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TOPIC Shrimp Import Agreement and its Impact on India
Group II Members Regina Murtaza Abbas Abhinandan Golchha Ajit Golchha Sharmiza DM-07-004 DM-07-007 DM-07-013 DM-07-014 DM-07-048
stressed it preference for the use of multilateral agreements and negotiations in securing agreements to conserve sea turtles before the enforcement of an import prohibition. issued in 1993. Introduction : It prohibited the importation of any shrimp harvested using commercial fishing technologies that might harm seaturtles. environmental NGOs challenged before the U. 1998. The criteria for the use of trade measures in MEAs however is still unclear. In an effort to protect species of sea turtles threatened with extinction. Court of International Trade (CIT) the decision of the State Department to limit the application of Section 609 to the greater Caribbean area. Thailand. makes it difficult for countries to use unilateral trade measures to protect the environment. extended somewhat the final deadline by which a foreign country must implement its program in order to be certified. where it adopted a program to require shrimpers to use TEDs on their boats. Proposals are undertaken on including a clear definition on how and under what terms specified trade measures could be used to enforce environmental goals. It aims to protect all endangered species from further threats of extinction.S. falling within the ambit of the GATT exception relating to the conservation of natural resources. and Pakistan pursuant to US domestic law Section 609. the ESA also affects harvesting techniques. Malaysia. a country could take up to three years to phase in the comprehensive program. History : o 1973 Endangered Species Act is approved. further guidelines. 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. unless the exporting country is certified by the U. The recent dispute before the WTO regarding the sanction placed on shrimp imported from four Asian countries into the United States was significantly related to the role of multilateral environmental agreements (MEAs) and GATT obligations. While working primarily through and conservation and protection. as well as certain other interpretations that the State Department had made of the law.The Issue The legitimate role of the international trade system. although resulting in a partial victory for environmental concerns. Many cases which have come before the WTO involving issues of environmental protection have been ruled in favor of freer trade. The WTO in its report. its implementation amounted to "arbitrary and unjustified discrimination". The WTO ruling. the World Trade Organization (WTO) in promoting national and international standards of environmental protection is contentious. the US has placed an import ban against India. the WTO appellate panel found that although the US law was justified on its face.S. particularly. In October. . In 1995.
o o o o 1987 Voluntary guidelines are issued for including turtle exclusionary devices. 1996 A full prohibition of all shrimp from any country that does not have sufficient precautions and regulatory agencies to ensure that the catch of sea turtles is lesser than or equal to that of United States. 1989 and 1991 Legislation is negotiated to protect all sea turtles in American waters. 1992 Various NGO's pressure the prohibition to cover international shrimp harvests. Setback : Did not get along very well with the developing countries : • • • • Requirements Expensive Time difference Preferential treatment for some No alternatives accepted . the United States attempted to impose the TED requirement on shrimpers elsewhere in the world. including Central America and the Caribbean. Solution to the problem – TED In 1989. It allows turtles like the loggerhead to escape from trawl nets through a grid of bars at the top or bottom.
These turtles remain trapped within the net and perish. Guatemala. TED use becomes impractical due to debris in the water. The modified TSDs were similar to standard TEDs except for having fewer bars. Nicaragua. While some foreign nations were given ample amount of time to implement the TED technology while the others were’nt provided much time for switching thus a preferential treatment. This was a response to the declining olive ridley population that was nesting in beaches such as in Orissa.In 1991 Some countries like Mexico. Suriname. Venezuela. Was TED the only option ? o They argued that the use of TED was not the only and most effective device to protect the sea turtles and that TED is not a “multilateral environmental standard” and that “extending the same programme outside the United States was disguised restriction on international trade. Trinidad and Tobago. In 1996. Belize. French Guyana. In 1996 Department of State prohibited the importation of shrimp or products of shrimp wherever harvested in the wild with commercial fishing technology which may affect adversely those species of sea turtles the conservation of which is the subject of regulations. This resulted in the increase of the distance between each pair of bars to ensure that bigger specimens of shrimp and fish were able to pass through the TSD and into the net. Costa Rica. It has been acknowledged that the larger sea turtles. which they called TSDs (Turtle Saving Devices) to be used by local fishermen. because scientific evidence did not demonstrate that shrimp trawling was the principal threat or even an immediate threat to sea turtles elsewhere in the world. and Brazil were required to make a commitment to require all shrimp trawl vessels to use TEDs at all times . primarily large loggerheads and leatherbacks are too large to fit through the escape hatches installed in most TEDs. nations were given three years for the complete phase-in of a comparable programme. Colombia. Honduras. Panama. the Indian government proposed legislation for the requirement of modified "indigenous" TEDs. Result in 10% loss in catch o o o o . Guyana.
