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  • -1973 Endangered Species Act is approved. It aims to protect all endangered species from further threats of extinction. While working primarily through and conservation and protection, the ESA also affects harvesting techniques.· 1987 Voluntary guidelines are issued for including turtle exclusionary devices.· 1989 and 1991 Legislation is negotiated to protect all sea turtles in American waters, including Central America and the Caribbean.· 1992 Various NGO's pressure the prohibition to cover international shrimp harvests.· 1996 A full prohibition of all shrimp from any country that does not have sufficient precautions and regulatory agencies to ensure that the catch of sea turtles is lesser than or equal to that of United States.· The United States justified this trade ban by the WTO's Preamble, which states itsobjective to, "protect and preserve the environment."· TED's protect turtles, and international regulations are required because turtles are aninternational resource.· Although the ban may breach Articles of the WTO, its environmental importance andpermanence should allow its exemption.
  • In 1989, the United States attempted to impose the TED requirement on shrimpers elsewhere in the world. It allows turtles like the loggerhead to escape from trawl nets through a grid of bars at the top or bottom.
  • In 1991 Some countries like Mexico, Belize, Guatemala, Honduras, Nicaragua, Costa Rica, Panama, Colombia, Venezuela, Trinidad and Tobago, Guyana, Suriname, French Guyana, and Brazil were required to make a commitment to require all shrimp trawl vessels to use TEDs at all times . nations were given three years for the complete phase-in of a comparable programme.In 1996 Department of State prohibited 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.While some foreign nations were given ample amount of time to implement the TED technology while the others were’nt provided much time for switching thus a preferential treatment.
  • Five of the seven species of sea turtles found worldwide are reported to occur in Indian coastal waters and the Bay Islands.The turtle was an incarnation of Lord Vishnu.All the five species of sea turtles that occur in Indian coastal waters are legally protected under Schedule I of the Indian Wildlife Protection Act (1972), as well as listed in Appendix I of Convention of International Trade in Endangered Species of Wild Fauna and Flora (CITES) which ensure that international trade in specimens of wild animals and plants does not threaten the survival of the species in the wild by signatory countries.The nesting population of olive ridley had increased over the past ten years in the Gahirmatha region, off India's Orissa coast, and every year approximately 600,000 olive ridley sea turtles nested in this area. The local government had banned fishing and shrimping within a radius of 20 kilometres around Gahirmatha to protect these turtles. In addition, 65,000 hectares in the Bhitarkanika and Gahirmatha regions had been declared a sea turtle sanctuary.Central Marine Fisheries Research Institute in India monitored olive ridley turtles nesting in some regions during 1978 and 1986, and conducted an exhaustive study on the nesting population. The Institute also operated a hatchery for sea turtles in Madras, from which hatchlings were released at sea.
  • Malaysia submitted that none of the Malaysian fishermen used TEDs. A significant amount of wild harvested shrimps were caught using traditional mechanisms (such as hand retrieval nets) which would not in any way cause incidental catches of turtles.Organizations actively involved in the conservation of turtles included the Fisheries Department, local universities, NGOs (e.g. WWF and the Malaysian Society of Marine Sciences) and corporate bodies (as sponsors of conservation projects).Sabah and Sarawak had turtle protection laws, and fishing trawlers were not allowed to operate within designated areas where turtles mated and nested.  Therefore, in the case of the Sarawak population of green turtles, even in the absence of TEDs, the population had remained constant over a long period and had been sustained.The Turtle Island of Sabah was constituted as a State Park in 1984, after the Sabah State Government had compulsorily acquired the islands from private ownership. In 1988, after 22 years of 100 per cent egg protection, the nesting population of green turtles showed a reversal in its declining trend; nesting density reached a record in 1991.The active enforcement of fishery laws by the Department of Fisheries had successfully kept the trawlers away from the coastal and Turtle Island waters and the existing trawling operations had been successfully kept away from the migration routes of the turtles.Malaysia had a comprehensive legal framework on the conservation and management of marine turtles which were under the jurisdiction of 13 individual states. The states' legislation on turtle protection had been enacted in 1932 and prohibited, inter alia, the capture, killing, injuring, possession or sale of turtles, collection of eggs, disturbing turtles during laying eggs, and provided for the establishment of turtle sanctuaries. Subsidiary legislation had also been enacted, such as the Customs (Prohibition of Export/Import) Orders of 1988, enforced specifically to ban the exports and imports of turtle eggs to and from all countries.Malaysia had cooperated with the Philippines in the launching of the Turtle Island Heritage Protected Area in 1996, to develop uniform conservation measures for the turtles on the islandsThe use of TED alone could not absolutely ensure the survival of turtles.
