Fisheries-Related Mortality and Turtle Excluder Devices (TEDs)
349
for the Federal Circuit as they found that the plaintiffs had unilaterally and unconditionally withdrawn their original motion.
The plaintiffs filed suit and, in 1999, once again the Court found that importation
of shrimp from noncertified countries violated the provisions of Section 609. The
DOS issued the 1999 guidelines, still allowing importation of shrimp shipments
from noncertified countries. In 2000, the Court held yet again that the shipment-byshipment approach violated Section 609, but denied plaintiffs an injunction. The
plaintiffs appealed and in March 2002 the U.S. Court of Appeals for the Federal
Circuit concluded that the DOS’s interpretation of Section 609 was correct and held
that the plaintiffs were not entitled to injunctive relief.
13.5.2.2 World Trade Organization*
Claiming that the shrimp embargo was an “improper restriction on trade” and
therefore violated the General Agreement on Tariffs and Trade (GATT), in September
1996, India, Malaysia, Pakistan, and Thailand, all recently affected by Section 609,
brought a case against the U.S. in the WTO. The U.S. argued that specific sections
of the WTO Agreement [Sections XX(b) and (g)] permitted members to take measures to protect life or conserve exhaustible natural resources, even if such measures
were in conflict with other provisions of the Agreement. An arbitration panel ruled
against the U.S. on most points in May 1998 (WTO, 1998a). The U.S. appealed the
decision. On October 12, 1998, the WTO Appellate Body reversed the panel’s
findings on many issues, most notably finding that Section 609 qualified for provisional justification under Article XX(g), since it addressed the conservation of
exhaustible natural resources (WTO, 1998b). However, the Appellate Body did find
that some aspects concerning the way in which the DOS was implementing the
Section were, in aggregate, in violation of U.S. obligations under the Agreement.
The body determined that DOS should revise its implementation of Section 609.
The DOS adopted those recommendations and (1) now considers any evidence that
another nation presents that its sea turtle conservation program is comparable, not
necessarily identical, to that of the U.S.; (2) instituted procedural changes so that
the process is more transparent and predictable to nations and provides to governments not granted certification a full explanation for that decision; (3) facilitated a
Memorandum of Understanding on the Conservation and Management of Marine
Turtles and their Habitats of the Indian Ocean and South-East Asia; and (4) now
offers technical training concerning TEDs to any requesting government.
Malaysia returned alone to the WTO with a new complaint that the U.S. had not
fully complied with the original ruling. Three members of the original panel rejected
that argument in June 2001, and, in October 2001, the WTO Appellate Body turned
down a Malaysian appeal (WTO, 2001a, 2001b).
* The WTO Panel Reports, Appellate Body Reports, and Arbitrator’s Reports can be viewed and
downloaded at the WTO’s website at http://www.wto.org/english/tratop_e/dispu_e/distab_e.htm#r58.
They were the source material for the discussion of this section.
1123 book.book Page 349 Thursday, November 14, 2002 11:50 AM
349
for the Federal Circuit as they found that the plaintiffs had unilaterally and unconditionally withdrawn their original motion.
The plaintiffs filed suit and, in 1999, once again the Court found that importation
of shrimp from noncertified countries violated the provisions of Section 609. The
DOS issued the 1999 guidelines, still allowing importation of shrimp shipments
from noncertified countries. In 2000, the Court held yet again that the shipment-byshipment approach violated Section 609, but denied plaintiffs an injunction. The
plaintiffs appealed and in March 2002 the U.S. Court of Appeals for the Federal
Circuit concluded that the DOS’s interpretation of Section 609 was correct and held
that the plaintiffs were not entitled to injunctive relief.
13.5.2.2 World Trade Organization*
Claiming that the shrimp embargo was an “improper restriction on trade” and
therefore violated the General Agreement on Tariffs and Trade (GATT), in September
1996, India, Malaysia, Pakistan, and Thailand, all recently affected by Section 609,
brought a case against the U.S. in the WTO. The U.S. argued that specific sections
of the WTO Agreement [Sections XX(b) and (g)] permitted members to take measures to protect life or conserve exhaustible natural resources, even if such measures
were in conflict with other provisions of the Agreement. An arbitration panel ruled
against the U.S. on most points in May 1998 (WTO, 1998a). The U.S. appealed the
decision. On October 12, 1998, the WTO Appellate Body reversed the panel’s
findings on many issues, most notably finding that Section 609 qualified for provisional justification under Article XX(g), since it addressed the conservation of
exhaustible natural resources (WTO, 1998b). However, the Appellate Body did find
that some aspects concerning the way in which the DOS was implementing the
Section were, in aggregate, in violation of U.S. obligations under the Agreement.
The body determined that DOS should revise its implementation of Section 609.
The DOS adopted those recommendations and (1) now considers any evidence that
another nation presents that its sea turtle conservation program is comparable, not
necessarily identical, to that of the U.S.; (2) instituted procedural changes so that
the process is more transparent and predictable to nations and provides to governments not granted certification a full explanation for that decision; (3) facilitated a
Memorandum of Understanding on the Conservation and Management of Marine
Turtles and their Habitats of the Indian Ocean and South-East Asia; and (4) now
offers technical training concerning TEDs to any requesting government.
Malaysia returned alone to the WTO with a new complaint that the U.S. had not
fully complied with the original ruling. Three members of the original panel rejected
that argument in June 2001, and, in October 2001, the WTO Appellate Body turned
down a Malaysian appeal (WTO, 2001a, 2001b).
* The WTO Panel Reports, Appellate Body Reports, and Arbitrator’s Reports can be viewed and
downloaded at the WTO’s website at http://www.wto.org/english/tratop_e/dispu_e/distab_e.htm#r58.
They were the source material for the discussion of this section.
1123 book.book Page 349 Thursday, November 14, 2002 11:50 AM