Chapter 5 Outline

Closing Case Shrimps, Turtles, and the WTO

There are seven species of sea turtle in the world; six of them are on the US list of endangered species. A major cause of the decline of sea turtles has been poor fishing practices, particularly by shrimp boats. An estimated 150,000 sea turtles per year are trapped and drown in the nets of shrimp boats. In an effort to limit this carnage, the US Congress in 1989 passed a law that required shrimp boats to be equipped with a turtle-excluder device, a simple grate that fits over the mouth of shrimp trawling nets and prevents sea turtles from becoming trapped. The law also banned the importation of shrimp from countries that fail to mandate the use of turtle excluder devices by their shrimp fleets.

As with many such laws, the US government dragged its heels on enforcing the import ban. It wasn't until 1996 that the United States placed an embargo on the importation of shrimp from countries that failed to mandate the use of excluder devices. Even then, it did so only because environmental groups in the United States had sued the government to compel it to enforce its own law. Three countries were targeted by the 1996 ban-India, Pakistan, and Malaysia. The three responded to the ban by filing a complaint with the World Trade Organization. They were joined by Thailand, which decided as a matter of principle to pursue the WTO case (Thailand had already satisfied the United States that its turtle protection methods were adequate).

The WTO formed an independent arbitration panel composed of three experts from countries not involved in the dispute. The panel was charged with reviewing the US position to see whether it conflicted with WTO rules. In its defense, the United States claimed there are provisions in the WTO rules for using restrictive measures if they are related "to the conservation of exhaustible natural resources and if such measures are made effective in conjunction with restrictions on domestic production or consumption." The United States was supported by a number of environmental organizations, including the World Wildlife Fund (WWF). In a brief submitted to the panel, the WWF argued that marine turtles are migratory animals, a global resource that should be subject to stewardship by international society. Even though no multilateral body or resolution had authorized the United States to enact its ban, the WWF claimed that the United States acted in a manner consistent with its obligations and took reasonable measures that reflected the will of the international community.

The four countries that brought the complaint argued that the US ban represented an unfair restraint on trade that was illegal under WTO rules. According to these countries, the United States was violating WTO rules by applying domestic legislation outside its boundaries and by applying it in a discriminatory manner. Influential voices in all these countries accused the United States of hypocrisy. An article in The Hindu, an Indian newspaper, stated

Compared to what the US as a nation is doing to other global shared resources, the world's climate and atmosphere, what complainant nations like India are doing to the marine turtle is a contemptuously small problem . . . . The US leadership has, unfortunately, always put its national interests before global concerns in its global environmental policies. Its behavior on the climate change issue is one example. Its refusal to sign the bio-diversity treaty is another. Its refusal to pay dues to the United Nations is yet another.

The World Trade Organization panel issued its ruling on April 6, 1998. The WTO ruled that the United States was wrong to prohibit shrimp imports from countries that failed to protect sea turtles from entrapment in the nets of shrimp boats. The WTO stated that while environmental considerations were important, the primary aim of international agreements on trade remained the promotion of economic development through unfettered free trade. Further, the WTO stated that even under WTO treaty provisions that allow environmental exceptions, the United States would not be allowed to force other nations to adopt policies to protect an endangered species such as the turtle.

While the WTO has no power to overturn US law, the United States must pay a penalty to the WTO if it keeps its law and the import ban in place. Environmental groups responded with outrage to the WTO's ruling. A Sierra Club spokesman noted, "This is the clearest slap at environmental protection to come out of the WTO to date." Similarly, a spokeswoman for the Washington, DC-based Center for Marine Conservation, stated, "It is unthinkable that we should not be allowed to mitigate the impacts of our own shrimp markets on endangered sea turtles. This entire life form is threatened with extinction."

http://www.worldwildlife.org

Source: A. Aggarwal and S. Narain, "Politics of Conservation," The Hindu, October 26, 1997, p. 26; J. H. Cushman, "Trade Group Strikes a Blow at US Environmental Law," New York Times, April 7, 1998, p. D1; "WTO Ruling in Turtle Protection Dispute," Bangkok Post, March 18, 1998; and J. Maggs, "WTO Shrimp Ruling Heightens Environment vs Trade Debate," Journal of Commerce, April 7, 1998, p. 3A.

Case Discussion Questions

1. Do you think the United States is correct to try to use its law and trade policy to force other countries to adopt environmental policies that it perceives to be sound?

2. Does the WTO decision have implications for US national sovereignty? If so, what?

3. Do you think that it is correct for the WTO to decouple trade policy from environmental policy? Why?

4. Do you think that other countries are correct to accuse the United States of hypocrisy on the environmental issue?

5. How should the United States react to the WTO decision in this case?