9:49 AM Jan 23, 1997

PANEL SOUGHT AGAINST US SHRIMP BAN

Geneva 22 Jan (Chakravarthi Raghavan) -- The United States blocked Wednesday at the WTO's Dispute Settlement Body, a Malaysian-Thailand request for a panel to look into US import restrictions on wild-harvested shrimp on environmental grounds of conserving sea-turtles.

Other panel requests that were also put off (with countries complained against withholding their consent) were complaints against Hungary over its agricultural export subsidies, Turkey's local taxes on foreign films, Argentina's duties and taxes on footwear, textiles and apparel and other items.

A Panel will be automatically set up if the request is brought up again at the DSB meeting, set for 25 February.

A statement at the DSB suggested though that the US may be trying to head off another challenge to its domestic law and trade restrictions for conservation of natural resources and environmental protection beyond its national jurisdiction.

It has proposed to some of the countries involved an international treaty for protection of sea-turtles.

While atleast one of the countries approached, the Philippines, has said it would keep an open mind on this idea, it has also made clear that the question of consistency of US laws with WTO rules is a separate matter.

The US imposed is ban in May 1996 on imports of shrimps from countries not using the Turtle Excluder Devices (TEDs), and not accompanied by "turtle-safe" shrimp certifications from countries.

The ban followed a ruling by its International Trade Court, which had been moved by an environment group, the Earth Island Institute (which has a Sea Turtle Restoration Project), to force the administration to use the Endangered Species Act to protect the sea turtles.

The US ban did not affect shrimp grown by aqua-culture methods in shrimp farms, nor shrimp caught by Latin American countries which caught their shrimp in colder waters where no sea-turtles are found.

The ban mainly affected countries in Asia, engaged in marine shrimp fishing and involved millions of dollars worth of exports.

According to some US estimates, 200-500 million dollars worth of shrimps or 25% of all shrimp imports, would be hit by the ban.

In June last year, four countries (India, Pakistan, Malaysia and Thailand) had sought consultations with the US, and two of these have now come up for a dispute panel.

But the US action had the effect of some of the countries from Asia, exporting shrimp to the US, to get their trawlers to use the TEDs (and issue export certificates), and even more to use aquaculture to produce and export shrimps in prawn farms near the sea-coast.

To that extent, the US relaxed the bans on these countries' exports.

But the US "environmental" action was assailed by environmental groups in Asia who said that the sea-turtles were not only just threatened by large commercial trawling, but by the intensive aquaculture activities which the ban encouraged.

According to Indian ecologist, Vandana Shiva, sea-turtles are threatened not merely by shrimp trawlers, but by the fact that aquaculture shrimp farming threatens the nesting sites of the turtles near the coast, and without an area to nest and migrate, the turtles will be unable to maintain their population.

Shiva and other ecologists have pointed out that the fertilizers and pesticides etc used in the aquaculture shrimp farms, which are located near the sea-coasts, are leached out into the neighbouring sea as a result of frequent discharge of effluents.

The US ban, at the instance of an US environmental NGO, was thus merely a cosmetic one, and the real threat to these endangered species came from the commercial trawling and the 'globalized market'.

The Thai ambassador to the WTO, Kririk-Krai Jirapet, who brought up the complaint against the US at the DSB, said the US restrictions violated the GATT provisions (against quantitative restrictions, MFN treatment and non-discriminatory prohibitions and import restrictions) and were not saved by the exceptions in Art. XX.

Mr. Andrew Stoler for the US said the US could not give its consensus at this meeting for the establishment of the panel. Stoler added that as a result of a recent decision of the US international court for trade, the ban affected only a small part of the trade of the US with the countries requesting the panel. As a result of Thailand's certification (under S. 609 of the US law) that the shrimp exports did not use nets that caught sea-turtles, no Thai exports were now affected, and the US regretted that Malaysia and Thailand were still persisting with their dispute.

Amb. Lillia Bautista of the Philippines said her country too had initiated consultations with the US in November 1996. But these had failed and the Philippines was assessing the situation in the light of subsequent development, including the orders of the US court revising its earlier rulings.

Since then, she disclosed, the US had approached the Philippines and some other countries in the region to consider the possibility of a treaty for the protection of sea-turtles. While the Philippines had an open mind on this, a treaty for protection of sea-turtles and the consistency of the US actions visavis the WTO and the dispute settlement mechanism were separate issues.

A number of countries (Pakistan, Australia, India, Hong Kong, Mexico, Singapore, Colombia, the EC and Ecuador) took the floor to express their interest in the dispute - with some of them stressing their interest in the systemic issues involved.

But the DSB Chairman, Amb. Celso Lafer of Brazil, reminded the countries that the time for expressing such interest would be when a panel is set up.