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OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE EXECUTIVE OFFICE OF THE 
PRESIDENT WASHINGTON, D.C. 20508

USTR Press Releases are available on the USTR home page at WWW.USTR.GOV. They 
are also available through the USTR Fax Retrieval System at 202-395-4809.

98 - 92

FOR IMMEDIATE RELEASE
Monday October 12, 1998

Contact: Jay Ziegler
Helaine Klasky (202) 395-3230

WTO Appellate Body Finds U.S. Sea Turtle Law Meets WTO Criteria But Faults U.S. 
Implementation

The Appellate Body of the World Trade Organization (WTO) today issued a report 
in a case brought by Malaysia, Thailand, India and Pakistan against a U.S. law 
restricting imports of shrimp caught in a way that harms endangered species of 
sea turtles. The Appellate Body reversed the findings of an April 1998 dispute 
settlement panel report, saying that the earlier panel's interpretation was 
"a result abhorrent to the principles of interpretation we are bound to 
apply." It agreed with the United States that the U.S. law is covered by an 
exception to WTO rules for measures relating to the conservation of exhaustible 
natural resources, but it faulted the way in which the law was administered.

"The Appellate Body has rightly recognized that our Shrimp-Turtle law is an 
important and legitimate conservation measure, and not protectionist," said 
U.S. Trade Representative Charlene Barshefsky. "But we disagree with the 
Appellate Body's assessment that we have not implemented the law in an even-
handed manner."

Ambassador Barshefsky said that the Administration will be consulting with 
Congress and interested members of the public, and reviewing its options for 
responding to the report. She also stated, "This Administration is 
committed to the highest levels of environmental protection and the protection 
of endangered species, including sea turtles. The Appellate Body report does not 
suggest that we weaken our environmental laws in any respect, and we do not 
intend to do so. We will evaluate our options in light of what best achieves our 
firm objective of protecting endangered sea turtles."

The Appellate Body agreed with the United States that the General Agreement on 
Tariffs and Trade (GATT) and all the other WTO agreements must be read in light 
of the preamble to the WTO Agreement, which endorses sustainable development and 
environmental protection. The report confirms that WTO member countries can 
condition access to their markets on compliance with policies such as 
environmental conservation, so long as these market access restrictions are 
administered in an even-handed manner and do not amount to disguised 
protectionism. In an important procedural ruling, the Appellate Body reversed 
the panel's findings on amicus curiae briefs, and affirmed that WTO rules permit 
panels to consider such briefs from non-governmental environmental organizations 
and other interested parties. "I am particularly pleased by the Appellate 
Body finding that the WTO's dispute settlement mechanism is open to input from 
the public, as we have insisted," Ambassador Barshefsky noted.

She also emphasized that the WTO report will have no effect on the 
Administration's resolve to continue its leadership in promoting sea turtle 
conservation worldwide. The United States worked closely with other countries to 
negotiate a comprehensive agreement to protect sea turtles in the Western 
Hemisphere. Under this agreement, countries of the region will commit themselves 
to comprehensive sea turtle protection programs, including the continued use of 
turtle excluder devices (or "TEDs") in areas where there is a 
likelihood of incidental capture of sea turtles in shrimp trawl fisheries. 
Ambassador Barshefsky also noted that the United States is pressing for 
negotiations with countries in the Indian Ocean region toward a comprehensive 
agreement to conserve sea turtles. In addition, during the past two years alone, 
the United States has spent almost half a million dollars funding training 
seminars around the world to educate foreign government officials and shrimp 
fishermen on the use of TEDs, which prevent sea turtles from drowning in shrimp 
nets.

Background

Sea turtles are ancient and far-ranging species, with migratory patterns 
extending throughout the oceans of the world. Due to the harvesting of sea 
turtles and their eggs, and to accidental mortality associated with shrimp 
trawling and other fishing operations, all but one species of sea turtles have 
become threatened or endangered with extinction throughout all or part of their 
range. Researchers have developed special equipment, known as the Turtle 
Excluder Device, or TED, that virtually eliminates accidental deaths of sea 
turtles in shrimp trawl nets. For almost a decade, the United States has 
required that U.S. shrimp fishermen employ TEDs. Experience has shown that the 
use of TEDs, combined with other elements of an integral sea turtle conservation 
program, can stop the decline in sea turtle populations and will, over time, 
lead to their recovery. The U.S. law at issue -- Section 609 of Public Law 101-
162 -- restricts imports of shrimp harvested with fishing equipment, such as 
shrimp trawl nets not equipped with TEDs, that results in incidental sea turtle 
mortality. The law ensures that the U.S. market demand for imported shrimp does 
not lead to the further endangerment of sea turtles. Contrary to some reports, 
this case does not involve the Endangered Species Act.

In October 1996, India, Malaysia, Thailand and Pakistan requested consultations 
with the United States under WTO dispute settlement procedures regarding the 
U.S. import restrictions under Section 609, claiming that it was inappropriate 
for the United States to prescribe their national conservation policies. The 
parties held consultations on November 19, 1996. In April 1997, the WTO 
established a three-person dispute settlement panel to consider the claims of 
the four complaining countries.

The panel issued its findings on April 6, 1998. The panel found that the U.S. 
measure was inconsistent with the Article XI of the General Agreement on Tariffs 
and Trade (GATT), which provides that WTO Members shall not maintain import 
restrictions. The United States had maintained that its measure falls within the 
exceptions under GATT Article XX(g) (measures relating to the conservation of an 
exhaustible natural resource) and XX(b) (measures necessary for the protection 
of animal life or health), but the panel found that the U.S. measure amounted to 
an unjustifiable discrimination between countries, and therefore did not comply 
with the conditions in the introductory sentence of Article XX.

The United States filed its notice of appeal with the WTO Appellate Body on July 
13, 1998. The Appellate Body heard oral argument by the parties on August 19 and 
20, 1998, and considered legal arguments set out in three amicus curiae briefs 
submitted by non-governmental environmental organizations. The Appellate Body 
issued its findings on October 12, 1998, meeting the 90-day deadline for appeals 
provided under WTO procedures. The Appellate Body found fault with the way in 
which the United States has administered the statute, not with the statute 
itself. The Appellate Body agreed with the United States that the Shrimp-Turtle 
law enacted by Congress is covered by the exception in GATT Article XX(g) for 
measures relating to exhaustible natural resources, but it found that the manner 
in which the United States has administered the law resulted in arbitrary and 
unjustifiable discrimination against the four complaining countries.

The Appellate Body criticized the fact that even if shrimp were caught with 
TEDs, the law, as implemented at the time it was examined by the panel, would 
prohibit imports of that shrimp unless the exporting country had a national 
regulatory program comparable to that of the United States. It also found that 
the United States unjustifiably discriminated against the four complaining 
countries by providing a shorter phase-in period for them than for others. (The 
complaining countries were given four months to meet U.S. standards while others 
were given three years.) The Appellate Body also found that insufficient account 
was taken of different conditions in the countries where the shrimp exports 
originated and that -- while the U.S. law properly recognizes the importance of 
securing international agreements for the protection and conservation of sea 
turtles -- the United States made inadequate efforts to engage in such 
negotiations with the complaining countries prior to applying the law to them. 
In addition, the Appellate Body found U.S. authorities' application of the law 
resulted in arbitrary discrimination because they had not provided those 
countries with an adequate opportunity to be heard and to respond to arguments 
made against them in deciding whether to restrict imports of their shrimp. The 
Appellate Body report recommends that the United States bring the manner in 
which the Shrimp-Turtle law is implemented into conformity with its WTO 
obligations, but it is up to the United States to determine how to respond. 

[end of document]

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