by Peter Fugazzotto, Associate Director

In early March, a World Trade Organization panel consisting of three persons, from Brazil, Germany and Hong Kong, issued an interim ruling against an existing provision of the Endangered Species Act that prohibits the import of wild shrimp that is caught by methods that drown sea turtles. This highly effective conservation law convinced 17 nations to require Turtle Excluder Devices on the nets of their shrimping fleets or to use comparable conservation measures. This ruling, if finalized, will put the Endangered Species Act on the chopping block.

The WTO panel issuing the ruling is composed of trade bureaucrats, that are neither accountable to the public nor elected to the panel. Meetings are held in secret and the public, including environmental organizations with expertise in this issue, were not allowed to participate. In addition, the panelists were from countries with a vested interest in the outcome of the decision, including one nation that was previously embargoed for failing to meet the requirements of the US law.

The following are 4 major flaws of the interim ruling:

1) The panel made up new rules. The panel based its ruling on the grounds that the turtle-shrimp law will undermine the multilateral trading system, even though no such rule exists within the text of the WTO. The panel has no power to make rules. This is the equivalent of the Supreme Court making laws.

2) The panel eliminated its own rules around environmental protection. Within the WTO are exceptions to the trade rules, designed to protect the environment (i.e., Article XX). The panel ruled that if environmental trade measures interfere with the overarching goal of promoting unfettered trade, then the environmental measure can be ruled as a barrier. The precedent set here is that any environmental protection measure can be ruled as a non-promoter of trade (because the measure's purpose is conservation, not trade), and therefore a barrier, thus in effect wiping out the possibility of any environmental protection exception. This shows that the environment is of absolutely no concern to the WTO, and Article XX will not provide environmental protection, even under the critical need for conservation, as in the situation that compelled that the ESA provision.

3) The panel based its decision on a hypothetical situation. While US courts rule on the issue at hand, the WTO used a hypothetical issue to justify its decision, imagining some far-fetched unlikely scenario that might possibly occur sometime in the future to rule against the US law - a situation that does not exist and, in all likelihood, will not. The panel lacks a basic understanding of standard judicial decision making.

4) The panel overemphasized cooperative international environmental agreements over common sense environmental protection. The WTO panel naively offers cooperative international environmental agreements as the preferred method to deal with environmental protection. (This again is out of the scope of what its ruling should have been.) This sends a message that a country cannot establish an environmental law that sets a standard for the products that are allowed to be sold on its markets. This could mean a return to products created by slave labor or laced with banned toxic chemicals. This a serious threat to the sovereignty of nations and the ability to increase the global standards for environmental protection. Realistically, unilateral environmental trade measures are what create the climate and incentive for multilateral agreements.

Background on Threats to, and Protection of, Sea Turtles

Sea turtles are on the brink of extinction. The Kemp's ridley sea turtle is one of the most endangered animals in the world. A major threat to the survival of sea turtles comes from shrimp fishing, which incidentally catches and drowns turtles in shrimp nets. Turtle Excluder Devices are a proven technology that allows turtles and other marine life to swim free through an escape hatch.

Studies have shown that an inexpensive turtle excluder device (TED) when properly attached to shrimp nets can reduce sea turtle mortality from shrimp trawling by 97% or more. The United States requires U.S. shrimpers to use TEDs. To protect sea turtles outside its waters, the U.S. has also banned the import of wild-caught shrimp from countries that have not implemented regulations that are as effective as U.S. law at protecting sea turtles from shrimp trawling.

In December 1995, Earth Island Institute, the Sierra Club, Humane Society of the U.S. and the American Society for the Prevention of Cruelty to Animals won a lawsuit in the U.S. Court of International Trade compelling the government to enforce the turtle - shrimp provision of the Endangered Species Act. THIS PROVISION IS NOW THREATENED BY THE WTO INTERIM RULING. The provision requires all nations who export wild shrimp to the U.S. to adopt national regulations comparable to the U.S. which requires all shrimp vessels to use a simple, inexpensive technology that allows turtles to escape from shrimp nets (called a Turtle Excluder Device or TED). TEDs cost $50-350 per net. Earth Island Institute estimates that nearly 150,000 endangered sea turtles are caught and killed by the world's shrimp fleets.

The Sea Turtle Restoration Project is an international environmental organization well-known for its efforts to protect endangered sea turtles.