient precautions and regulatory measures

The Past…

The Problem

Solution to the problem by USTED systems

Setback for developing countries

Requirements Expensive and they will have to compromise on the cost / comparative advantage

Time difference in implementation (implementation to be done within 4 months)

Preferential treatment for some countries (ACP countries the main beneficiary)

Apart from TED, the US did not accept alternative methods of ensuring lower mortality for turtles

India

Five of the seven species found in Indian coastal waters

The turtle considered an incarnation of Lord Vishnu

Indian Wildlife Protection Act (1972), Signatory of CITES since 1976

Orissa banned fishing, created sanctuaries, CMFRI operated a hatchery for sea turtles in Madras

Malaysia (1/2)

Used hand retrieval nets

Sabah and Sarawak –Mating and Nesting areas

Active enforcing of fishery laws by the Department of Fisheries

Laws in place from 1932 (against killing of turtles), 1988 (Import / Export Prohibition)

The use of TED alone could not absolutely ensure the survival of

turtles

Malaysia (2/2)

Pakistan

Culture - sinful to kill sea turtles

1950 - the Imports and Exports (Control) Act to protect endangered species

Sindh Wildlife Department engaged in protection programs in conjunction with WWF and IUCN

Unacceptable interference in policies within

Pakistan's sovereign

jurisdiction

Thailand

1947 - the Fisheries Act prohibiting the catching, harvesting or harming of any sea turtle

Extensive sea turtle restoration programs: the Department of Fisheries, the Department of Forestry, and the Royal Thai Navy

1967 to 1996, no observed sea turtle killing in connection with shrimping

Suggested in ASEAN meetings of March 1997 to draft MOU jointly for the protection and conservation of sea turtles

Is TED the only option?

Not the only and most effective device

Not a “multilateral environmental standard”

TED VS TSDNot for larger sea turtles

Debris damaged TEDs

Increased transaction costs

Ulterior Motives for US

Our tropical shrimps had much more demand than the temperate shrimps in the US market

The Asian countries had the comparative advantage of providing shrimps at lower costs than were available domestically

Protectionist measures –saving its domestic industry

Adhering to richer lobbyists representing environmental and angling interests

Shrimp Turtle WTO Case

Dispute Settlement Process

STAGE 3 – Provision of Appeal -Appellate Body Setup(60 days – 90 days)

DSB adopts Appeal Report (30days)

STAGE 2 – Panels

Panel Appointment( Up to 45 Days)

Final Panel Report to Parties (6 months)

Final Panel Report to WTO(3 weeks)

STAGE 1 –Consultations (up to 60 days)

Advantages

The system is based on clearly-defined rules, with timetables

Adoption not by consensus but adoption by rejection of consensus

Panelists chosen in consultation with the countries in dispute

Appellate Body Member are individuals unaffiliated to any Government

Oct 8th, 19964 nations (India, Malaysia, Pakistan & Thailand) jointly have consultations with the U.S.

Nov 19th, 1996

Consultations held without resolution

Jan 9th –Feb 25th ,

1997

India, Malaysia, Pakistan & Thailand request DSB to establish a panel to look into the US embargo on import of shrimp & shrimp products

April 15th, 1997

DSB establishes 3 member panel

April 6th, 1998

Panel issues final report and ruling

July 13th, 1998

US appeals against the panel’s ruling

Oct 1998 Appellate Body gives its final report

Case Timeline

Argument by Plaintiff Nations

Embargo of shrimp and shrimp products was against the MFN principle of Art I.I of GATT

Ban imposed by the US was inconsistent with Art XI of GATT (Art XI limits the use of import prohibitions or restrictions)

Ban imposed by the US was in contravention of Art XIII.I as the ban restricted importation of like products

Argument by United States

US measures complied with the relevant requirement of Art XX

Measures to protect sea turtles - an endangered natural resource

Complainants did not introduce effective shrimp / turtle policies

US is in compliance with the “WTO Agreement”

Panel Ruling: April 6th, 1998

The Panel made the following Recommendation

United States bring this measure into conformity with its obligations under the WTO Agreement

US could not justify its measure under GATT Art XX (dealing with general exceptions to Art XX)

The U.S. measure constituted unjustifiable and arbitrary discrimination between countries where the same conditions prevail

Ban Imposed by the US inconsistent with GATT Article XI

The import ban applied by the US on the basis of Section 609 of Public Law 101-162 is not consistent with Article XI - Section I of GATT 1994

Appellate Body recommendation and thereafter…

1• US and parties to the dispute reached agreement on a 13 month compliance

period which ended in December 1999

2• The US Department of State guidelines for implementing Section 609 was revised

and issued after providing notice and an opportunity for public comment

3• US to provide financial and technical assistance (training in the design,

construction, installation and operation of TEDs to any government requesting it)

4

• In October 2000, Malaysia requested the re-establishment of the original panel to examine whether the United States had in fact complied with the Appellate Body findings

5

• The implementation panel ruled in favor of the United States:

•Appellate Body ruling was an obligation to negotiate

•United States had indeed made serious “good faith” efforts to negotiate

A few disputes at the WTO…

Source: http://www.wto.org/english/tratop_e/dispu_e/dispu_status_e.htm

US MEXICO CASE – Dolphin Safe Tuna

US EC CASE- Meat without hormones

Disputes involving the U.S.

Source: http://www.wto.org/english/tratop_e/dispu_e/dispu_maps_e.htm

“Poor countries hold 40 per cent of the world's population,but receive only 3 per cent of the world's income from trade.Rich countries make up 14 per cent of world population andyet get 75 per cent of the income from trade”

Rich countries force poorer countries to sell the same productsat lower prices than rich countries, by charging exporters manytimes more import tax simply because they live in a poorcountry

Devil in disguise - Developed Countries

Few examples of unfair trade practices

Discrimination in case of Cocoa by US and EU. Higher the addition of value by a poor, higher the tariffs imposition (Germany, Britain against Ivory Coast, Ghana)

Clothing, India's second largest export to the US, is taxed by Washington at 19 %. Imports from countries such as France, Japan, and Germany are charged at between 0-1 %

The average tax rate on Vietnamese goods entering the US is 8 per cent. For Dutch goods it is just 1%

Developing nations in WTO

Attractive opportunities due to free trade among nations

Growth of industries in developing nations

Domestic industry of developed nations faced competition

Restrictions in the form of Trade Sanctions and Anti-dumping investigations

WTO has been used as a medium to enforce restrictions on the developing countries

e.g. Multi-Fibre Arrangement (MFA) forinternational trade in Textiles

Future of WTO - Challenges before developing nations

Source: http://www.twnside.org.sg/title/td8.htm

Subjects and pattern of negotiations have become much more complex than in the past

The attitude and approach of developed countries appear to have changed in recent years by focusing on immediate gains from current opportunities

Developed countries are now more coordinated in their objectives and methods in the WTO and no longer sensitive towards the developing nations in seeking their support

Reaching the stage of recommendations and findings in the dispute settlement process has become a very costly and time-intensive procedure

The Hitch…

Is globalization a debt-trap for the developing and poor nations?

Should free trade be restricted in the name of environmental protection and to what extent?

WTO Members unilaterally adopting their own conditional market access measures - Does it not undermine the multilateral trading system?

Why can’t the consumer make the purchasing decision instead of the governments?

GLOBALIZATION

Thank You!!!