  • Pakistan stated that its culture embraced a traditional belief that it was sinful to kill sea turtles.  In 1950, Pakistan had passed legislation to protect sea turtles by enacting the Imports and Exports (Control) Act (amended on 13 August 1996), which made it illegal to export protected species, including sea turtles and sea turtle by-products from Pakistan.In addition to laws protecting sea turtles, various public and private organizations in Pakistan were engaged in sea turtle protection programmes. Since 1979, Pakistan's Sindh Wildlife Department was engaged in sea turtle conservation programmes in conjunction with WWF and IUCN (International Union for Conservation of Nature).The Sindh Wildlife Department had also engaged in turtle conservation training programs designed to teach the public about the importance of protecting sea turtles. This programme had proven to be extremely effective in preserving and protecting sea turtles. It was estimated that between October 1979 and December 1995 more than 1.5 million sea turtle eggs had been protected and thousands of hatchlings had been released safely to the sea.Pakistan did not accept the US assertion that the use of TEDs was the only way to prevent the extinction of sea turtles and considered the US action to be an unacceptable interference in policies within Pakistan's sovereign jurisdiction. 
  • Thailand submitted that it had a long history of taking action to protect the four species of sea turtles (leatherback, green, hawksbill and olive ridley) within its jurisdiction. The Thai culture embraced a traditional belief that it was sinful to kill sea turtles.As early as 1947, the Fisheries Act had been passed prohibiting the catching, harvesting or harming of any sea turtle. This Act also specified that any accidentally caught turtles had to be released into the sea immediately. Three branches of the Government of Thailand were responsible for sea turtle restoration programmes: the Department of Fisheries, the Department of Forestry, and the Royal Thai Navy. Sea turtle egg collection programmes were run by 5 Marine Fisheries Development Centers and 13 Coastal Aquaculture Development Centers within the Department of Fisheries. The goal of the restoration programmes administered by these institutions was to cultivate and release 5,000 baby sea turtles a year.From 1967 to 1996, there had been no observed incidental sea turtle kills in connection with shrimping. The reason for this was that sea turtles inhabited coral reefs and sea grass beds within three kilometres of the shoreline where shrimp trawling was prohibited.During the fifth meeting of the ASEAN Sectoral Working Group on Fisheries, held on 13-14 March 1997, Thailand had suggested that an agreement be negotiated within ASEAN with respect to sea turtles. The meeting had agreed to authorize Thailand to draft a Memorandum of Understanding ("MOU") setting forth the steps that could be taken jointly for the protection and conservation of sea turtles. The MOU committed its signatories to the protection, conservation, replenishment and recovery of sea turtles and of their habitats based upon the best available scientific evidence. The MOU also established a Technical Expert Working Group to prepare an ASEAN programme for Sea Turtle Conservation and Protection, coordinated by Malaysia. It also established mutual recognition of each nation's laws and regulations on this subject and called for harmonization of such laws and for the sympathetic consideration of such new laws that might be proposed by the working group.
