In 1994, the WTO intervened to address member concerns regarding the import of shrimp and its impact on turtles. This became known as the Shrimp and Turtle case. The ruling was adopted on November 6, 1998. However, Malaysia persisted in their complaint and initiated DSU Article 21.5 proceedings against the U.S. in 2001, but the U.S. prevailed in those hearings. The most significant feature of this case is that the WTO upheld the U.S. ban based on the process of production and not the product itself although the U.S. lost the proceedings and had the ban declared inconsistent with the GATT 1994 because the ban was discriminatory against other nations.
Shrimp and Turtle case
The environmental group from Oakland, California, Earthjustice sued the Environmental Protection Agency for a lack of oversight among US shrimp fishers and international fishermen.
The Earth Island Institute filed a lawsuit against US Secretary of State Warren Christopher in federal court. The government successfully argued that jurisdiction for anything dealing with embargoes was under the purview of the United States Court of International Trade. The suit was based on Public Law 609:101-162, which was not an amendment to the Endangered Species Act although it is often said to be. Public Law 609 required (a) the Secretary of State to negotiate and develop a bilateral treaty for the protection of endangered sea turtles, and (b) prohibited the importation of shrimp that was produced without Turtle Excluder Device technology introduced by the National Marine Fisheries Services. Previously, the U.S. had confined its enforcement of 609 to Caribbean countries instead of all countries. This is why the Court of International Trade ruled in favor of Earth Island Institute.
Sea turtles, endangered species on the Endangered Species Act (ESA) were caught as by-catch by shrimp. The US Environmental Protection Agency sought to protect endangered species. Presently, the NMFS requires US shrimp fishermen to use the technology while fishing for shrimp.
The new technology allowed the capture and harvest of shrimp without ensnaring sea turtles in the indiscriminatory bottom-trawling process. The patented trap door was very effective and the US fishermen quickly adopted the technology; however, implementation and adoption of the shrimp turtle trap door was limited at best among countries to comply. One of the hurdles in adopting the shrimp/turtle trap door was the prohibitive cost of the modified nets. The TEDS were estimated to cost –
Because the fishermen from outside the United States, some of them earning a yearly income equivalent to the trap door, could not afford the trap door, the farmers/fishermen refused to acknowledge the US's demands and later, their countries, Malaysia, India, and Pakistan jointly filed suit with the WTO. Environmentalists argue that these low income fishermen do not sell shrimp to the U.S.; they either work under a larger company who could pay for the TEDs or only sell locally. Many environmental groups within Western Countries, in an effort to protect five species of sea turtle, motivated the EPA and US government to subsidize the TED. Initially, the WTO ruled against the United States. According to the WTO, the United States could not discriminate between each country by providing the protesting countries with "financial and technical assistance," but not all countries. The US later amended the EPA. Unsatisfied, Malaysia continued to assert the United States banned the import of shrimp. After further review, a WTO compliance panel ruled in favor of the US in 2001. They stated the US was justified under GATT because the U.S. no longer discriminated in the application of their exception under Article XX(g).
This case is significant because the WTO permitted the U.S. to restrict an import based on its production process and not the product itself. A matter known as the process versus product issue.
The case is also widely misunderstood. The WTO didn't forbid the U.S. from restricting imports of shrimp from countries not using TEDs. The final ruling in 2001 actually permitted this practice. What was at stake was Article XX which says the exceptions listed below cannot be applied in a way that discriminates. After the U.S. corrected the discrimination they were in compliance with their WTO obligations.
Dolphin Tuna case
Similar to the Shrimp and Turtle Case was Dolphin Tuna Case in the 1970s. Companies such as Sunkist and Del Monte Fresh modified ocean floor trawling for wild-caught tuna as dolphins and their pods were depleted through unsustainable fishing practices. The US and the public later required the ban of tuna caught by ocean floor trawling. Tuna sold to the US markets had to be labelled "Dolphin Safe".
The United States lost the Tuna-Dolphin Case, both times. The first was when Mexico opened a dispute. The second was the European Economic Community and The Netherlands.
The U.S. lost this case for two reasons: process versus product and extraterritoriality.
(Available Online; http://www.wto.org/english/tratop_e/envir_e/edis08_e.htm)
(Available Online: http://www.earthisland.org/dolphinSafeTuna/consumer/)
(Available Online: http://www.patentstorm.us/patents/5575102-description.html)
- Paul Stanton Kibel (1996). "Justice For the Sea Turtle: Marine Conservation and the Court of International Trade" (PDF). UCLA Journal of Environmental Law and Policy.
- "Mexico etc versus US: 'tuna-dolphin'". WTO.