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!!!