  • They argued that the use of TED was not the only and most effective device to protect the sea turtles and that TED is not a “multilateral environmental standard” and that “extending the same programme outside the United States was disguised restriction on international trade, because scientific evidence did not demonstrate that shrimp trawling was the principal threat or even an immediate threat to sea turtles elsewhere in the world.In 1996, the Indian government proposed legislation for the requirement of modified "indigenous" TEDs, which they called TSDs (Turtle Saving Devices) to be used by local fishermen. This was a response to the declining olive ridley population that was nesting in beaches such as in Orissa. The modified TSDs were similar to standard TEDs except for having fewer bars. This resulted in the increase of the distance between each pair of bars to ensure that bigger specimens of shrimp and fish were able to pass through the TSD and into the net.It has been acknowledged that the larger sea turtles, primarily large loggerheads and leatherbacks are too large to fit through the escape hatches installed in most TEDs. These turtles remain trapped within the net and perish.TED use becomes impractical due to debris in the water.Result in 10% loss in catch
  • In October 1996, India, Malaysia, Thailand and Pakistan challenged the U.S. law under WTO dispute settlement procedures, claiming that it was inappropriate for the United States to prescribe their national conservation policies. In April 1998, a panel found that the U.S. measure was inconsistent with Article XI of the General Agreement on Tariffs and Trade (GATT), which provides that WTO Members shall not maintain import restrictions. The United States had maintained that Section 609 fell within the exception under Article XX(g) of the GATT that permits import restrictions relating to the conservation of an exhaustible natural resource. Accordingly, the United States appealed the panel findings to the WTO Appellate Body.
  • Dispute settlement is the central pillar of the multilateral trading system, and the WTO’s unique contribution to the stability of the global economy.Settling disputes is the responsibility of the Dispute Settlement Body (the General Council in another guise), which consists of all WTO members. The Dispute Settlement Body has the sole authority to establish “panels” of experts to consider the case, and to accept or reject the panels’ findings or the results of an appeal. It monitors the implementation of the rulings and recommendations, and has the power to authorize retaliation when a country does not comply with a ruling. First stage: consultation (up to 60 days). Before taking any other actions the countries in dispute have to talk to each other to see if they can settle their differences by themselves. If that fails, they can also ask the WTO director-general to mediate or try to help in any other way. Second stage: the panel (up to 45 days for a panel to be appointed, plus 6 months for the panel to conclude). If consultations fail, the complaining country can ask for a panel to be appointed. The country “in the dock” can block the creation of a panel once, but when the Dispute Settlement Body meets for a second time, the appointment can no longer be blocked (unless there is a consensus against appointing the panel).Officially, the panel is helping the Dispute Settlement Body make rulings or recommendations. But because the panel’s report can only be rejected by consensus in the Dispute Settlement Body, its conclusions are difficult to overturn. The panel’s findings have to be based on the agreements cited.The panel’s final report should normally be given to the parties to the dispute within six months. In cases of urgency, including those concerning perishable goods, the deadline is shortened to three months.The agreement describes in some detail how the panels are to work. The main stages are: Before the first hearing: each side in the dispute presents its case in writing to the panel. First hearing: the case for the complaining country and defence: the complaining country (or countries), the responding country, and those that have announced they have an interest in the dispute, make their case at the panel’s first hearing. Rebuttals: the countries involved submit written rebuttals and present oral arguments at the panel’s second meeting. Experts: if one side raises scientific or other technical matters, the panel may consult experts or appoint an expert review group to prepare an advisory report. First draft: the panel submits the descriptive (factual and argument) sections of its report to the two sides, giving them two weeks to comment. This report does not include findings and conclusions. Interim report: The panel then submits an interim report, including its findings and conclusions, to the two sides, giving them one week to ask for a review. Review: The period of review must not exceed two weeks. During that time, the panel may hold additional meetings with the two sides. Final report: A final report is submitted to the two sides and three weeks later, it is circulated to all WTO members. If the panel decides that the disputed trade measure does break a WTO agreement or an obligation, it recommends that the measure be made to conform with WTO rules. The panel may suggest how this could be done. The report becomes a ruling: The report becomes the Dispute Settlement Body’s ruling or recommendation within 60 days unless a consensus rejects it. Both sides can appeal the report (and in some cases both sides do).AppealsEither side can appeal a panel’s ruling. Sometimes both sides do so. Appeals have to be based on points of law such as legal interpretation — they cannot reexamine existing evidence or examine new issues.Each appeal is heard by three members of a permanent seven-member Appellate Body set up by the Dispute Settlement Body and broadly representing the range of WTO membership. Members of the Appellate Body have four-year terms. They have to be individuals with recognized standing in the field of law and international trade, not affiliated with any government.The appeal can uphold, modify or reverse the panel’s legal findings and conclusions. Normally appeals should not last more than 60 days, with an absolute maximum of 90 days.The Dispute Settlement Body has to accept or reject the appeals report within 30 days — and rejection is only possible by consensus.
