WORLD TRADE WT/DS58/AB/R 12 October 1998 ORGANIZATION (98-0000) Original: English UNITED STATES - IMPORT PROHIBITION OF CERTAIN SHRIMP AND SHRIMP PRODUCTS AB-1998-4 Report of the Appellate Body WT/DS58/AB/R Page i I. Introduction : Statement of the Appeal. Arguments of the Participants and Third Participants. Claims of Error by the United States – Appellant.
Non-requested Information from Non-governmental Organizations. Article XX of the GATT 1994. India, Pakistan and Thailand – Joint Appellees. Non-requested Information from Non-governmental Organizations.
Article XX of the GATT 1994. Non-requested Information from Non-governmental Organizations. Article XX of the GATT 1994. Arguments of Third Participants.
Hong Kong, China. Procedural Matters and Rulings. Admissibility of the Briefs by Non-governmental Organizations Appended to the United States Appellant's Submission. Sufficiency of the Notice of Appeal.
Issues Raised in This Appeal. Panel Proceedings and Non-requested Information. Appraising Section 609 Under Article XX of the GATT 1994. The Panel's Findings and Interpretative Analysis.
Article XX(g): Provisional Justification of Section 609. "Exhaustible Natural Resources". "Relating to the Conservation of [Exhaustible Natural Resources]". "If Such Measures are Made Effective in conjunction with Restrictions on Domestic Production or Consumption".
54 WT/DS58/AB/R Page ii C. The Introductory Clauses of Article XX: Characterizing Section 609 under the Chapeau's Standards. Findings and Conclusions. 76 WT/DS58/AB/R Page 1 WORLD TRADE ORGANIZATION APPELLATE BODY United States – Import Prohibition of Certain AB-1998-4 Shrimp and Shrimp Products Present: United States, Appellant Feliciano, Presiding Member India, Malaysia, Pakistan, Thailand, Appellees Bacchus, Member Lacarte-Muró, Member Australia, Ecuador, the European Communities, Hong Kong, China, Mexico and Nigeria, Third Participants I.
Introduction : Statement of the Appeal 1. This is an appeal by the United States from certain issues of law and legal interpretations in the Panel Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products.1 Following a joint request for consultations by India, Malaysia, Pakistan and Thailand on 8 October 19962, Malaysia and Thailand requested in a communication dated 9 January 19973, and Pakistan asked in a communication dated 30 January 19974, that the Dispute Settlement Body (the "DSB") establish a panel to examine their complaint regarding a prohibition imposed by the United States on the importation of certain shrimp and shrimp products by Section 609 of Public Law 101- 1625 ("Section 609") and associated regulations and judicial rulings. On 25 February 1997, the DSB established two panels in accordance with these requests and agreed that these panels would be consolidated into a single Panel, pursuant to Article 9 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (the "DSU"), with standard terms of reference.6 On 1 WT/DS58/R, 15 May 1998. 2 WT/DS58/1, 14 October 1996.
3 WT/DS58/6, 10 January 1997. 4 WT/DS58/7, 7 February 1997. 5 16 United States Code (U. 6 WT/DSB/M/29, 26 March 1997.
WT/DS58/AB/R Page 2 10 April 1997, the DSB established another panel with standard terms of reference in accordance with a request made by India in a communication dated 25 February 19977, and agreed that this third panel, too, would be merged into the earlier Panel established on 25 February 1997.8 The Report rendered by the consolidated Panel was circulated to the Members of the World Trade Organization (the "WTO") on 15 May 1998. The relevant factual and regulatory aspects of this dispute are set out in the Panel Report, in particular at paragraphs 2. Here, we outline the United States measure at stake before the Panel and in these appellate proceedings. The United States issued regulations in 1987 pursuant to the Endangered Species Act of 19739 requiring all United States shrimp trawl vessels to use approved Turtle Excluder Devices ("TEDs") or tow-time restrictions in specified areas where there was a significant mortality of sea turtles in shrimp harvesting.10 These regulations, which became fully effective in 1990, were modified so as to require the use of approved TEDs at all times and in all areas where there is a likelihood that shrimp trawling will interact with sea turtles, with certain limited exceptions.
Section 609 was enacted on 21 November 1989. Section 609(a) calls upon the United States Secretary of State, in consultation with the Secretary of Commerce, inter alia, to "initiate negotiations as soon as possible for the development of bilateral or multilateral agreements with other nations for the protection and conservation of … sea turtles" and to "initiate negotiations as soon as possible with all foreign governments which are engaged in, or which have persons or companies engaged in, commercial fishing operations which, as determined by the Secretary of Commerce, may affect adversely such species of sea turtles, for the purpose of entering into bilateral and multilateral treaties with such countries to protect such species of sea turtles; … ." Section 609(b)(1) imposed, not later than 1 May 1991, an import ban on shrimp harvested with commercial fishing technology which may adversely affect sea turtles. Section 609(b)(2) provides that the import ban on shrimp will not apply to harvesting nations that are certified. Two kinds of annual certifications are required for harvesting nations, details of which were further elaborated in regulatory guidelines in 1991, 1993 7 WT/DS58/8, 4 March 1997.
