UNITED STATES - IMPORT PROHIBITION OF CERTAIN SHRIMP AND SHRIMP PRODUCTS
Document: REPORT OF THE PANEL
Date: 15 May 1998
Document codes: WT/DS58/R
Complainant: India, Malaysia, Pakistan, Thailand
Respondent: U.S.
Third parties: Australia, Canada, Colombia, Costa Rica, EU, Ecuador, El Salvador, Guatemala, Hong Kong, Japan, Mexico, Nigeria, Philippines, Senegal, Singapore, Sri Lanka, Venezuela, Pakistan, Thailand
Dispute stage: Implementation & Compliance
Agreements cited: Art. I, XI, XIII, XX  GATT 1994

UNITED STATES - IMPORT PROHIBITION OF CERTAIN SHRIMP
AND SHRIMP PRODUCTS

REPORT OF THE PANEL

The report of the Panel on :
is being circulated to all Members, pursuant tothe DSU. The report is being circulated as an unrestricted.
document from [27 April 1998] pursuant to the Procedures for the Circulation and Derestriction of
WTO Documents (WT/L/160/Rev.1). Members are reminded that in accordance with the DSU only
parties to the dispute may appeal a panel report, an appeal shall be limited to issues of law covered
in the panel report and legal interpretations developed by the panel, and that there shall be no ex parte
communications with the panel or Appellate Body concerning matters under consideration by the panel
or Appellate Body.

Note by the Secretariat: This Panel Report shall be adopted by the Dispute Settlement Body (DSB) within 60 days after the date of its circulation
unless a party to the dispute decides to appeal or the DSB decides by consensus not to adopt the report. If the Panel Report is appealed
to the Appellate Body, it shall not be considered for adoption by the DSB until after the completion of the appeal. Information on the current
status of the Panel Report is available from the WTO Secretariat.

Page i
TABLE OF CONTENTS

L INTRODUCTION . 21.0. . e eeeeeeeene nae 1
i. FACTUAL ASPECTS ........ 0... ccc ee eee eee e eee 3
1. Basic Facts About Sea Turtles .........0 0.0.0... cece eens 3
2. The US Endangered Species Act (ESA) and Related Legislation ....... 3
Tt. MAIN ARGUMENTS ....... 2.0.0... cece eee eee ee eee eens 7
A. GENERAL ... 1.1... eee e eens 7
B. CONSERVATION AND MANAGEMENT OF SEA TURTLES ....... 7
1. Sea Turtle Conservation ............. 2.000. eens 7
2. Whether Sea Turtles Are a Shared Global Resource .......... 23
3. Role of Shrimp Trawi Fishing in Sea Turtle Extinction ........ 28
4, Use of TEDs ... 1. ee ee enn 48
5. International Environmental Agreements and the Use of TEDs... 54
6. Transfer of TEDs Technology ...................20000- 60
7. Scope and purpose of Section 609 ...................... 62
Cc. IE IMPACT .. 1... 21. ee eee 64
D. COMMUNICATIONS RECEIVED FROM NGOs ...............-. 68
E. LEGAL ARGUMENTS .............. cece eee ene eee 69
1. Articles I, XI and XIM of GATT ..................2-... 69
2. Article XX of GATT .......... 0.0.0.2. 2. cee eee eee 72
(a) Preliminary observations .....................- 72
(b) Jurisdictional application of Article XX(b) and (g) ...... 76
@ Text of Article XX ...................0.. 76
(ii) Drafting History of Article XX .............. 83
(©) Article XXQb) 20 ee eee 98
@ Policy purpose of the measure .............. 99
(ii) "Necessary 2.0" 20. ees 101
(d) Article XX(g) 2... ee eee 109
@ Policy to conserve exhaustible natural resources .. 109
(ii) "Related to..." 20. ee eee 114
(iii) "In conjunction with..." 2.0.22. ee ee 119
(3) Chapeau of Article XX ..................02006. 122
3. Article XXTM:1(a) 2.0... ene 133
IV. ARGUMENTS PRESENTED BY THIRD PARTIES ..............050065 134
2. Ecuador ......... 0.0... ee eens 139
4. European Communities ............. 0.0.00 ee ee eee 141
§. Guatemala ... 0... 1. ce eee 144
6. Hong Kong 2... 1... ee eee 144
7. Japan ow ee eee eee 148
8. Nigeria ... 2.0.0... ee ee eee 149
9. Philippines... 2.2... ee ees 150
10. Singapore ... 0... 2... ees 152
11. Venezuela 2... 0. eee eee eee 155