  • A procedure for settling disputes existed under the old GATT, but it had no fixed timetables, rulings were easier to block, and many cases dragged on for a long time inconclusively. The Uruguay Round agreement introduced a more structured process with more clearly defined stages in the procedure. It introduced greater discipline for the length of time a case should take to be settled, with flexible deadlines set in various stages of the procedure. The agreement emphasizes that prompt settlement is essential if the WTO is to function effectively. It sets out in considerable detail the procedures and the timetable to be followed in resolving disputes. If a case runs its full course to a first ruling, it should not normally take more than about one year — 15 months if the case is appealed. The agreed time limits are flexible, and if the case is considered urgent (e.g. if perishable goods are involved), it is accelerated as much as possible.The Uruguay Round agreement also made it impossible for the country losing a case to block the adoption of the ruling. Under the previous GATT procedure, rulings could only be adopted by consensus, meaning that a single objection could block the ruling. Now, rulings are automatically adopted unless there is a consensus to reject a ruling — any country wanting to block a ruling has to persuade all other WTO members (including its adversary in the case) to share its viewPanellists are usually chosen in consultation with the countries in dispute. Only if the two sides cannot agree does the WTO director-general appoint them.Members of the Appellate Body have four-year terms. They have to be individuals with recognized standing in the field of law and international trade, not affiliated with any government

Transcript

  • 1. Shrimp-Turtle A Case For Developing Countries Presented by Suman kumar-(164) Vijay Soni-(102) Nikunj sharma-(143)
  • 2. Agenda (a) • Why Did US Demand TED? • TED – Alternative (b) • Where US flouted rules • Other such cases (c) • Defense by Developing Countries • WTO Rulings & Implications (d) • Conclusion
  • 3. The Past… 1973 Endangered Species Act is approved 1987 Voluntary guidelines are issued for including turtle exclusionary devices 1989 & 1991 Legislation is negotiated to protect all sea turtles in American waters, including Central America and the Caribbean. 1996 A full prohibition of all shrimp from any country that does not have sufficient precautions and regulatory measures
  • 4. The Problem It prohibited the importation of any shrimp harvested using commercial fishing technologies that might harm sea turtles, unless the exporting country is certified by the U.S. administration as having a regulatory program to prevent incidental turtle deaths comparable to that of the United States or is certified as having a fishing environment that does not pose risks to sea turtles from shrimping. where it adopted a program to require shrimpers to use TEDs on their boats; a country could take up to three years to phase in the comprehensive program; further guidelines, issued in 1993, extended somewhat the final deadline by which a foreign country must implement its program in order to be certified. In 1995, environmental NGOs challenged before the U.S. Court of International Trade (CIT) the decision of the State Department to limit the application of Section 609 to the greater Caribbean area, as well as certain other interpretations that the State Department had made of the law
  • 5. Solution to the problem by US TED(Turtle Excluder Device) systems
  • 6. Setback for developing countries Requirements Expensive and they will have to compromise on the cost / comparative advantage Time difference in implementation (implementation to be done within 4 months) Preferential treatment for some countries (ACP countries the main beneficiary) Apart from TED, the US did not accept alternative methods of ensuring lower mortality for turtles
  • 7. India Five of the seven species found in Indian coastal waters The turtle considered an incarnation of Lord Vishnu Indian Wildlife Protection Act (1972), Signatory of CITES since 1976 Orissa banned fishing, created sanctuaries, CMFRI operated a hatchery for sea turtles in Madras
  • 8. Malaysia Used hand retrieval nets Sabah and Sarawak – Mating and Nesting areas Active enforcing of fishery laws by the Department of Fisheries Laws in place from 1932 (against killing of turtles), 1988 (Import / Export Prohibition) The use of TED alone could not absolutely ensure the survival of turtles
  • 9. Pakistan Culture - sinful to kill sea turtles 1950 - the Imports and Exports (Control) Act to protect endangered species Sindh Wildlife Department engaged in protection programs in conjunction with WWF and IUCN Unacceptable interference in policies within Pakistan's sovereign jurisdiction
