In 1994, the WTO intervened to address member concerns regarding the import of shrimp and its impact on turtles. This became known as the Shrimp and Turtle case. The ruling was adopted on November 6, 1998. However, Malaysia persisted in their complaint and initiated DSU Article 21.5 proceedings against the U.S. in 2001, but the U.S. prevailed in those hearings.
Shrimp and Turtle case
The Earth Island Institute filed a lawsuit against US Secretary of State Warren Christopher in federal court. The government successfully argued that jurisdiction for anything dealing with embargoes was under the purview of the United States Court of International Trade. The suit was based on Public Law 609:101-162, which was not an amendment to the Endangered Species Act although it is often said to be. Public Law 609 required (a) the Secretary of State to negotiate and develop a bilateral treaty for the protection of endangered sea turtles, and (b) prohibited the importation of shrimp that was produced without Turtle Excluder Device technology introduced by the National Marine Fisheries Services. Previously, the U.S. had confined its enforcement of 609 to Caribbean countries instead of all countries. This is why the Court of International Trade ruled in favor of Earth Island Institute.
Sea turtles, endangered species on the Endangered Species Act (ESA) were caught as by-catch with shrimp. The US Environmental Protection Agency sought to protect endangered species. Presently, the NMFS requires US shrimp fishermen to use the technology while fishing for shrimp.
The new technology allowed the capture and harvest of shrimp without ensnaring sea turtles in the indiscriminatory bottom-trawling process. The patented trap door was very effective and the US fishermen quickly adopted the technology; however, implementation and adoption of the shrimp turtle trap door was limited at best among countries to comply.
Malaysia, India, Pakistan and Thailand jointly filed suit with the WTO in opposition to the requirement. Initially, the WTO ruled against the United States. According to the WTO, the United States could not discriminate between each country by providing the protesting countries with "financial and technical assistance," but not all countries. The US later amended the EPA. Unsatisfied, Malaysia continued to assert the United States banned the import of shrimp. After further review, a WTO compliance panel ruled in favor of the US in 2001. They stated the US was justified under GATT because the U.S. no longer discriminated in the application of their exception under Article XX(g).
This case is significant because the WTO permitted the U.S. to restrict an import based on its production process and not the product itself. A matter known as the process versus product issue.
Dolphin Tuna case
Similar to the Shrimp and Turtle Case was Dolphin Tuna Case in the 1970s. Companies such as Sunkist and Del Monte Fresh modified ocean floor trawling for wild-caught tuna as dolphins and their pods were depleted through unsustainable fishing practices. The US and the public later required the ban of tuna caught by ocean floor trawling. Tuna sold to the US markets had to be labelled "Dolphin Safe".
The United States lost the Tuna-Dolphin Case, both times. The first was when Mexico opened a dispute. The second was the European Economic Community and The Netherlands.
- Paul Stanton Kibel (1996). "Justice For the Sea Turtle: Marine Conservation and the Court of International Trade" (PDF). UCLA Journal of Environmental Law and Policy. Archived from the original (PDF) on 2011-07-24. Cite uses deprecated parameter
- "Mexico etc versus US: 'tuna-dolphin'". WTO.
- (Available Online; http://www.wto.org/english/tratop_e/envir_e/edis08_e.htm)
- (Available Online: http://www.earthisland.org/dolphinSafeTuna/consumer/)
- (Available Online: http://www.patentstorm.us/patents/5575102-description.html)