Page ii
V. PANEL’S CONSULTATION WITH SCIENTIFIC EXPERTS .............. 157
A. INTRODUCTION .......... 0.0... ccc cee ee eee eee 157
B. QUESTIONS BY THE PANEL AND VIEWS OF THE SCIENTIFIC
EXPERTS .......... 0... ccc cece eee eee eee 159
Cc. COMMENTS BY THE PARTIES ...................000 eee 232
1. Comments by India .............20200 00000002002 eee 232
2. Comments by Malaysia ............ 000.00 cece ee eee 237
3. Comments by Pakistan ............. 00.2000. 0 cee eeeee 247
4. Comments by Thailand ................. 0.0. ce eee 254
5. Comments by the United States ..................0-45. 264
VI. INTERIM REVIEW .... 1... 1. ee eee eee nee 276
VI. FINDINGS ... 0.600 ee ee ee ee eee ee 278
A. INTRODUCTION ............ 2... cece eee eee 278
RULINGS MADE BY THE PANEL IN THE COURSE OF THE
PROCEEDINGS ............. 0.02 ccc eee nee teens 279
Cc. VIOLATION OF ARTICLE XI:1 OF GATT 1994 ............... 280
D. VIOLATION OF ARTICLE XIH:1 AND OF ARTICLE I:1 OF GATT
1994 2 ee ee eee eee eens 283
E. ARTICLE XX OF GATT 1994 1.0.0... 0.0.0.0... cee ee ees 284
1. Preliminary remarks ............0.0 0.00 eee ueeceees 284
2. Chapeau of Article XX... 2.2.2... ee eee 286
3. Article XX(b) and (8)... 2... ee ees 298
F. ARTICLE XXIM:1(a) OF GATT 1994 ...................0.20.. 298
VII. CONCLUSIONS ...... 0.0.0... eee eae 300
IX. CONCLUDING REMARKS ............. 0. cc ccc eee en eee n eens 301
ANNEX Tw ce ee ee ee ee eee eee eens 302
ANNEX TE 2. 1 ee ee ee eee eee eens 303
Appendix) 2... 0... 0. ce ee ee ee eee eee 303
Appendix 2 2... 0... ce ce et ee tee eee eee 325
ANNEX TTT 0... ee en ee eee ee eee 330
ANNEX TV 001. ce eee tee eee eee eee 360
Appendix) 00.1. ee ee eee ee eee 421

I. INTRODUCTION

1.1. Ina letter dated 8 October 1996, India, Malaysia, Pakistan and Thailand, acting jointly, requested
consultations with the United States pursuant to Article 4 of the Understanding on Rules and Procedures
Governing the Settlement of Disputes ("DSU") and Article XXII:1 of the General Agreement on Tariffs
and Trade 1994 ("GATT 1994") regarding the ban imposed upon importation of certain shrimp and
shrimp products from the respective countries by the United States under Section 609 of U.S. Public
Law 101-162! ("Section 609") and the "Revised Notice of Guidelines for Determining Comparability
of Foreign Programs for the Protection of Turtles in Shrimp Trawl Fishing Operations"? (WT/DS58/1).
Consultations were held on 19 November 1996 without resulting in a satisfactory solution of the matter.

1.2. In a communication dated 9 January 1997, Malaysia and Thailand requested the Dispute
Settlement Body ("DSB") to establish a panel to examine, under Article XXIII:2 of GATT 1994 and
Article 6 of the DSU, the partial embargo on the importation of certain shrimp and shrimp products
implemented through a series of actions, including enactment of Section 609, promulgation of regulations
and issuance of judicial decisions interpreting the law and regulations (WT/DS58/6). In a communication
dated 30 January 1997, Pakistan made the same request to the DSB (WT/DS58/7). On
25 February 1997, the DSB established a panel pursuant to the request of Malaysia and Thailand.
At the same meeting, the DSB established a panel in accordance with the request made by Pakistan.
The DSB also agreed that the two panels would be consolidated into a single panel, pursuant to Article 9
of the DSU, with standard terms of reference (WT/DSB/M/29).