  • 10. Thailand 1947 - the Fisheries Act prohibiting the catching, harvesting or harming of any sea turtle Extensive sea turtle restoration programs: the Department of Fisheries, the Department of Forestry, and the Royal Thai Navy 1967 to 1996, no observed sea turtle killing in connection with shrimping Suggested in ASEAN meetings of March 1997 to draft MOU jointly for the protection and conservation of sea turtles
  • 11. TED VS TSD Not for larger sea turtles Not a “multilateral environmental standard” Not the only and most effective device Debris damaged TEDs Is TED the only option? Increased transaction costs
  • 12. Ulterior Motives for US Our tropical shrimps had much more demand than the temperate shrimps in the US market The Asian countries had the comparative advantage of providing shrimps at lower costs than were available domestically Protectionist measures – saving its domestic industry Adhering to richer lobbyists representing environmental and angling interests
  • 13. Shrimp Turtle WTO Case
  • 14. Dispute Settlement Process STAGE 1 –Consultations (up to 60 days) STAGE 2 – Panels Panel Appointment( Up to 45 Days) Final Panel Report to Parties (6 months) Final Panel Report to WTO(3 weeks) STAGE 3 – Provision of Appeal -Appellate Body Setup(60 days – 90 days) DSB adopts Appeal Report (30days)
  • 15. Advantages The system is based on clearly-defined rules, with timetables Adoption not by consensus but adoption by rejection of consensus Panelists chosen in consultation with the countries in dispute Appellate Body Member are individuals unaffiliated to any Government
  • 16. Case Timeline Oct 8th, 1996 4 nations (India, Malaysia, Pakistan & Thailand) jointly have consultations with the U.S. Nov 19th, 1996 Consultations held without resolution Jan 9th – Feb 25th , 1997 India, Malaysia, Pakistan & Thailand request DSB to establish a panel to look into the US embargo on import of shrimp & shrimp products April 15th, 1997 DSB establishes 3 member panel April 6th, 1998 Panel issues final report and ruling July 13th, 1998 US appeals against the panel’s ruling Oct 1998 Appellate Body gives its final report
  • 17. Argument by Plaintiff Nations Ban imposed by the US was Embargo of inconsistent with shrimp and shrimp products Art XI of GATT was against the (Art XI limits the MFN principle of use of import Art I.I of GATT prohibitions or restrictions) Ban imposed by the US was in contravention of Art XIII.I as the ban restricted importation of like products
  • 18. Argument by United States US measures complied with the relevant requirement of Art XX Measures to protect sea turtles - an endangered natural resource Complainants did not introduce effective shrimp / turtle policies US is in compliance with the “WTO Agreement”
  • 19. Panel Ruling: April 6th, 1998 Ban Imposed by the US inconsistent with GATT Article XI The import ban applied by the US on the basis of Section 609 of Public Law 101-162 is not consistent with Article XI - Section I of GATT 1994 US could not justify its measure under GATT Art XX (dealing with general exceptions to Art XX) The U.S. measure constituted unjustifiable and arbitrary discrimination between countries where the same conditions prevail The Panel made the following Recommendation United States bring this measure into conformity with its obligations under the WTO Agreement
  • 20. Appellate Body recommendation and thereafter… 1 2 3 • US and parties to the dispute reached agreement on a 13 month compliance period which ended in December 1999 • The US Department of State guidelines for implementing Section 609 was revised and issued after providing notice and an opportunity for public comment • US to provide financial and technical assistance (training in the design, construction, installation and operation of TEDs to any government requesting it) 4 • In October 2000, Malaysia requested the re-establishment of the original panel to examine whether the United States had in fact complied with the Appellate Body findings 5 • The implementation panel ruled in favor of the United States: •Appellate Body ruling was an obligation to negotiate •United States had indeed made serious “good faith” efforts to negotiate
  • 21. A few disputes at the WTO…
  • 22. What is patented ? : Basmati Rice lines & Grains Patent holder : Texas based “Rice Tech Inc.” Patented in the name : “Texmati & Kasmati” Patented number : 5,663,484 Date of patenting : Sept. 1997 Patenting authority : US patent Legal Jurisdiction : International Opposed by : GOI, Res. Foundation for Science,TechnologyandEcology Patent cancelled : June 2000?
