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Shrimp-Turtle
A Case For Developing Countries
Presented by
Suman kumar-(164)
Vijay Soni-(102)
Nikunj sharma-(143)
Agenda
(a)

• Why Did US Demand TED?
• TED – Alternative

(b)

• Where US flouted rules
• Other such cases

(c)

• Defense...
The Past…
1973

Endangered Species Act is approved

1987

Voluntary guidelines are issued for including turtle
exclusionar...
The Problem
It prohibited the importation of any shrimp harvested using
commercial fishing technologies that might harm se...
Solution to the problem by US
TED(Turtle Excluder Device) systems
Setback for developing countries
Requirements Expensive and they will have to
compromise on the cost / comparative advanta...
India

Five of the
seven species
found in Indian
coastal waters

The turtle
considered an
incarnation of
Lord Vishnu

Indi...
Malaysia

Used hand
retrieval
nets

Sabah and
Sarawak –
Mating and
Nesting
areas

Active
enforcing of
fishery laws
by the
...
Pakistan

Culture - sinful
to kill sea
turtles

1950 - the
Imports and
Exports
(Control) Act to
protect
endangered
species...
Thailand

1947 - the
Fisheries Act
prohibiting the
catching,
harvesting or
harming of any
sea turtle

Extensive sea
turtle...
TED VS TSD

Not for
larger sea
turtles

Not a “multilateral
environmental
standard”

Not the only and
most effective
devic...
Ulterior Motives for US

Our tropical
shrimps had
much more
demand than
the temperate
shrimps in the
US market

The Asian
...
Shrimp Turtle WTO Case
Dispute Settlement Process
STAGE 1 –Consultations (up to 60 days)

STAGE 2 – Panels
Panel Appointment( Up to
45 Days)

Fin...
Advantages
The system is based on clearly-defined rules, with timetables

Adoption not by consensus but adoption by reject...
Case Timeline
Oct 8th, 1996

4 nations (India, Malaysia, Pakistan & Thailand) jointly have
consultations with the U.S.

No...
Argument by Plaintiff Nations
Ban imposed by
the US was
Embargo of
inconsistent with
shrimp and
shrimp products Art XI of ...
Argument by United States

US measures
complied
with the
relevant
requirement
of Art XX

Measures to
protect sea
turtles -...
Panel Ruling: April 6th, 1998
Ban Imposed by the US inconsistent with GATT Article XI
The import ban applied by the US on ...
Appellate Body recommendation
and thereafter…
1
2

3

• US and parties to the dispute reached agreement on a 13 month comp...
A few disputes at the WTO…
What is patented ? : Basmati Rice lines & Grains
Patent holder
: Texas based “Rice Tech Inc.”
Patented in the name : “T...
 With the Basmati patent rights, Rice Tec will now be able to not
only call its aromatic rice Basmati within the US, but ...
In June 2000 Agriculture and Processed Food Products
Development Authority (APEDA) Under the Ministry Of
Commerce filed a ...
What is patented? : Turmeric
Patent holder : Researchers from the Mississippi University
(US) - 2NRI’s
Patent no : 5,401,5...
This case focuses on two interrelated issues highlighted by the
turmeric dispute.
First, there is the specific issue of wh...
Inventions can only be patented if they satisfy three
criteria:
novelty — only inventions that are genuinely new, and not
...
NEEM PATENT HOLDER W.R.GRACE OF NEWYORK
AND DEPARTMENT OF AGRICULTURE.
PATENT NO : 04,36,257.
DATE : 14-9-1994.
PATENTING ...
The United States and India are currently involved in a bio piracy
dispute over the rights to a tree indigenous to the Ind...
India has won a 10-year-long battle at the European Patent
Office (EPO) against a patent granted on an anti-fungal
product...
Devil in disguise - Developed
Countries
 “Poor countries hold 40 per cent of the world's population,
but receive only 3 p...
Thank You!!!
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shrimp turtle

  1. 1. Shrimp-Turtle A Case For Developing Countries Presented by Suman kumar-(164) Vijay Soni-(102) Nikunj sharma-(143)
  2. 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. 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. 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. 5. Solution to the problem by US TED(Turtle Excluder Device) systems
  6. 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. 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. 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. 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. 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. 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. 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. 13. Shrimp Turtle WTO Case
  14. 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. 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. 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. 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. 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. 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. 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. 21. A few disputes at the WTO…
  22. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 32. Thank You!!!

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