1.3. Ina communication dated 25 February 1997, India requested the DSB to establish a panel
pursuant to Article XXII of GATT 1994 and 6 of the DSU (WT/DS58/8). At its meeting on
10 April 1997, the DSB established a panel in accordance with the request made by India. The DSB:
also agreed that this Panel would be consolidated with the Panel already established at the request of
Malaysia, Thailand and Pakistan on 25 February 1997, pursuant to Article 9 of the DSU
(WT/DSB/M/31).

1.4. The parties to the dispute agreed that the Panel should have standard terms of reference (Article 7
of the DSU):

“To examine, in the light of the relevant provisions of the covered agreements cited by Malaysia
and Thailand in document WT/DS58/6, Pakistan in document WT/DSS58/7 and India in document:
WT/DS58/8, the matter referred to the DSB by Malaysia, Thailand, Pakistan and India in these:
documents and to make such findings as will assist the DSB in making the recommendations:
or in giving the rulings provided for in those agreements."

1.5. On15 April 1997, the parties to the dispute agreed on the following composition of the Pane
(WT/DSS58/9):

Chairman: Mr. Michael Cartland

Members: Mr. Carlos Cozendey
_ Mr. Kilian Delbriick

‘Codified at 16 U.S.C. 1537 note, amending the Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq.

761 Fed. Reg. 17342, (19 April 1996).

1.6. Australia, Colombia, Costa Rica, Ecuador, El Salvador, the European Communities, Guatemala,
Hong Kong, Japan, Mexico, Nigeria, the Philippines, Senegal, Singapore, Sri Lanka and Venezuela
reserved their third-party rights in accordance with Article 10 of the DSU.

1.7. The Panel met with the parties to the dispute on 17-19 June 1997 and on 15-16 September 1997.
It met with the interested third parties on 19 June 1997.

1.8. In a communication dated 22 September 1997, the Chairman of the Panel informed the DSB
that the Panel would not be able to issue its report within six months. The reasons for that delay are
stated in document WT/DS58/10.

1.9. A meeting with scientific experts selected by the Panel, at which the parties were present, was
held on 21 and 22 January 1998.

1.10. The Panel issued its interim report to the parties on 2 March 1998. The Panel issued its final
report to the parties on 6 April 1998.

I, FACTUAL ASPECTS
1. Basic Facts About Sea Turtles
2.1. Seven species of sea turtles are currently recognized: the green turtle (Chelonia mydas),

loggerhead (Caretta caretta), flatback (Natator depressus), hawksbill (Eretmochelys imbricata),
leatherback (Dermochelys coriacea), olive ridley (Lepidochelys olivacea), and Kemp’s ridley
(Lepidochelys kempi).

2.2. Most species of sea turtles are distributed around the globe, in subtropical or tropical areas.
Sea turtles spend their lives at sea, where they migrate between their foraging and their nesting grounds,
but reproduce on land. Adult females nest in multi-year cycles, coming ashore to lay clutches of about
100 eggs in nests they dig on the beach. After about 50 to 60 days of incubation, the hatchlings dig
their way out of the nest and head for the sea. Few survive and reach the age of reproduction
(10-50 years, depending on the species). While maturing, they move through a variety of habitats.
Little is known about the existence of sea turtles at seas.

2.3. Sea turtles have been adversely affected by human activity, either directly (sea turtles have
been exploited for their meat, shells and eggs), or indirectly (incidental captures in fisheries, destruction
of their habitats, pollution of the oceans). Presently, all species of sea turtles are included in Appendix I
of the 1973 Convention on International Trade in Endangered Species ("CITES"). All species except
the Australian flatback are listed in Appendices I and II of the 1979 Convention on Migratory Species
of Wild Animals ("CMS") and appear in the IUCN Red List as endangered or vulnerable.

