The U.S. lost an appeal today of the challenge by India, Malaysia, Pakistan, and Thailand to the U.S. law enacted to protect sea turtles. Their challenge was based on a claim that the U.S. import restrictions, designed to protect endangered sea turtles, are illegal under international trade rules intended to reduce barriers to trade. This adverse ruling will authorize the imposition of trade sanctions against the United States, forcing the United States to change its law or be penalized.
"Today's decision by the WTO may permanently undermine the ability of Americans to protect endangered species," said Martin Wagner, an attorney for Earthjustice Legal Defense Fund. "It is clear that environmentalists were right about the dangers of the GATT treaty. This decision highlights and strengthens the ability of international trade bureaucrats to overturn measures a country might take to protect endangered species, clean air, or even worker safety standards. Our safety and sovereignty are threatened in the name of free trade."
In many parts of the world, including the United States, sea turtles inhabit the same waters as shrimp. Shrimp fishing is the primary threat to the survival of sea turtles. In their quest for shrimp, trawlers drag their nets along the bottom of the oceans for hours at a time and sweep up virtually all marine life in their path. When the air-breathing sea turtles become entangled in shrimp nets, they cannot reach the surface and often drown. Scientists estimate that as many as 150,000 sea turtles drown in shrimp nets each year.
Shrimping and other human activities have left sea turtles on the very brink of extinction," said John McCosker, chair of Aquatic Biology at the California Academy of Science. "Each species of sea turtle protected under U.S. law faces a very high risk of extinction in the wild in the near future The WTO decision will speed up that decline."
It is possible to trawl for shrimp without endangering sea turtles. For between $50 and $400 each, shrimp nets can be equipped with turtle excluder devices (TEDs) -- trap doors that allow sea turtles to escape the nets while retaining nearly all the shrimp.
Studies have shown that using TEDs reduces sea turtle mortality from shrimp fishing by as much as 97%," explained Todd Steiner, director of the Sea Turtle Restoration Project at Earth Island Institute. "No other means of protecting sea turtles even comes close to being as effective as the turtle excluder device. The misguided WTO decision flies in the face of common-sense environmental protection.
The United States has taken strong measures to protect sea turtles from being killed in shrimp nets, both in the United States and elsewhere. In 1989, the United States began requiring U.S. shrimpers to use TEDs. As noted above, however, regulating U.S. shrimpers alone is not sufficient protection for sea turtles. Furthermore, if U.S. shrimpers have to compete with foreign shrimpers who do not use TEDs, the U.S. shrimpers could be driven out of business. The temptation would be too great for U.S. shrimpers not to use TEDs and sea turtles would remain at risk in the United States and elsewhere.
Recognizing that the survival of sea turtles, both in the United States and throughout the world, depended on the worldwide use of TEDs by shrimpers who fish in waters inhabited by turtles, the United States passed a law banning the import of shrimp from countries that do not require TEDs on shrimp nets used in waters inhabited by turtles. It is this ban that has been challenged at the World Trade Organization.
The rules of the World Trade Organization are intended to remove restrictions on trade. The challenging countries argued that the U.S. sea turtle law discriminates against countries that do not require the use of TEDs and therefore violates the rule that restrictions on trade must not discriminate between products from different countries.
The challenging countries also claimed that GATT does not allow distinctions between products to be drawn on the basis of how they were produced. Under this argument, all shrimp is the same -- whether or not some of the shrimp were caught using methods that kill sea turtles -- and so must be allowed into the United States. This argument ignores the plight of sea turtles and the overwhelming importance of TEDs to their survival.
The WTO rules allow for trade restrictions that are either necessary to protect human, animal or plant life or health or relate to the conservation of exhaustible natural resources," explained Michelle Perrault, International Vice President for the Sierra Club board of directors. "The U.S. TEDs requirement satisfies both tests and should have been upheld. Nevertheless, the WTO has consistently overruled such considerations in favor of free trade.