The United States government recognized that one of the main threats to the survival of sea turtle populations is the incidental capture and drowning of sea turtles in shrimp fishing nets. In 1987, the National Marine Fisheries Service created rules that required US shrimp fishers to use Turtle Excluder Devices (TEDs) on their vessels.
In 1989, the US Congress approved legislation that created a "certification program" with the goal of encouraging other nations to improve their sea turtle protection programs. The legislation requires the Secretary of State to initiate negotiations with all foreign countries to develop treaties to protect sea turtles. It also requires the Secretaries of State, Commerce, and Treasury to prohibit the import of wild caught shrimp from countries that do not mandate shrimp fishing practices that provide sea turtle protection comparable to that provided under US law.
Countries can adopt regulations requiring TED use by their mechanized fleet, or devise their own unique plan that provides adequate turtle protection, i.e., a 97% reduction in the capture rate. Small-scale non-mechanized practices are exempt from the requirements.
This means that countries can comply with the requirements by having an alternative program in place that protects sea turtles from shrimp fishing in a comparable manner. It is also important to note that "comparability" is specifically used in relation to shrimp fishing practices, not other programs for the conservation of sea turtles, such as hatchery and sustainable harvest programs.
The US Congress gave nations an 18-month grace period, until May 1991, to implement comparable programs. An additional 3-year phase-in period was further granted by the Department of State, the agency responsible for the enforcement of this provision. However, when the provision was initially implemented, it was interpreted to only apply to the Western Atlantic/Caribbean regions.
In 1992, the Sea Turtle Restoration Project implemented a legal strategy to ensure the provision was applied to all nations across the globe. In 1996, the US Court of International Trade ruled in favor of STRP and our coalition, compelling the US to require all nations who wish to import shrimp into the US to use turtle-saving technology comparable to that in the US.
This provision has had a positive impact on sea turtle populations. An estimated 150,000 sea turtles get caught annually in shrimp nets worldwide. The use of TEDs internationally, prompted by the US measure, can help move endangered sea turtles along the path to recovery.
In 1947, the General Agreement on Tariffs and Trade (GATT) was created in order to peacefully regulate world trade. To date more than 100 countries are members, and these countries account for 80% of world trade.
Initially, GATT focused primarily on tariffs and related matters. In 1986, the World Trade Organization was created (as a manifestation of GATT), with the intention of increasing the body's power over member countries. One of the key elements of the WTO was the idea of making environmental and safety standards the same everywhere. Unfortunately, rather than raising the standards, the result has been to lower the standards, to the lowest common denominator.
The purpose of the WTO is to regulate world trade. However, it is now being used as the forum through which to resolve other international issues, such as protection of the environment. The fact that the WTO is the arena in which global environmental issues are being argued and decided is frightening. By stepping beyond the bounds of regulating trade, the WTO is creating a precedent by which global environmental decisions are made in a trade (rather than scientific) framework and in a manner that does not include public participation.
In 1996, through the World Trade Organization, Thailand, India, Pakistan, and Malaysia asked for consultations with the US concerning the US Turtle-Shrimp provision. The nations' request began a formal challenge at the WTO which could force the US to overturn parts of its Endangered Species Act or pay hundreds of millions of dollars to compensate shrimp fishing nations that are prevented from selling their shrimp in the United States because they are using fishing methods that are deadly to sea turtles. The National Fisheries Institute, a US trade organization, estimated that the embargo in place would ban $200-$500 million worth of shrimp annually.
This was the first challenge to a product on the basis of a processing standard under the new compulsory WTO rules. Examples of other processing standards include slave labor, child labor, and prison labor. The precedent established in the Turtle-Shrimp challenge will be an important one.
In January, 1997, the US floated the idea of an international agreement on sea turtle protection that would be modeled on the Inter-American Convention for the Protection of Sea Turtles. The standards in that agreement are high enough that signatories would be certified as having an equivalent turtle protection program and be exempt from the embargo. Unfortunately, the complaining nations were not interested in the agreement, and, instead, continued their challenge at the WTO.
On February 25, 1997, the WTO established a dispute settlement panel to hear the challenges of Thailand, Malaysia, and Pakistan. A number of other nations reserved their third party rights.
In March, 1998, the panel issued an interim ruling against the US law claiming that the law violated the rules of the WTO. The panel went so far as to argue that if a trade measure interfered with the goal of free trade that it would be in violation of the rules. The text of the ruling was kept from the hands of the public, so that there was no way to substantially comment or analyze the ruling.
In anticipation of the final WTO ruling, the US, in August 1998, weakened its guidelines relating to the importation of wild shrimp into the US. Hoping to quell the international trade conflict, the US abandoned its requirement that national TEDs laws be in place and allowed for the importation of shrimp on a shipment-by-shipment basis. This standard was roundly criticized by environmental groups and even government agencies, such as the National Marine Fisheries Service and the US Fish and Wildlife Service.
In October 1998, the WTO Appeals Panel ruled against the US law, giving the US with the ultimatum to either weaken its implementation of the law or be ready to pay off nations that continue to kill sea turtles. The US has decided to try to come into compliance (by December 1999) with the WTO ruling.
During the WTO Ministerial meeting in Seattle, the presence of "sea turtles" helped bring the issue of free trade and the environment to life.
As predicted, the US courts allowed the State Department to issue regulations that meet WTO rules but offer less turtle protection. Currently, the US court ruling is being petitioned at the US Supreme Court.
The outlook for sea turtles is bleak. The WTO has always ruled against environmental measures when they conflict with commerce. This ruling has set the wheels in motion for the dismantling of the US law. The WTO is creating the path for the rapid destruction of our global resources and the plundering of local economies.