2. The US Endangered Species Act (ESA) and Related Legislation

2.4. All sea turtles that occur in US waters are listed as endangered or threatened species under
the Endangered Species Act of 1973 ("ESA"). The ESA prohibits take of endangered sea turtles within
the United States, within the US territorial sea, and the high seas, except as authorized by the Secretary
of Commerce (for sea turtles in marine waters) or the Secretary of the Interior (for sea turtles on land).

2.5. Research programmes in the Gulf of Mexico and the Atlantic Ocean off the southeastern
United States led to the conclusion that incidental capture and drowning ofsea turtles by shrimp trawlers
was the most significant source of mortality for sea turtles.* Within the context of a programme aiming
at reducing the mortality of sea turtles in shrimp trawls, the National Marine Fisheries Service ("NMFS")
developed turtle excluder devices ("TEDs"). A TED is grid trapdoor installed inside a trawling net
that allows shrimp to pass to the back of the net while directing sea turtles and other unintentionally
caught large objects out of the net. In 1983, NMFS began a formal programme to encourage shrimp
fishermen to use TEDs voluntarily, so as to reduce the incidental catch and mortality of sea turtles
associated with shrimp trawling. As part of the voluntary TED programme, NMFS delivered TEDs
to volunteer shrimp fishermen and showed them how to properly install and use the TEDs. However,
this voluntary programme did not turn out to be successful because an insufficient number of fishermen
used TEDs on a regular basis.

3National Research Council, National Academy of Sciences, (1990), Decline of the Sea Turtles: Causes and Prevention, Washington D.C.

2.6. In 1987, the United States issued regulations, pursuant to the ESA, whereby all shrimp trawlers
were required to use TEDs or tow time‘ restrictions in specified areas where there was a significant
mortality of sea turtles in shrimp trawls. In offshore waters, all shrimp trawlers 25 feet and longer
were required to use qualified TEDs and all shrimp trawlers smaller than 25 feet were required to restrict
tow times to 90 minutes or less, or the use TEDs. In inshore waters, all shrimp trawlers were required
to restrict tow times to 90 minutes or less. The rules, which became fully effective in 1990, further
set forth specifications for TEDs, areas and seasons for which TEDs and/or tow times were required.
They were subsequently modified so as to require the use of TEDs at all times and places where shrimp
trawl fishing interacts in a significant way with sea turtles. Five species of sea turtles were identified
as living in the areas concerned and, thus, falling under the regulations: loggerhead (Caretta caretta),
Kemp’s ridley (Lepidochelys kempi), green (Chelonia mydas), leatherback (Dermochelys coriacea)
and hawksbill (Eretmochelys imbricata).°

2.7. In 1989, the United States enacted Section 609 of Public Law 101-102° ("Section 609", see
Annex I). Section 609 calls upon the US Secretary of State, in consultation with the US Secretary
of Commerce, inter alia, to initiate negotiations for the development of bilateral or multilateral
agreements for the protection and conservation of sea turtles, in particular with foreign governments
of countries which are engaged in commercial fishing operations likely to affect adversely sea turtles.
Section 609 further provides that shrimp harvested with technology that may adversely affect certain
sea turtles may not be imported into the United States, unless the President certified to Congress by
1 May 1991, and annually thereafter, that the harvesting nation has a regulatory programme and an
incidental take rate comparable to that of the United States, or that the particular fishing environment
of the harvesting nation does not pose a threat to sea turtles.

2.8. In1991, the United States issued guidelines ("1991 Guidelines") for assessing the comparability
of foreign regulatory programmes with the US programme. To be found comparable a foreign nation’s
programme had to include, inter alia, a commitment to require all shrimp trawl vessels to use TEDs
at all times (or reduce tow times for vessels under 25 feet), or, alternatively, a commitment to engage
in a statistically reliable and verifiable scientific programme to reduce the mortality of sea turtles
associated with shrimp fishing. Foreign nations were given three years for the complete phase-in of
a comparable programme. The 1991 Guidelines also determined that the scope of Section 609 was
limited to the wider Caribbean/western Atlantic region, and more specifically to the following countries:
Mexico, Belize, Guatemala, Honduras, Nicaragua, Costa Rica, Panama, Colombia, Venezuela,
Trinidad and Tobago, Guyana, Suriname, French Guyana, and Brazil. It was also determined that
the import restriction did not apply to aquaculture shrimp, whose harvesting does not adversely affect
sea turtles.’

