Director of the Office of Marine Conservation
Bureau of Oceans and International Environmental and Scientific Affairs
U.S. Department of State
Remarks to the Eleventh Annual Judicial Conference of the U.S. Court of International Trade on Social Justice Litigation: The CIT and WTO
New York, New York, December 7, 1999
"Setting the Record Straight on Sea Turtles and Shrimp"
The New York Times recently reported that "the WTO overturned a Federal law barring imports of shrimp from countries whose fishing fleets used nets that were unable to release endangered sea turtles." Along the same lines, The Economist recently reported that "America's ban on shrimp from countries that use nets which trap sea turtles . . . was found to be violating world trade law." The Washington Post added that the WTO "found against a U.S. requirement that all shrimp imported into the United States must be caught with fishing nets that do not ensnare sea turtles."
These statements are incorrect or, at best, misleading. Perhaps more importantly, they reflect widespread misunderstanding about a 1989 U.S. law designed to protect endangered sea turtles, and the treatment of that law in the WTO and the CIT. This misunderstanding may, in fact, have contributed to the intensity of the protests that disrupted the WTO Ministerial Meeting in Seattle last week, which featured environmental activists wearing sea turtle costumes.
This presentation will attempt to set the record straight. The first part of the presentation describes the U.S. law in question -- what it does and what it doesn't do. The second part attempts to summarize the CIT litigation over the implementation of this law. Next, the presentation reviews the 1998 decision of the WTO Appellate Body and the steps being taken by the United States Government to give effect to this decision. The presentation closes with some thoughts on the desirability of multilateral solutions to transboundary environmental problems, using the shrimp/turtle cases as an example.
THE U.S. TURTLE/SHRIMP LAW
All species of sea turtles but one are endangered, some critically so, throughout all or part of their range. In the United States and many other countries, the accidental drowning of sea turtles in fishing nets pulled by shrimp trawl vessels contributes significantly to the endangerment of sea turtles. Fortunately for the sea turtles, fishing gear experts have developed a relatively simple, inexpensive piece of equipment -- the turtle excluder device or TED -- that can reduce the drowning of sea turtles in shrimp trawl nets dramatically. A TED is a metal or mesh grid that can be placed in a shrimp net. As the net moves forward in the water, small objects (such as shrimp) pass through the bars of the TED into the closed end of the net. Large objects (such as sea turtles) bump up against the bars of the TED and are directed out of a "trap door" in the net. If TEDs are properly installed and used, they will allow at least 97 percent of sea turtles to escape, with minimal loss of shrimp.
Since 1990, U.S. laws and regulations have required virtually all commercial shrimp trawl vessels operating in the United States in areas where there is a likelihood of intercepting sea turtles to use TEDs.
In 1989, Congress also included a provision in an annual appropriations act --Section 609 of Public Law 101-162 -- to prohibit the importation of shrimp and products of shrimp harvested in ways that are harmful to species of sea turtles. To avoid this trade embargo, shrimp harvesting nations may seek to be certified by the Department of State as having a program to protect sea turtles in their shrimp trawl fisheries that is comparable to the U.S. program. Section 609 also permits certification of nations whose shrimp fishing environments do not pose a threat to sea turtles (e.g., because their shrimp fisheries occur exclusively in cold waters where there is no likelihood of intercepting sea turtles, or because their shrimp fishermen use exclusively artisanal gear in which sea turtles cannot be drowned).
The Department of State initially determined that Congress had intended Section 609 to apply only within the Wider Caribbean and Western Atlantic region. Recognizing that the United States had taken approximately ten years to develop its own TEDs program, the Department also determined that foreign shrimp harvesting nations would have three years to phase in a comparable sea turtle protection program, prior to becoming subject to the import prohibition on shrimp.