collection of eggs. even in the absence of TEDs. The active enforcement of fishery laws by the Department of Fisheries had successfully kept the trawlers away from the coastal and Turtle Island waters and the existing trawling operations had been successfully kept away from the migration routes of the turtles.S. and provided for the establishment of turtle sanctuaries. o o o o o . a panel found that the U. law under WTO dispute settlement procedures. in the case of the Sarawak population of green turtles. measure was inconsistent with Article XI of the General Agreement on Tariffs and Trade (GATT). The states' legislation on turtle protection had been enacted in 1932 and prohibited. the population had remained constant over a long period and had been sustained. What the challengers had to say : Malaysia o Malaysia submitted that none of the Malaysian fishermen used TEDs.S. claiming that it was inappropriate for the United States to prescribe their national conservation policies. The United States had maintained that Section 609 fell within the exception under Article XX(g) of the GATT that permits import restrictions relating to the conservation of an exhaustible natural resource. possession or sale of turtles. WWF and the Malaysian Society of Marine Sciences) and corporate bodies (as sponsors of conservation projects). and fishing trawlers were not allowed to operate within designated areas where turtles mated and nested. In 1988. injuring. India. Organizations actively involved in the conservation of turtles included the Fisheries Department. Sabah and Sarawak had turtle protection laws. after 22 years of 100 per cent egg protection. nesting density reached a record in 1991. The Turtle Island of Sabah was constituted as a State Park in 1984. such as the Customs (Prohibition of Export/Import) Orders of 1988.Response to the United States In October 1996. enforced specifically to ban the exports and imports of turtle eggs to and from all countries. Malaysia had a comprehensive legal framework on the conservation and management of marine turtles which were under the jurisdiction of 13 individual states.g. after the Sabah State Government had compulsorily acquired the islands from private ownership. Thailand and Pakistan challenged the U. Therefore. In April 1998. the United States appealed the panel findings to the WTO Appellate Body. the nesting population of green turtles showed a reversal in its declining trend. A significant amount of wild harvested shrimps were caught using traditional mechanisms (such as hand retrieval nets) which would not in any way cause incidental catches of turtles. NGOs (e. killing. Accordingly. inter alia. Malaysia. the capture. local universities. which provides that WTO Members shall not maintain import restrictions. disturbing turtles during laying eggs. Subsidiary legislation had also been enacted.
o Malaysia had cooperated with the Philippines in the launching of the Turtle Island Heritage Protected Area in 1996. Sea turtle egg collection programmes were run by 5 Marine Fisheries Development Centers and 13 Coastal Aquaculture Development Centers within the Department of Fisheries. conservation. From 1967 to 1996. Thailand had suggested that an agreement be negotiated within ASEAN with respect to sea turtles. The Thai culture embraced a traditional belief that it was sinful to kill sea turtles. The MOU also established a Technical Expert Working Group to prepare an ASEAN programme for Sea Turtle Conservation and Protection. and the Royal Thai Navy. the Fisheries Act had been passed prohibiting the catching. the Department of Forestry. hawksbill and olive ridley) within its jurisdiction. coordinated by Malaysia. The MOU committed its signatories to the protection. As early as 1947. o o Three branches of the Government of Thailand were responsible for sea turtle restoration programmes: the Department of Fisheries. harvesting or harming of any sea turtle. Pakistan : o Pakistan stated that its culture embraced a traditional belief that it was sinful to kill sea turtles.000 baby sea turtles a year. held on 13-14 March 1997. This Act also specified that any accidentally caught turtles had to be released into the sea immediately. to develop uniform conservation measures for the turtles on the islands The use of TED alone could not absolutely ensure the survival of turtles. o o During the fifth meeting of the ASEAN Sectoral Working Group on Fisheries. o Thailand : o Thailand submitted that it had a long history of taking action to protect the four species of sea turtles (leatherback. replenishment and recovery of sea turtles and of their habitats based upon the best available scientific evidence. The meeting had agreed to authorize Thailand to draft a Memorandum of Understanding ("MOU") setting forth the steps that could be taken jointly for the protection and conservation of sea turtles. The goal of the restoration programmes administered by these institutions was to cultivate and release 5. It also established mutual recognition of each nation's laws and regulations on this subject and called for harmonization of such laws and for the sympathetic consideration of such new laws that might be proposed by the working group. there had been no observed incidental sea turtle kills in connection with shrimping. . The reason for this was that sea turtles inhabited coral reefs and sea grass beds within three kilometres of the shoreline where shrimp trawling was prohibited. green.
