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