  • 23.  With the Basmati patent rights, Rice Tec will now be able to not only call its aromatic rice Basmati within the US, but also label it Basmati for its exports  India and Pakistan will not only lose out on the 45,000 tons US import market, which forms 10 percent of the total Basmati exports  In addition, the patent on Basmati is believed to be a violation of the fundamental fact that the long grain aromatic rice grown only in Punjab, Haryana, and Uttar Pradesh is called Basmati.."
  • 24. In June 2000 Agriculture and Processed Food Products Development Authority (APEDA) Under the Ministry Of Commerce filed a re-examination application contesting 3 claims of the patent. So Company withdrew its claims on 4 points that relate to trade of Basmati INDIA WON THE CASE BASED ON EOGRAPHICAL INDICATIONS DURING JUNE 2000
  • 25. What is patented? : Turmeric Patent holder : Researchers from the Mississippi University (US) - 2NRI’s Patent no : 5,401,540 Date : March 1995 Patenting authority : US patent Legal jurisdiction : International Patenting authority: US patent Legal jurisdiction : International
  • 26. This case focuses on two interrelated issues highlighted by the turmeric dispute. First, there is the specific issue of whether the use of turmeric in wound healing should have qualified as a patentable U.S. product – Secondary it meets the legal criteria of "Novelty, Non-Obviousness, and Utility" - and what India's rights should be with regard to trading the herb bilaterally. There are alleged weaknesses in U.S. patent law that discriminate against developing countries by failing to recognize products like turmeric as "non-novel," despite the fact that this medicinal plant and other traditional agro chemicals have been used in healing for thousands of years.
  • 27. Inventions can only be patented if they satisfy three criteria: novelty — only inventions that are genuinely new, and not part of existing knowledge, can be patented. non-obviousness — if the new invention is obvious, i.e. anyone familiar with the subject could easily anticipate the invention, then it cannot be patented. utility — the invention has to work in practice The turmeric case failed to meet the novelty criteria
  • 28. NEEM PATENT HOLDER W.R.GRACE OF NEWYORK AND DEPARTMENT OF AGRICULTURE. PATENT NO : 04,36,257. DATE : 14-9-1994. PATENTING : EUROPEAN LEGAL JURISDICTION: INTERNATIONAL. USE : TO CONTROL FUNGI ON PLANTS BY HYDROPHOBIC EXTRACTED FROM NEEM OIL. LEGAL OPPOSITION : JUNE 95
  • 29. The United States and India are currently involved in a bio piracy dispute over the rights to a tree indigenous to the Indian subcontinent, the neem tree. While the neem tree has been used in India for over 2000 years for various purposes such as pesticides, spermicides and toothbrushes, US company has been suing Indian companies for producing the emulsion because they have a patent on the process. The dispute is over the rights of companies to conduct research and development by using patents against the interest of the people who live at the source of the resource
  • 30. India has won a 10-year-long battle at the European Patent Office (EPO) against a patent granted on an anti-fungal product, derived from neem. In 2000 the case is revoke due to lack of prior existing knowledge This case give the birth to the new term BioPiracy on march 09 Dr. Vandana Shiva said. "We gave them evidence of farmers using this knowledge for a long time and also gave them information about the two scientists who had conducted research on neem before the patent had been granted
  • 31. Devil in disguise - Developed Countries  “Poor countries hold 40 per cent of the world's population, but receive only 3 per cent of the world's income from trade. Rich countries make up 14 per cent of world population and yet get 75 per cent of the income from trade”  Rich countries force poorer countries to sell the same products at lower prices than rich countries, by charging exporters many times more import tax simply because they live in a poor country
  • 32. Thank You!!!