2.9. In 1993, the United States issued revised guidelines ("1993 Guidelines") providing that, to
receive a certification in 1993, affected nations (those determined in the 1991 Guidelines) had to maintain
their commitment to require TEDs on all commercial shrimp trawl vessels by 1 May 1994, and be

“Tow time is the interval from trawl doors entering the water to trawl doors being removed from the water. Tow times were restricted
to 90 minutes or less, period of time which is determined to result in fewer drowning of sea turtles in shrimp trawls. Tow time restrictions
were an alternative to TEDs in some areas and for some categories of shrimp trawlers.

$52 Fed. Reg. 24244 (29 June 1987).

‘Section 609 of Public Law 101-102, codified at 16 United States Code (U.S.C.) § 1537.

756 Federal Register 1051 (10 Jamuary 1991).

WT/DSS58/R

able to demonstrate the use of TEDs on a significant number of shrimp trawl vessels by 1 May 1993.®
To receive certification in 1994 and in subsequent years, affected nations were required to use TEDs:
on all their shrimp traw! vessels, subject to a limited number of exemptions.? The 1993 Guidelines
eliminated the second option for certification which was contained in the 1991 Guidelines, i.e. the
commitment to engage ina scientific programme to reduce the mortality of sea turtles in shrimp trawling.

2.10. In December 1995, the US Court of International Trade ("CIT") found that the 1991 and
1993 Guidelines were contrary to law in limiting the geographical scope of Section 609 to shrimp
harvested in the wider Caribbean/western Atlantic region and directed the Department of State "to
prohibit not later than May 1, 1996 the importation of shrimp or products of shrimp wherever harvested
in the wild with commercial fishing technology which may affect adversely those species of sea turtles:
the conservation of which is the subject of regulations promulgated by the Secretary of Commerce ... ".!*
The Department of State requested the CIT to modify its judgement by allowing a one-year extension
for the worldwide enforcement of Section 609. In its request, the States Department argued, inter alia;
that many of the major shrimp exporting nations would likely be unable to implement a comparable.
programme by 1 May 1996. The CIT refused the requested extension and confirmed the 1 May 1996.
deadline."

2.11. In April 1996, the Department of State published revised guidelines ("1996 Guidelines") to:
comply with the CIT order of December 1995." The new guidelines extended Section 609 to shrimp:
harvested in all foreign nations. The Department of State further determined that, as of 1 May 1996,

all shipments of shrimp and shrimp products into the United States were to be accompanied by a
declaration ("Shrimp Exporter’s Declaration form") attesting that the shrimp or shrimp product in
question was harvested "either under conditions that do not adversely affect sea turtles ... or in waters

subject to the jurisdiction of a nation currently certified pursuant to Section 609".

2.12. The 1996 Guidelines define "shrimp or shrimp products harvested in conditions that does not
affect sea turtles" to include: "(a) Shrimp harvested in an aquaculture facility ... ; (b) Shrimp harvested
by commercial shrimp trawl vessels using TEDs comparable in effectiveness to those required in the
United States; (c) Shrimp harvested exclusively by means that do not involve the retrieval of fishing
nets by mechanical devices or by vessels using gear that, in accordance with the US programme ...
would not require TEDs; (d) Species of shrimp, such as the pandalid species, harvested in areas in
which sea turtles do not occur".

2.13. The 1996 Guidelines further determine the criteria for certifying a harvesting nation whose
particular fishing environment "does not pose a threat of incidental taking of sea turtles in the course
of commercial shrimp trawl harvesting" (Section 609 (b)(2)(C)) as follows: "(a) Any harvesting nation:
without any of the relevant species of sea turtles occurring in waters subject to its jurisdiction; (b) Any
harvesting nation that harvests shrimp exclusively by means that do not pose a threat to sea turtles,

°58 Federal Register 9015 (18 February 1993).

tn particular, vessels whose nets are retrieved exclusively by manual rather than mechanical means are not required to use TEDs, because
it is considered that the lack of a mechanical retrieval system necessarily restricts tow times to a short duration, thereby limiting the threats
of incidental drowning of sea turtles.