o o o India : o Five of the seven species of sea turtles found worldwide are reported to occur in Indian coastal waters and the Bay Islands. which made it illegal to export protected species. from which hatchlings were released at sea. Pakistan's Sindh Wildlife Department was engaged in sea turtle conservation programmes in conjunction with WWF and IUCN (International Union for Conservation of Nature). off India's Orissa coast. It was estimated that between October 1979 and December 1995 more than 1. The Institute also operated a hatchery for sea turtles in Madras. All the five species of sea turtles that occur in Indian coastal waters are legally protected under Schedule I of the Indian Wildlife Protection Act (1972). o o o o .o In 1950. This programme had proven to be extremely effective in preserving and protecting sea turtles. Pakistan did not accept the US assertion that the use of TEDs was the only way to prevent the extinction of sea turtles and considered the US action to be an unacceptable interference in policies within Pakistan's sovereign jurisdiction. including sea turtles and sea turtle by-products from Pakistan. various public and private organizations in Pakistan were engaged in sea turtle protection programmes. The local government had banned fishing and shrimping within a radius of 20 kilometres around Gahirmatha to protect these turtles. In addition to laws protecting sea turtles. Central Marine Fisheries Research Institute in India monitored olive ridley turtles nesting in some regions during 1978 and 1986.5 million sea turtle eggs had been protected and thousands of hatchlings had been released safely to the sea.000 hectares in the Bhitarkanika and Gahirmatha regions had been declared a sea turtle sanctuary. as well as listed in Appendix I of Convention of International Trade in Endangered Species of Wild Fauna and Flora (CITES) which ensure that international trade in specimens of wild animals and plants does not threaten the survival of the species in the wild by signatory countries. and every year approximately 600. Pakistan had passed legislation to protect sea turtles by enacting the Imports and Exports (Control) Act (amended on 13 August 1996). The nesting population of olive ridley had increased over the past ten years in the Gahirmatha region. and conducted an exhaustive study on the nesting population. The turtle was an incarnation of Lord Vishnu. The Sindh Wildlife Department had also engaged in turtle conservation training programs designed to teach the public about the importance of protecting sea turtles. Since 1979. 65. In addition.000 olive ridley sea turtles nested in this area.
Socio -economic condition was closely linked . and water.. Artificial lighting Magnetic Interference Oil spills and marine pollution Fishing Poaching Global warming Disease . 7. Americans' concerns about environmental problems have generally declined.adversely affected their livelihood Great difficulties to many processing units in India Maintain separate tubs and storage facilities for material from different sources Considerable waste of time and under -utilization of facilities already created. Each year U. A great deal of uncertainty within the Indian shrimp industry. Environment and the United States : o A survey conducted by Gallup which depicts that there has been a decrese in concern for environment in the US. 3. 2. 6. A survey was conducted by Gallup which depicted these results Apart from fishing/ shrimping there are the various other reasons for Turtle mortality but rather than creating an international stirs are we doing something to curb these turtle mortality due to these causes o o o o o o 1. factories spew 3 million tons of toxic chemicals into the air. USA has a ranking of 100 of its ecosystem vitality US the 2nd highest producer of Carbon emission Over time. land.Impact on India : o o o o o o The US embargo had had a ripple effect on the entire Indian shrimping industry. 4. That compounds the over one-half billion tons of solid hazardous wastes Environment Performance Index .S. 5.Among 132 countries.