FIRST CIT CASE
Following a determination by the U.S. Court of Appeals for the Ninth Circuit that the CIT had exclusive jurisdiction over cases involving the import prohibition of Section 609, certain environmental and animal rights groups brought suit in the CIT, primarily to overturn the limitation of Section 609 to the Wider Caribbean and Western Atlantic region. The CIT ruled in December 1995 that Congress intended Section 609 to apply on a worldwide basis, and ordered the Department of State to comply with that ruling by May 1, 1996. At the same time, the CIT upheld a number of other decisions of the Department of State relating to the implementation of Section 609.
The Department of State asked the CIT to delay the effect of this ruling for an additional year in order to allow newly affected foreign nations adequate time to develop sea turtle protection programs, but the CIT denied that request. Accordingly, embargoes on imports of shrimp harvested in ways harmful to sea turtle species went into effect with respect to many nations on May 1, 1996.
SECOND CIT CASE
To give effect to the worldwide application of Section 609 mandated by the first CIT decision, the Department of State made a number of noteworthy changes in the way it implemented the law. Most significantly, we imposed the following requirement: every shipment of shrimp imported into the United States must be accompanied by a form, executed and signed by the exporter and importer, indicating that the shrimp was harvested under circumstances that are not harmful to sea turtle species. If the shrimp was harvested in a nation certified by the Department of State under Section 609, the United States will assume that the shrimp meets this standard. If, however, the shrimp was harvested in an uncertified nation, it may still be imported -- but only if a government official in the harvesting nation also signs the form and affirms that the shrimp was harvested under certain specific conditions that do not pose a threat to sea turtle species.
Once the Department of State instituted these changes, the plaintiffs in the first CIT case reopened the litigation in an effort to reverse one specific aspect of the changes. The reopened case posed this question: if some but not all shrimp trawl vessels in a foreign nation use TEDs, may shipments of shrimp harvested by such vessels be imported into the United States? The Department of State believes the answer must be yes -- the harvesting of such shrimp does not harm sea turtles and is thus not subject to the import prohibition of Section 609. The plaintiffs argue otherwise. In their view, unless a foreign nation has a TEDs program comparable to the U.S. program, none of its shrimp harvested by shrimp trawl vessels may be imported.
The CIT ruled in favor of the plaintiffs' position in late 1996. However, in June 1998, the U.S. Court of Appeals for the Federal Circuit vacated that ruling, finding that the CIT lacked jurisdiction to issue the decision because the plaintiffs had previously withdrawn the case. The Department of State then reinstated its decision to permit the importation of shrimp harvested with TEDs in uncertified nations, subject to a number of safeguards and conditions designed to minimize the possibility of fraud and to maintain the protection of sea turtles. The plaintiffs subsequently refiled the case. A decision is pending.
In September 1996, four nations newly affected by Section 609 as a result of the first CIT decision (India, Malaysia, Pakistan and Thailand) brought a case against the United States in the World Trade Organization, claiming that the shrimp embargo violated U.S. obligations under the WTO Agreement. The United States defended the case, claiming that Section 609 fell within Article XX(b) and (g) of the WTO Agreement, which permit WTO Members, subject to certain constraints, to take measures to protect human, animal and plant life and health and to conserve exhaustible natural resources, even if such measures conflict with other provisions of the WTO Agreement.
A WTO panel of arbitrators ruled against the United States on most issues. The United States then appealed the panel decision to the WTO Appellate Body. The decision of the Appellate Body, issued October 12, 1998, reversed the panel's findings on many key points. Most importantly, the Appellate Body found that Section 609 itself was not inconsistent with U.S. obligations under the WTO Agreement and was, in fact, covered by Article XX(g) relating to the conservation of exhaustible natural resources. Press accounts of the WTO ruling seem not to have grasped this vital point. In addition, the Appellate Body decision reversed the earlier WTO panel ruling by determining that WTO panels may accept amicus briefs and other information submitted by non-governmental organizations.