8 WT/DSB/M/31, 12 May 1997. Five species of sea turtles fell under the regulations: loggerhead (Caretta caretta), Kemp's ridley (Lepidochelys kempi), green (Chelonia mydas), leatherback (Dermochelys coriacea) and hawksbill (Eretmochelys imbricata). WT/DS58/AB/R Page 3 and 199611: First, certification shall be granted to countries with a fishing environment which does not pose a threat of the incidental taking of sea turtles in the course of shrimp harvesting.12 According to the 1996 Guidelines, the Department of State "shall certify any harvesting nation meeting the following criteria without the need for action on the part of the government of the harvesting nation: (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, e., any nation that harvests shrimp exclusively by artisanal means; or (c) Any nation whose commercial shrimp trawling operations take place exclusively in waters subject to its jurisdiction in which sea turtles do not occur. Second, certification shall be granted to harvesting nations that provide documentary evidence of the adoption of a regulatory program governing the incidental taking of sea turtles in the course of shrimp trawling that is comparable to the United States program and where the average rate of incidental taking of sea turtles by their vessels is comparable to that of United States vessels.14 According to the 1996 Guidelines, the Department of State assesses the regulatory program of the harvesting nation and certification shall be made if the program includes: (i) the required use of TEDs that are "comparable in effectiveness to those used in the United States.
Any exceptions to this requirement must be comparable to those of the United States program … "; and (ii) "a credible enforcement effort that includes monitoring for compliance and appropriate sanctions."15 The regulatory program may be in the form of regulations, or may, in certain circumstances, take the form of a voluntary arrangement between industry and government.16 Other measures that the harvesting nation undertakes for the protection of sea turtles will also be taken into account in making the comparability determination.17 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 U. The 1996 Guidelines provide that all shrimp imported into the United States must be accompanied by a Shrimp Exporter's Declaration form attesting that the shrimp was harvested either 11 Hereinafter referred to as the "1991 Guidelines" (56 Federal Register 1051, 10 January 1991), the "1993 Guidelines" (58 Federal Register 9015, 18 February 1993) and the "1996 Guidelines" (61 Federal Register 17342, 19 April 1996), respectively. WT/DS58/AB/R Page 4 in the waters of a nation currently certified under Section 609 or "under conditions that do not adversely affect sea turtles", that is: (a) "Shrimp harvested in an aquaculture facility in which the shrimp spend at least 30 days in ponds prior to being harvested"; (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 U. program … , would not require TEDs"; and (d) "Species of shrimp, such as the pandalid species, harvested in areas where sea turtles do not occur."19 On 8 October 1996, the United States Court of International Trade ruled that the 1996 Guidelines were in violation of Section 609 in allowing the import of shrimp from non-certified countries if accompanied by a Shrimp Exporter's Declaration form attesting that they were caught with commercial fishing technology that did not adversely affect sea turtles.20 A 25 November 1996 ruling of the United States Court of International Trade clarified that shrimp harvested by manual methods which did not harm sea turtles could still be imported from non- certified countries.21 On 4 June 1998, the United States Court of Appeals for the Federal Circuit vacated the decisions of the United States Court of International Trade of 8 October and 25 November 1996.22 In practice, however, exemption from the import ban for TED-caught shrimp from non-certified countries remained unavailable while this dispute was before the Panel and before us.
The 1991 Guidelines limited the geographical scope of the import ban imposed by Section 609 to countries in the wider Caribbean/western Atlantic region24, and granted these countries a three-year phase-in period. The 1993 Guidelines maintained this geographical limitation. On 29 December 1995, the United States Court of International Trade held that the 1991 and 1993 Guidelines violated Section 609 by limiting its geographical scope to shrimp harvested in the wider Caribbean/western Atlantic region, and directed the Department of State to extend the ban worldwide not later than 1 May 1996.25 On 10 April 1996, the United States Court of International Trade refused a subsequent request by the Department of State to postpone the 1 May 1996 deadline. 20 Earth Island Institute v.
Warren Christopher, 942 Fed. 21 Earth Island Institute v. Warren Christopher, 948 Fed. 23 Response by the United States to questioning at the oral hearing.
24 Specifically, Mexico, Belize, Guatemala, Honduras, Nicaragua, Costa Rica, Panama, Colombia, Venezuela, Trinidad and Tobago, Guyana, Suriname, French Guyana and Brazil. 25 Earth Island Institute v. Warren Christopher, 913 Fed. 26 Earth Island Institute v.
Warren Christopher, 922 Fed. WT/DS58/AB/R Page 5 19 April 1996, the United States issued the 1996 Guidelines, extending Section 609 to shrimp harvested in all foreign countries effective 1 May 1996. In the Panel Report, the Panel reached the following conclusions: In the light of the findings above, we conclude that the import ban on shrimp and shrimp products as applied by the United States on the basis of Section 609 of Public Law 101-162 is not consistent with Article XI:1 of GATT 1994, and cannot be justified under Article XX of GATT 1994.27 and made this recommendation: The Panel recommends that the Dispute Settlement Body request the United States to bring this measure into conformity with its obligations under the WTO Agreement. On 13 July 1998, the United States notified the DSB of its decision to appeal certain issues of law covered in the Panel Report and certain legal interpretations developed by the Panel, pursuant to paragraph 4 of Article 16 of the DSU, and filed a notice of appeal29 with the Appellate Body pursuant to Rule 20 of the Working Procedures for Appellate Review.
On 23 July 1998, the United States filed an appellant's submission.30 On 7 August 1998, India, Pakistan and Thailand ("Joint Appellees") filed a joint appellees' submission and Malaysia filed a separate appellee's submission.