Shrimp-Turtle A Case For Developing Countries

Presented bySuman kumar-(164)Vijay Soni-(102) Nikunj sharma-(143)

(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 & 1991

Legislation 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

It prohibited the importation of any shrimp harvested using commercial fishing technologies that might harm sea turtles, unless the exporting country is certified by the U.S. administration as having a regulatory program to prevent incidental turtle deaths comparable to that of the United States or is certified as having a fishing environment that does not pose risks to sea turtles from shrimping.

where it adopted a program to require shrimpers to use TEDs on their boats; a country could take up to three years to phase in the comprehensive program; further guidelines, issued in 1993, extended somewhat the final deadline by which a foreign country must implement its program in order to be certified. In 1995, environmental NGOs challenged before the U.S. Court of International Trade (CIT) the decision of the State Department to limit the application of Section 609 to the greater Caribbean area, as well as certain other interpretations that the State Department had made of the law

Solution to the problem by USTED(Turtle Excluder Device)

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

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

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 conjunctio

n with WWF and

IUCN

Unacceptable

interference in policies

within Pakistan's sovereign

jurisdiction

Thailand

1947 - the Fisheries

Act prohibitin

g the catching,

harvesting or harming of any sea

turtle

Extensive sea turtle restoratio

n programs:

the Departme

nt of Fisheries,

the Departme

nt 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 environmenta

l standard”

TED VS TSDNot for larger sea turtlesDebris

damaged TEDsIncreased 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

Complainants

India

Articles

GATT Article XI

US Legislation

Section 609 of Endangered Species Act (ESA)

Shrimp Turtle WTO Case

Dispute Settlement Process

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, 1996

4 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 Agreemen

t”

Panel Ruling: April 6th, 1998

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…

What is patented ? : Basmati Rice lines & GrainsPatent holder : Texas based “Rice Tech Inc.”Patented in the name : “Texmati & Kasmati”Patented number : 5,663,484Date of patenting : Sept. 1997Patenting authority : US patentLegal Jurisdiction : InternationalOpposed by : GOI, Res. Foundation for

Science,TechnologyandEcologyPatent cancelled : June 2000?

CURRENT ISSUE- BASMATI PATENTING

With the Basmati patent rights, Rice Tec will now be able to not only call its aromatic rice Basmati within the US, but also label it Basmati for its exports

India and Pakistan will not only lose out on the 45,000 tons US import market, which forms 10 percent of the total Basmati exports

In addition, the patent on Basmati is believed to be a violation of the fundamental fact that the long grain aromatic rice grown only in Punjab, Haryana, and Uttar Pradesh is called Basmati.."

Impact On India

In June 2000 Agriculture and Processed Food Products Development Authority (APEDA) Under the Ministry Of Commerce filed a re-examination application contesting 3 claims of the patent.

So Company withdrew its claims on 4 points that relate to

trade of Basmati INDIA WON THE CASE BASED ON EOGRAPHICAL

INDICATIONS DURING JUNE 2000

INDIA WON……

What is patented? : Turmeric Patent holder : Researchers from the Mississippi University

(US) - 2NRI’s Patent no : 5,401,540 Date : March 1995 Patenting authority : US patent Legal jurisdiction : International Patenting authority: US patent Legal jurisdiction : International

TURMERIC PATENT

This case focuses on two interrelated issues highlighted by the turmeric dispute.

First, there is the specific issue of whether the use of turmeric in wound healing should have qualified as a patentable U.S. product –

Secondary it meets the legal criteria of "Novelty, Non-Obviousness, and Utility" - and what India's rights should be with regard to trading the herb bilaterally. 

There are alleged weaknesses in U.S. patent law that discriminate against developing countries by failing to recognize products like turmeric as "non-novel," despite the fact that this medicinal plant and other traditional agro chemicals have been used in healing for thousands of years.

Case At a Glance…..

 

Inventions can only be patented if they satisfy three criteria:  novelty — only inventions that are genuinely new, and not

part of existing knowledge, can be patented. non-obviousness — if the new invention is obvious, i.e.

anyone familiar with the subject could easily anticipate the invention, then it cannot be patented.

utility — the invention has to work in practice The turmeric case failed to meet the novelty criteria

Why was the patent withdrawn? 

NEEM PATENT HOLDER W.R.GRACE OF NEWYORK AND DEPARTMENT OF AGRICULTURE.

PATENT NO : 04,36,257. DATE : 14-9-1994. PATENTING : EUROPEAN LEGAL JURISDICTION: INTERNATIONAL. USE : TO CONTROL FUNGI ON PLANTS BY

HYDROPHOBIC EXTRACTED FROM NEEM OIL. LEGAL OPPOSITION : JUNE 95

NEEM PATENT

The United States and India are currently involved in a bio piracy dispute over the rights to a tree indigenous to the Indian subcontinent, the neem tree. While the neem tree has been used in India for over 2000 years for various purposes such as pesticides, spermicides and toothbrushes,

US company has been suing Indian companies for producing the emulsion because they have a patent on the process.

The dispute is over the rights of companies to conduct research and development by using patents against the interest of the people who live at the source of the resource

The Issue….

India has won a 10-year-long battle at the European Patent Office (EPO) against a patent granted on an anti-fungal product, derived from neem.

In 2000 the case is revoke due to lack of prior existing knowledge

This case give the birth to the new term BioPiracy on march 09 Dr. Vandana Shiva said. "We gave

them evidence of farmers using this knowledge for a long time and also gave them information about the two scientists who had conducted research on neem before the patent had been granted

INDIA Wins Landmark Battle…

“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 and yet get 75 per cent of the income from trade”

Rich countries force poorer countries to sell the same products at lower prices than rich countries, by charging exporters many times more import tax simply because they live in a poor country

Devil in disguise - Developed Countries

Thank You!!!