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WTO Appellate Body Upholds U.S. Ban on Shrimp Imports

Appellate Body Report, U.S. – Import Prohibition of Certain Shrimp and Shrimp Products, Recourse to Article 21.5 of the DSU by Malaysia, GATT Doc. WT/DS58/AB/RW (Oct. 22, 2001).

Yoshiyuki Takamatsu, 3L

In October, the World Trade Organization (WTO) held that the U.S. has brought its import prohibition of certain shrimp and shrimp products, aimed at protecting sea turtles worldwide, into conformity with WTO rules. In affirming the findings of a WTO dispute settlement panel (panel), the WTO Appellate Body (AB) turned down a Malaysian complaint challenging that the U.S. failed to comply with the recommendations and rulings of the earlier AB decisions requiring the U.S. to alter its shrimp import requirements.

Background
The U.S. battle against shrimp exporting countries that do not require specific protection for sea turtles has a long history. To protect endangered sea turtles, in 1989, the U.S. first restricted the import of shrimp that was harvested with fishing technology that adversely affected sea turtles.1 The U.S. had required shrimp exporting countries wishing to sell in U.S. market to use Turtle Excluder Devices (TEDs) to reduce deaths of sea turtles in shrimp trawls. In 1996, Malaysia, India, Thailand and Pakistan challenged the U.S. requirements under the WTO rules resulting in a 1998 AB ruling that the U.S. violated the rules and subsequent U.S. agreement to comply. In 2000, Malaysia requested the WTO to examine the U.S. compliance. When a WTO panel found, in June 2001, that the U.S. implementation was fully consistent with WTO rules and complied with the earlier rulings of the AB, Malaysia appealed to the AB.

Findings of Appellate Body
The WTO recognizes the importance of sustainable development and environmental protection2 and allows members to take trade-related measures to conserve exhaustible natural resources as long as the measures do not constitute arbitrary or unjustifiable discrimination.3 In the 1998 decision, the AB found that the U.S. unjustifiably discriminated against WTO members by negotiating a multilateral agreement in one region (the Inter-American Convention) while imposing a unilateral import ban on the rest. To comply with the ruling, the U.S. launched a negotiation process in the Indian Ocean and the South-East Asia region, actively participating in and financially supporting the negotiations. In this 2001 appeal, the AB held that in light of the serious, good faith efforts of the U.S. to negotiate the multilateral agreement, the U.S. was no longer discriminating against the WTO members.

In 1998, the AB found that the U.S. had violated the WTO rule by requiring exporting countries a single, rigid and unbending requirement to adopt essentially the same policies and enforcement practices as those applied to domestic shrimp trawlers. In implementing the ruling, the U.S. amended its certification process so that exporting countries that implement and enforce a comparatively effective regulatory program to protect sea turtles without the use of TEDs may still be certified. In this appeal, the AB found that, by changing the requirements, the U.S. gave sufficient latitude to the exporting countries to adopt a regulatory program that is suitable to the specific conditions prevailing in their territory. Accordingly, the AB held that the new, flexible requirements do not constitute arbitrary or unjustifiable discrimination. In finding the U.S. measure consistent with the WTO rules, the decision is being heralded by conservation organizations for highlighting the importance of sustainable development and conserving marine resources.

ENDNOTES
1. 16 U.S.C. § 1537 (2001), amended by Pub. L. No. 101-162, § 609 (1989).
2. Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Apr. 15, 1994, Legal Instruments–Results of the Uruguay Round vol. 1 (1994), 33 I.L.M. 1125, 1144 (1994).
3. General Agreement on Tariffs and Trade, art. XX, Oct. 30, 1947, 61 Stat. A- 11, T.I.A.S. 1700, 55 U.N.T.S. 194 (incorporated into at General Agreement on Tariffs and Trade 1994, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, Legal Instruments–Results of the Uruguay Round vol. 1 (1994), 33 I.L.M. 1125, 1154 (1994)).

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