its evolutionary instincts push it to move towards the brightest light in view. while shrimp harvested by the same method by a national of a certified country would be permitted entry into the United States. the sea turtle’s natural source of guiding light has been replaced and is no longer the only or the brightest source of light. Some of the most dangerous ocean pollutants include toxic metals. Marine pollution is both directly harmful to sea turtles as well as indirectly. showing that in 1999. due to the continual expansion of cities. The embargo. Products from these countries had therefore been given an "advantage. However. leading them toward the ocean horizon and into their new ecosystem. Oil spills are particularly dangerous to sea turtles. export or sale for export of products other than measures that took the form of duties. initially affected nations had been given the opportunity to implement the required use of TEDs without substantially interrupting shrimp trade to the United States. wild shrimp harvested by use of TEDs were forbidden entry into the United States if harvested by a national of a non-certified country. and a variety of petroleum products. Article XI of GATT 1994 provided for the general elimination of quantitative restrictions on imports and exports. pursuant to the embargo. the hatchlings become easily confused and turned around. while newly affected nations had not been given a similar phase-in period. was also inconsistent with Article I:I of the GATT 1994 because initially affected nations had been granted a phase-in period of three years. which naturally would be the sun or the moon. With the invention of the light bulb and therefore artificial light. favor. Studies support artificial light as the leading cause for hatchling disorientation.One of the greatest threats to the survival of hatchlings is artificial lighting. PCBs. as applied. construction of condos and hotels on coasts everywhere has grown exponentially. Pakistan and Thailand argued that the embargo on shrimp and shrimp products was inconsistent with the Most-Favored-Nation ("MFN") principle embodied in Article I:I of GATT. 51% of the nests studied showed signs of confusion with one-fourth of all the hatchlings headed in the wrong direction Ferrous metal wire mesh screens are commonly used to protect sea turtle nests from predators' excavating and devouring the eggs and hatchlings.fertilizers. through the deterioration of their natural habitats. applying to all measures instituted or maintained by a Member prohibiting or restricting the import. The scope of Article XI was comprehensive. taxes or other charges. A new concern is that nestlings' delicate magnetic sense may not develop normally in the presence of the magnetic field interference from these steel mesh cages. This argument was raised because: Further. When a sea turtle hatches. Thus. With virtually every coast now constantly lit with buildings. Physically identical shrimp and shrimp products from different nations were treated differently by the United States upon imports based solely on the method of harvest and the . few of them making successful treks to the ocean. the embargo violated Article I:I because. privilege or immunity" over like products originating in the territories of other Members. untreated waste. Argument by Plaintiff Nations : India. chemicals.
. In reply to this the plaintiff nations argued: The import ban was not about conservation but a unilateral trade measure by the US. but must do so in a manner that respects the principle of sustainable development and protects and preserves the environment. United States had the option to work with other nations on additional measures that could be taken to conserve sea turtles without unilaterally imposing its own solutions to the problem. The Decision : Panel Ruling: April 6th. provided that the rules of trade must not only promote expansion of trade and production. A member can exercise Art XX to “protect human.policies of the foreign government under whose jurisdiction the shrimps were harvested. If TEDs usage was the only means of protecting sea turtles from extinction. “WTO Agreement” . plant life or health”. after they had notified the United States and the Members of their intention to bring this dispute to the WTO for resolution. Argument by United States The US argued that it had taken measures to protect and conserve sea turtles. United States required its shrimp fishermen to harvest shrimp in manner that was safe for sea turtles. Import of shrimp and shrimp products from some shrimp harvesting nations were denied entry into the United States while imports of similar shrimp and shrimp products from other nations were permitted entry into the United States. the United States did not approach the complainants about an agreement on this issue until November1996. Art XX lays down specific instances in which a WTO member may be exempted from GATT rules. animal. Art XX could also be exercised for “conservation of exhaustible natural resources” if such measures are made effective in conjunction with restrictions on domestic production or consumption.first multilateral trade agreement concluded after the UN Conference on Environment and Development. 1998 Article XI of GATT provides for general elimination of quantitative restrictions and is comprehensive and applies to all measures instituted or maintained by any member with regard to imports or exports. and quantitative restrictions through import or export licenses. Measures prohibited by Art XI includes outright quotas. the United States only asked that shrimp imported into the United States to be harvested in a comparable manner. an endangered “natural resource” that all parties to this dispute had agreed needed to be protected and conserved. In this case. long after the embargo had been put in place.
it dealt with specific exceptions to GATT rules. And United States argued that its measures were justified under Art XX (b) and (g). In other words. amounts to “prohibition or restriction” on the import of shrimp within the meaning of Article XI. US also argued that Art XX did not contain any jurisdictional limitations as to the location of animals or natural resources to be protected or conserved. or other charges” within the meaning of Art XI. Therefore. The panel found that plaintiff nations were given substantially less notice by the US than other countries before being forced to comply with the TEDs requirements and that it is a form of discrimination between countries where the same conditions prevailed.And Art 609 of US constitutes prohibition or restriction of import of shrimp products and is not in nature of “duty. the panel concluded that the US measure constituted unjustifiable discrimination between countries. Section 609. As far as Art XX is concerned. tax. .