Earth Island Institute v. Warren Christopher, 913 F. supp. 559 (CIT 1995).

“Earth Island Institute v. Warren Christopher, 922 Fed. Supp. 616 (CIT 1996).

"61 Fed. Reg. 17342 (19 April 1996).

WT/DSS58/R

e.g. any nation that harvests shrimp exclusively by artisanal means; (c) Any nation whose commercial
shrimp trawling operations take place exclusively in waters subject to its jurisdiction in which sea turtles
do not occur”.

2.14. The 1996 Guidelines also provide that "other certifications” can be granted by 1 May 1996,
and annually thereafter, to other harvesting nations "only if the government of that nation has provided
documentary evidence of the adoption of a regulatory program governing the incidental taking of sea
turtles in the course of commercial shrimp trawl harvesting that is comparable to that of the United States
and if the average take rate of that incidental taking by vessels of the harvesting nation is comparable
to the average take rate of incidental taking of sea turtles by United States vessels in the course of such
harvesting." For the purpose of these "other certifications", a regulatory programme shall include,
inter alia, “a requirement that all commercial shrimp trawl vessels operating in waters in which there
is a likelihood of intercepting sea turtles use TEDs at all times. TEDs must be comparable in
effectiveness to those used in the United States ...". Moreover, the average incidental take rate "will
be deemed comparable if the harvesting nation requires the use of TEDs in a manner comparable to
that of the US program ...". The 1996 Guidelines contain additional considerations to be taken into
account in determining the comparability of foreign programmes, suchas "other measures the harvesting
nation undertakes to protect sea turtles, including national programs to protect nesting beaches and
other habitats, prohibitions on the directed take of sea turtles, national enforcement and compliance
programs, and participation in any international agreement for the protection and conservation of sea
turtles."

2.15. In October 1996, the CIT ruled that the embargo on shrimp and shrimp products enacted by
Section 609 applied to all "shrimp or shrimp products harvested in the wild by citizens or vessels of
nations which have not been certified". The Court found that the 1996 Guidelines were contrary to
Section 609 when allowing, with a Shrimp Exporter’s Declaration form, imports of shrimp from
non-certified countries, if the shrimp was harvested with commercial fishing technology that did not
adversely affect sea turtles."* The CIT later clarified that shrimp harvested by manual methods, which
did not harm sea turtles, could continue to be imported even from countries which had not been certified
under Section 609. The CIT also refused to postpone the worldwide enforcement of Section 609.4

2.16. As of 1 January 1998, the following 19 countries had been certified as having adopted
programmes to reduce the incidental capture of sea turtles in shrimp fisheries comparable to the US
programme: Belize, Brazil, Colombia, Costa Rica, Ecuador, El Salvador, Fiji, Guatemala, Guyana,
Honduras, Indonesia, Mexico, Nicaragua, Nigeria, Panama, the People’s Republic of China, Thailand,
Trinidad and Tobago, and Venezuela. The following 16 nations have been certified as having shrimp
fisheries in only cold waters where there was essentially no risk of taking sea turtles: Argentina,
Belgium, Canada, Chile, Denmark, Finland, Germany, Iceland, Ireland, the Netherlands, New Zealand,
Norway, Russia, Sweden, the. United Kingdom and Uruguay. The following 8 countries have been
certified on grounds that their fishermen only harvested shrimp using manual rather than mechanical
means to retrieve nets: the Bahamas, Brunei, the Dominican Republic, Haiti, Jamaica, Oman, Peru
and Sri Lanka.

Earth Island Institute v. Warren Christopher, 942 Fed. Supp. 597 (CIT 1996). The US Administration has appealed this mling to
the US Court of Appeals for the Federal Circuit.

“Earth Island Institute v. Warren Christopher, 948 Fed. Supp. 1062 (CIT 1996).