In October 1998, the World Trade Organization ruled against a US law designed to prevent endangered sea turtles from needlessly drowning in shrimp nets around the world. This ruling is a major blow to the protection of sea turtles and the international protection of endangered species and highlights the WTO's continuing brash attack on environmental laws.

While some (most prominently the US Trade Representative) misleadingly have called the WTO's appeal ruling a victory, it is not. The so-called victory is only in the narrow terms of the Appeals Body reversing earlier Panel mis-rulings on transparency and the proper reading of whether the law was an exception to Article XX, which in theory exists to protect endangered natural resources. The bottom line is that the ruling eliminates the only proven incentive for nations to improve the practices of their shrimp fishing fleets. Sea turtles will pay the ultimate price for this ruling.

In its ruling, the WTO Appeals Body found that the US Turtle Law fell within the scope of Article XX, but failed the chapeau because the law and its application were deemed to be arbitrary and unjustifiable. The Sea Turtle Restoration Project challenges the WTO's arguments and conclusions regarding whether the law and its application were arbitrary and unjustifiable.

1) The WTO claims the US failed to take into account differing conditions in certifying countries.

The WTO claims that the US law requires "adoption of regulatory programs that is not merely comparable, but rather essentially the same" - The US law does require regulatory programs but there is flexibility in how the comparability can be achieved. Nations can implement a regulatory program that requires the use of TEDs or they can implement a different type of program (such as regulating tow times and closing areas to fishing) that will achieve a comparable level of protection from drowning in shrimp nets (in other words, preventing the drowning of sea turtles by more than 97%). Should the sea turtles be penalized because no other nations have been able to establish other programs that achieve this level of protection?

Further the WTO claims that "other specific policies and measures that an exporting country may have adopted for the protection and conservation of sea turtles are not taken into account, in practice, by the administrators making the comparability determination." Again, the WTO fails to properly read the US rules, which narrowly focus on the drowning of sea turtles in shrimp trawl nets. The rules basically state that the easiest way to ensure certification is the use of TEDs, but does not exclude nations from developing other techniques, which provide scientifically rigorous data to show comparable reduction of mortality.

The WTO then claims that "shrimp caught using methods identical to those employed in the United States have been excluded." While the method employed (i.e., the use of Turtle Excluder Devices on shrimp vessels) may be identical (when viewed on an individual boat level), it fails to achieve comparable protection for sea turtles. For example, given that TEDs are minimally 97% effective at releasing turtles, if a fleet of 100 (that hypothetically trawls once and encounters a turtle on this voyage) implemented a TED program, there would be 3 dead turtles. If only 50 ships out of the fleet used TEDs (under the WTO argument of identical methods), then there would be 52 dead turtles (50 from vessels that do not use TEDs and 1.5 from vessels that do). While the method may be identical, the comparability is as different as night and day.

2) The WTO claims the State Department failed to seriously negotiate with the complainants before implementing the embargo.

The WTO claims that the US treated these other nations unfairly by not successfully negotiating with these other nations. The US law, while directing the Secretary of State to initiate negotiations, does not require the negotiations to be completed or even undertaken before the embargo starts. The WTO's suggestion that serious negotiation must occur before a US law can be put into place extends beyond the rightful reach of the WTO and infringes on US sovereignty in how it chooses to implement its laws.

While the US did negotiate a treaty with a specific region, it also did attempt to negotiate treaties with the complaining countries. These countries were not willing to enter into discussions with the US over the possibility of a treaty. The WTO fails to recognize that the achievement of negotiations is a lengthy and involved process, and that the successful negotiation in part was achieved because of the willingness of some countries to enter into negotiations. Treaties cannot be reached when countries fail to enter negotiations that could have achieved a multilateral solution.

Several treaties already exist that could be applied to the protection of sea turtles from drowning in shrimp nets (e.g.., the Convention on Biological Diversity and the Convention on the Conservation of Migratory Species of Wild Animals), but have not been successful at solving the problem. Multilateral cooperation and treaties may be the ideal goal, but if environmental treaties do not have enforcement mechanisms (that create incentives for compliance), would any real conservation benefit be achieved or would they just be more paper treaties?

3) The WTO claims that State Department gave the complainants less time than other regions to establish national sea turtle policies and thus come into compliance before the embargo was put into place.

The US law was passed in 1989. All the nations were served notice in 1992 that a lawsuit against the US would likely result in the requirement of nations to establish national policies. By 1996, as a result of the lawsuit, all nations were required to have national policies. The complaining nations simply failed to implement the requirements in a four-year period, even though they were given fair warning.

The ultimate irony is that one of the complainants, Thailand, did in fact come into compliance and avoided a US embargo. On the other hand, two years later, the other three nations still have showed no progress toward implementing any types of programs to prevent sea turtles from drowning in shrimp nets. Without political will and a moral compass, no amount of time would result in either treaties or individual regulations.

4) The WTO claims that the US engaged in less TED technology transfer with the complaining countries.

The US expended resources to transfer technology to a variety of nations that were interested in using TED technology. The complaint that there was less effort to transfer TED technology is ridiculous, since no matter what there are always going to be different levels of effort, depending on the tallying of dollars and hours spent.

The real question should be whether there was sufficient levels of technology transfer for nations to implement this technology. The answer in this case has to be yes since Thailand, one of the complaining countries, successfully implemented a TED program. The other half of this equation is that the complaining countries lacked the political will and environmental compassion to implement programs using this best-available and humane technology.