At the same time, however, the Appellate Body decision found that certain aspects of the way in which the Department of State was implementing Section 609 were, in their cumulative effect, inconsistent with U.S. obligations under the WTO Agreement. The Appellate Body report recommended that the United States revise its implementation of Section 609 accordingly.
On November 25, 1998, the United States announced its intention to implement the WTO decision in a manner which is consistent not only with U.S. WTO obligations, but also with the firm commitment of the United States to the protection of threatened and endangered species, including sea turtles.
The following paragraphs summarize the findings of the WTO Appellate Body decision and the steps being taken to implement the recommendations and rulings:
(1) WTO finding: While Section 609 requires as a condition of certification that foreign programs for the protection of sea turtles in the course of shrimp trawl fishing be comparable to the U.S. program, the practice of the Department of State in making certification decisions was to require foreign programs to be essentially the same as the U.S. program. In assessing foreign programs, the Department of State should be more flexible in making such determinations and, in particular, should take into consideration different conditions that may exist in the territories of those other nations.
Implementation: In response to this recommendation, the Department of State will now fully consider any evidence that another nation may present that its program to protect sea turtles in the course of shrimp trawl fishing is comparable to the U.S. program. In reviewing such evidence, the Department will take into account any demonstrated differences in foreign shrimp fishing conditions, to the extent that such differences may affect the capture and drowning of sea turtles in commercial shrimp trawl fisheries. The Department will also take such differences into account in making related determinations under Section 609.
(2) WTO Finding: The certification process under Section 609 is neither transparent nor predictable and denies to exporting nations basic fairness and due process. There is no formal opportunity for an applicant nation to be heard or to respond to arguments against it. There is no formal written, reasoned decision. But for notice in the Federal Register, nations are not notified of decisions specifically. There is no procedure for review of, or appeal from, a denial of certification.
Implementation: In response to this finding, the Department of State has instituted a broad range of procedural changes in making certification decisions under Section 609. The intention is to create a more transparent and predictable process for reviewing foreign programs and for making decisions on certifications and other related matters. Governments of harvesting nations will be notified on a timely basis of all pending and final decisions and will be provided a meaningful opportunity to be heard and to present any additional information relevant to the certification decision. The governments of harvesting nations that are not granted a certification shall receive a full explanation of the reasons that the certification was denied. Steps that the government must take to receive a certification in the future shall be clearly identified.
(3) WTO Finding: At the time the WTO complaint arose (i.e., after the decision in the second CIT case but before the Court of Appeals vacated that decision), the United States did not permit imports of shrimp harvested by vessels using TEDs comparable in effectiveness to those used in the United States, unless the harvesting nation was certified pursuant to Section 609. In other words, shrimp caught using methods identical to those employed in the United States had been excluded from the U.S. market solely because they had been caught in waters of uncertified nations.
Implementation: Following the decision of the Court of Appeals to vacate the decision of the CIT on this point, the Department of State, as noted above, once again decided to allow the importation of shrimp harvested by vessels using TEDs in uncertified nations, subject to certain safeguards and conditions designed to minimize fraud and to maintain sea turtle protection. That decision remains in effect, pending the outcome of the litigation in the second CIT case.
(4) WTO Finding: Although the United States successfully negotiated a treaty to protect sea turtles with other nations in the Western Hemisphere, the United States failed to engage the nations that brought the complaint, as well as other WTO Members outside the Western Hemisphere that export shrimp to the United States, in serious across-the-board negotiations for the purpose of concluding other agreements to conserve sea turtles before enforcing the import prohibition on those other Members.
