Apr 9, 1998

Washington, Apr 6 (IPS/Danielle Knight) -- US environmentalists are calling on government officials to defy a World Trade Organisation (WTO) ruling against a US ban on imports of shrimps caught in nets without turtle exclusion devices.

Environmentalists are outraged by the decision of the WTO dispute resolution panel that the US ban contradicted international trade regulations. The United States currently prohibits countries from exporting shrimp into this country if they were caught without turtle exclusion devices that allow turtles to escape from shrimp nets.  

"There is no legal, scientific or economic justification for this ruling," said David Schorr, senior policy analyst at the World Wildlife Fund (WWF). "The ruling constitutes a blow against endangered sea turtles and also against the development and international environmental norms and practices."

The case was brought to the WTO by Thailand, Malaysia, India and Pakistan -- arguing that WTO regulations prohibit import restrictions based on how products are produced.  

[In Geneva, trade diplomats of these countries would not comment on the ruling or the reactions of environmental groups, noting that the panel rulings have only been circulated to the parties confidentially, and is yet to be made available even to other WTO members.]  

[But the US has been routinely disregarding this rule, both when panel rulings are circulated to the parties, as also at the earlier stage of interim reviews, not only in issues where environment lobbies are involved, but also in disputes raised by them on behalf of their corporations - whether it be the Kodak vs. Fuji photofilm dispute or the Indonesian car project dispute. Developing countries, parties to the disputes, have been complaining to the panels and the dispute settlement body, but with no effect.]

[However, their embassies in Washington, and in some cases trade officials in capitals, have been making comments. And as in earlier rulings on US trade restrictions on environmental grounds, the ruling relates to US unilateralism and extra-territoriality, and unwillingness to take the more difficult route of seeking multilateral accords and/or getting a WTO waiver. And at a recent NGO-organized symposium at the WTO, Director-General Renato Ruggiero, pointed out in an obvious reference to the dispute, that no country is obliged to carry out a panel ruling, but must compensate those who trade rights are affected.]  

[And at last month's non-governmental forum on globalization organized by the Bellerive Foundation, Indian environmental activist, Vandana Shiva, agreed on the need to save turtles, but argued that both turtles and their nesting grounds need to be protected, and this needs a much broader range of policies for environment protection and sustainable development. She blamed large scale commercial shrimp trawling as well as shrimp farms for the problem. Traditional technology of small-scale fisherfolk, who caught shrimps, she said, did not harm sea turtles. The 'shrimp farms' along the sea coast of countries, not only created salination of neighbouring soil unfit for other agriculture and harmed small farmers, but the flushing of the toxic chemicals and pesticides in these 'shrimp farms' into the sea, affected the turtle nests along the sea-coasts.]

US environmental groups argue that the WTO ruling, violates the trading rules -- GATT 1994 - and that, without policies mandating the use of turtle exclusion devices, thousands of sea turtles on the brink of extinction will continue to drown when they are caught in shrimp nets.  

The devices could save 97% of the 150,000 sea turtles that die in nets every year, while losing up to three percent maximum of the shrimp, according to Deborah Crouse, a senior scientist with the Washington-based Center for Marine Conservation.  

Six of the seven species of sea turtles in the world are on the US Endangered Species List, while all seven are covered under the United Nations Convention on Trade in Endangered Species of Flora and Fauna (CITES), which prohibits the trade of such species.  

Because sea turtles grow and mature very slowly, their populations are particularly vulnerable to mortality of larger juveniles and adults - those animals most likely to drown in shrimp nets, says Crouse.  

These concerns led the US to pass a law, in 1990, requiring US fishing nets to have turtle excluder devices and prohibiting the import of shrimp from countries that do not use the devices. As a result of the law 18 countries have adopted their own laws requiring the use of such devices.

The devices are relatively inexpensive (ranging from $75 to $500 each) and the loses to countries because of the embargo is estimated only in hundreds of thousands of dollars. But India, Malaysia, Pakistan, Thailand are fighting the ban saying that it breaches international trade law by imposing the US law on other countries.

While Thailand requires excluder devices on its shrimp nets, the South-east Asian nation said it filed the cased with the other countries "out of principle" that the trade ban is not consistent with international trade rules.

"Our shrimp can enter the US market, but it's a matter of principle because we think that the shrimp ban is not consistent" with international-trade rules, said Kanissorn Navanugraha, commercial minister at the Thai Embassy in Washington. 

Environmental groups say, however, that the WTO ruling, favouring the concerns of these four nations, violates the charter of the WTO that allows exceptions for global environmental protection.  

"In making this ruling, the WTO ignored its own charter that explicitly allows nations to pass laws to conserve natural resources as long as those laws also apply within their own borders," said Brennan Van Dyke, senior policy analyst with the Washington-based Center for International Environmental Law.

Article XX of the GATT, which lists general exceptions to trade rules, states that nothing in the Agreement "shall be construed to prevent the adoption or enforcement by any contracting party of measures ...necessary to protect animal or plant life," or "relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption."

The WTO ruling violates this article, say environmentalists, because it severely undermines sea turtle protection.

"This decision is totally imbalanced and declares that trade trumps wildlife conservation," said John Audley, a policy analyst with the Washington-based National Wildlife Federation. "The WTO has elevated concerns for market access over concerns for critically endangered species and the environment by contorting WTO rules."

Environmentalists say the decision also pits developing countries against industrialized countries. "The ruling encourages small economy countries to rely on such international trade rules to balance political power while encouraging large economy countries to use their muscle to pressure (developing countries) to accept their policies," said Audley.

Earlier, the WTO voted similarly against a US ban on imported tuna caught in ways that killed dolphins. Two GATT panels ruled that the US was not entitled to impose sanctions are should instead seek a multilateral agreement on "dolphin-safe" fishing. It was based on 'discriminatory' treatment of domestic and imported products, and that solutions for such global problems should be sought through multilateral accords

Environmentalists want the US trade officials to continue to enforce its conservation policies despite the ruling, and urged Washington to push the WTO to change its decision based on article XX at the upcoming ministerial meeting at the end of May in Geneva.

"Rather than relax its conservation actions, the United States should redouble its efforts to reform the imbalanced WTO rule system," said World Wildlife Fund's Schorr.

The United States signed onto the WTO with the understanding that open-trade policies would be fairly balanced with environmental protection, but the ruling shows just how unfairly balanced the WTO has become, says the Center for International Environmental Law's Van Dyke.  

"US leaders must act now and forcefully...or (public) support of free trade agreements will disappear and the Clinton administration's loss on fast-track will be only the first in a long line," said Van Dyke.

"Fast track" was a reference to the Clinton's decision to withdraw a bill that would have expanded his trade-negotiating authority from Congress last November when it became clear that he lacked the votes to prevail.