Implementation: As early as 1996, the United States proposed to governments in the Indian Ocean region the negotiation of an agreement to protect sea turtles in that region, but received no positive response. In 1998, even before the WTO Appellate Body issued its report, the United States reiterated its desire to enter into such negotiations with affected governments, including those that had brought the WTO complaint. During the summer of 1998, the United States informally approached several governments in the Indian Ocean region, as well as numerous non-governmental organizations, in an effort to get such negotiations underway. In October 1998, the Department of State formally renewed this proposal to high-level representatives of the embassies of the four complainants in Washington, D.C., and delivered the same message to a wide range of nations in the Indian Ocean region through our embassies abroad. In each case, the United States presented a list of "elements" that we believed could form the basis of such an agreement. The Department also made clear the willingness of the United States to support the negotiating process in a number of ways and is continuing to pursue this initiative.
The Department of State is gratified that there seems to be an emerging willingness on the part of governments in the Indian Ocean region to negotiate such an agreement. In the past few months, we have participated in meetings in Malaysia and Australia that brought together government officials, sea turtle experts and fishing industry representatives to explore ways to protect sea turtles in that region. We believe that the next concrete step should be for one or more of those governments to convene an actual negotiating conference to begin the hard work of elaborating an agreement.
(5) WTO Finding: As compared to the nations of the Wider Caribbean and Western Atlantic that were initially affected by Section 609, the United States provided less technical assistance in the use of TEDs to those nations that first became affected by the law at the end of 1995 as a result of the first CIT decision.
Implementation: The United States has renewed its offer of technical training in the design, construction, installation and operation of TEDs to any government that requests it. Training programs will be scheduled on a first come, first served basis, although special efforts will be made to accommodate nations whose governments are making good faith efforts to adopt and maintain nation-wide TEDs programs and who have not previously received such training. In this way, the United States hopes to create an additional incentive in favor of such programs.
In summary, the WTO decision did not require the United States to repeal or even to amend Section 609. Instead, the WTO decision called upon the United States to implement Section 609 in a more transparent, flexible and even-handed manner, to seek to negotiate relevant multilateral agreements with the affected nations and to provide technical assistance to those nations when asked. The WTO did not undermine the goal of sea turtle protection in this case. Indeed, many aspects of the WTO decision have strengthened efforts to achieve this goal.
Section 609 represents an attempt by the United States to promote the protection of sea turtles by ensuring that all shrimp sold in the U.S. market -- roughly 80 percent of which is imported -- have been harvested in ways that are safe for sea turtle species.
On one level, Section 609 has been effective. A number of foreign nations have adopted TEDs programs following its enactment. It is reasonable to assume that at least some of them would not have done so otherwise. It is also reasonable to assume that these TEDs programs have prevented the needless drowning of many sea turtles in shrimp trawl nets.
However, Section 609 has entailed certain costs as well. It has prompted hard-fought -- and continuing -- litigation in the CIT by environmental and animal rights groups who believe that the U.S. Government is not implementing the statute strictly enough. Section 609 has also sparked an equally hard-fought case in the WTO, in which foreign governments have expressed their deep-felt antipathy toward what they perceive as a unilateral imposition of environmental standards. They also point out, justifiably, that sea turtles are endangered for a wide variety of reasons, not just due to drowning in shrimp trawl nets.
The Department of State has tried in good faith -- and with some success, we think -- to balance these competing views. We believe that we are implementing Section 609 in a way that respects the letter of the law and Congressional intent, while also honoring U.S. obligations under the WTO Agreement.
We nevertheless believe that we can achieve greater protection for sea turtles -- and also resolve much of the conflict and controversy that Section 609 has sparked -- through multilateral approaches. If sea turtles or other endangered migratory creatures are to be protected effectively, nations within their migratory ranges must act cooperatively. Unilateral actions are not a complete solution, and may undermine cooperative efforts. That is why the United States welcomed the decision of the WTO in calling for the negotiation of a comprehensive sea turtle protection agreement involving the United States, the complaining nations and other interested parties. One such agreement already exists -- the 1996 Inter-American Convention for the Protection and Conservation of Sea Turtles. Another is needed for the Indian Ocean.
I hope that this presentation has helped to set the record straight on the subject of sea turtles and shrimp. I would be pleased to answer any questions from the audience.
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